Chan Siu Yim v. Dr Cheung Sheung Kin also known as Dr Samuel Kinneth Cheung
Read the full judgment text of DCPI 2358/2013 on BabelCite. This District Court judgment was delivered on 21 February 2017.
1. The plaintiff sues the defendant for medical negligence. At all material times, the defendant was a dentist registered under the Dentists Registration Ordinance (Cap 156). The plaintiff was his patient.
Cited by 1 case · Cites 2 cases
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DCPI 2358/2013 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PERSONAL INJURIES ACTION NO 2358 OF 2013 -------------------------
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------------------------ JUDGMENT ------------------------ 1.The plaintiff sues the defendant for medical negligence. At all material times, the defendant was a dentist registered under the Dentists Registration Ordinance (Cap 156). The plaintiff was his patient. SERVICE OF THE NOTICE OF TRIAL 2.The defendant was legally represented in these proceedings until 16 January 2016. Thereafter, the defendant has been acting in person. The defendant is absent in the trial. 3.I note that the notice of trial sent by the court to the defendant at the address last known to the plaintiff (“the Last Known Address”) was returned for the reason “Addressee unknown”. However, Master Rita So made an order on 12 December 2016 (“the Service Order”), in which the learned master ordered that the service of the notice of trial was to be effected by prepaid ordinary post addressed to the defendant at the Last Known Address and by advertising a notice of the trial in English once in the South China Morning Post, and the service of the notice of trial should be deemed to be good and sufficient service on the defendant on the date of such publication as aforesaid. 4.The plaintiff has adduced evidence to show that the notice of trial was advertised in the South China Morning Post on 18 January 2017. In the advertisement, the plaintiff’s solicitors also said that a set of trial bundle could be obtained from them. The plaintiff’s solicitors also warned the defendant that if he did not attend the trial, the court might proceed in his absence. 5.I am satisfied that by the operation of the Service Order, the notice of trial has been duly served on the defendant. The trial therefore proceeds notwithstanding the absence of the defendant. THE PLAINTIFF’s CASE 6.The plaintiff’s case is that on or about 20 April 2007, she consulted the defendant for she wanted a dental implant to the area of left lower first pre-molar. After examining the plaintiff, the defendant proposed to the plaintiff a procedure using braces and wires (and without suggesting the possibility of teeth extraction) as it was simpler than dental implant. The whole procedure would take 18 months to complete. The plaintiff accepted the defendant’s advice. The plaintiff agreed to the performance of the said procedure on her by the defendant. 7.A number of problems emerged after the commencement of the treatment, including occlusion problem which affected her chewing; upper teeth displaced and shifted to the left and overjet of the upper teeth increased. 8.At the appointment that took place on 13 December 2007, without any prior notice to the plaintiff and without the plaintiff’s consent, the defendant extracted the lower left first pre-molar (“tooth 34”) from the plaintiff. 9.The problems with the plaintiff’s teeth deteriorated after the tooth extraction. The plaintiff was unable to chew properly and also had slurring of speech and drooling. The defendant applied brackets and wire to the plaintiff’s upper teeth as well to try to remedy the situation. 10.Since about 12 August 2008, the defendant entrusted the performance of examination of the plaintiff and the continuation of the treatment to two non-Chinese assistants on 6 to 7 occasions, without explaining to the plaintiff whether these assistants were qualified to do what they did to the plaintiff. 11.On or about 17 November 2010, the plaintiff was not able to bear with the problem anymore and consulted Dr Winston Tong (“Dr Tong”), an orthodontics specialist, for a second opinion. Dr Tong took the plaintiff as his patient in January 2011. After 30 sessions of treatment by Dr Tong, the whole remedial process was completed in August 2012. 12.The plaintiff claims that the defendant was negligent, particulars of which are as follows:-
13.The plaintiff claims that the dental problems caused by the defendant’s treatment also caused her to have serious headache, insomnia and depressive mood. As a result of these, she consulted a psychiatrist in the Prince of Wales Hospital, and was diagnosed with adjustment disorder with insomnia. One of the major stressors identified was the treatment done by the defendant. She was prescribed with anti-depressant and benzodiazepine. 14.As to the quantum of damages, in the revised statement of damages, the plaintiff claims the following:-
THE DEFENDANT’s CASE 15.The defendant claims that when the plaintiff came to see him for the first time, the plaintiff told him that she wanted to straighten her upper and lower teeth.The defendant claims that he had properly discussed his treatment plan with the plaintiff on her first and second consultations. 16.The defendant says that his treatment plan was to move the teeth at the lower left altogether so that there would not be any space between the teeth. In the second consultation, the defendant was satisfied that the plaintiff understood and consented to his treatment plan. 17.The defendant admits extracting tooth 34 from the plaintiff, but claims that the plaintiff consented to the extraction and had been advised of the proposed extraction before the extraction was performed. 18.The defendant claims that he last saw the plaintiff on 28 December 2010. 19.The defendant denies the allegation of negligence. He claims that at the time of the final consultation in December 2010, the progress of the treatment was satisfactory. 20.The defendant has not filed any answer to the revised statement of damages. EVIDENCE The factual evidence 21.The plaintiff has given evidence in support of her case. Her evidence is clear and in line with her pleaded case. The plaintiff’s evidence is also supported by the judgment (“the DCHK Judgment”) of the Dental Council of Hong Kong (“DCHK”) in the disciplinary inquiry concerning the defendant mentioned below. I accept the plaintiff’s evidence. Her evidence is true and reliable. 22.The defendant has filed a witness statement. However, he has not confirmed that witness statement in court and has not tendered himself for cross-examination. I would not give any weight to that witness statement. In any event, what has been said by the defendant in that witness statement is contradicted by the DCHK Judgment. The defendant’s evidence as per his witness statement is untrue. DCHK’s Judgment 23.The plaintiff has made a complaint against the defendant to the DCHK. As a result of the complaint, a disciplinary inquiry was held on 3 December 2015. Five charges were laid against the defendant in that disciplinary inquiry, namely:-
24.The plaintiff has produced the DCHK Judgment in that disciplinary inquiry as evidence in this case. The defendant pleaded guilty to all the 5 charges in that disciplinary inquiry. The DCHK, with their duty of protecting the public in mind, imposed the following penalties on the defendant:-
25.The DCHK Judgment is cogent evidence in support of the plaintiff’s case and against the defendant’s case. Evidence from dental experts 26.By the order of Master Rita So made on 12 October 2016, the 2 expert reports of Dr Balvinder Singh Khambay (“Dr Khambay”, the dental expert appointed by the plaintiff) dated 23 May 2014 and 3 October 2016 respectively and the expert report of Dr Peter Chung Chee Keung (“Dr Chung”, the dental expert appointed by the defendant) dated 13 July 2015 are adduced as evidence at the trial without calling the said experts. 27.I have read these reports. I am satisfied that both Dr Khambay and Dr Chung are qualified to give expert evidence in relation to dental treatments. 28.Dr Khambay’s opinion is as follows:-
29.Dr Chung in his report did not response to all the concerns raised by Dr Khambay in Dr Khambay’s first report. Dr Chung was merely focusing on whether or not extraction of tooth 34 was necessary, and Dr Chung opined that the extraction was necessary. Dr Chung gave the opinion that there were two options to align the lower arch, ie, by creating space in the lower right quadrant of at least 3.5mm-4mm by either extraction of teeth or by enamel reduction (this was not done by the defendant), or to extract one tooth on the lower left segment and use the space to align tooth 33 and to make tooth 38 more upright so that the centre line could be shifted (this is what the defendant did to the plaintiff). Dr Chung said that before the case takeover by Dr Tong, “the lower arch was quite well aligned and the lower left wisdom 38 was also more upright”. Dr Chung also took the view that the further shift of the lower centre line to the left was acceptable. 30.Dr Khambay disagreed with Dr Chung’s use of the word “aligned” in commenting on the defendant’s work. Dr Khamaby quoted literature of “Andrews six keys to a normal occlusion”, and said that “as orthodontists the aim is to complete treatment with the teeth well aligned within each individual dental arch whilst at the same time achieve the correct inter-arch relationship ie, the way of upper and lower teeth meet when they are together (in occlusion). The end point of “ideal” treatment is based on “Andrews six keys to a normal occlusion”’. 31.In Dr Khambay’s opinion, attending to all six keys would be treated as normal occlusion and lack of even one of the six was a defect predictive of an incomplete end result in treated models. The six ideal keys indirectly related to overjet and centerlines. Dr Khambay said that the “Peer Assessment Rating” was used in the UK to provide uniformity and standardization of orthodontic treatment outcome, and the overjet and centerlines were independent components to the score with greater weight-in. 32.Dr Khambay stressed that Dr Chung’s comment that teeth looked straight should be understood as appearing well aligned within each arch, and Dr Khambay commented that the plaintiff’s occlusion (ie, the inter-arch relationship between the upper and lower teeth) was worsened. 33.Dr Khambay suggested in his first report that it would be necessary to extract another tooth on the right lower jaw or to use “miniscrews” to hold certain teeth still after extraction of tooth 34. Dr Chung did not respond to this specific point and simply said that these two methods suggested by Dr Khambay should not be adopted after extracting teeth 34. 34.Dr Chung merely focused on the alignment within the lower arch. He was unable to cite medical literature in support of alignment within arch itself was an acceptable practice. On the other hand, Dr Khambay has cited medical literature to illustrate the importance of alignment of the upper jaw and lower jaw in the orthodontics works. In my judgment, the basis of Dr Khambay’s opinion is more solid than Dr Chung’s. 35.In my judgment, Dr Khambay’s opinion is comprehensive, carefully reasoned and supported by the relevant medical literature. On the other hand, Dr Chung’s opinion is merely on the extraction of tooth 34, which is not supported by cogent reasons and not supported by relevant medical literature. I prefer Dr Khambay’s opinion to Dr Chung’s opinion. On the matters in respect of which the 2 experts have different opinions, I would adopt the opinion of Dr Khambay. Joint psychiatric report 36.By the order of Master J Chow made on 24 March 2016, the joint psychiatric expert report (“the Joint Report”) prepared by Dr Lo Chun Wai (“Dr Lo”, the psychiatric expert appointed by the plaintiff) and Dr Chen Chia Lu Sylvia (“Dr Chen”, the psychiatric expert appointed by the defendant) dated 23 October 2015 is adduced as evidence in the trial without calling the said experts. 37.Having read the Joint Report, I am satisfied that both Dr Lo and Dr Chen are qualified to give the expert evidence as set out in the Joint Report. 38.The 2 psychiatric experts are of the same opinion:-
39.I accept the opinion in the Joint Report. LIABILITY 40.It is trite that in a claim of medical negligence, the test to be adopted is the Bolam test as formulated by McNair J in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, in which the learned judge said at 586:-
41.It is clear that the standard of care is to be judged in accordance with the ordinary skill of an ordinary competent man exercising that particular art. A non-specialist who undertakes works of a specialist will be judged on the standard of an ordinary specialist. 42.As to the duty to advise, recently the UK Supreme Court in Montgomery v Lanarkshire Health Board (General Medical Council intervening) [2015] AC 1430 held (as per the headnotes):-
43.With these principles in mind, based upon the evidence and my findings above, I accept the plaintiff’s case and reject the defendant’s case. 44.I find that the defendant is liable to the plaintiff for negligence as claimed in the statement of claim. QUANTUM PSLA 45.Notwithstanding the claim for HK$700,000 under this head in the revised statement of damages, Mr Leung in his submissions makes it clear that he is suggesting a sum in the region of HK$350,000 – HK$400,000 for PSLA. 46.Mr Leung has helpfully referred me to various cases concerning the award under this head. Among those cases, I that the following 2 cases are particularly useful:-
47.In my judgment, the plaintiff’s situation here is similar to the situations in these 2 cases, save and except one difference. In this case, the plaintiff said that the negligent treatment performed by the defendant on her had caused the breaking up of the relationship between her and her boyfriend. While the defendant’s negligence may not be the only cause of the breaking up, I would regard the defendant’s negligence, in the circumstances described by the plaintiff in her evidence, as a factor contributing to the breaking up. I take this factor into account in assessing the PSLA award. 48.I would need to take inflation into account. I note that according to Personal Injury Tables Hong Kong 2016, the starting point for “serious injury” was HK$422,000 in 2010. That starting point has been revised and was HK$514,000 in 2016. No doubt the plaintiff’s condition falls short of the definition of “serious injury”, however I would consider the inflation over the years as reflected by the difference between these figures. 49.With all these in mind, in my judgment, the proper figure for PSLA should be HK$380,000. 50.There would be interest on this award at 2% per annum from the date of the writ to the date of this judgment. Special Damages 51.Based upon the plaintiff’s evidence and the documents produced by her, I am satisfied that the plaintiff is entitled to have the special damages as claimed in the revised statement of damages. I allow these claims. 52.Mr Leung submits that in a case where the plaintiff suffered personal injuries in an accident, interest on the special damages would start to run from the date of the accident to the date of judgment. Mr Leung submits that in this case, the court should adopt a broad brush approach and specify that the interest on the special damages should start to run on the date of the plaintiff’s first consultation with Dr Tong, which would be 17 November 2010. I accept Mr Leung’s submission. 53.There should be interest on the special damages at half of the judgment rate from 17 November 2010 to the date of this judgment. Future medical expenses 54.According to the Joint Report, when this case is over, the plaintiff should continue receive psychological and psychiatric treatment for another 6 months. The costs of the treatment would be about HK$25,000 in the private sector. 55.Mr Leung very fairly submits that the plaintiff would only claim the costs of receiving the said treatment at the public hospital, which would be HK$1,000. I allow this claim. CONCLUSION 56.The plaintiff has proved her claim against the defendant and is entitled to damages. I award the aforesaid sums and interests to the plaintiff. 57.There be a costs order nisi that costs of this action, including all costs reserved (if any), are to be paid by the defendant to the plaintiff. In respect of the trial, there be a certificate for counsel. The plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations. 58.Lastly, I must thank Mr Leung for his fair and helpful submissions.
Mr Herbert Leung, instructed by K B Chau & Co, assigned by the Director of Legal Aid, for the plaintiff The defendant was not represented and did not appear |
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