Chung Kwei Mui By Her Next Friend Wong Yuk Chung v. Hospital Authority

HCPI 1406/2016

[2020] HKCFI 2397

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1406 OF 2016

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Before: The Honourable Mr Justice Bharwaney in Chambers

Date of Hearing: 9 September 2020

Date of Decision: 9 September 2020

Date of Reasons for Decision: 11 September 2020

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REASONS FOR DECISION

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1.I made my decision and I made certain orders at the hearing on 9 September 2020. These are my reasons for my decision.

2.This is an application by the plaintiff for leave to file and serve an Amended Statement of Claim, serve the 3^rd supplemental witness statement of Wong Yuk Chung, the 2^nd supplemental statement of Wong Yuk Yee and the 2^nd supplemental expert report of Professor Philip Chiu Wai Yan.  The application is opposed by the defendant.

3.This action has been brought to claim damages for personal injuries suffered as a result of alleged medical negligence on the part of the defendant, its servants and agents. The plaintiff, who was then aged 74, was advised to undergo an elective oesphago-gastro-duodenoscopy (“OGD”) on 31 December 2013.  The OGD was performed on 28 January 2014.  After leaving the procedure room on that date, the plaintiff suffered a severe haemorrhagic stroke. She is now in a persistent vegetative state.

4.The plaintiff instructed Dr Kan Yiu Ting, a neurosurgeon, and the defendant instructed Dr Yu Yuk Ling, a neurologist, to prepare reports on liability. Pursuant to my court order they conducted a without prejudice meeting and prepared a joint report on issues on which they were agreed and on which they disagreed.  There was substantial agreement between them.

5.They agreed that the plaintiff’s blood pressure control was satisfactory. They agreed that the cause of the plaintiff’s massive haemorrhage was probably hypertension.  In subjects with chronic hypertension, even though the blood pressure is under good control with drug therapy, hypertensive changes in the small cerebral arteries still occur.  Rupture of these diseased arteries results in cerebral haemorrhage.  Even if the blood pressure is under good control, the risk of cerebral haemorrhage is still higher than normotensive subjects.  They agreed that OGD performed under local anaesthesia, as opposed to intravenous sedation, is in general safe for patients whose hypertension is under satisfactory control. They agreed that the withholding of Lisinopril (an anti-hypertensive drug to control the plaintiff’s blood pressure), Digoxin (medication to treat the plaintiff’s atrial fibrillation), and Aspirin (to thin the blood) on the morning of the OGD did not contribute to the cerebral haemorrhage.  They agreed that, more likely than not, the plaintiff’s cerebral haemorrhage was a coincidental event to the OGD and was not caused by the OGD.

6.Dr Kan was of the opinion that the chronic hypertension, atherosclerosis, ageing of arteries, etc. were the major factors in causing rupture of the cerebral vessels, while the transient stress-induced hypertension (most likely of moderate magnitude) during the OGD acted as the final trigger. Dr Yu was of the opinion that this was improbable but could not be entirely excluded.

7.Although there was a lack of blood pressure measurement before the OGD, the available clinical evidence suggested to them that the plaintiff’s blood pressure before the OGD had not been substantially raised (which would have led to the postponement of the OGD), and that measuring the plaintiff’s blood pressure before the OGD in the present case would probably not have prevented the plaintiff’s cerebral haemorrhage.

8.Given the considerable difficulties posed to the plaintiff by the joint report of Drs Kan and Yu, the plaintiff has sought to amend her case. In her original pleading, she had pleaded that there was a failure to advise her of the option of performing the OGD under intravenous sedation (§§5, 6(4), 17(4), 18(4), 34(4), 34(8)(d), 34(9) and 35(1) of the Statement of Claim).  The plaintiff now seeks to add a new case on causation, namely, that, had she been offered the option of undergoing OGD under intravenous sedation, the OGD scheduled on 28 January 2014 would have been deferred to a later date and, consequently, the plaintiff would not have suffered from a stroke on 28 January 2014 (§§35(1), and (3) of the proposed Amended Statement of Claim).

9.I note that the proposed amendments in §35(2), (5) and (6) are refinements of the previously pleaded case.  I understand the plea in §35(5) to be a plea in respect of the plaintiff still undergoing the OGD with a local anaesthetic and without intravenous sedation on 28 January 2014.

10.The plaintiff instructed Professor Philip Chiu Wai Yan, a gastrointestinal surgeon, to prepare a report on liability. The defendant instructed Dr Kung Kam Ngai, a specialist in gastroenterology and hepatology, to prepare a report.  They have prepared their separate reports but they have not yet conducted a without prejudice joint meeting nor prepared their joint statement on issues on which they are agreed and on which they disagree.  In his report dated 14 November 2017, Professor Philip Chiu expressed the opinion that, as the patient had an unpleasant experience when undergoing bronchoscopy before, a reasonable doctor taking ordinary care would have discussed with the patient the option of receiving OGD under intravenous sedation (§15). Dr Kung offered this opinion in his report dated 19 March 2019 (at p.4) as follows:

“If Madam Chung and/or her son had told Dr Cheng her unpleasant experience with bronchoscopy, it would have been reasonable for Dr Cheng to first explain that OGD was a very different procedure than bronchoscopy and most patients could tolerate the procedure. The explanation might have eased Madam Chung’s concern. If it did not, it would have been reasonable for Dr Cheng to then discuss the option of undergoing OGD with intravenous sedation and the risks of intravenous sedation. In view of OGD under local anaesthetic being well tolerated, as against the risks of intravenous sedation, it would then have been reasonable for Dr Cheng to advise that OGD under local anaesthetic was preferable to OGD under intravenous sedation.”

11.This apparent difference of opinion between Professor Philip Chiu and Dr Kung would have to be addressed in their joint statement.  Although Dr Kan had expressed the view that OGD performed under local anaesthesia is in general safe for patients whose hypertension is under satisfactory control, it is to be noted that he is a neurosurgeon and not a specialist in gastroenterology.

12.In §§3-4 of his 2^nd supplemental expert report dated 21 May 2020, Professor Philip Chiu expressed his opinion that if sedation was given before the OGD, there would be extended monitoring after the OGD procedure and additional staff would be required for the monitoring after the procedure at the recovery; and that it was likely that the OGD on 28 January 2014 would be deferred.  In §§ 5-7 of the report, he revisited matters that he had dealt with before which appeared to me to be within the province of Drs Kan and Yu rather than specialists in gastroenterology.

13.In the supplemental witness statements, Wong Yuk Chung and Wong Yuk Yee stated that, if offered OGD with intravenous sedation, their mother would have chosen to receive it.

14.The new case that is being presented does not appear to me to be a new case of lack of informed consent but a reiteration of the previously pleaded case that there was a negligent failure to offer OGD with intravenous sedation together with the new plea that, if offered, the offer would have been accepted with the result that the OGD planned for 28 January 2014 would have been deferred and, consequently, the plaintiff would not have suffered from a stroke on 28 January 2014.

15.I noted the legal principles that were applicable to the present case which had been ably summarised in §§9-13 of the written submissions of Mr Sanjay Sakhrani who appeared for the plaintiff. I carefully considered the eloquent submissions made by Mr Ashok Sakhrani for the defendant who opposed the applications.

16.I came to the conclusion that I would allow the plaintiff’s applications and I granted the leave to amend the Statement of Claim that has been sought, with certain further amendments as follows:

(a)  Under §35(3), the reference to “34(7) to 34(11) of the Statement of Claim” be amended to read: “34(7) to 34(9) of the Statement of Claim”; and

(b)  Under §35(5), the reference to “undergone the OGD on 28 January 2014” be amended to read: “undergone the OGD on 28 January 2014 under local anaesthesia”.

However, I did not grant leave to include the new plea in §35(4) of the proposed Amended Statement of Claim, which had no evidential support.

17.I also granted leave to the plaintiff to adduce into evidence §§1- 4 of the 2^nd supplemental report of Professor Philip Chiu.  I did not admit into evidence the additional opinions of Professor Philip Chiu contained in §§5-7 of his 2^nd supplemental report, which appeared to me to be within the province of Drs Kan and Yu rather than specialists in gastroenterology.

18.Finally, I granted leave to the plaintiff to rely on the supplemental witness statements of Wong Yuk Chung and Wong Yuk Yee.  On the face of it, the evidence contained in these witness statements appeared to me to be relevant and probative to the new case being advanced.  However, it is a matter for the trial judge to assess, in the usual way, its veracity and the weight, if any, to be placed on it.

19.The amendments were necessary for disposing fairly of the cause or matter.  It had not been shown to me that the new claim on causation made in the proposed amendment was bound to fail.  The action has not been set down for trial and granting the applications would not result in an adjournment of a milestone date. Granting the applications would not prejudice the defendant who has ample opportunity to meet and deal with the new case and the new evidence.

20.I granted consequential leave to the defendant to amend its defence within 56 days. Instead of granting consequential leave to the defendant to file and serve a supplemental expert report from Dr Kung in response to the 2^nd supplemental report of Professor Philip Chiu, I directed that Dr Kung should express his views on this new matter when he and Professor Chiu met and prepared the joint statement.  I also granted consequential leave to the defendant, if so advised, to file and serve witness statements within 56 days to respond to the supplemental witness statements of Wong Yuk Chung and Wong Yuk Yee and the 2^nd supplemental report of Professor Philip Chiu.

21.I ordered the plaintiff to pay the costs of the summons dated 27 May 2020 and occasioned by the leave that I had granted in any event.  I further ordered that the costs of the affidavits that have been served and filed and of the hearing be costs in the cause of the action.  Finally, I directed that the plaintiff’s own costs be taxed pursuant to the Legal Aid Regulations.

Mr Sanjay Sakhrani, instructed by Paul C.K. Tang & Chiu, assigned by Director of Legal Aid, for the plaintiff

Mr Ashok Sakhrani, instructed by Mayer Brown, for the defendant