Wilmes, Franz Josef v. Queen Mary Hospital

DCCJ 1638/2021

[2022] HKDC 633

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1638 OF 2021

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DECISION

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1.This is an application made by the defendant by way of a summons dated 17 May 2022 (“the Summons”) under Order 18, rule 12(1A) and Order 20, rule 5 of the Rules of the District Court, Cap 336H (“RDC”) and Practice Direction 18.1 (“PD 18.1”) for an Order that:-

“(1) This action be transferred to the Personal Injuries List;

(2) Leave be granted to the Plaintiff to amend the Writ of Summons and Statement of Claim to amend the Defendant’s name to “Hospital Authority”, and the Amended Writ of Summons and Amended Statement of Claim be filed and served within 7 days from the issue of the DCPI action number;

(3) The Plaintiff do file and serve his Statement of Damages and medical reports required under Order 18, rule 12(1A) of the Rules of the District Court within 28 days after the filing of the Amended Writ of Summons and Amended Statement of Claim;

(4) The Plaintiff to file and serve his expert report on liability and causation required under paragraph 66(5) of Practice Direction 18.1 within 28 days after the filing of the Amended Writ of Summons and Amended Statement of Claim; and

(5) The costs of and occasioned by this application be paid by the Plaintiff to the Defendant in any event, to the taxed if not agreed.”

BACKGROUND

2.The plaintiff is acting in person and does not have any legal representation.

3.On 14 April 2021, he issued a general indorsement of claim under the present civil action number for the following:-

“The Plaintiff’s claim is for un/liquidated costs and/or damages occasioned (and still accruing) at the expense of the plaintiff by the defendant’s tortious acts/omissions mainly consisting of but not limited to inflicting bodily injury eventuating in death of the plaintiff’s late wife, Mrs. Wilmes, Lai Shim on April 19, 20218 (sic) in conjunction with subsequent documented misstatement as to the proximate cause of death of Mrs. Wilmes thus ‘misleading’ the Coroner’s Court to render an inaccurate ‘finding’ of the cause and circumstances and manner of death.”

4.In the statement of claim filed by the plaintiff on 11 May 2022, it only contains the following single paragraph:-

“The ‘Endorsement of Claim’ as stated/contained in the Writ of summons dated 14 April 2021 is hereby equated as to wording and substance with a Statement of Claim. The Plaintiff believes that the facts contained in and referred to in this document are true.”

DISCUSSION

5.At the hearing of the Summons, Mr Wong who represents the defendant informed the court that the plaintiff has agreed to §2 of the Summons, namely, the name of the defendant in the writ of summons and the statement of claim be amended to “Hospital Authority” and that the amended writ of summons and the amended statement of claim be filed and served within 7 days from the issue of the DCPI action number.

6.However, he informed the court that the plaintiff does not agree to the rest of the Summons, including the proposed costs order.

7.For the purpose of opposing the Summons, the plaintiff has filed a one-page affirmation with 51 pages of documents attached to it. They are listed as Exhibit 1a to 1h and Exhibit 2a to Exhibit 2i under ‘Document A’ which contain the substance of the plaintiff’s objections as to why he thinks this case should not be transferred to the Personal Injury (“PI”) List.

The plaintiff’s allegations 

8.Firstly, the plaintiff’s claim against the defendant is that the doctors at the Queen Mary Hospital (“QMH”), where his late wife Madam Lai Shim Wilmes was treated, had erroneously put down the cause of death in the death certificate: See §§ (2) to (7) of Document A. The plaintiff says that “it is thus a matter of record, that a misstated direct cause of death has been used as a pretext to refer a case to the coroner’s court”. The plaintiff claims that this “fraudulent referral has set in motion a train of events resulting in coronial decision-making”.

9.The second part of the plaintiff’s claim is related to the alleged maltreatment of his late wife when she was under the care of QMH as a cancer patient since or about December 2017: See §11 of Document A.

10.In order to be fair to the plaintiff, I think it is best to put the plaintiff’s allegations of mistreatment/mismanagement of his late wife by the doctors at QMH by reproducing §11 of Document A in full here:-

“As the details of the clinical course of the deceased bear out, starting in Mid-December 2017 being in reasonable clinical condition evidenced by pertinent laboratory data and according to clinical assessment so recorded, a temporary change of the chemotherapeutic regimen was deemed appropriate pending the results of a liver biopsy performed on January 3rd 2018. The envisaged and planned institution of appropriate chemotherapy did - without (informed) consent of the patient -contrary to misinformation disseminated by e.g. Dr. Chan’s witness 'opinion' not materialise. The thus medically induced deterioration of the patients condition was not attended to notwithstanding documented requests by the patient and the husband. The pictorial proof of massive systemic turnour flareup in sharp contrast with the PET scan appearance of 12th day of December 12 2017) associated with pertinent symptoms (e.g. shortness of breath, anuria) was obtained by way of a PET scan on 8th of March 8, 2018, leading to husband-induced emergency admission of the patient to Queen Mary Hospital in critical condition. Both the medical treatment characteristics as an outpatient and inpatient are characterisable as full incompatible with proper medical reasoning and treatment. According to the Bolam test routinely applied in medical malpractice contexts, a doctor would not be found negligent if he had acted in accordance with a practice accepted as proper by a responsible body of medical practitioners. In the context of the current matter however, such considerations are non-contributory as medical negligence of the ‘simple’ type has not been ‘at work’ exclusively. Apart from planned withholding of appropriate help in the run-up to the terminal hospital admission the pivotal events forming the properly designated direct cause of death resulting from such mistreatment were intentionally misrepresented on paper leading to the adverse consequences described above. The liability and culpability thus having been attracted by the defendant vicariously, mandates a claim for unliquidated damages on part of the plaintiff both and jointly acting as plaintiff in his own name, as properly interested person having been exposed to the fraudulently induced coronial proceedings.” [emphasis appeared in original text]

11.Thus, the plaintiff is of the view that “an Order of transferral of the current action to the Personal Injuries List along with further orders contingent thereupon as applied for the defendants(sic) counsel (Exhibit 2g) along with cost order against to the plaintiff would induce an unnecessary procedural detour at variance with Order 1A RDC. The plaintiff further plans to apply for an order as to no costs.”

12.Further, the plaintiff disputes the claim of the defendant’s solicitors that he has no locus standi in bringing this action. He refers to Exhibit 2h attached to the affirmation which is a letter from the defendant’s solicitors dated 26 April 2022 whereby the defendant’s solicitors made the following comments:-

“We also note that (1) you do not appear to have the appropriate locus standi to sue on behalf of the Deceased as you do not appear to have been appointed the Administrator of the Estate, and (2) considering the alleged cause of action in the general indorsement of the Writ, the Writ should have been issued under a DCPI case number rather than a DCCJ case number. We reserve our rights to bring these matters to the Court’s attention if necessary.”

13.In this regard, the plaintiff produced at Exhibit 2i the Letters of Administration in which the plaintiff has been appointed as the administrator of the estate of the deceased.

14.As to the proposed change of title of the defendant from ‘Queen Mary Hospital’ to ‘Hospital Authority’, the plaintiff does not take issue with that.

15.Document A of the affirmation concluded by stating that the “unliquidated damages occasioned by the activities described above and inflicted upon both the deceased and the plaintiff the plaintiff (sic) feels justified to estimate those not to be less than amounting to HK $ 2,000,000.-.”

The plaintiff’s submissions made in court

16.The plaintiff has expanded his arguments contained in the affirmation at the hearing before me.

17.In short, firstly, the plaintiff is not of the opinion that the substance of the matters “conformed to the requirements, procedures or cause of the Personal Injuries List”. The plaintiff claims the fraud and inducement of the defendant are not compatible with the procedures of the PI List. Secondly, the plaintiff alleges that the steps to be taken by the defendant’s application have brought about changes which are not under his control anymore. The example given by the plaintiff is that the PI case is subjected to a statutory limitation of 3 years, “however the details of this case superseded these problematic issues” according to the plaintiff. The plaintiff claims that his case consisted of different legal perspectives and of different items and therefore should not be subjected to the rules under the PI List. Thirdly, the plaintiff claims that this is a “hybrid case”. He claims that this case “dealt with the fraudulent misrepresentation of direct cause of death to the Coroner’s Court’s context”. The plaintiff claims that it will be a waste of time and money if this case were to be allowed to be transferred to the PI List.

18.The rest of the plaintiff’s oral submissions have either been mentioned in his affirmation and/or documents attached as exhibits to the affirmation. I do not wish to repeat them here, save to say that I think I have listened to the plaintiff’s arguments fully, patiently and respectfully at the hearing.

The defendant’s submissions

19.Mr Wong for the defendant submits that the substance of this case is mainly concerned with the medical-legal issues raised by the plaintiff in his endorsement of claim and statement of claim. Hence, it should be subjected to the rules and procedures under the PI List. After the case is transferred, Mr Wong submits that the plaintiff still has to deal with the procedural hurdles/difficulties, whether the case is transferred to the PI List or remains in the general civil jurisdiction list.

Ruling of the Court

20.I agree with Mr Wong for the defendant that a lot of the plaintiff’s allegations about the substance of the case is not related to the issue identified in the Summons which falls upon this court to decide. The only issue for the court to decide is whether it is reasonable and necessary and in the interest of justice for the case to be transferred to the PI List.

21.In my judgment, this matter can only be decided upon what has been pleaded by the plaintiff in the general endorsement of claim and the statement of claim in this case. In the general endorsement of claim attached to the writ, the plaintiff has only pleaded one single paragraph: See §3 above. Further, the statement of claim simply repeated the one paragraph statement contained in the writ without further elaboration: See §4 above.

22.In my view, it is clear that the general endorsement of claim mainly related to the alleged “tortious acts/omissions mainly consisting of but not limited to inflicting bodily injury eventuating in death of the plaintiff’s late wife,….”. In other words, it is based on an alleged medical negligence claim made by the plaintiff against the defendant. The plaintiff has acknowledged this both in §11 of Document A attached to his affirmation and in his oral submissions that the “Bolam test” should generally apply in such cases (even though he argued why it should not apply in this case). However, looking at §11 of Document A in the round, I agree with Mr Wong that this is clearly a case about a claim of medical negligence against the defendant.

23.While the plaintiff has raised a whole list of concerns about the potential transfer to the PI List in his affirmation and in his oral submissions, I agree with Mr Wong that those potential procedural hurdles and difficulties will have to be dealt with by the plaintiff whether the case is placed under the PI List or remains in the general civil jurisdiction list.

24.As to the plaintiff’s claim that this is a “hybrid” claim involving “misstatement” which led to ‘misleading’ the Coroner’s Court to “render an inaccurate ‘finding’ of the cause and circumstances and manner of death”, I note that very similar if not identical issues (albeit against the coroner instead of the defendant) had been raised by the plaintiff in another case in the High Court. The matter has been comprehensively dealt with in a very detailed judgment by Coleman J in Wilmes Franz Josef v Coroner, West Kowloon Court [2021] HKCFI 462, HCA 1915/2019 (10 March 2021). I do not consider that those issues should be mixed and dealt with together under a medical negligence claim.

CONCLUSION

25.In the aforesaid premises, I find that the case as presently pleaded in the general endorsement of claim and statement of claim is related to the alleged medical negligence claim and should therefore be transferred and dealt with under the PI List.

26.I therefore make an order in terms of the Summons, including an order that the plaintiff to pay the defendant’s costs of and occasioned by the application.

The plaintiff, not represented and appeared in person

Mr D Wong of Mayer Brown for the defendant