Bruno Atzori v. Dr. Chan King Pan
Read the full judgment text of HCPI 792/1998 on BabelCite. This High Court CFI judgment was delivered on 30 July 1999.
1. Mr. Bruno Atzori is an experienced Italian businessman who trades in Hong Kong but returns to Italy in particular no doubt for business as well as recreational reasons. He is now 59 years of age. He has been an active sportsman in a wide range of activities including athletics, skiing and swimming. In the recent years he has concentrated on skiing and tennis. His build and carriage are those of a fit looking, active, tall man. Since 1993 he has been reduced to swimming as a sporting activity
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HCPI000792/1998 HCPI 792/98 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. PI-792 OF 1998 ________________
________________ Coram: The Hon. Mr. Justice Seagroatt in Court Dates of Hearing: 7, 9 - 11, 15 - 17 June 1999 Date of Written Submissions: 7 July 1999 Date of Handing Down of Judgment: 30 July 1999 ______________________ J U D G M E N T ______________________ 1. Mr. Bruno Atzori is an experienced Italian businessman who trades in Hong Kong but returns to Italy in particular no doubt for business as well as recreational reasons. He is now 59 years of age. He has been an active sportsman in a wide range of activities including athletics, skiing and swimming. In the recent years he has concentrated on skiing and tennis. His build and carriage are those of a fit looking, active, tall man. Since 1993 he has been reduced to swimming as a sporting activity and his walking and standing have been severely limited. What led to that substantial decline in and restriction of activity, and its other effects, is the subject of this action by him. 2. Dr. Chan King Pang is about 65 years of age to judge from his curriculum vitae. He is a very experienced orthopaedic surgeon having graduated in medicine in Hong Kong and then trained in the United Kingdom for six years with notable success. He began to specialise in spinal surgery and I note that part of his training in England in 1964-66 was at the Robert Jones & Agnes Hunt Orthopaedic Hospital in Oswestry, Shropshire which was, and as far as I know still is, a well-reputed centre for the treatment of spinal conditions. He became a Fellow of the Royal College of Surgeons of England & Wales in 1966, a singular achievement. 3. Since 1966 Dr. Chan has practised in Hong Kong and since 1971 as a Consultant in private practice. Between 1968 and 1970 he contributed articles to several medical publications. In 1971 he attended study visits in the U.S.A. consequent upon an award, and an orthopaedic congress in Sydney, Australia. Ten years ago he attended some course, the details of which are unknown, in Davos, Switzerland, ironically enough one of the world's celebrated ski resorts. As a witness in this case, he struck me as supremely self-confident, assertive and I am sure he will not mind my saying, convinced of the quality of his own professional expertise and judgment. I do not think he would brook any opinion which countered his own, such was his confidence in his skill and long experience. He exudes a sense of optimism which I am sure is heartening for his patients. In 1993 shortly before Christmas Mr. Atzori became a patient of Dr. Chan in circumstances which I will shortly review. Dr. Chan operated on his back, specifically in the area of the lumbo-sacral region. Whether that operation was necessary and whether it was successful are two disputed facts. The Plaintiff's case against the doctor is that he was negligent in both aspects. The Consultation and Admission to the Adventist Hospital 4. Mr. Atzori was troubled about some pain he was experiencing in his left hip around the 18th December 1993. It seems from his evidence that he had encountered back pain on and off at the end of tennis matches for some months before, perhaps over an even longer period. It is not unusual for an active man in his fifties or sixties to experience back pain from time to time. It is well known that the spinal degenerative process can start in the late thirties and forties and sporting men can experience this intermittently. More often than not it is impossible to identify the precipitating event. Sometimes it is a simple movement during one's sleep. The pain or discomfort may not always follow immediately upon the event. All this is common knowledge and has been attested to time and time again by physicians and surgeons in the orthopaedic field. 5. On the 19th December Mr. Atzori went to the Adventist Hospital for some analgesic and a check up. An X-ray was carried out, he was informed that there was no bone problem and he was prescribed analgesics. Despite this his pain worsened and he returned to hospital on the 20th December. His original recollection of the dates is somewhat mistaken but there is no significance in this. What took place on the 20th December, when he was actually admitted as a patient is of some consequence. There is a conflict of evidence. 6. He brought the X-rays of the 19th December with him. The X-ray report noted narrowing of L4/5 disc space and a smaller than expected L5/S1 disc space. The pedicles were otherwise normal. Degenerative disc disease was commented on but this clearly related to L4 to S1. In the pelvic region was noted a mild marginal osteophyte at the acetabular margin. No one suggests the picture denoted was serious or other than to be expected. The report was sent out on the 22nd December 1993. 7. We need to consider the Hospital records in order to see the conflict in its proper context. The record for the 19th December shows that a history was taken and examination conducted at 10:35 a.m. The history showed pain increasing from Friday - two days earlier - and that he had been unable to find a comfortable position and had difficulty with sleep. There was a reference to his experiencing a sore back when he picked up something a few months earlier. 8. His straight leg raising was equal at just under 85°. The position disclosed by the X-ray was noted (and was consistent in general terms with the report available 3 days later.). He demonstrated pain on left leg flexion. Otherwise his condition was good. Orthopaedic review was recommended for the following day. The analgesic and sleeping draught were recorded. Mr. Atzori's recollection is that he was examined only once by Dr. Chan in the afternoon of the following day; he attended hospital at or about 8:15 a.m. The documents made it clear that on the 19th December he had been examined by Dr. Mcnee. The X-ray report confirms this. There is an out-patient receipt signed by Dr. Mcnee referring to "L Gluteal pain." The notes of the E.R. examination are signed by Dr. Mcnee and these Dr. Chan would have seen when he examined him.
9. Although that record of an examination in the Emergency Room shows some neurological test being carried out, it was, on the face of it, far from being a complete neurological examination. However a decision was made to admit and commence the rest and traction. Dr. Chan says that after admission he concluded a second examination and that the record of this is at page 217 in the bundle. The document headed "Physical Examination" is very short. There is less information in it than in the hospital record (p. 216). It is not dated or timed. The only additional or different information is "Straight leg raising (reduced to) 60°+."
10. Dr. Chan says that he would need to carry out a full examination after admission and although the first (in the morning) was thorough it was only for the purpose of determining admission. I find his explanation very unlikely. The end of the notes for the morning examination resulted in a management discussion with a decision that he was to be admitted for rest and traction. There would be no need for an examination in the afternoon if he was to be admitted for rest and traction. A second examination in the afternoon would not give the opportunity for these aspects of management to be carried out and evaluated sensibly. The second document does not look like a full examination. It seems almost cursory in its context. 11. There is an absence of logic in the notion of a second examination following admission, in that a full examination would be needed to determine the problem to justify admission and that a second examination so soon after admission would be pointless as a routine exercise. I prefer the Plaintiff's evidence. 12. In his statement Dr. Chan described the examination in the Emergency room at 8:15 a.m. He said S.L.R. (Straight leg raising) of left leg had decreased to 60°with some weakness of the left big toe suggestive of severe sciatica. He referred to the X-ray findings as he saw them. He admitted him and then "examined him all over again." However the notes of this 8:15 a.m. E.R. examination refer to S.L.R. as 80-/70- and there is no mention of any weakness of the left big toe. The other document which Dr. Chan says is his contemporaneous record of the second examination in the afternoon of the same date after admission does refer to 60° as the S.L.R. and also to the weakness of the left big toe. As I have found earlier Dr. Chan was mistaken and there was no second examination as he describes. The statement confirms the confusion in his own mind. The Defence does not make any mention of a second examination on the 20th December following admission, nor do the answers to the interrogatories, which considered the E.R. record at 8:15 a.m. on 20th December 1993, suggest that there were two examinations on the 20th December. I do not know in what circumstances or when the two documents (217 and 219) came into existence. They are notable for the paucity of information and 219 in particular, headed "Physical Examination", is much less detailed than the E.R. Record at 8:15 a.m. The Neurological Assessment 13. The extent of Dr. Chan's neurological assessment of Mr. Atzori is a matter of dispute and highly relevant to the decision to resort to surgery instead of continuing with conservative treatment. The records of the 20th December are notably silent as to the tests carried out and the resultant findings. The hospital record (216) says - "No significant weakness" "S.L.R. 80-/70-" and a queried diagnosis (?) of "Spondylosis" and "Tenosynovitis." On the sheet headed "Physical Examination" (219) under "Neurological" is 'mild weakness left big toe.' 14. He described his first examination as cursory though he stressed he did not mean that it was professionally inadequate. Such records of course would be for general professional medical purposes. The full examination he said would come after admission. Having found that there was in fact only one examination (though for the purposes of assessing the extent of the neurological assessment it matters not whether there were two) the position must be seen from the contents of that record (216). Dr. Chan said he recorded only the positive deficits on that record. He appears to accept that that record is somewhat deficient because he referred to his second examination (relying upon 218) as more accurate. 15. In the Emergency Room he said he conducted a "bank" of neurological tests including pin-prick, knee and ankle jerks, and test of the left big toe for weakness. He recorded the hip movement as "O.K." because the X-ray showed osteoarthritis and spinal degeneration and it was important in this case. Although he says he ordered traction after his initial examination he made no record of the results of the traction. In fact the first record of traction is in the nursing record ("No effect"). Some tests he did not record because they were equivocal or unreliable, such as the pin-prick test. He appeared to indicate that the patient's replies such as "yes, it hurts a little bit" were not worth recording because they were vague. What is clear is that by not recording even normal or unreliable results he had no record against which to compare the results of later tests. He agreed that the patient should be monitored closely but there are no records of his carrying out any neurological tests, let alone a bank of them between his initial examination and the surgery. Whilst one must be wary of criticising a doctor's notes, both as to substance and legibility, because of the view that appears to prevail that they are for the benefit of the makers and not for any other consultant or houseman who may have to take over the patient, they are in fact singularly deficient and lend little support to Dr. Chan's contentions. They certainly do not evidence the approach of a careful, concerned doctor who is closely monitoring his patient so as to make a value judgement as to the course of treatment to be followed. He said in fact that over those few days he got no reliable results from the tests to the extent that he needed to or ought to have recorded them. Given that picture one wonders rhetorically even at this stage whether he ought to have embarked on an invasive form of treatment i.e. surgery. In part he sought to explain the absence of records as indicating that the tests were rendered unreliable by the extent of the patient's pain though he conceded that there may well have been occasions when the patient was relatively pain free so as to provide reliable results. Wherever Dr. Chan was around he said be found Mr. Atzori in pain. What records there are from Dr. Chan are cursory even skimpy, but one other record of his calls for close consideration and that is the "Doctor's Progress Notes" (220). 16. I have found this a puzzling document. It purports to cover the period 20th December to 31st December, but excluding 25th to 27th December. It consists of one page. It is not a careful detailed day by day record of progress that one would expect if a patient was being monitored regularly and frequently so as to enable a considered judgment to be made. I have looked at the original many times. Its form strikes one as being, not a running daily log of this patient's progress, but a hastily compiled picture written on once occasion, on or after 31st December. Some of the entries seem to run into another regardless of separation of dates. I am not able to find that that is positively the case but I have only Dr. Chan's evidence as to its creation. Nonetheless it is not a record which impresses me as to his approach to this patient. 17. The first entry on this sheet is short and not very informative. For the date of admission it simply records "Admitted for traction. Still very painful." There is no entry for any neurological state. 18. On the 21st December is an entry "needed injection at night [because of] pain severe ...... Discussed about MR1/Surgery". 19. The next day [22nd December] is written "unable to sleep at night [because of] severe pain. Hip movement O.K. ↓[reduced] left leg S.L.R. to 60°" This is the only neurological test entry and seems to accord with the physical examination record (219) which is undated but said by Dr. Chan to be his record of the examination in the afternoon of 20th December. 20. The entry opposite 23rd December is concerned with Dr. Chan's telephone conversation with the Plaintiff's wife who was in Europe but would be arriving in Hong Kong the next day. There is mention of traction bringing no significant relief and the operating theatre being booked. 21. For the 24th December there is reference to a "lengthy discussion" (with no detail), complaint of severe pain and then a very short description of the operation (by terminology only) leading to "good relief of pain". 22. There are no entries for the 25th to the 27th December inclusive. 23. If these are truly meant to be progress notes of the doctor they are significantly deficient in the following respects. The area of pain is not described nor its duration. There is only one reference to neurological tests the results of which, if they were carried out daily as Dr. Chan suggests, were carried in his head. 24. Surgery was referred to on the 21st December. The theatre was booked on the 23rd before Signora Atzori arrived from Italy. There are references to a high level of pain on each of the five days. The entry at the end of 24th December denoting good relief of pain, consequent upon the operation is wholly inconsistent with the nursing notes. I remain very sceptical as to the purpose, value, reliability and dating of these notes. The more I look at them, their style, content and writing and the overall impression of cursory, selective noting, the more convinced I am that they are the product of a later (than 31st December) intention to set down some sort of record culled from memory or possibly, but hastily, from other notes. I regret to have to say that I do not accept Dr. Chan's evidence on this. They lead me also to the conclusion that the "daily" references to pain are deliberately selective as part of perhaps a post facto justification. Those "daily" references to pain do not, reflect the nursing records, which record variability in pain, the degree of it, the site of it and the relief afforded. 25. Why there is no entry in respect of the three days following the operation is something of a mystery. It was not explored in evidence, but the nursing notes for those days (as well as for the 24th December itself) record very severe pain on which the pethidine administered intra-muscularly, had only slight effect. There was pain and loss of sensation in the lower leg throughout the 25th and 26th December. Dr. Chan was giving instructions throughout that period as is, apparent from other notes in his handwriting. The post operative period of a major operation, which this clearly was, requires careful observation and monitoring, yet he chose to ignore it completely in this dubious record. 26. When Dr. Chan's progress notes start again, they convey a pain-free, problem-free picture subject to some numbness of the left big toe. Regrettably that was far from being an accurate statement of progress as can be seen by a quick examination of the nursing notes for the same period. I find Dr. Chan's record of progress (200) a wholly unreliable document. Its true significance may become more apparent in the consideration he gave to radical surgery as opposed to conservative treatment. Pain, the options and the decision to operate 27. After admission of Mr. Atzori, Dr. Chan described the course of conservative treatment as "very aggressive" consisting of bed rest, traction and physiotherapy. "He virtually had the whole team working on him." "I had not seen a more miserable patient than Mr. Atzori. He had tears in his eyes. I saw him 2 or 3 times every day. ... his pain got more and more severe. All the time we spent discussing his pain and how to get rid of it." 28. Dr. Chan made it clear that he decided on surgery because of the consistent high level of Mr. Atzori's pain and his "refractory" response to the conservative treatment. 29. Mr. Atzori's impression was that Dr. Chan tried to persuade him into undergoing surgery from an early stage. Certainly Dr. Chan's own notes show surgery being discussed on the second day (21st December) with perhaps only one day of conservative treatment having been tried. The following day (22nd December) the nursing notes record "for surgery later?" The telephone conversation with Signora Atzori was obviously in relation to surgery and in Dr. Chan's "Progress Notes" for 23rd December is the entry "to book O.T. (Operating Theatre)." 30. I accept Mr. Atzori's evidence that Dr. Chan was strongly encouraging surgery, that he described it as a very simple operation with quick recovery and no risk attached to it, with no complications mentioned. Such was Dr. Chan's degree of optimism that I am satisfied that he led Mr. Atzori to believe that he would play tennis and ski better than before. After the MR1 report Dr. Chan said the operation was necessary and he did not consider any alternative. It was of course not an operation without risk or complications. It was unwise to say the least, to tell the Plaintiff that he would perform his sports better than before. 31. The nursing notes do of course make reference to pain - though not severe pain - and the injections intra-muscularly for pain relief between 20th and 23rd December, but the picture is far from that conveyed by Dr. Chan in his evidence and in the progress notes which I am driven to conclude were made to lend support for his decision to operate for relief of pain. 32. The entry of Dr. Chan suggesting the surgery gave good relief from pain is followed by an absence of entries for the 25th to 27th December inclusive. The nursing notes contradict Dr. Chan's optimistic view of the achievement of surgery. 33. The nursing note for the evening of the 24th December says "c/o very severe pain," for which an intra muscular injection of pethidine had "only slight effect." (This is the only nursing reference in the relevant period to "severe pain."). For the 25th December there is a note of pain in the left leg and loss of sensation in the lower leg; numbness and tingling on the left foot; for the 26th December there are entries repeating numbness in left leg and complaint of pain. By the 27th December there was substantial apparent improvement but the 29th December nursing note recorded "In quite a bit pain" (Toradol and pethidine given 1M1) "pain in left hip and numbness in left leg". By contrast for the same date Dr. Chan wrote "No pain. Some numbness confined to big toe." 34. I am quite unconvinced by Dr. Chan's explanation as to the level of pain. I find that he had set his sights on surgery at a very early stage long before a proper trial of conventional conservative treatment had been conducted and that this accounts in part for the absence of careful neurological testing. I am sure the results of the MR1 scan in his own mind, convinced him of the efficacy of his course. His "progress notes" paid hip service to what was required in the form of proper records. 35. Dr. Lee Yeung Fai who was called as an expert on his behalf, and is clearly an experienced orthopaedic surgeon, was somewhat uncertain as to what records he in fact saw before preparing his report. The form and content of his report, is, I am bound to say, less than one would expect of an expert experienced in medico-legal considerations though I should not allow that simple conclusion to influence my evaluation of his evidence in this case. 36. Dr. Lee seemed to have placed more reliance on a statement of Dr. Chan (which he described as a report) rather than on all the medical records. For example, in the first paragraph of his report he referred to "weak dorsiflexion of the left big toe." This did not appear in any medical records only in Dr. Chan's statement and in his physical examination record (219) which I also find a singularly unsatisfactory document. Dr. Lee is more likely to have got his somewhat garbled term from Dr. Chan's answer 10B to one of a number of interrogatories. Also Dr. Lee fell into the same error as Dr. Chan in saying that there was "post operatively immediate relief of pain." The nursing notes contradict that as I have set out earlier. 37. In the course of his evidence Dr. Lee went through all the neurological tests and information he would seek. He agreed that there should be a complete examination even though the patient might be in pain. He said he checked Dr. Chan's statements against the medical records and said that they were about the same. They clearly are not. He then went on to say that he did compare the hospital record (216) with Dr. Chan's statement at the time he made his report. He said he read both and "did a summary or something like that." He was constrained to concede that Dr. Chan's notes, though probably adequate for Dr. Chan's own purposes as the consultant in charge, were deficient if someone else came to have the patient's care. He also had to concede that the "Progress notes" - (220) were incomplete and that they ought to have given a clear neurological picture. Notwithstanding these concessions which he had to make I found his evidence unconvincing and lacking in both objectivity and authority. 38. Dr. Louis Hsu, another experienced orthopaedic surgeon called on behalf of Dr. Chan as an expert, made the same comments about the adequacy of the notes and gave some telling answers which affect the proper conclusions to be drawn from Dr. Chan's decisions in relation to this Plaintiff. "I was not in a position to decide what I would do (would have done) for him, especially when the notes are not adequate ... with the records available I would not have encouraged the Plaintiff to undergo immediate surgery." This was said by him against the background that he himself tended to operate early. 39. He confirmed the need for monitoring the conservative treatment on a daily basis and he would expect notes to the effect that the patient was stable, there was or was not worsening etc. There should also be daily monitoring of the neurological state. He agreed the nursing record for the 23rd December did not indicate Mr. Atzori was in significant pain and that a doctor should take note of any change in the condition. There was, he said, a host of other considerations before a doctor should decide to change his course. Furthermore before deciding on surgery he would have discussed all other possibilities with the patient and would have gone through them in detail. Dr. Chan, in his evidence, did set out in great detail what he said he discussed with Mr. Atzori. However I accept Mr. Atzori's evidence on this issue as well. I consider Dr. Chan had made up his mind that surgery was the course to be embarked upon at an early stage by the 22nd December at the latest. His lack of careful noting, testing and monitoring, and the dubious "progress" record are not consistent with a careful discussion along the lines he set out. 40. Dr. Hsu regrettably did not approach the assessment of the Plaintiff's condition from the existing records as perhaps he should have done and as an expert witness is required to do. In saying that I am not reflecting upon his skill and standing as an orthopaedic surgeon, but as an expert witness a more thorough and dispassionate approach is called for. He was of course hampered by the notes which he described as "not well-kept." He said he did not ascertain the condition of the Plaintiff as recorded though he would need to do so. The inference from that in the light of his other comments is that he could not do so. He would have to consider, as he set out, the treatment before surgery and the consequences of that conservative treatment. Yet he also did not go through the times of the interviews, treatment etc. as he did not think the details important and when asked whether it was important for him to deal with those aspects he conceded that he did not realise that at the time. I regret to have to say that he should have done, as someone instructed to provide expert opinion. He did however emphasise that the neurological tests and the way they were carried out were very important. Even if certain tests could not be carried out at the outset because of difficulties they should have been carried out later when those difficulties no longer existed. Negative as well as positive results ought to have been recorded. If for example a pin-pick test had been carried out he would have recorded something to indicate that the test had been carried out. If tests were not carried out, Dr. Hsu fairly conceded that fact maybe an unreasonable state of affairs and therefore indicative of lack of care. 41. Dr. York Chow, the Chief Executive of the Queen Elizabeth Hospital since 1992 is an experienced Consultant Orthopaedic Surgeon who gave evidence, as an expert, in support of the Plaintiff's case. I found him a careful, considered expert witness who approached his task with care and authority. He had provided a number of reports since March 1995. 42. Initially in his evidence he reviewed the medical records and pointed out the deficiencies which are, in effect, accepted by the experts on both sides. The crucial part of his evidence in support of the Plaintiff's case related to his view that observation, close monitoring and testing against a background of conservative treatment was the proper management for the Plaintiff. 43. The absence of a record in respect of neurological testing, other than on admission, seemed to strike him as a fundamental omission in careful management. Muscle power ought to be graded, there should be continuous assessment, with proper comparison of all limbs, and if the condition of the patient was such that results of tests could be regarded as unreliable, they should nonetheless be noted, and conducted again when the situation was conducive to such tests. 44. Dr. Chow's view was that surgery should be considered only after a proper assessment of the patient and a proper trial of conservative treatment, and that this was the management approach of professional medical practitioners exercising the reasonable standard of care to be expected of them from the 1980's in Hong Kong. As he expressed himself in his original report:
and in a subsequent report,
45. This was not, Dr. Chow went on to say, a case for "urgent, emergency treatment", yet the progress notes indicated (23rd December) a booking of the operating theatre, the nursing staff having made the entry on the 22nd December "? for surgery later?", and on the 24th December "Plan to have surgery this afternoon. n.p.o. after 0830." 46. There were clear indications including the physiotherapy report of 21st December, "Patient found relief in (from) pain during the treatment and right after the treatment", that physiotherapy was having some beneficial effect and should be continued. 47. Dr. Falli Shroff, a well-known neurologist, supported Dr. York Chow's opinion. His first report is dated October 1994. Both he and Dr. Chow referred to a considerable body of authoritative medical opinion, prevalent at the time of Dr. Chan's management of the Plaintiff. This material indicated that a trial of conservative treatment was appropriate for upwards of 10 days. Dr. Shroff's view was that 10-14 days was necessary before considering the options in the light of the evaluation of that trial. Dr. York Chow said he would only consider surgery after 4 to 6 weeks of conservative treatment. 48. Dr. Chow recognised the picture presented by the Plaintiff as a well-known, well-recognised syndrome. There was no urgency to resort to surgery. There was a high probability that the patient would not need surgery to relieve the pain. There was of course, a need to find the underlying cause of the pain and there were options to this end other than surgery. There was no objective or subjective evidence of neurological damage in the motor or sensory functions. There appears to have been no follow-up of the position noted at some time, in respect of the left big toe. 49. I found Dr. York Chow an impressive witness. He approached matters thoroughly and objectively. I accept his evidence and that of Dr. Falli Shroff. I am satisfied that in deciding upon surgery Dr. Chan took a risky option which was unjustified in the circumstances. A course of conservative management was the proper course for a skilled consultant to follow. He decided upon surgery at an early stage for a reason that was not well-evidenced. In my view, and it is implicit in the views of Dr. York Chow and Dr. Falli Shroff, he exaggerated the level of pain. His records are not consistent with the nursing records and other records not made by him. I think his progress notes, whenever made, were an exercise in self-justification. They themselves fell far below the standard to be expected of the reasonably competent practitioner. I am not satisfied that he carried out the neurological monitoring of the Plaintiff. A careful and competent practitioner, who was evaluating the management of this patient so as properly to determine the course appropriate to his condition and problem, would have recorded on a daily basis the essential tests and would not have fixed surgery in his mind so early as the course to pursue. I accept the evidence of Mr. Atzori and his wife that he persuaded them that surgery was the only option and that there was no risk to it. He was supremely confident in his ability and would not have entertained any second thoughts. There was much in his manner as a witness and in the material records of late December 1993 which demonstrated the surgeon in a hurry. The operation was quite unnecessary. On the balance of probabilities Mr. Atzori would have benefited from the conservative management to the extent that no surgery would have been necessary. Given the problems and uncertainties to which Dr. Chow and Dr. Shroff properly gave full consideration I would go further than that and say that Mr. Atzori would not have undergone or been recommended surgery. In my judgment on all the evidence Dr. Chan failed to exercise the ordinary care to be reasonably expected of the doctor of ordinary skill. [see Lord Clyde - Hunter v. Hanley 1955 S.L.T. 213 at p. 217]. The surgery and its consequences 50. Even Dr. Lee had to concede that there was now damage to his nerve in the lumbar region and that a possible cause was the surgery. The subsequent disc herniation at level L3/4, not apparently existing before the operation, was possibly the result of surgical trauma. 51. Dr. Hsu observed that if at surgery Dr. Chan explored the lumbar level at which there was in fact no prolapsed disc there could be a subsequent prolapse from the weakness in the tissue in the region of the disc as a consequence of the surgery. As did Dr. Lee, he added that a prolapsed disc at L3/4 could occur spontaneously. 52. The record of the surgery is a diagram with notes made by Dr. Chan. It is not in the clearest form but all the consultants giving evidence as experts have for the most part been able to work out what took place surgically. Dr. Hsu made it clear in his view that it was not necessary for exploration at three spaces. There was no reason to explore into S1/S2. The nerve root to be considered in the light of the MR1 was L5. He concluded that Mr. Atzori had damage to his left leg involving L4, L5 and S1. 53. Dr. Chan said he opened up the L3/4 space to see it there had been any migration of disc material upwards to that level; and that there was some anomaly at the S1/2 level. 54. Dr. York Chow and Dr. Falli Shroff were, like Dr. Hsu, critical of the decision to explore surgically three spaces. If all the essential tests had been carried out, there would have been no need to explore at three levels. There had been no clear identification or anatomical diagnosis of the site and cause of pain. Dr. Chow regarded it as unacceptable to enter the spinal region at three levels. He was satisfied that there had been entry at L3/4 level, as Dr. Chan later conceded, and that there had been damage to the L4 nerve root which manifested itself in the post-operation complaints of numbness, pain down the left leg and subsequent weakening of the quadriceps. These are well-documented in the nursing notes. The sensory and motor function of the left leg had been affected. Dr. Chow's consideration of the post-operation MR1 photographs confirmed him in his view. He was also of the view that there was in fact no evidence of removal of the disc at L5 level despite the clear evidence of surgical dissection at that level. As a consequence of the surgery, Mr. Atzori now has, in Dr. Chow's view, more damage in that region than existed before the operation. All that Dr. Chan was able to write as a diagnosis after the operation was 'sciatica' with no reference to which disc was the cause of the sciatic pain. I am satisfied that his surgery caused damage at all three levels. 55. I accept Dr. Chow's readings of the MR1 scans and his expert conclusion that the operation was performed as an exploratory procedure, when it should not have been done; that it involved surgery at the L3/4 level which was unnecessary, for which there was no radiological justification, and where he damaged the L4 nerve root with the consequent disability for the Plaintiff. The subsequent herniation of the L3/4 disc is on the basis of the medical evidence to be attributed to that faulty and unnecessary surgical procedure. In Dr. Chow's report of September 1995 at paragraph 7 (p. 147) he states as follows:
That statement accords with my understanding of professional medical care and clinical diagnosis gleaned from a number of cases involving conditions similar and identical to that of this Plaintiff. 56. Dr. Shroff is equally convinced that the L4 and L5 nerve roots were damaged by Dr. Chan's surgery. Dr. Shroff's considerable experience in the field of neurology and neuro-surgery lends further weight, if such were needed, to Dr. York Chow's careful and authoritative appraisal. He explained the mechanism whereby the nerve root could be damaged and the need, if a proper anatomical diagnosis has been made, to explore only one disc space. If two disc spaces were to be explored they would be L4/5 and L5/S1. Rarely would it be necessary to explore L3/4. 57. I am satisfied that not only was Dr. Chan's surgery unnecessary but that it was conducted without a proper plan. The surgery itself carried a risk of some nerve damage but that the exploration of the L3/4 level was unnecessary given the radiological picture of this patient. There was undoubtedly an element of haste which contributed to the resultant damage. What the reason was for this haste is far from clear but it was not the level of pain being experienced nor was it the results of the all too short period of conservative management. The notes of Dr. Chan are themselves cursory and uninformative but indicative of undue haste and commitment to a course which did not display the proper level of care which a patient is entitled to expect. Regrettably in this case, Dr. Chan's standard fell well below the level reasonably to be expected of the competent surgeon practising in his field. As a consequence, Mr. Atzori underwent unnecessary surgery, negligently planned and executed which has left him with a permanent and significant level of disability. For him to succeed in this action it is not necessary for him to prove that there was negligence in the actual surgery as I have found that there was. It would have been sufficient for him to show that the operation was unnecessary which it was and resulted in damage, which it did. 58. On this occasion in relation to this patient, regrettably, Dr. Chan failed to exercise the ordinary skill of the ordinary competent man exercising that particular art [see Bolam v. Friern Hospital Management Committee 1957 I.W.L.R. 582] Quantum General Damages for pain and Suffering and Loss of Amenity. 59. There is no Answer filed by the Defendant but I have approached all heads on the basis of need for the requisite proof. 60. The two reports on behalf of the Plaintiff of assistance in this regard are those of Dr. York Chow dated 24th December 1998 and of Dr. Falli Shroff dated 6th May 1999. There are also two reports of Dr. Louis Hsu of the 16th May 1998 and 24th May 1999. 61. Dr. Hsu was able to consider the reports of Dr. Chow and Dr. Shroff and does not disagree with them. There is weakness of the left knee, ankle and foot, and atrophy of the muscles of the left thigh and calf with areas of diminished sensation. Three nerve roots have been affected: S1, L4 and L5. 62. He can walk for up to an hour; he has not been able to resume skiing and tennis. He has some difficulty with steps and slopes. At night he occasionally experiences some cramps. He is clearly doing his best to maintain strength and mobility as he goes to the gymnasium for exercises. There is clear evidence of increased calf muscle wasting in Dr. Hsu's later report. 63. Dr. Chow in December 1998 regarded Mr. Atzori as having reached a stable and static condition. His right leg is having to bear an extra burden in daily activities. There is a risk of early patello-femoral arthritis in the left lower limb, and the right knee and ankle will also be subject to earlier risk of degeneration. When they occur conservative treatment is appropriate. 64. Dr. Shroff is to all intents and purposes in agreement with Dr. Chow and highlights, with detail, the extent of and consequences of the physical and neurological changes. 65. I have to bear in mind that, given the history of events leading up to admission to the Adventist Hosptial, it is likely that Mr. Atzori would have had some intermittent back trouble but that with conservative treatment allied to a disciplined regime of self-exercise, which he would undoubtedly have adopted, he would have been able to continue sporting exercise - tennis and skiing - for some years to come. 66. He had to undergo an unnecessary operation which has left him, an active, athletic man, with a significant disability and restriction upon his general amenities. Although I have to take account of the fact that he would, as the alternative, have undergone between two to three weeks of intensive conservative treatment - not all of which would necessarily have involved in-patient care - the fact of the operation, his experience, the attendant anxiety pain and discomfort, far outweigh the former in those respects. 67. General damages will be $525,000. Medical expenses 68. I have received negligible help in respect of these which I would have expected to have been capable of some agreement by counsel. These are matters usually resolved at least in principle by the teams of lawyers for the parties. I do not expect to have to spend time in establishing formulae, alternative approaches and mathematical calculations. Counsel for the Plaintiff suggested I should go through the invoices. That is not my task and I hope no other judges will be asked in any case to do so. Against the expenses set out in the Re-Amended Schedule of Damages will have to be set off the hospital costs appropriate to his spending two weeks as an in-patient receiving conservative management. I have totaled these as $142,833. I will reduce this total to $110,000 to reflect those necessary adjustments. 69. It was entirely reasonable in the circumstances for the Plaintiff to incur expenses in Italy. Travelling and other expenses 70. Some of these are generally not recoverable e.g. restaurant meals, but I accept that it was necessary to eat in a restaurant more often than would otherwise have been the case. The equivalent meals in Hong Kong would have been more expensive. Again I have received negligible assistance in this regard. I allow the airfares in full ($25,090). The accommodation and subsistence costs will be allowed in the sum of $10,000. The walking aid which he was to be charged for after a period of time is validly claimed at $1,200. I do not think the Mandarin Hotel Fitness Centre payment can properly be claimed. In my view he would have been advised to acquire or pay for such a facility in any event following a period of conservative management. 71. The total allowed under this head is therefore $36,290. 72. There will be judgment for the Plaintiff for $671,290, with interest at the usual rates for the respective heads of damage, together with costs. These additional calculations are not for me to provide but are the obligations of the respective firms of solicitors.
Representation: Mr. Jeevan Hingorani instructed by Messrs. Barlow, Lyde & Gilbert for the Plaintiff. Mr. Russell Coleman instructed by Messrs. Johnson, Stokes & Master for the Defendant. |
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