Chum Oi Wa and Another v. Kong Sai Wah Kelvin and Another

HCPI000766/2001

HCPI 766/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.766 OF 2001

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Coram: Hon Suffiad J in Court

Dates of Hearing: 21-25, 28-31 July, 1 August, 8-11, 17-19, 22-26, 29 September and 30-31 October 2003

Date of Judgment: 6 May 2004

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J U D G M E N T

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1.This is a claim by the plaintiffs against the defendants for medical negligence in relation to the pregnancy and labour of the 1st plaintiff and the birth of the 2nd plaintiff by her on 25 September 1998.

In this judgment, for convenience sake, I have chosen to denote time using the 24-hour clock as far as possible since time was recorded in that manner in all the medical notes and records put into evidence. Dr Kelvin Kong, the 1st defendant in this case will be referred to as the 1st defendant. All references to "Dr Kong", without more, in this judgment refers to Dr Danny Kong, the obstetrician called by the plaintiffs as one of their expert witness.

2.This judgment deals only with the issue of liability since there was an order for split trial.

3.At about 08.47 hours on 25 September 1998, the 1st plaintiff was admitted to the antenatal ward of the Tuen Mun Hospital, being Ward A7. That day was the expected delivery date of the 2nd plaintiff by her.

4.At 20.18 hours on the evening of that same day, following an emergency Caesarian section, the 2nd plaintiff was delivered stillborn but was resuscitated five minutes after delivery by a team of surgeons, namely at 20.23 hours.

5.Unfortunately, although the 2nd plaintiff was resuscitated, she nevertheless suffered from cerebral palsy caused by hypoxic-ischaemic brain damage which was caused by asphyxia as a result of Abruptio Placentae.

6.Abruptio Placentae is the premature breaking off or detachment or separation of the placenta from the uterine wall. It is a relatively rare but potentially fatal occurrence to both mother and child. A major placental abruption may occur suddenly and without any warning or it may occur gradually, gather impetus, escalate and culminate in a massive and potentially fatal event for mother and child. It can be either a concealed (with no clinical signs observable) or a revealed (where clinical signs can be seen) abruption.

7.Fetal hypoxia, which is the reduction of oxygen supply to the fetal tissue, does occur during normal pregnancy and normal birth. The contractions of a mother's uterus interrupt the flow of maternal blood through the placenta to the fetus. In normal labour however, the fetus copes easily with this situation.

8.However, where there are complications as in the case of Abruptio Placentae, even though the fetus has remarkable abilities to cope with lack of oxygen, there will come a time when the fetus has been deprived of so much oxygen for so long that severe damage occurs.

9.The midwives and doctors at Tuen Mun Hospital in whose care the 1st plaintiff was after her admission did not notice anything abnormal with her pregnancy until about 19.40 hours when one of the midwives in Ward A7 noticed the 1st plaintiff to be in abnormally severe pain and distress. At once, the fetal heart beat was monitored on a CTG machine which showed abnormally low fetal heart rate. As a result the Abruptio Placentae was diagnosed and the decision was taken for an emergency Caesarian section.

10.The plaintiffs claim against the defendants on the basis that the injuries suffered by the plaintiffs (both mother and child) arose from the negligence of the midwives on duty at Ward A7 and also from the negligence of the 1st defendant (who had examined her between 17.40 and 17.50 hours for suspected leakage) in that the Abruptio Placentae in this case was a gradual event which should have been detected and acted upon by the midwives and/or the 1st defendant much earlier than it was if reasonable care had been exercised by them in their examination and monitoring of the 1st plaintiff. They had failed to pay sufficient regard to the complaints by the 1st plaintiff of abnormal and constant pain since the early afternoon of that day. They had also failed to detect other signs of the Abruptio Placentae such as a hard and board like uterine wall which ought to have been apparent to trained nurses, midwives and doctors as the abruption was developing. Had these symptoms been detected and appropriate action been taken at an earlier time than when it actually was, the 2nd plaintiff would have been delivered by Caesarean at a much earlier time than she was and the injury caused by the Abruptio Placentae to both plaintiffs could have been avoided. The above is a summary of the pleaded case of the plaintiffs as contained in the Amended Statement of Claim.

11.On the other hand, the defendants' case is that the Abruptio Placentae in this case could not have been predicted, it was sudden and massive and until about 19.40 hours there were no outward or clinical signs from the 1st plaintiff, nor was there any complaint by the 1st plaintiff as to abnormal or constant pain, which should have caused a reasonably competent doctor or nurse to believe that something was wrong with the 1st plaintiff's pregnancy and that medical intervention was necessary.

12.It should be noted at once that the plaintiffs' case, in so far as negligence is concerned, no complaint is made (at least in so far as the pleaded case of the plaintiffs is concerned) as to what was done after the diagnosis of the fetal bradycardia, including the emergency Caesarean section, the resuscitation of the 2nd plaintiff and the after care in the Intensive Care Unit. The complaint of negligence is limited to the failure to diagnose Abruptio Placentae earlier than it was actually diagnosed thus resulting in a failure to intervene with remedial measures at an earlier time.

13.There is no dispute that as a result of the emergency caesarean operation, the 1st plaintiff was found to have a retroplacental blood clot of 800 ml. She was also found to have what in medical term is called a Couvelaire uterus and to be suffering from Disseminated Intravascular Coagulation disorder ("DIC"). Ultimately she had to be given a massive blood transfusion. These matters are all recorded and documented in the operation notes.

14.From the above, it can be seen that first and foremost, there is a factual dispute between the parties, essentially as to what had transpired between the 1st plaintiff (and to a lesser extent her husband who was in Ward A7 visiting her from about 18.15 hours to about 19.15 hours) on the one hand and the nurses, midwives and the 1st defendant on the other hand in the afternoon and evening of the day in question up to the time when the Abruptio Placentae was actually discovered.

THE PLAINTIFFS' FACTUAL EVIDENCE

15.The main witness on facts for the plaintiffs is of course the 1st plaintiff. Her witness statement and supplemental statement in this matter stood as her evidence-in-chief. In summary, her evidence is as follows.

16.Her expected date of delivery was 25 September 1998. However on 22 September she was admitted to Tuen Mun Hospital for irregular uterine contractions. After examination, labour was not established and she was discharged home the next day.

17.On 25 September, she attended Tuen Mun Hospital at 08.45 hours and was admitted to the antenatal ward for "show". After a thorough examination lasting over an hour, she was sent to the antenatal ward. In the morning of that day she was not unwell.

18.At 2.30 p.m. (14.30 hours) she started to have stronger and regular uterine contractions and complained to the nurse of intermittent abdominal pain once every 5 to 10 minutes.

19.From 4.30 p.m. (16.30 hours) onwards, she experienced more severe and constant abdominal pain and felt distressed and unwell.

20.At about 5.30 p.m. (17.30 hours) she felt there was a leakage of liquor. She told the nurse of the leakage and was transferred to the labour ward.

21.At 5.40 p.m. (17.40 hours) she was examined by the 1st defendant in the labour ward whom she later knew to be the House Officer on duty. The 1st defendant carried out a vaginal examination, said there was no leakage and told her she was not ready for labour but to wait patiently. She then complained to the 1st defendant of her severe abdominal pain and asked him why such pain if she was not in labour. When asked by the 1st defendant how often she had such pain, she told him the pain was non-stop. Despite saying this to the 1st defendant, she was sent back to the antenatal ward. Her impression was that the examination by the 1st defendant was brief and took no more than five minutes. The 1st defendant had not used any machine to check the fetal heart rate and he did not palpate her abdomen despite her complaints to him.

22.From her own experience, the abdominal pain she had when examined by the 1st defendant was different from her previous labour pain. It was severe, consistent and unbearable so much so that it brought out tears in her.

23.After she was returned to the antenatal ward, she was visited there by her husband and elder daughter at 6.15 p.m. (18.15 hours). She complained to her husband of the pain and of feeling unwell. Her husband then told the nurse of the pain and at the suggestion of the nurse, her husband massaged her back but the pain did not stop. Her husband again spoke to the nurse about the pain. The nurse replied that every woman about to labour would have pain. The 1st plaintiff then said that the pain was different from her previous labour pain but she was ignored.

24.For the one hour after she was returned to the antenatal ward from the labour ward, she was comforted by two or three nurses but none had checked the fetal heart rate or palpated her abdomen or carried out a vaginal examination on her.

25.In her supplemental witness statement, the 1st plaintiff states that at the same time when her husband and daughter were visiting her in the antenatal ward, the 1st plaintiff was served dinner from the hospital but could not eat because of her pain. Instead she had vomited some of the food she had eaten during lunchtime. This was seen by the amah who collected her uneaten dinner. However, neither she nor her husband had told the nurse in the ward of her vomiting.

26.When she noticed that it was close to 7 p.m. (19.00 hours) she told her husband to go home with their daughter as it was getting late.

27.About 7.30 p.m. (19.30 hours) she felt extreme pain at her abdomen feeling very unwell. She could not get out of bed or even move a step. A nurse saw her and asked what was wrong. She told the nurse the pain was very severe. The nurse asked her to lie down and brought along a (CTG) machine to check the fetal heart rate. On checking the nurse cried out that the fetal heart rate was low. The nurse looked to be in a panic. The 1st plaintiff was transferred to another bed and taken to the labour ward. At that time she felt a lot of blood passed out of her vagina.

28.In the labour ward, she was attended to by several doctors who told her that the condition of her and her baby were critical and had to undergo emergency Caesarean section. She consented to the Caesarean and then lost consciousness.

29.The husband of the 1st plaintiff, Cheng Lu Man, is a hospital assistant in the employ of the Hospital Authority. He confirms all the evidence given by the 1st plaintiff as to her pain, her vomiting and the complaint made to the nurses during the time that he was visiting her in the antenatal ward. He further states that during the time that he was in the antenatal ward, because it was visiting hours, the 1st plaintiff was not examined by any nurse, either checking the fetal heart beat or palpating her abdomen.

THE DEFENDANTS' FACTUAL EVIDENCE

30.Dr Sydney Au-Yeung gave evidence that he examined the 1st plaintiff shortly after her admission into Tuen Mun Hospital on the morning of 25 September 1998 and classified her case as a "low risk" birth.

31.In so classifying her case, the evidence of Dr Au-Yeung is supported by the evidence of Dr Cheung Yiu Cheong (who was present with Dr Au-Yeung when he examined the 1st plaintiff) and also that of Dr Helen Ko (who examined the traces from the CTG taken from the 1st plaintiff between 09.35 and 10.35 hours). Neither Dr Cheung Yiu Cheong nor Dr Helen Ko gave oral evidence as their witness statements were agreed into evidence by the parties without the need to call them to give live evidence.

32.Rosemary Leung, a registered nurse and registered midwife also gave evidence. She remembers the 1st plaintiff as a patient but has no detailed recollection of all the events on that day. Her evidence was based largely on a review of the medical records.

33.She came on duty at 14.00 hours together with nurse Chiu Mei Ling in the First Stage room of the antenatal ward where the 1st plaintiff was. She was in charge of the First Stage room. She had checked the 1st plaintiff for the fetal heart rate shortly after coming on duty and found it to be regular within normal range. As a result she made the entry "H" in the Obstetrics Record as a routine practice.

34.Based on the medical records, the 1st plaintiff did not complain of pain or uterine contractions between 14.00 and 15.00 hours.

35.At 15.00 hours because of a complaint by the 1st plaintiff of abdominal pain, she had examined the 1st plaintiff who told her the pain was every 5 to 10 minutes. She performed an abdominal and a vaginal examination but nothing abnormal was found. The pain was consistent with irregular uterine contractions. Labour was not established and pain of this nature was normal. As a normal practice she would have told the 1st plaintiff to inform the nurse if there was increase in the abdominal pain. She explained that the entry "FHHR" meant "fetal heart heard and regular" which meant the fetal heart beat could be heard, there was no fetal cardiac arrhythmia and it was within the normal range of 110 to 150. This was checked by using a doptone as is the normal practice in Tuen Mun Hospital.

36.She also explained that in carrying out the abdominal and vaginal examination, she would need to palpate the abdomen of the 1st plaintiff to check the position of the fetus. In so doing she would have noted if the uterus was tense hard or soft between uterine contractions. If it was tense, hard or rigid, that would clearly be an abnormal finding and would be recorded in the medical records. Moreover a doctor would be called for immediately to deal with such abnormality. No such record was made in the case of the 1st plaintiff.

37.Between 15.00 and 17.25 hours, again based on the medical records, no complaint was made by the 1st plaintiff either of pain or uterine contractions. If there was such complaints, the nursing staff would have examined the 1st plaintiff and any findings inconsistent with normal childbirth would have been recorded in the medical records and follow up action taken.

38.At 17.25 hours the 1st plaintiff was examined by her as a result of the 1st plaintiff's complaint of leakage of fluid. She carried out a vaginal examination and recorded her findings in the medical record. From the record, she was able to say that she saw a scanty amount of clear fluid on her surgical gloves when she withdrew her fingers from the 1st plaintiff's vagina but was unable to say whether it was actually liquor. Therefore following the normal practice of Tuen Mun Hospital, it had to be confirmed by a doctor whether amniotic liquor was present or the amniotic sac had broken.

39.At that same time, she also recorded that the fetal heart rate was heard and regular. In doing so, she would have used the doptone once more. Also she would have had to palpate the abdomen of the 1st plaintiff. Once again nothing abnormal was found with the abdomen or else a record of such abnormality would have been made. All this indicate that the pain the 1st plaintiff was experiencing then was consistent with normal labour.

40.The examination of the 1st plaintiff at 17.25 hours showed that the 1st plaintiff's cervix was partially taken up and its size was two fingers loose. Her uterine contractions were regular, of mild intensity and at five minutes interval. These were recorded on the partogram which was started at that time because these findings indicated that the onset of labour had started and that the 1st plaintiff was in the latent phase of the first stage of labour. The latent phase for a multiparous woman which the 1st plaintiff was, would be about four to five hours.

41.After the partogram was started, the maternal blood pressure and pulse were checked and recorded on it every hour, while the uterine contractions and fetal heart rate was checked and recorded on it every 30 minutes. All these matters were checked and recorded on the partogram with no abnormalities found.

42.Thereafter the 1st defendant, being the Houseman on duty, was called in to check the suspected leakage. This was standard practice in Tuen Mun Hospital. For this purpose, the 1st plaintiff was transferred out to the delivery ward (Ward T7) for a vaginal examination by the 1st defendant using a speculum. Before she was transferred out, the 1st plaintiff was once again checked by Rosemary Leung for fetal heart rate using a doptone. In doing so she would have palpated the abdomen of the 1st plaintiff and would have noted the uterine tone, intensity and duration of uterine contractions. If the abdomen was tense, hard or rigid, that would have been recorded as an abnormality. No such abnormality was recorded. What was recorded was that the fetal heart was heard and regular.

43.Entries made in the Progress Notes against the times of 17.40 and 17.50 hours were not made by her but by the nurse in Ward T7 and by the 1st defendant when the 1st plaintiff was examined by him in Ward T7.

44.The 1st plaintiff was sent back to the antenatal Ward A7 after examination by the 1st defendant. The next entry in the Progress Notes made by Rosemary Leung was at 17.55 hours. As a normal procedure, when the 1st plaintiff was taken back to ward A7, she checked the fetal heart rate by doptone and noted that it was heard and regular within the normal range.

45.Between 17.55 and 18.30 hours, the 1st plaintiff did not complain of any abdominal pain inconsistent with normal labour. During that time she had also checked the fetal heart rate using a doptone which showed that it was regular and within normal range. (This was recorded on the Partogram).

46.Between 18.30 and 19.30 hours she went for her dinner break and during that time she handed over the patients in the First Stage room to nurse Chui Mei Ling as a routine.

47.When she returned to the First Stage room after her dinner break at 19.30 hours, she had gone round to look at each of the patient including the 1st plaintiff. She remembers looking at the Partogram of the 1st plaintiff which showed that all was normal. The next routine check was at 20.00 hours.

48.Shortly before 19.50 hours, the 1st plaintiff complained of increased abdominal pain. She then examined the 1st plaintiff. When she palpated the abdomen of the 1st plaintiff, she could feel fairly strong uterine contractions and also felt the abdomen to be hardened. The pain also appeared to be continuous. Her suspicion having been aroused, she decided to put on the CTG machine to monitor the fetal heart continuously. She saw from the CTG reading the fetal heart beat was 80 per minute which was low. She also checked the maternal pulse to make sure it had not been confused with the fetal heart rate. Once she confirmed there was fetal distress, she at once summoned for two doctors.

49.Just at that time, the 1st defendant happened to be in the antenatal ward and came over immediately. The 1st defendant carried out a vaginal examination on the 1st plaintiff, but because of the lack of time due to this being an emergency, the 1st defendant informed her of his findings from the vaginal examination and asked her to record those findings of his which she did on the Partogram against the name of the 1st defendant. The 1st plaintiff was then transferred to Ward T7.

50.Chui Mei Ling also gave evidence. She is a registered nurse and registered midwife. She came on duty at 14.00 hours on 25 September 1998 in Ward A7 of Tuen Mun Hospital. Rosemary Leung was in charge of that ward on that shift. When she came on duty, she had received the nursing reports of the patients in the ward from Rosemary Leung. Having gone through those reports she found nothing of significance with the patients including the 1st plaintiff.

51.Rosemary Leung's dinner break was scheduled for 18.30 to 19.30 hours on that day. Her own dinner break was scheduled for 19.30 to 20.30 hours. Before going off for dinner, Rosemary Leung had handed over those patients who were in labour to her care. The 1st plaintiff was one of them. Rosemary Leung's normal practice was to tell her the names of the patients in labour and the extent of their cervical dilatation when handing over patients to her. In the case of the 1st plaintiff she believes that Rosemary Leung would have told her that the 1st plaintiff's dilatation was "partially taken up and two fingers loose" as that was the state of the 1st plaintiff's dilatation recorded in the labour chart at that time.

52.She understood that since the 1st plaintiff was in labour, she had to check the fetal heart rate by doptone and the uterine contractions every 30 minutes. She also had to check the maternal blood pressure and pulse every hour. This was the normal practice in Tuen Mun Hospital.

53.After taking over the 1st plaintiff from Rosemary Leung she had reviewed the labour chart and medical records of the 1st plaintiff and noted that the maternal blood pressure and pulse as well as the fetal heart rate taken at 18.30 hours were all normal.

54.At 19.00 and 19.30 hours she had checked the 1st plaintiff for fetal heart rate by doptone and her uterine contractions by abdominal palpitation. At 19.30 hours she had also checked the maternal blood pressure and pulse of the 1st plaintiff. These were recorded in the labour chart. None of those findings were abnormal, nor did she find the abdomen of the 1st plaintiff hard when she palpitated it at 19.00 and 19.30 hours.

55.At 19.30 hours she handed back the 1st plaintiff to the care of Rosemary Leung before she went off to dinner. She had also told Rosemary Leung of her findings in relation to the 1st plaintiff. She assumed Rosemary Leung would read the medical records herself.

56.Between 18.30 and 19.30 hours when the 1st plaintiff was in her care, if the 1st plaintiff had complained of pain which was inconsistent with normal labour, she would have carried out abdominal and vaginal examinations of the 1st plaintiff and would have recorded the findings and complaints in the medical record. Since no such entry had been made, she is able to say from that that there was no such complaint by the 1st plaintiff of pain inconsistent with normal labour.

57.When she returned from dinner at 20.30 hours, the 1st plaintiff had already been transferred to Ward T7.

58.The 1st defendant gave evidence which can be summarized as follows.

59.He holds the qualification of MBBS (HKU) 1997. In September 1998, he was a House Officer attached to the Department of Obstetrics and Gynaecology in Tuen Mun Hospital.

60.He has no detailed recollection as to what happened on 25 September 1998 between him and the 1st plaintiff. His evidence is based largely on the medical records.

61.From the medical records, he notes an entry at 17.25 hours (made by a registered nurse R. Leung) in which it states that he was notified by the nurse as a result of a complaint of leaking by the 1st plaintiff. His reading of that entry made by the nurse was that there might have been some fluid or discharge passing out from the vagina and the nurse was not sure whether this amounted to leakage of liquor. He was therefore requested to examine the 1st plaintiff to confirm whether there was leakage of liquor.

62.The next entry at 17.35 hours (also by nurse Leung) records the 1st plaintiff being transferred to Ward T7 and also records that the fetal heart rate was normal. It is normal practice of the hospital to check the fetal heart rate after each examination by a doctor or by the nurse.

63.The next entry at 17.40 hours made by a nurse records that the 1st plaintiff was transferred into Ward T7 and also records that the fetal heart rate was heard and regular.

64.His involvement with the 1st plaintiff as indicated on the medical records starts with the entry at 17.50 hours on 25 September 1998. That entry was made by him. From that entry, he could say that he had examined the 1st plaintiff with a speculum. Prior to the examination he would have palpated her abdomen to check the position of the fetus. If on palpation, he had found her abdomen to be tense, hard or rigid, that would have been an abnormal finding and he would have recorded it in the medical records. He would also have informed a doctor more senior than him. If the 1st plaintiff had complained of pain, she would be attended to by the medical/nursing staff. If the pain was inconsistent with normal childbirth, that would be recorded in the medical records and the appropriate treatment given.

65.He first examined her with a speculum. That is an instrument which is inserted in the vagina of the 1st plaintiff to enable a visual inspection by him of her vagina to see if there is any fluid or discharge. From the entry in the medical records, he can say that he did not see any liquor. That examination with the speculum conforms with the normal practice of Tuen Mun Hospital as laid down by its handbook.

66.The second test he carried out on the 1st plaintiff was a cough impulse. That is done when the speculum is still inserted in the 1st plaintiff's vagina. The 1st plaintiff is asked to cough because coughing creates pressure on the amniotic sac. If there is leakage, liquor will be seen passing out from the cervical canal when she coughs. Again from the entry in the medical records, he can say he saw no liquor coming out when the 1st plaintiff coughed.

67.Thirdly he tested the 1st plaintiff with amniostix. Amniostix is an indicator which will change colour (from yellow to blue-black according to the ambient pH value). The pH value of liquor is alkaline while that of the vagina is acidic. When the 1st plaintiff was tested, the amniostix test was negative indicating there was no leakage of liquor.

68.Fourthly, from his vaginal examination of the 1st plaintiff the record shows that he found the membrane to be intact and forewater can be felt. Since no liquor was seen in the vagina, none when the 1st plaintiff coughed, and the amniostix test was negative, he came to the conclusion that on all those findings, leakage of liquor was not confirmed at that time.

69.As a result, he directed that the 1st plaintiff was to be transferred back to Ward A7 and to continue to monitor her labour progress. In the absence of any note in the medical record, he can only assume that he did not discuss with any senior doctor that decision to transfer the 1st plaintiff back to Ward A7.

70.He further says that because the 1st plaintiff was in the latent phase of the first stage of labour, she was classified as a 'low risk' case, leakage was not confirmed by his findings, and all the notes in the medical record up to that time showed the 1st plaintiff's labour to be normal, there was no clinical indication that the 1st plaintiff should have been put on continuous cardiotocography at that time.

71.His next involvement with the 1st plaintiff (from the medical notes) was when he and Dr Liauw were informed by the nurse at 19.50 hours of the abnormal fetal heart beat. The medical records show that after he was so informed, he had carried out a vaginal examination of the 1st plaintiff. By that time he realized it was an emergency. Because of the shortness of time, he told the nurse of his findings and asked the nurse to record them down in the hospital records.

72.He had informed his senior of these matters and began to prepare the 1st plaintiff for the emergency Caesarean section by taking blood for cross matching, setting up drip for intravenous fluid replacement and preparing for possible blood transfusion.

73.He did not take part in the decision for a Caesarean section as regards the 1st plaintiff and he did not take any part in the Caesarean itself.

74.He further says that as part of his training as a medical student and as a house officer he had seen a number of suspected cases of Abruptio Placentae both in Tsan Yuk Hospital and Tuen Mun Hospital. He would have observed how doctors dealt with such patients. After the treatment, the doctors-in-charge would have, as a matter of practice, informed the students to be on the alert to the signs and symptoms of Abruptio Placentae which are (a) severe abdominal pain (b) wooden board-like rigidity, hardness and tenderness of the abdomen (c) unstable signs of blood pressure, pulse, temperature of either the mother or fetus or (d) vaginal bleeding.

75.Therefore if he had come across any such signs in the 1st plaintiff on 25 September 1998, he would have consulted a more senior doctor since he was aware that such signs and symptoms could be indicative of Abruptio Placentae which could lead to serious consequences for both mother and child.

76.Two of the nurses who were on duty in Ward T7 when the 1st plaintiff was transferred there to confirm the suspected leakage also gave evidence.

77.Fung Choi Ping is a registered nurse and also a registered midwife. She was on duty in Ward T7 at 17.40 hours on 25 September 1998. The entry at that time in the Progress Notes of the medical records relating to the 1st plaintiff was made by her. She has no independent recollection of the event but from that entry in the medical records she is able to say that when the 1st plaintiff was transferred into Ward T7 at that time, she had examined the 1st plaintiff and had taken the fetal heart rate by doptone which showed the fetal heart rate to be between 110 and 150 and was therefore regular. As a result she had put down "FHHR" against the time of 17.40 hours in that entry. That denoted that the fetal heart was heard and regular.

78.She was also able to say that in taking the fetal heart rate from the 1st plaintiff by using a doptone, she would have had to palpate the abdomen of the 1st defendant to check the position of the fetus before using the doptone. When palpating the abdomen of the 1st plaintiff, if the abdomen was tense, hard or rigid, that would be an abnormality which she would have recorded in the medical records and she would also have called for a medical officer to deal with such abnormality.

79.Moreover, if the 1st plaintiff had complained of non-stop pain to her, that would also be abnormal and she would have recorded it in the medical records and informed the house officer and a medical officer to deal with such abnormality.

80.From the medical records, she is able to say that she was the nurse who had recorded the findings of the 1st defendant (in respect of the speculum examination done by him) in the Labour Record against the time of 17.45 hours. Those findings were said out aloud by the 1st defendant during the examination and recorded down by her. After the 1st defendant had finished the examination, the 1st defendant then recorded down his findings in the Integrated Treatment/Progress Notes himself.

81.Tang Mei Lan is a registered nurse and also a registered midwife. She was on duty in Ward T7 at 17.50 hours on 25 September 1998. The entry in the Progress Notes of the medical records made at 17.50 hours was made by her. She has no independent recollection of the event but from that entry she is able to say that the 1st plaintiff was transferred out of Ward T7 back to Ward A7 at 17.50 hours. Moreover, at that time she had examined the 1st plaintiff by using a doptone to listen to the fetal heart rate. Against that entry she had put down the words "FHHR" which denoted that the fetal heart rate was heard and regular (i.e. within the normal range of 110 to 150 beats per minute).

82.In using the doptone at that time on the 1st plaintiff, she would have had to palpate the 1st plaintiff's abdomen to check the position of the fetus. If on palpating the abdomen, she had found it to be tense, hard or rigid, that would be an abnormal finding which would have been recorded by her in the medical records. Moreover she would also have called for a medical officer to deal with such abnormality.

83.If the 1st plaintiff had complained of non-stop pain to her, she would have had to assess the 1st plaintiff for the non-stop pain. It would also have been an abnormality which she would have recorded on the medical records and would have had to call a medical officer to deal with such abnormality.

84.Two doctors who took part in performing the emergency Caesarean section also gave evidence for the defendants. They are Dr Linna Liauw and Dr Roland Lim.

85.Dr Liauw holds the qualification of MBBS (HKU) and MRCOG (UK). In September 1998 she was attached to the Department of Obstetrics and Gynaecology of Tuen Mun Hospital as a Medical Officer.

86.Just before 19.55 hours on 25 September 1998, she was having dinner with Dr Roland Lim when she was paged by a nurse who told her that fetal bradycardia was detected in a patient. Both she and Dr Lim proceeded to Ward T7 at once.

87.At Ward T7 she took a very quick review of the medical notes of the 1st plaintiff since it was an emergency and found nothing significant before 19.50 hours from those entries. She then carried out a physical examination of the 1st plaintiff and her finding were recorded down for her by Dr Roland Lim.

88.She then proceeded to carry out an emergency lower segment Caesarean section on the 1st plaintiff assisted by Dr Roland Lim.

89.At 20.18 hours the 2nd plaintiff was delivered with Apgar scores of 0 at birth and was handed over to the paediatrician for resuscitation. After resuscitation, the Apgar score was 4 in the fifth minute and 6 in the tenth minute of birth.

90.The uterine cavity of the 1st plaintiff was explored with blood clots evacuated. 800 ml of retroplacental blood clots and a Couvelaire uterus were noted.

91.Continuous oozing was found from the bladder base and was not under control. Clinically Disseminated Intravascular Coagulation disorder (DIC) was diagnosed.

92.The operation was then taken over by Dr Leung Yuk Men Louise and Dr Chan Shu Mo. Dr Liauw continued to assist them.

93.The DIC and the baby's disabilities were caused by the Abruptio Placentae and not related to the operation.

94.Dr Roland Lim's evidence confirms every aspect of the evidence given by Dr Liauw as regards the treatment given to the 1st plaintiff by way of emergency Caesarean section between 17.50 hours when Dr Liauw was informed of the matter and 20.18 hours when the baby was delivered.

The expert evidence

95.Three areas of expert evidence were adduced by the parties. They are neuro-radiology being the reading of imaging by MRI; neonatal paediatrics and obstetrics.

96.The neuroradiologists called were Dr Brian Kendall for the plaintiffs and Dr Khong Pek Lan for the defendants. As for neonatal paediatrics only Dr Janet Rennie was called by the plaintiffs. The obstetricians called were Dr Danny Kong for the plaintiffs and Professor Terence Lao for the defendants.

97.I shall deal with the expert evidence in respect of each field or discipline in turn.

(a) Neuro-radiologists

98.There is no dispute that Dr Kendall is a leading expert in neuro-radiology.

99.Dr Kendall gave two reports and also gave oral evidence (by video link). The initial instructions to him was to study the neuroimaging in order to diagnose the pathology underlying the (2nd plaintiff's) neurological disabilities and by correlation with the history to comment on the causation and timing of the brain damage.

100.The first part of his expert evidence and opinion, as to the extent, type and pattern of the brain damage of the 2nd plaintiff is not disputed by the defendants. Indeed that part of his evidence is accepted not only by the defendants but also by the defendant's neuro-radiologist.

101.Effectively, Dr Kendall was of the opinion that the brain damage, found to be most severe in the borderzones, to the 2nd plaintiff was from partial asphyxia caused by reduction in gas exchange between the foetal and maternal circulations due to progressive placental separation. This partial asphyxia was followed by a period of profound asphyxia. Due to the fact that the 2nd plaintiff was a recent stillbirth, that indicated the profound asphyxia occurred at the end of labour. The asphyxia was reversed by the resuscitation procedures after the brain damage had occurred.

102.In his own words, Dr Kendall explains that :

"Profound asphyxia, synonymous with profound hypotension or circulatory collapse causes ischaemia of the whole brain. Tissues then become irreversibly damaged in proportion to their metabolic demands. Correlation with work on mammals and limited clinical correlation suggests that the putamina and lentiform nuclei are damaged after about ten minutes, the pre and post central gyri, hippocampi and often the calcarine regions in under twenty five minutes. Death is then usual but with active resuscitation there may be survival usually with diffuse involvement of the whole cerebrum.

Partial hypoxic ischaemia casues reduction in cardiac output. The brain reacts to this by vaso dilatation and thus maintains cerebral blood flow. If the output continues to fall when vaso dilatation is maximum, the most distal regions of the cerebral circulation, referred to as the borderzones, become critically under perfused and ischaemic. These regions are then extensively exposed to damage in relation to the metabolic demands of the tissue. After about twenty-five minutes the neurons throughout this borderzone will become irreversibly damaged. Because the vital regions of the brain are not affected by this process, it can continue for many hours producing a similar pattern of damage.

The pattern of damage in Cheng Wai Yi (the 2nd plaintiff), suggests that the borderzone regions which are most severely affected, were subjected to more than twenty five minutes of total ischaemia as distinct from the rest of the cerebral tissue, which have not been affected in this way.

The much less severe damage in the basal ganglia and thalami (i.e. the grey matter) indicates that the profound asphyxial damage occurred for a period of over ten minutes. This suggests that the damage in the borderzones had already commenced before the period of profound asphyxia and would have continued throughout the period of profound asphyxia.

We know that Cheng was a recent stillbirth, caused by the profound asphyxia, which was reversed by the resuscitation procedures. The pattern of damage shown on the MRI clearly indicates that the profound asphyxia was preceded by partial asphyxia, which had been continuing long enough for borderzone damage to have commenced prior to the circulatory collapse. It will of course have continued following the circulatory collapse.

We know that the mechanism was a placental abruption and in order to produce partial followed by profound asphyxia, this is likely to have been an increasing compromise of the placental circulation."

103.Dr Kendall then goes on to deal with the timing of the brain damage. It is this part of his opinion which is disputed by the defendants.

104.Dr Kendall states :

"It is generally accepted that autoregulation can compensate for partial asphyxia for at least approximately one hour and that effective obstetric response during this time is necessary to avoid terminal circulatory collapse and permanent brain damage." (emphasis added)

105.This was further developed by Dr Kendall in his second report. He takes the view that there is an across-the-board rule, that regardless of the severity of the condition or other individual factor, autoregulation will protect a human fetus from permanent brain damage which would otherwise be caused by asphyxia "for at least approximately one hour".

106.Whilst the defendants do not dispute that autoregulation mechanism exists in a fetus, they dispute the across-the-board rule of "at least approximately one hour" stated by Dr Kendall.

107.The defendant's neuroradiologist, Dr Khong Pek Lan, stated in her report that she was not aware of any MRI study in the literature to show that this severity of brain damage in the human fetus requires "at least approximately one hour" of partial asphyxia to develop.

108.Dr Khong then refers to three articles relating to controlled animal model studies and states that it has been shown that in fetal sheep model studies that fetal arterial blood pressure during asphyxia is the most powerful predictor of subsequent parasaggital neuronal loss.

109.She concludes that it is therefore not possible to make a firm conclusion that "the period of asphyxia commenced more than one hour before delivery" based on the MRI findings. The animal studies have shown that this degree of brain damage can occur with an even shorter period of hypoxia/ischaemia.

110.Relating to the present case, Dr Khong says that the period of 30 minutes from the time that fetal heart rate indicated fetal distress to the time that Cheng Wai Yee (i.e. the 2nd plaintiff) was born could have accounted for this degree of brain damage.

111.As for the timing of the onset of damage, both Dr Kendall and Dr Khong agree that this must be correlated with the birth history by obstetric and neonatal expertise.

112.In cross-examination of Dr Kendall, it became apparent that the views he expressed as to the autoregulation system being able to cope with asphyxia for "at least approximately one hour" is not an opinion based upon his expertise, but rather was based upon the views expressed by obstetricians in medical literature.

113.However, in his first report, Dr Kendall makes no reference to any medical literature. In his second report he did refer to the work of an obstetrician James Low (1933) enclosed with his second report.

114.When he was further cross examined on this article by James Low (1933), Dr Kendall ultimately conceded that the article does not deal with the issue of what a CTG will or will not reveal during a period of fetal compromise.

115.Dr Kendall was taken to a number of articles in medical literature including a work by Dr Low (1988) which in turn refers to Myers (1972), Gunn et al and Ikeda et al. In none of these articles to which Dr Kendall was referred in cross-examination do they support his view that the autoregulation system can compensate partial asphyxia "for at least approximately one hour". Instead the medical literature shows that there is enormous variation from animal to animal. The literature also demonstrate that severe asphyxia in fetal sheep for periods from 30 to 120 minutes can cause predominant parasagittal neuronal death which is the same pattern of brain damage suffered by the 2nd plaintiff.

116.Furthermore the work by Gunn et al recognizes that the pattern of brain damage (as suffered by the 2nd plaintiff) can be caused by a period of severe asphyxia in as little a time as 30 minutes.

117.This article also emphasized (as did Dr Khong) that the most important factor when examined against the parasagittal damage score was not the duration of the asphyxia but the change in the blood pressure.

118.It also emphasized the enormous variability as to the effectiveness of the self-regulation mechanism.

119.Lastly in none of these articles where the experiments were conducted on fetal sheep was there any indication that any attempts had been made to abolish the autoregulation mechanism of the fetal sheep as alleged by Dr Kendall in his evidence.

(b) Neo-natologist

120.Dr Janet Rennie, the neonatologist called by the plaintiffs is accepted by both parties to be one of the leading experts in her field. Indeed her evidence as an expert in the field of neonatal paediology is accepted by both parties and no part of her evidence is disputed.

121.In her report, she summarises the damage to the 2nd plaintiff in this way :

"Cheng Wai Yi is disabled by spastic quadriplegic cerebral palsy. MR imaging of her brain shows damage in the cortical white matter in the border zones between the arterial territories of the major arteries supplying the brain, and a small amount of damage in the deep grey matter of the brain. This is a pattern of damage which is recognized to occur as a result of hypoxia-ischaemia to the mature fetal brain, and there is little doubt that Cheng Wai acquired her brain damage as a result of such an insult which she sustained as a result of a placental abruption."

122.She then sets out the facts leading to the delivery of the 2nd plaintiff at 20.18 hours and continues :

"In my view Cheng Wai's brain damage probably arose as a result of the hypoxic-ischaemic insult she received between 1930, when Madam Chum's symptoms became much worse, and about 2023, when her circulation and oxygenation was restored by resuscitation. This period of nearly an hour of severe partial asphyxia culminating in a short period of total circulatory collapse (Apgar 0) fits with the pattern of damage seen in her brain. In general it is thought that it takes about an hour of hypotension for border zone "watershed" damage to occur in a mature human fetus. It is possible that Cheng Wai's damage arose as a result of a damaging period as short as 30-40 minutes but it is more probable, particularly given the history, that the majority, the bulk, of the placental abruption occurred at around 1930. It is unlikely that the midwife just happened to listen to the fetal heart rate at around 1950 just at the point at which it became bradycardic - it is likely to have been bradycardic for at least some minutes; and it follows that it is illogical to time the insult as starting at 1950. If the bulk of the abruption occurred at 1930 and was associated with a fetal bradycardia shortly thereafter, then Cheng Wai would have to have been delivered by caesarean section before about 1950 in order that she could have escaped without sustaining her brain damage. The prognosis for babies who develop a bradycardia due to an abruption which lasts for more than 20 minutes is known to be poor."

123.Dr Rennie then goes on to state :

"From the clinical neonatal point of view, I think that Cheng Wai sustained her damage in the last hour of her mother's pregnancy, as a result of fetal hypotension and hypoxia-ischaemia due to a placental abruption. Whether or not this period of time was preceded by a period during which there were sufficient warning signs in order to mandate delivery by caesarean section by 1950 is outwith my expertise, and the Court will be assisted by experts in obstetric medicine."

124.Dr Rennie further goes on to set out a detailed discussion of the case of the 2nd plaintiff coming to the conclusion that the brain damage to the 2nd plaintiff has originated as a result of fetal hypoxia ischaemia which the 2nd plaintiff experienced as a result of the placental abruption. Dr Rennie also states that the 2nd plaintiff's case meets all the criteria which have been suggested as those which should be met before a case of childhood cerebral palsy can be considered to be due to perinatal hypoxia ischaemia, referring to medical literature (MacLennan 1999) and setting out those criteria.

125.Dr Rennie then goes on to state that the only question which remains is to determine the time and precise type of the 2nd plaintiff's damage. In this respect, in order to obtain information on the time it takes for hypotension to produce brain damage in babies, it is necessary to use information from animal experiments since no human experiments will ever be done. Dr Rennie states that there are three basic types of animal experiments which can help, namely :

(a) experiments with periods of profound total asphyxia (acute total);

(b) experiments with intermittent periods of profound asphyxia (acute intermittent); and

(c) experiments with periods of prolonged partial asphyxia.

126.Dr Rennie continues in her report and rules out the first two types (i.e. acute total and acute intermittent) on the basis that the pattern of damage seen in the 2nd plaintiff do not conform with the pattern of damage seen from the animal experiments relating to acute total asphyxia and acute intermittent asphyxia.

127.Dr Rennie then deals with those experiments with periods of prolonged partial asphyxia and states in her report as follows :

"In the lamb model using carotid artery occlusion, 30-40 minutes of ischaemia was followed by necrosis in the parasagittal cortex, basal ganglia and thalamus (Williams et al 1992). In this model, the anastomoses between the vertebral and the carotid arteries are ligated, and cuffs are placed surgically around the carotid arteries. The cuffs are inflated to produce virtually complete ischaemia, without hypoxia, which is sufficient to flatten the electrical activity of the brain within 10 minutes. Occluders can be placed around the common iliac artery of sheep, and prolonged gradual clamping is used to mimic placental dysfunction. In this model, asphyxia lasting 1-2 hours was predominantly associated with parasagittal cortical injury which was said to be similar to the watershed damage seen in human babies (Gunn et al 1992). Uterine ischaemia alone for 30 minutes did not produce damage consistently in this model (Table 1 in the paper); the ewe's head had to be placed in a paper bag with reduced oxygen in addition and this insult was then continued for up to 120 minutes. This model shows the degree of biological variability which occurs even in controlled experimental conditions, and the authors concluded that "severe intrauterine asphyxia for 30-120 minutes can cause predominantly parasaggital damage". In general the insult was longer than 30 minutes.

......

The chance of border zone damage appears to increase significantly once hypotension is sustained for more than an hour in human babies. Naeye reported findings in 55 children with cerebral palsy (Naeye & Lin 2001). In this study basal ganglia lesions predominated when the bradycardia lasted 30 minutes, but as the bradycardia duration lengthened beyond 30 minutes white matter damage, watershed brain lesions, occurred. Watershed lesions in general were seen in the longer lasting insults and in this paper he records that the odds ratio for the presence of watershed damage with bradycardia lasting more than an hour compared to less than an hour, was almost 8. The concept that around an hour of hypotension due to prolonged partial hypoxia is required to produce white matter damage is also supported by the lamb models discussed above. It is also the case that in the original primate models of Myers prolonged hypoxia was required to produce this sort of injury (Myers 1975). There are very few modern primate studies because of ethical constraints, but it is of note that the monkey fetuses subjected to more than 50 minutes of severe partial asphyxia followed by 3-4 minutes of total asphyxia had cortical damage with damage in the basal ganglia. This timescale and end result is very similar to the damage seen in Cheng Wai. Cheng Wai's damage is predominantly in the border zones; although it is possible that her damage occurred in as short a period of time as 40 minutes, the fact that her damage mainly affects the white matter suggests a longer time frame, around 60 minutes. This fits with the mother's description of a significant increase in pain at around 1930."

128.The conclusion which Dr Rennie draws from this is stated by her as follows :

"In my view the overall clinical and neuroradiological picture of Cheng Wai's brain damage is predominantly that of chronic partial prolonged hypoxia ischaemia with a small element of superimposed, acute profound hypoxia ischaemia. Given the severity of Madam Chum's symptoms, the large amount of blood present per vaginum and the 800 ml clot with a Couvelaire uterus seems probable that much of this abruption occurred around 1930, certainly between 1930 and 1950. This would explain the fetal distress. Madam Chum had symptoms earlier than this, but I do not think that the reduction in placental function was sufficient to cause Cheng Wai to have sustained brain damage earlier on. Her fetal heart rate was normal at this time, and she cannot have been exposed to a fetal bradycardia for much more than an hour or she would probably not have survived. The same argument follows for her state during this time; if the placental function had been reduced to near zero from 1930, Cheng Wai would not have survived when delivered at 2018. There is considerable clinical support for the fact that her damage was due to a prolonged period of partial hypoxia with a short terminal collapse. Given the severity of the fetal condition at 1950 it is not possible to say what it was before 1930. The fetal condition between 1930 and 2023 was sufficiently severe that all the damage could have been constrained within that time. Alternatively there might have been a previous period of fetal stress; however on balance the fetal condition prior to 1930 was not that of damaging hypoxia-ischaemia".

129.Dr Rennie summarizes her conclusions succinctly as follows :

"I think that Cheng Wai acquired her damage in the period between 1930 and the end of the resuscitation. This period of total damaging time was likely to have been an hour or more, and the period of fetal hypoxia ischaemia arose as a result of a catastrophic separation of the placenta. Whether or not it was probable that this was preceded by a period which ought to have resulted in a diagnosis of an abruption of the placenta is outwith my expertise, and falls within the expertise of obstetricians. What is probable is that any preceding fetal stress, prior to 1930 was not damaging."

130.Dr Rennie was cross examined by the defendants. The cross-examination was not conducted to discredit her in any way. Indeed the entirety of her evidence was acceptable to the defendants. The cross-examination was designed to show that her evidence relating to the timing of the brain damage to the 2nd plaintiff was not inconsistent with the case put forward by the defendant, but rather, consistent with it.

131.Firstly, Dr Rennie was asked in cross-examination as to whether the MRI by itself could tell when the insult that caused the brain damage to the 2nd plaintiff actually occurred. In answer, Dr Rennie said that in reality the only approach available was for one to consider the findings from the MRI (as to the type and pattern of the brain damage) and then to compare it to what was known from the existing science (the result of the animal experiments). It was by applying that existing knowledge to what she could see on the MRI that enabled her to come to a conclusion as to the approximate timing given by her in her report.

132.Dr Rennie went on to say that in the present case it was known from the CTG that there was bradycardia at 1950 and it was also known that the 2nd plaintiff was delivered at 2018 and resuscitated at 2023 (with an Apgar score of 4). These are fixed points which show that the hypoxia ischaemia lasted for at least 30 minutes between these fixed points. The only issue was how much earlier the significant hypoxia ischaemia might have been there for.

133.In her opinion it was more probable that the total damaging period was of the order of an hour. Therefore the bulk of the placental abruption occurred at around 1930 or thereabouts.

134.When asked whether she had taken the time 1930 because that was the time given by the 1st plaintiff as when she felt the severe pain, Dr Rennie said she worked backwards the time scale from the time of birth at 2018 and when the 2nd plaintiff was resuscitated at 2023 for about an hour. The time scale worked backwards in this way was consistent with the 1st plaintiff saying she had the most severe pain at 1930.

135.When asked whether further damage to the 2nd plaintiff's brain might have happened after resuscitation, Dr Rennie said that although possible, it was not probable that the brain continued to suffer damage after a successful resuscitation.

136.When Dr Rennie was told that it was the defendant's case that the placental abruption affecting the 2nd plaintiff happened at 1940, she confirmed that that time would also be consistent with the pattern of the damage suffered by the 2nd plaintiff particularly taking into account the problem of resuscitation, biological variability, and the difficulty of ascribing animal models to human babies. Dr Rennie agreed that the timing of 1940 (as being when the placental abruption occurred) was within the time bracket which she would accept in this case as it would still be within "the order of an hour".

137.In re-examination, Dr Rennie agreed that if the placental abruption occurred at 1930, 1925 or even 1920 all those timings would still fall within the time bracket of "the order of an hour" when working backwards from 2023 when the 2nd plaintiff was resuscitated.

(c) Obstetrics

138.For the area of obstetric medicine, Dr Danny Kong was called as an expert by the plaintiffs and Professor Terence Lao the expert for the defendants. This constituted the greatest area of dispute or disagreement between the parties in this case in so far as expert evidence is concerned.

139.Professor Lao gave an initial report arising from the management of the plaintiffs soon after the birth of the 2nd plaintiff. That report was dated 21 December 1998. Needless to say at that time there was as yet no formulated claim by the plaintiffs. The opinion arrived at by Professor Lao in that report was that there had not been any delay in response of the nursing and medical staff to the obstetric emergency of (the 1st plaintiff) and the management and unpredictable complications had been of a high standard that reflected a well-trained and skillful obstetric team.

140.On 18 January 2001 Dr Danny Kong gave his initial expert report in this matter. He had no doubt that there had been medical negligence in the management of (the 1st plaintiff) during delivery and the subsequent spastic tetraplegia suffered by (the 2nd plaintiff).

141.From these two initial reports by the respective obstetric experts of the parties, it can be seen that their differences in opinion could not have been greater. However, when the details and the reasons for their respective opinions are gone into, it is right to say that Dr Kong gave his opinion based largely upon the factual matters as set out by the 1st plaintiff in her statements. On the other hand, Professor Lao gave his opinion based largely on the medical notes and records of the nurses and doctors involved in this matter. It should therefore be recognized at once that the very extreme and differing opinions of these two experts must depend to a great extent on the findings that I have to make on the disputed facts in this case.

142.Going into the details of the disputes or disagreement between Dr Kong and Professor Lao, Dr Kong is critical of the defendants and/or its staff in basically three areas of this case as follows :

(a) That they failed to properly diagnose and thus improper management of the 1st plaintiff's labour;

(b) They failed to properly and timeously diagnose (which they could have) the 1st plaintiff's abruptio placentae for which there would have been apparent signs since about 16.30 hours;

(c) The medical notes and records of the defendants was not properly made and has to be viewed with caution and disbelief.

143.Professor Lao on the other hand disagrees with the standpoint taken by Dr Kong in all these three areas. Since each of these three areas involve a number of different aspects of disagreement between them, I shall deal with each area in turn and what is in dispute between the two experts.

(A) Diagnosis and management of 1st plaintiff's labour

144.It is common ground between them that the active phase immediately follows the latent phase of labour although the latent phase is difficult to define and can only be recognized retrospectively when cervical dilatation reaches the stage when it is fully effaced.

145.However, Dr Kong takes the view that the 1st plaintiff's cervix was already two fingers (2-3 cm) dilated with vertex minus 2 cm above the spine on admission and therefore he would consider her "latent phase" was not observed on admission. He further says that her latent phase should not be considered to be present after 14.30 hours.

146.Secondly, he states in his first report that spontaneous rupture of the 1st plaintiff's amniotic membrane was diagnosed by the ward midwife at 17.30 hours but this was rejected by the 1st defendant when he examined her in the labour ward.

147.From this he comes to the conclusion that "Established labour" was made by the midwife at 17.30 hours but after examination by the 1st defendant at 17.40 hours the 1st plaintiff was sent back by him to the antenatal ward.

148.Dr Kong is critical of the 1st defendant for his decision and his action in sending the 1st plaintiff back to the antenatal ward after his examination of her at 1740 hours instead of either putting her on a continuous CTG machine in the labour ward or calling in a more senior doctor to examine her.

149.On the other hand, Professor Lao says that there is no known practice for continuous CTG to be administered before the active phase of labour is reached. In this case Dr Kong is quite wrong to suggest that labour has been established by the midwife at 17.30 hours. At that time the 1st plaintiff was sent to the labour ward for examination because there was "suspected leakage". The examination done by the 1st defendant was a routine examination which the 1st defendant, being a house officer, was qualified to do. Nor was there any abnormality which would have required the 1st defendant to consult with a more senior doctor.

150.Professor Lao further makes the point that the medical records show that the 1st plaintiff's cervix was not fully effaced until about 19.50 hours. Moreover it is clear that there was no rupture of the amniotic membrane of the 1st plaintiff at 1730 hours because the medical record shows that her amniotic membrane had to be manually ruptured during the emergency caesarian operation to deliver the 2nd plaintiff.

151.All of this indicate that the 1st plaintiff had never reached the active phase of labour and there was no good reason to put her on a continuous CTG machine for monitoring. Nor was there any reason for the 1st defendant to have to consult with a more senior doctor when he examined her at 17.40 hours but found no confirmation of leakage.

(B) Failure to properly diagnose Abruptio Placentae

152.In this respect Dr Kong starts off by saying that the abruptio placentae occurred in the 1st plaintiff between 16.30 and 19.30 hours on the basis that the 1st plaintiff had complained of abnormal abdominal pain starting at 16.30 hours and gradually increasing in severity up to 19.30 hours. On that basis Dr Kong is of the opinion that the 1st plaintiff had not been properly examined or managed by the nursing staff of the 1st defendant for if she had, then vital signs of the abruptio placentae should have been detected by them upon palpitation of the abdomen, one such sign being the board like rigidity of the uterine wall caused by the blood flowing into the muscles unable to escape. In this connection he is also critical of the fact that the medical notes and records do not state expressly that the 1st plaintiff's abdomen had been examined or palpitated by the nurses/midwives during this important period of time.

153.Secondly he is critical of the defendants for not monitoring the 1st plaintiff during this period with the CTG machine which would have shown clearly the fetal bradycardia whereas the doptone which was in fact used was an imprecise monitoring of the fetal heartbeat. At one point Dr Kong went as far as to suggest that the doptone was no longer used in major hospitals in Hong Kong and other jurisdiction.

154.An indication as to the timing of the placental abruption according to Dr Kong is stated by him in his first report as follows :

"From the description of the severity of the condition (the operative notes), the 800 ml retroplacental blood clots, the Couvelaire uterus, and the disseminated intravascular coagulation disorder, and the massive blood transfusion, the process of placental abruption did not occur acutely, i.e. within minutes, but instead, these events had occurred hours prior to the emergency Caesarean section."

155.As a result, Dr Kong was of the view that the fetal distress could and should have been picked up by the hospital staff well before 19.30 hours. Moreover, Dr Kong agrees with the opinion expressed by Dr Kendall, the neuroradiologist called by the plaintiff, that the fetal distress should have occurred for "at least approximately an hour".

156.On the other hand, Professor Lao takes the view that the placental abruption likely occurred shortly before 19.50 hours. The reasons for coming to this view is given by Professor Lao as follows :

(a) The 1st plaintiff did not have any risk factor for abruptio placentae when admitted;

(b) Vital signs and fetal heart rate had in fact been monitored manually every 30 minutes and the findings were normal;

(c) If abnormal features such as a "tense, hard, rigid abdomen" was present in the 1st plaintiff between 1630 and 1930 hours it would have been inconceivable that the midwives in the ward would have failed to notice such features since abdominal palpitations preceded each time uterine contractions and fetal heart beat (using a doptone) were checked;

(d) It is a known fact that 800 ml of retroplacental blood clot was found in the 1st plaintiff when the 2nd plaintiff was delivered. If such amount of bleeding had occurred at 1630 hours or even as late as 1800 hours as alleged by Dr Danny Kong it was impossible not to have any obvious maternal signs or significant changes in fetal heart rate which would have been detected even by using a doptone;

(e) Professor Lao further notes that such an amount of bleeding would have produced the picture described in the article referred to by Dr Kong, namely, Bailliere's Clinical Obstetrics and Gynaecology, Ed. by S. Arulkumaran, Vol.14, No. 1, The acute abdomen and the obstetrician by V. Sivanesaratnam, at page 92 which states :

"An entirely concealed accidental haemorrhage occurs in about 20% of cases of abruptio placentae. This usually occurs after 30 weeks, and a preceding history of pregnancy-induced hypertension may not be present. The pain often starts suddenly and becomes continuous and severe. Fetal movements usually ceases, and a board-like rigidity of the abdomen as a result of muscular spasm becomes evident. Proteinuria is often present but may be absent initially. The fetal parts may not be plaplable.

When first seen, the patient is in shock, with pallor, hypertension and shallow respiration. No guide to the severity of the haemorrhage or degree of coagulation failure can be given by the amount of visible vaginal bleeding."

But, says Professor Lao, such a picture was not documented up to the time of the caesarean section, except for the slowing of the fetal heart rate;

(f) A further indication against the occurrence of abruption preceding the delivery at 2018 hours by more than one hour was that the 2nd plaintiff had a cord blood pH of 6.81 and could be resuscitated to give an Apgar score of 4 at the fifth minute of life. An acute and severe abrutio placentae that produces a retroplacental blood clot of 800 ml is likely to have killed the fetus if delivery was not achieved within a matter of an hour or so.

(C) Medical notes and records

157.Dr Kong doubts the accuracy of the medical notes and records for the following reasons.

158.Firstly, those records do not adequately reflect the complaints of pain made by the 1st plaintiff.

159.Secondly, the constant fetal heart measurement of 140 beats per minute as shown on the partogram at half hourly interval from 17.25 hours through to 20.00 hours is unreal.

160.Thirdly, the entry for the fetal heart beat at 20.00 hours is proven to be incorrect because the CTG shows that at 19.50 hours there was a fetal bradycardia showing the fetal heart beat to be 80 beats per minute.

161.Fourthly, the partogram shows a maternal pulse rate of 80 beats per minute and blood pressure of 120/80 mm Hg at 19.50 hours. The 1st plaintiff had a variable low blood pressure of 100-90/60 mm Hg throughout her antenatal visit. In light of the excessive blood loss suffered by the 1st plaintiff there should be a worsened maternal condition than what is shown on the partogram.

FINDINGS OF FACT

162.From the factual evidence of the parties which I have endeavoured to summarise above, it will be seen that there can be no reconciliation between the differences in their evidence without an assessment on the credibility of the witnesses called.

163.The 1st plaintiff and her husband are reasonably educated people although they may lack sophistication. They gave their evidence based on their memory and recollection of events which happened on 25 September 1998. In so doing they were, quite understandably, not assisted by contemporaneous records made of the events upon which they gave evidence.

164.On the other hand, the nurses midwives and doctors including the 1st defendant largely relied on the medical notes and records to give their evidence. It would equally be understandable that they could not be expected to have independent recollections of details of what was said and done without the medical records and of their normal practices in making those records.

165.I shall deal firstly with my assessment of the 1st plaintiff's evidence. There are a number of unsatisfactory aspects of her evidence which affect the reliability of the material and relevant parts of her evidence.

166.Firstly, it is the defence case that no complaint was made by the 1st plaintiff between 15.00 hours and 17.25 hours after the 1st plaintiff had complained of increased abdominal pain at 15.00 hours and before her complaint of leakage at 17.25 hours.

167.The 1st plaintiff's pleaded case in the Reply is that a complaint of constant abnormal abdominal pain had been made to the midwife at 4.30 p.m. (16.30 hours).

168.The 1st plaintiff states in her witness statement that from about 4.30 p.m. onwards she had experienced more severe and consistent abdominal pain and was distressed and unwell.

169.In a statement written in her own hand and dated 12 June 2000 (Exhibit D2) it states that she started to have abdominal pain at 4.30 p.m. which did not stop although it was not as severe as the pain after 6.00 p.m. (18.00 hours).

170.When giving her evidence-in-chief in the witness box, the 1st plaintiff said she had intermittent pain up to around 5.30 p.m. (17.30 hours) and it was about 5.30 p.m. that she spoke to the nurse again after the examination at 3.00 p.m. Initially the 1st plaintiff agreed that she did not tell the nurse the nature of the pain at 5.30 p.m. but only complained of breakage of water.

171.However, when her attention was drawn to her witness statement and asked why she did not tell the nurse of her pain at 5.30 p.m. she changed her evidence and said that she did tell the nurse of the pain and was told by the nurse to keep walking which would be easier for her to give birth. That complaint was made by her around 5.00 p.m. shortly before her complaint of breakage of water.

172.This is not contained in her witness statement and was only mentioned for the first time in her evidence-in-chief. Moreover it is inconsistent with her earlier evidence.

173.In cross-examination, the 1st plaintiff agreed that the pain between 4.30 p.m. and 5.30 p.m. was still intermittent though more frequent and severe. However she also said that at 4.30 p.m. even when the pain became more severe, she did not tell the nurse but just kept walking although she was distressed and unwell then.

174.This evidence of hers in cross-examination contradicts what was pleaded in the Reply.

175.Upon further cross-examination, the 1st plaintiff again sought to change her evidence by saying that it was only after 5.50 p.m. (17.50 hours) that the pain did not stop and was like something pressing inside. That was when she was being transferred from Ward A7 to Ward T7 for the examination to confirm leakage.

176.The 1st plaintiff further sought to justify her evidence as to the accuracy of the time of 5.50 p.m. by saying that when she was being transferred from Ward A7 to Ward T7 on a hospital trolley, she was able to see the time of 5.50 p.m. on a clock on the wall of a corridor. She further said that because that was the time she saw on the clock in the corridor, the examination by the 1st defendant in Ward T7 should be at 5.55 p.m.

177.This timing given by the 1st plaintiff, bearing in mind that it is not an estimate, if her evidence is to be believed, is not only completely at odds with the records in the Progress Notes but is also not the timing given in any of her statements.

178.Secondly, in her examination-in-chief, the 1st plaintiff's evidence was, in relation to her complaint of leakage at 5.30 p.m., that at that time she felt leakage and also felt a force pushing out from inside and pain which was different from her previous labour pain. She told the nurse of this. [Rosemary Leung's evidence was that if there had been any complaint of any abnormal pain by the 1st plaintiff when she complained of leakage at 17.25 hours (5.25 p.m.) a record of such complaint of abnormal pain would have been made. In the absence of any such record, she believes that there was no such complaint of pain by the 1st plaintiff.]

179.When cross-examined on this aspect, the 1st plaintiff said she cannot recall if she had mentioned pain to the nurse at 5.30 p.m. When further cross-examined on this point, she in fact agreed with defence counsel that she did not tell the nurse of her pain at 5.30 p.m. when she complained of leakage and when she was examined by the nurse at that time.

180.Thirdly, in respect of the examination by the 1st defendant to confirm whether or not leakage had occurred, it was the 1st plaintiff's evidence in cross-examination that she did not complain of severe and non-stop abdominal pain to the 1st defendant when he was examining her. The complaint of severe and non-stop abdominal pain was only made by her, according to the 1st plaintiff, when the 1st defendant told her after his examination that she was not yet ready for labour but had to go back to the antenatal ward to wait. It seems inconceivable that if she was suffering pain of the severity which she alleges that she would not complain of it to the 1st defendant at the first opportunity but wait until she is told that she is not ready for labour but has to wait for longer.

181.The 1st plaintiff also agreed under cross-examination that when she made the complaint of severe and non-stop abdominal pain to the 1st defendant, there were also present a nurse or midwife in the delivery room. If true it would mean that such complaint, made to the 1st defendant in the presence of a nurse/midwife, was ignored by the 1st defendant in total dereliction of his duty, and furthermore was also ignored by the nurse/midwife. Yet the evidence of nurse Tang and nurse Fung were that if such complaint had been made, they would have made a note of it in the medical records, but no such entry was made.

182.Moreover, the evidence of the 1st defendant was that when he saw the 1st plaintiff and her husband together with Dr S.M. Chan on 30 September 1998, some five days after the event, the complaint of the 1st plaintiff against him was only as to his finding that there was no leakage. On that occasion there was no complaint by her that she had told him of non-stop pain during or after his examination of her on 25 September which complaint was ignored.

183.Fourthly, it is the evidence initially of the 1st plaintiff that the doptone was used on her only at about 3.00 p.m. when she complained of increased abdominal pain and as a result she was examined by the nurse using a doptone.

184.In cross-examination, she conceded that in the morning shortly after her admission, she was examined in a small adjacent room with a doptone being used. Apart from these two occasions, it was her evidence that on no other occasions that day was a doptone used in examination of her. However, on many of the occasions when it was put to her by defence counsel that a doptone was used on her with the result being recorded in the medical records as "FHHR" denoting that the fetal heart was heard and regular, her answer was that she could not remember.

185.Fifthly, in none of her statements did the 1st plaintiff say that she had made any complaint to a nurse of her abdominal pain after her return from Ward T7 back to A7 but before the arrival of her husband. However, in her examination-in-chief, the 1st plaintiff said that after her return to Ward A7 a nurse asked her what did the doctor say and she then complained of her abdominal pain to the nurse saying it was painful and different.

186.In cross-examination, the 1st plaintiff at first said she could not remember a nurse asking her what the doctor said (although that was her evidence-in-chief and also in Exhibit D2). However, she maintained throughout that she had asked a nurse in blue uniform "why the pain was different". Initially in cross-examination she accepted that she did not complain to the nurse that the pain was "unbearable" or "non-stop". But when the defence case was put to her, she changed her evidence again to say that she did tell the nurse that the pain was non-stop.

187.Sixthly, it is the evidence of the 1st plaintiff that she vomited and could not take her dinner when her husband was visiting her and that vomiting was due to the severe pain that she was undergoing. It is also the evidence of both herself and her husband that neither of them had told any of the nurses in Ward A7 of the 1st plaintiff's vomiting. Again it seems inconceivable that if the vomiting was brought about by such severe pain, that the nurses would not have been informed of it especially since the husband had on at least two occasions asked the nurses why the 1st plaintiff was in such great pain.

188.Seventhly, it is also the evidence of the 1st plaintiff that when her husband and daughter were visiting her, she had noticed the time to be about 7.00 p.m. and told them to leave first since it was getting late. That was also the evidence of the husband. However that evidence of the 1st plaintiff noting the time and that it was late for her husband and daughter does not paint the picture of a person suffering the kind of severe and non-stop abdominal pain indicative of Abruptio Placentae and which the plaintiffs say should have been recognized and identified by reasonably competent medical and nursing personnel such that appropriate actions should have been taken by them at an earlier time than it actually was.

189.On the other hand, having heard the evidence and the cross-examination of the factual witnesses called by the defendants, I am of the view that none of them had been dented in the least in the evidence which they gave.

190.Admittedly the fly in the ointment as far as the defence case is concerned must be the two obviously wrong entries in the partogram in so far as it purports to record the fetal heart rate of 140 at 20.00 hours and of 100 at shortly after 20.00 hours. Both those entries are obviously wrong entries because it is common ground between the parties that the CTG reading (which is accepted to be correct by the plaintiffs and the defendants) shows the fetal heart rate to be 80 when it was started at 19.50 hours and thereafter the fetal heart rate fell to even lower than 80.

191.Rosemary Leung in her evidence thinks that the entry at shortly after 20.00 hours showing the fetal heart rate of 100 may have been made by her. She accepts that the cross put against the fetal heart rate at the 100 level must be wrong and that the mistake probably arose because it was an emergency at that time. In short it was an innocent mistake as to the level of fetal heart rate.

192.No other witness called by the defendants have taken responsibility for the entry at 20.00 hours. No other explanation has been given as to how this obviously wrong entry in the partogram came about.

193.Much have been made of these two wrong entries in the partogram by the plaintiffs in submitting that the medical records of the Tuen Mun Hospital should be viewed with caution and that they are unreliable.

194.A possible explanation for the wrong entry on the partogram for the fetal heart rate entered against 20.00 hours may have come about from the fact that at 19.30 hours Rosemary Leung returned from her dinner and Chui Mei Ling went off for her dinner. The evidence from the two of them is not entirely clear as to which of the two of them was to be responsible for taking the fetal heart reading for the 1st plaintiff at 19.30 hours. This may have given rise to some misunderstanding between the two of them such that there was a duplication of effort by both of them resulting in an entry being recorded against 20.00 hours which was in fact meant for 19.30 hours.

195.Should that be the case, it would explain the fact that nobody has taken responsibility for the 20.00 hours entry because neither intended to make an entry for that time.

196.Moreover, it would also explain the following entry made against the time shortly after 20.00 hours on the partogram as being made (possibly by Rosemary Leung) intending to be an entry for shortly after 19.30 hours when she discovered from the CTG reading that the fetal heart rate had dropped to 80, but that in the urgency of the situation had wrongly put the cross against the 100 level in the grid instead of the 80 level. When one looks at the actual partogram itself and the small space between the grids on it, it is not difficult to see how that mistake, innocent as it may be, came about.

197.As I have said above, this is a possible explanation as to how these mistakes came about, but in the absence of any direct evidence on the point, it is not necessary for me to and I make no specific findings as to how the mistakes came about. It is sufficient that I find that both the wrong entries were innocently made. The reasons for so finding are as follows.

198.There was not the slightest attempt made by the defendants to hide or cover up the CTG reading taken at 19.50 hours which showed the fetal heart beat of 80. The defendants have all along accepted that the fetal heart beat of 80 at 19.50 hours was correct. It therefore makes no sense for anyone to makes these two wrong entries in the partogram with a view to deceive since they go directly against the CTG readings. The CTG reading was known to Rosemary Leung since it was she who took it. Again it makes no sense for her to attempt any deception by marking the Partogram at the 100 level for fetal heart rate.

199.As for the rest of the medical records relating to the 1st plaintiff, I accept the evidence of the nurses and midwives that they were made contemporaneously as and when each recorded event occurred. That they were clearly not made up at a later time is shown by the fact that these medical records were reviewed by Dr Liauw and Dr Lim when they arrived at the delivery ward at about 19.50 hours or shortly thereafter to deal with the emergency relating to the 1st plaintiff. I accept the evidence of Dr Liauw and Dr Lim in that respect.

200.Indeed if the medical records had been "made up" at a later time after all the events had occurred, one would expect that the two obviously wrong entries in the partogram would no longer be there since they cannot co-exist side by side with the CTG taken at 19.50 hours.

201.I therefore make the following findings of fact :

(1) When the 1st plaintiff was admitted to the Tuen Mun Hospital on the morning of 25 September 1999, she did not have any labour pain as yet. Fetal heart rate taken by both CTG and doptone indicated her pregnancy to be normal and she was classified as "low risk" labour.

(2) Her intermittent labour pain commenced in the afternoon of that day some time between 2.00 p.m. and 3.00 p.m. and initially it was slight at between 10 to 15 minutes interval and her complaint of labour pain to the nurse at about 3.00 p.m. was not inconsistent with normal labour pain.

(3) Between 3.00 p.m. and 5.30 p.m. there was no complaint by her to the nurses of pain which was inconsistent with normal labour pain.

(4) At about 5.30 p.m. the 1st plaintiff informed a nurse that she believed there was leakage.

(5) After examination by the nurse, the house officer was informed by the nurse for a further examination of the 1st plaintiff for the purpose of confirming whether there was any leakage.

(6) For that purpose, the 1st plaintiff was transferred to Ward T7 and there she was examined by the 1st defendant by (inter alia) a speculum examination.

(7) After such examination, the 1st defendant found as a fact and informed the 1st plaintiff that leakage had not been confirmed and further told her that she will need to wait for longer back in the antenatal ward.

(8) The 1st plaintiff did not make any complaint to the 1st defendant of pain which was inconsistent with normal labour pain.

(9) Back in Ward A7, the 1st plaintiff did not make any complaint to the ward nurse of any pain inconsistent with normal labour pain.

(10) When the 1st plaintiff was visited by her husband and elder daughter her husband did inform the nurses that the 1st plaintiff was in pain on two occasions, but again such complaint did not indicate anything inconsistent with normal labour pain and as a result he was advised by the nurses to massage the back of the 1st plaintiff to relief her pain which he did.

(11) From 17.25 hours when the Partogram was started, the 1st plaintiff was examined every half hour by doptone for fetal heart rate and on each such occasion, her abdomen was palpated by the examining nurse. Up to 19.30 hours, each such examination showed normal fetal heart rate (between 110 and 150 beats per minute) and the same were recorded in the Partogram. Palpation of the 1st plaintiff's abdomen by the examining nurses on these occasions did not detect any abnormality.

(12) Shortly after 19.30 hours there was a sudden onset of very severe pain to the 1st plaintiff which was noticed by Rosemary Leung who immediately examined the 1st plaintiff and also put her on a CTG machine which showed fetal bradycardia.

(13) As a result, doctors were informed of the situation who, after reviewing the 1st plaintiff's condition, decided that an emergency Caesarean section was called for and which was duly performed.

(14) In so far as the medical records are concerned, they accurately record each occasion the 1st plaintiff was examined with the exception of the two incorrect entries on the Partogram relating to the fetal heart rate purportedly recorded at 20.00 hours and shortly thereafter.

ASSESSMENT OF THE EXPERT EVIDENCE

202.Firstly, in respect of the evidence given by the respective neuroradiologist, there is no dispute between them as to the type and pattern of the brain damage suffered by the 2nd plaintiff.

203.The only dispute between them relates to the opinion expressed by Dr Kendall as to the timing and onset of the brain damage caused by the asphyxia which he states as being generally accepted that autoregulation can compensate for partial asphyxia for "at least approximately one hour".

204.In this respect, it became apparent during the cross-examination of Dr Kendall that view of his as to the autoregulation system being able to cope with partial asphyxia for "at least approximately one hour" is not in fact an opinion based on his own expertise but rather was based upon the views expressed by obstetricians in medical literature.

205.When taken to the medical literature in cross-examination, in particular the article by James Low (1993), Dr Kendall finally conceded that the medical literature does not deal with what a CTG will or will not reveal during a period of fetal compromise and does not deal with the auto regulation mechanism.

206.Moreover, while Dr Kendall seemed to think that the medical literature relating to the animal experiments was so conducted as to abolish the self-regulation mechanism, this was not borne out by the literature itself (Low (1998) and Myers (1972)) nor was that stated in any of his reports but was only asserted by him in cross-examination. Indeed other articles were put to Dr Kendall in cross examination, notably Gunn et al and Ikeda et al both of which show that no attempts were made to abolish the autoregulation mechanism in such experiments.

207.Moreover, the only other "support" in respect of this disputed part of Dr Kendall's opinion comes from Dr Kong, the obstetrics expert called by the plaintiffs. I shall deal with this aspect when I come to assess the evidence of Dr Kong.

208.As for the expert evidence of Dr Janet Rennie, her evidence has not been challenged by the defendants in the slightest. Indeed the defendants accept her evidence as being supportive of the defendants' case. She is a leading expert in her area of expertise and in the absence of any challenge I am prepared to accept the entirety of her evidence.

209.Turning now to the obstetrics experts. This is the area with the greatest dispute between the experts called by the parties.

210.As already referred to above, the entirety of Dr Kong's expert evidence is predicated on his accepting the factual version as put forward by the 1st plaintiff as being true. It is also on that basis that he goes as far as to say that the medical records relating to the 1st plaintiff should be approached with "caution and disbelief".

211.A second feature of his expert evidence is his wholesale adoption of the opinion expressed by Dr Kendall as to the "at least approximately one hour" autoregulation mechanism. It is this opinion of Dr Kendall which leads Dr Danny Kong to conclude that this evidence "proves beyond any doubt that (the 2nd plaintiff) was subjected first to at least 1 hour of partial asphyxia and then, at the end, to a short acute near-total hypoxia".

212.However, under cross-examination, Dr Kong admitted that he had not even read any of the literature which Dr Kendall had in mind when he ventured this opinion.

213.Putting this in proper context, an extraordinary situation emerges in that Dr Kendall accepts that timing is a question primarily for the neo-natalogist and obstetrician and his concession in cross-examination that his opinion as to the "at least approximately one hour" of autoregulation is predicated on the views of obstetricians as set out in the medical literature. On the other hand, the medical literature do not bear out that opinion of Dr Kendall while Dr Kong, being the only obstetrician called by the plaintiffs, and who had not even bothered to read the relevant medical literature, simply adopted that opinion of Dr Kendall and relies upon it as a basis for his own opinion. Such a process is entirely circular.

214.Thirdly, Dr Kong is shown both by the medical literature as well as the Guidebook of Tuen Mun Hospital to be quite wrong when he attempted to suggest that the 1st plaintiff should not be considered to be in the latent phase of labour by 14.30 hours because on admission her cervix was stated in the medical records to be two fingers dilated. Dr Kong equates "two fingers" with being about 2 to 3 cm. However, it is clear from the medical literature and the Guidebook that before the cervix is fully effaced, dilatation is measured by the number of fingers. It is only after full effacement is achieved that dilatation is measured and recorded in centimetres.

215.The medical literature thus show up this aspect of Dr Kong's opinion as being not only unreliable but wholly wrong where he says that the 1st plaintiff should have been considered as being in the active phase of labour after 17.30 hours and should have been put on continuous CTG monitoring.

216.Lastly, in so far as Dr Kong tried to justify his view that the Abruptio Placentae had happened at least three to four hours earlier by relying on :

(a) the 800 ml retro-placental blood clot;

(b) the Couvelaire uterus;

(c) the DIC; and

(d) the massive blood transfusion.

217.Under cross-examination, when the plaintiff's own medical literature was put to Dr Danny Kong, he had to accept that the blood transfusion is not relevant to the timing of the Abruptio Placentae. He then changed his stance to say he had never intended to use the blood transfusion as an indicator as to the timing of the Abruptio Placentae.

218.Moreover, he also accepted in cross-examination that the fact of the Couvelaire uterus was not an indicator as to when the Abruptio Placentae had taken place.

219.As for the 800 ml blood clot, Dr Kong accepted in cross-examination that the blood flow to the uterus in a full term mother is about 500 ml per minute and that the retroplacental bag at any given time contains 100 ml to 200 ml of blood and that the uterine artery is in reality an "intravenous lake". Moreover, all the medical literature indicate that the amount of blood in cases of Abruptio Placentae is dictated by the degree of separation which can happen rapidly and suddenly. There is no medical literature referred to in support of Dr Kong's opinion that the size of the blood clot can indicate the timing of the onset of the Abruptio.

220.As to the DIC, he was cross-examined extensively on this aspect. There was a point in his cross-examination when Dr Kong seemed to accept that there can be differing degrees of DIC and that DIC was not an indicator as to the timing of the onset of the Abruptio. However at a later stage he seemed to have returned to his original stance that the severity of the DIC was such an indicator.

221.A further demonstration of Dr Kong's unreliability comes from his second report where he states that the use of doptone is so unreliable that it had been abandoned in all the countries in which he had practiced including the Prince of Wales Hospital in Hong Kong.

222.However, in cross-examination he accepted that a doptone in the hands of a competent midwife is indeed a reliable way of measuring the fetal heart rate.

223.No doubt as a result of that concession, the plaintiffs did not require the defendants to call the consultant of the Department of Obstetrics and Gynaecology of the Prince of Wales Hospital to confirm that doptones continues to be used in that department, and that evidence, which contradicts what was stated by Dr Kong in his report, was agreed.

224.It was submitted by the plaintiffs that the evidence of both Professor Lao and Dr Khong are biased and lack partiality because both of them are not independent witnesses as they are both honorary consultants to the Hospital Authority.

225.In the case of both Professor Lao and Dr Khong, they are both directly engaged and employed by the Medical Faculty of the University of Hong Kong. Since their work are carried out at Queen Mary Hospital (which is run by the Hospital Authority) they are therefore made Honorary Consultants of the Hospital Authority.

226.In my view their connection (by reason of such honorary title) with the Hospital Authority is indirect in the sense stated above. They are neither paid by the Hospital Authority nor are they in any way controlled by the Hospital Authority in their work or otherwise.

227.I did not find from the substance of their evidence that they were in any way biased towards the party calling them. Indeed their opinions expressed were supported by the medical literature relied on by them.

228.The criticism of them by the plaintiffs for lack of partiality because they hold the title of Honorary Consultants of the Hospital Authority is in my view not a valid criticism.

229.For the above reasons I have come to the conclusion that the expert evidence given by Dr Danny Kong to be most unreliable. An excuse for the manner in which his evidence was given was put forth by the plaintiffs saying that this was the first time that he has given evidence as an expert witness in court proceedings. But when one has regard as to the way he had changed time and again his evidence and his stance in cross-examination, it cannot be explained solely by his lack of experience as an expert witness.

230.Therefore, I am not disposed to accept his expert evidence where it conflict with that given by Professor Lao. Where their evidence differ, I prefer that given by Professor Lao.

231.As a result of the above assessment of the expert evidence of Dr Kong and Professor Lao, and my preference of Professor Lao's evidence over that of Dr Kong where they differ, there is therefore no valid basis upon which Dr Kendall could found his opinion that the autoregulation system can compensate partial asphyxia "for at least approximately one hour". I therefore decline to accept that part of Dr Kendall's opinion.

DECISION

232.Applying the facts as I have found them to the expert opinions in this case as I have assessed above, the entirety of this case points to the 1st plaintiff suffering a severe Abruptio Placentae shortly after 19.30 hours on 25 Septemeber 1999. I am satisfied that on all the evidence and the facts found by me that it was a concealed Abruptio Placentae.

233.Before that time, there was no outward indication of such an Abruptio which could or should have been picked up by the nurses midwives or doctors attending to the 1st plaintiff including the 1st defendant.

234.Indeed as already found by me, the 1st plaintiff may have informed some of these nurses, midwives and doctors of pain at various times during the course of that day but such complaint made by the 1st plaintiff was not in any way inconsistent with normal labour pains.

235.From the evidence adduced by the defendant, both factual and expert, I have also come to the conclusion that the 1st plaintiff was not in the active phase of labour before the time she was seen by Rosemary Leung shortly after 19.30 hours to be suffering from severe pain. On that score, there was no good or sufficient reason for any of the defendants or its staff to have put the 1st plaintiff on continuous CTG monitoring before that time.

236.The plaintiffs have therefore failed to prove negligence on the part of the 1st and or 2nd defendants and the plaintiffs' claim must be dismissed with costs (order nisi).

Representation:

Mr Michael Ozorio, SC leading Mr Michael Liu, instructed by Messrs Robin Bridge & John Liu, for the 1st and 2nd Plaintiffs

Mr John Bleach, SC leading Mr Raymond Leung, instructed by Messrs Deacons, for the 1st and 2nd Defendants