Re Hospital Authority

Case No.HCMP 2079/1994

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCMP002079/1994

1994, MP No. 2079

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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	IN THE MATTER OF an application by the Hospital Authority for leave to apply for Judicial Review
	and
	IN THE MATTER OF the Coroner's Inquest No. 28/94K into the death of the infant son of Madam Ng Wai Ling
	and
	IN THE MATTER OF the Coroners Ordinance (Cap. 14)
	and
	IN THE MATTER OF section 21K of the Supreme Court Ordinance (Cap. 4) and Order 53 Rule 3 of the Rules of the Supreme Court.

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Coram: The Hon. Mr. Justice Barnett in Court

Date of Hearing: 22nd December 1994

Date of Delivery of Judgment: 9th January 1995

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JUDGMENT

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1. On 7th May 1993, Mrs. Ng Wai Ling gave birth to a baby boy at United Christian Hospital. Sadly, the baby died a few hours later. A coroner conducted an inquest from 3rd to 6th May 1994. At the conclusion of the inquest, the jury returned a verdict of death by natural causes aggravated by lack of care. The jury added a rider that consideration be given to the automatic review by an adequately experienced doctor one hour after full dilation is achieved for a nullipara (that is, a woman who has not previously given birth).

2. With leave the Hospital Authority (the Authority), which is responsible for United Christian Hospital, applies for judicial review of the decision of the coroner to leave to the jury the verdicts of death by lack of care and death by natural causes aggravated by lack of care; of the coroner's direction to the jury in relation to lack of care; and of the inquisition insofar as it records the verdict of death by natural causes aggravated by lack of care. The Authority asks for a declaration that the coroner erred in law in his direction to the jury and for an order of certiorari to enable this court to quash the verdict by expunging the words "aggravated by lack of care".

3. At the hearing of the application, the coroner was represented by Crown Counsel. Mrs. Ng was present together with her husband, Mr. Chan Wai Wah. It is a great pity that these two people, with whom everyone has the greatest sympathy, should have to suffer this further painful experience.

4. For the most part, the facts are not in dispute. I say, for the most part because Mrs. Ng, when she addressed me during the hearing, questioned certain measurements taken by one of the doctors who attended her and questioned the competence of another. As I explained to her, these are issues which may have to be investigated in other proceedings. They are not relevant to the present proceedings. As I further explained to Mrs. Ng and her husband, because it is difficult for laymen to appreciate the distinctions between a coroner's enquiry, proceedings by way of judicial review and a civil action for damages based on negligence, the function of a coroner's enquiry is to ascertain what happened or how a person died. It is not the function of that enquiry to point the finger of blame at anyone. If blame is to be attached to the Authority or any of its staff, that will have to be done in separate civil proceedings at which all parties are properly represented and the interests of the doctors, whose actions may be under scrutiny, can be properly protected. It is worth reminding everyone of these distinctions, as it is worth me reminding myself that my function in these proceedings by way of judicial review is simply to determine whether or not the coroner acted lawfully in the sense that he gave proper directions to the jury on the law and did not leave to the jury verdicts which were not open on the evidence available at the enquiry. It is not my function to review all the material that was before the jury and substitute some other verdict which I might consider to be more appropriate in all the circumstances.

5. On 6th May 1993, Mrs. Ng was admitted to hospital. The following morning, cervical dilation began. Mrs. Ng was examined by a doctor at 0745 when she was found to have dilation of 8 cm. At 0935, Dr. Mok Chung Wai, an obstetrician, carried out a physical examination and found everything acceptable. Dr. Tang Chun Kit, a houseman, and therefore a very junior doctor, carried out a further examination at 1025 when he found dilation in excess of 9 cm. Dr. Tang further examined at 1125 when dilation was approaching 10 cm. Dr. Tang found full dilation of 10 cm. at 1205 when Mrs. Ng was taken to the labour ward. There, Mrs. Ng was under the care of midwives who, when she had been in the second stage of labour for some 45 minutes, in accordance with the hospital's practice, informed Dr. Tang of the situation. Dr. Tang carried out a further examination at 1300 when he found full dilation of 10 cm. Because of the lack of progress, he informed a medical officer, Dr. Fan Yuen Man, at 1310. Dr. Fan arrived at the labour ward a few minutes later and prepared Mrs. Ng for vacuum extraction by the use of a ventouse cup. This procedure was unsuccessful and at 1335, Dr. Mok, the obstetrician was informed. He arrived at 1350. After two more unsuccessful attempts with the ventouse, Dr. Mok took over and at the sixth pull or traction on the ventouse, the baby was born at 1449. Sadly, the baby died about eight hours later.

6. A post mortem was carried out. The pathologist found three causes of death, namely, subaponeurotic haemorrhage; subarachnoid haemorrhage and intrauterine asphyxia. Of these, the pathologist thought the first to be the most important and most likely to have caused the baby's, death.

7. A report was obtained from Dr. Michael Scott Rogers, an expert in the field of obstetrics and a practitioner at the Prince of Wales Hospital. His report was critical of the management of Mrs. Ng in two respects. First, Dr. Tang's failure to call a more senior medical officer following his examinations at 1025 and 1125 when it was apparent that cervical dilation was proceeding more slowly than normal, the norm being about 1 cm. per hour. Second, the way in which the ventouse was used.

8. In due course, the inquest began. In the course of the inquest, the coroner indicated that there was a significant risk that a verdict involving lack of care would be found. In the absence of the jury, the Authority's solicitor made submissions to the coroner concerning the ambit of lack of care in relation to coronial proceedings. In particular, he drew the coroner's attention to the then recent decision of the Court of Appeal in R. v. H.M. Coroner for North Humberside ex parte Jamieson [1994] 3 W.L.R. 82. In that case, Sir Thomas Bingham, M.R., reviewed the authorities in relation to inquests generally and a verdict of lack of care in particular. He came to 14 conclusions of which 4 are of particular importance in relation to lack of care.

	"(8)	Much of the difficulty to which verdicts of lack of care have given rise appear to be due to an almost inevitable confusion between this expression and the lack of care which is the foundation for a successful claim in common law negligence. Since many of those seeking that verdict do so as a stepping-stone towards such a claim the boundary is bound to become blurred. But lack of care in the context of an inquest has been correctly described as the obverse of self-neglect. It is to be hoped that in future the expression "lack of care" may for practical purposes be deleted from the lexicon of inquests and replaced by "neglect."
	(9)	Neglect in this context means a gross failure to provide adequate nourishment or liquid, or provide or procure basic medical attention or shelter or warmth for someone in a dependent position (because of youth, age, illness or incarceration) who cannot provide it for himself. Failure to provide medical attention for a dependent person whose physical condition is such as to show that he obviously needs it may amount to neglect. So it may be if it is the dependent person's mental condition which obviously calls for medical attention (as it would, for example, if a mental nurse observed that a patient had a propensity to swallow razor blades and failed to report this propensity to a doctor, in a case where the patient had no intention to cause himself injury but did thereafter swallow razor blades with fatal results). In both cases the crucial consideration will be what the dependent person's condition, whether physical or mental, appeared to be.
	(10)	as in the case of self-neglect, neglect can rarely, if ever, be an appropriate verdict on its own. It is difficult to think of facts on which there would not be a primary verdict other than neglect. But the notes to form 22 in the rules of 1984, although in themselves of no binding force, are correct to recognise that neglect may contribute to a death from natural causes, industrial disease or drug abuse. Want of attention at birth, also mentioned in the notes, may itself be regarded as a form of neglect. A verdict that, for instance, "the deceased died from natural causes [or industrial disease, or drug abuse] to which neglect contributed" would seem perhaps more apt than a verdict that "the deceased died from natural causes [or industrial disease, or drug abuse] aggravated by neglect," since "aggravated" in this context means "made worse," and in truth the neglect probably did not make the fatal condition worse but sacrificed the opportunity to halt or cure it.......
	(12)	Neither neglect nor self-neglect should ever form any part of any verdict unless a clear and direct causal connection is established between the conduct so described and the cause of death."

9. The official Law Report was not available at the inquest. The report in the Times was and it contained in detail the numbered conclusions. Nonetheless, the coroner left 5 possible verdicts to the jury, including lack of care and natural causes aggravated by lack of care. As to lack of care, he said,

"	The 2nd verdict of death by lack of care can be returned if you take the accident situation a step further and determine that inappropriate use of the ventouse was in a lack of care situation. A care situation applies when there is a person in a dependent state with another person owing a duty to care for that dependent person. That situation certainly applied between the baby and supervising doctor.
	The usual situation that give rise to the verdict is an omission by the person with the duty to perform in performing that duty to an acceptable standard. It amounts to a neglect by the person with the duty to perform to perform that duty as it should be perform.
	But it can also apply to the exercise of the duty in such a way that the standard of care provided amounts to a failure to conform to the standards which are reasonable according to the circumstances and also reasonable according to the practice in Hong Kong. It does not amount to a mistake or error of judgment. If you find as a fact that doctor MOK applied the ventouse wrongly that of itself does not amount to a lack of care.
	You need to consider the whole circumstances of the use of the ventouse. The length of time it was used and the number of times it was applied. Very detailed evidence has been given by all the obstetricians on this matter, but I would particularly commend you attention to exhibit 4C, which is the article by halme and ekbladh. The dictates for the use of the ventouse are spelt out in detail at pages 172 and 173. Also doctor Rogers while disagreeing with the actual extent of the use of the ventouse as described by the witnesses does not condemn such use. He has also agreed that the injuries received by the baby are an acceptable complication of the use of this apparatus.
	But there is a further factor to this verdict and it is that to return in you must be able to say the baby's death was attributable solely to the lack of care. You have to be able to conclude that the baby would have been born successfully and dies only because of the intervention of the doctors. This takes matters further than accident because in accident you consider solely the injuries and the circumstances in which the injuries were inflicted.
	If you recall I put a question to Doctor NG on this point and he could give no answer. So to return this verdict you have to conclude to the probabilities evidence standard test, firstly, that the baby would not have died in the natural course of the birth and secondly, that the actual use of the ventouse was not reasonable according to the standards set out in the literature and the Hong Kong practices as commented on by the witnesses."
	As to the other verdict, he said,
	"In respect of the verdict of death by natural causes aggravated by lack of care this will apply to the whole situation if you conclude that the baby may have survived the birth but died because the standard of care in managing situation from start to finish fell short of what is dictated by the literature, hospital rules and standards of Hong Kong. The compelling evidence on this matter is that of Doctor Rogers. In addition to his comments on the ventouse use he is very critical of the actions taken in the labour ward on the basis of the various indications presented by Madam NG in the course of labour. The actual course of events has been very specifically dealt with by Doctor MOK and his record in C3 is corroborated by the other doctors. There is a measure of conflict in the evidence of Madam NG that after the first ventouse attempts by Doctor FAN, one of the attending nurses claimed to her that cervical dilation was only 9 1/2 cm. I comment that there is no direct evidence that such was the case. But it is a contention by Madam NG. You can consider this evidence but you should not attach the same weight to this contention as to the other evidence or this matter.
	What you have to decide in respect of this verdict is not on the question of practices at Prince of Wales Hospital as compared to those at United Christian Hospital and whether the birth may have succeeded in the Prince of Wales Hospital or any other Obstetrics Unit. It is whether those supervising the birth failed by the standard imposed on them by United Christian Hospital for the management of the stages of the labour and the use of the ventouse. Doctor Rogers has given detailed evidence on this specific matter and he says there were faults. I refer you to the main paragraph in page 2 of his report. But I also remind you of his responses to questioning by Doctor CHOI. He did qualifying his criticisms in answering those questions. Also many of his other comments were by way of comparison of the efficiency of the unit he supervises at Prince of Wales Hospital. These comments should be ignored because you are concerned only with the procedures which applied at United Christian Hospital. In respect of this the other United Christian Hospital Medical Officers and Doctor NG in particular have been supportive of the steps taken at the various stages of labour. You must consider all this evidence and decide if the management and monitoring of the labour of Madam NG and the use of the ventouse amount to a lack of care by neglect of the standards appropriate and which the United Christian Hospital heirarchy expected of their medical team. If so then you can return this verdicts."

10. The tape recording of the summing up was unfortunately lost. The coroner supplied a reconstruction from his notes. The infelicities might be forgiven.

11. It was accepted that the decision in Jamieson represents the law in Hong Kong. It was also not in dispute that circumstances which afford ground for review of a coroner's verdict and inquisition include: misdirection on law, failure to sum up the evidence to the jury, or an absence of facts in the evidence to justify the verdict reached.

12. It is immediately apparent that the coroner, in his summing up, confused the two distinct concepts of lack of care, in the special sense in which it is used in coronial proceedings, and of negligence which can give rise to an action for damages in civil proceedings. The coroner's directions to the jury were hopelessly wrong as a matter of law. Further, what is not immediately apparent is where there was evidence of lack of care used in its proper and restricted sense.

13. Mr. Bradley, who represented the coroner, accepted that the coroner's summing up was wrong. He maintained, however, that there was evidence which might be regarded as showing lack of care; that whether or not that evidence amounted to lack of care was a question essentially for the jury; and that the jury had, not withstanding the summing up, plainly grasped the essence of lack of care by virtue of the rider to the verdict. The lack of care, said Mr. Bradley, was the failure on the part of Dr. Tang or anyone else involved in the management of Mrs. Ng to take any steps during the first stage of her labour in the morning when labour was not progressing at the normal rate.

14. Mr. Bradley drew attention to passages in the judgment of Sir Thomas Bingham in Jamieson where he referred to the judgment of Croom-Johnson L.J. in R. v. Southwark Coroner Ex parte Hicks [1987] 1 W.L.R. 1264. The passages appear at page 94 of Sir Thomas Bingham's judgment;

	"What the verdict of 'lack of care' presupposed is that some other persons had at least the opportunity of rendering care (in the narrow sense of that word) which would have prevented the death. There is no need to go beyond that, although in many circumstances such persons would have had a duty, either legal or moral. The opportunity should have been a real opportunity of doing something effecitve. This verdict should not be used as a means of levelling disguised criticism at people who do not act in an emergency or take a wrong or inadequate decision in such cases......
	In the case of the deceased my conclusion is that if there had been evidence of insufficient medical treatment, a verdict of 'lack of care' might have been possible."

15. Mr. Bradley also drew attention to the last sentence of conclusion 10 in Sir Thomas Bingham's judgment. He contended that during the morning there had been an insufficiency of medical treatment for Mrs. Ng and that there had been lost an opportunity to halt or cure the fatal condition.

16. I am wholly unable to accept that argument. The comments of Croom-Johnson L.J. must now be looked at in the light of the judgment in Jamieson. I suppose if a person is admitted to hospital but left without the attention even of a nurse, that might amount to an insufficiency of medical treatment amounting to lack of care. Once a person is in hospital, however, and under management, as was Mrs. Ng, almost by definition there can be no lack of care. The quality of the medical treatment might, as here, be called in question but that gives rise to very different considerations from lack of care.

17. Mrs. Ng was attended by midwives and from time to time by a doctor. There simply was no lack of care in the sense in which it is now understood in coronial proceedings.

18. Even if the evidence might give rise to a lack of care situation, then, as Mr. Thomas for the Authority pointed out, there is simply no clear and direct causal connection with the unhappy death of the baby. It appears more probable than not that the subaponeurotic haemorrhage was caused by the use of the ventouse. But at the end of the day, the criticism voiced by Dr. Rogers in his report had evaporated once Dr. Rogers had heard the evidence from the doctors involved in managing Mrs. Ng. Dr. Rogers was simply left saying that the failure to call a more senior doctor at an earlier stage was simply a contributing factor. Although he, Dr. Rogers, would have proceeded by way of caesarean section if he had been called in the morning, he conceded that another doctor may have made the same decisions as were in fact made. Indeed, Dr. Mok said he would have done the same as Dr. Tang because, although Mrs. Ng's labour was not progressing as fast as the norm, she was still within the two hour limit, only after the expiry of which was it the hospital's practice for a more senior doctor to be informed. It boiled down, therefore, to a matter of judgment. Different doctors may have proceeded differently.

19. In my judgment, there was no evidence which, as a matter of law, gave rise to a lack of care situation. Further, the evidence which was suggested to show lack of care had no causal connection with the cause of death. In any event, the coroner was in error in his directions to the jury in relation to lack of care.

20. Accordingly, I grant the declaration sought by the Authority. I grant an order of certiorari so as to remove into this court and to quash the verdict, by expunging the words "aggravated by lack of care". I am satisfied that this is not a case for quashing the whole verdict and ordering a new enquiry.

	(N.J. Barnett)
	Judge of the High Court

Representation:

Mr. M. Thomas, Q.C. & Mr. G. Lam, instructed by Johnson Stokes & Master for Applicant.

Mr. Bradley, S.C.C. of Crown Solicitor for 1st - 2nd Respondents.