Gloria Fan v. Dr. Philip P.C. Chan and Another

HCA002667/1974

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ACTION NO. 2667 OF 1974

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Coram: Mr. Justice Penlington

Date of Judgment: 24th January 1981

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JUDGMENT

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1. This is a claim which arises from certain dental treatment given to the plaintiff by the defendants in the latter part of 1971 and early 1972. The Writ was issued by the plaintiff in person in 1974. The whole matter has undoubtedly had an unhappy background but nevertheless the fact remains that the witnesses were often giving evidence as to events which happened a long time ago and memories must of necessity be hazy as to what was exactly done or said at the time the treatment was given or when the plaintiff was examined afterwards.

2. The evidence falls into two parts; firstly the evidence given by the parties as to the events which took place and secondly the expert evidence, some of which is based on recent examinations of the plaintiff, but a great deal on examinations which took place shortly after the alleged negligent treatment.

3. The plaintiff gave evidence that she was born in Shanghai in 1925 where she lived with her family. She attended an Architectural College there between 1944 and 1946. In 1947 she went to the University of Pennsylvania in the United States of America and in 1949 she obtained a Bachelors Degree in Architecture. The following year she obtained a Master's Degree in the same University. She then worked as an architect in the United States of America for the next 20 years. During this period her family moved to Hong Kong and in 1955 she visited them there. She was treated by a dentist, Dr. Hsu, who made a lower partial denture for her which contained six artificial teeth. This denture was the subject of some comment by the professional witnesses and it seems clear that it was of a design which would not now be regard as satisfactory in that the pressure onto the denture in eating was taken by the soft gum tissue rather than by proper metal rests which would ensure that such pressure was taken on the remaining teeth. However Miss Fan said that so far as she was concerned this denture gave her very satisfactory service. In 1968 while the plaintiff was in the United States she was unwell and eventually had to have an hysterectomy, this operation being performed in Hong Kong in 1970. She said that following the operation she made a recovery after some weeks and she then planned to return to the United States to resume her career. She was in the meantime assisting her father, who was also an architect, in his practice in Hong Kong. She said she wished to have a complete medical and dental check-up before returning to America and she attended a series of various doctors and dentists from that time on. She said in relation to the partial denture that while it had been given her very good service and had presented no problems, she did detect a faint hair-line crack and it seemed to be a bit worn. She therefore went to see a Dr. Ng, a Dr. San, a Dr. Sun and also Dr. Henry Wong. She said that Dr. Henry Wong took some x-rays of her teeth, filled some minor cavities and cleaned her teeth. She discussed with Dr. Henry Wong the question of the old denture and asked him if he would make her a new one. However she also asked to see a sample of the type of denture that he was making and when this was produced for her inspection she said it looked very temporary, and flimsy. As she was returning to the United States she did not think it was the sort of the denture that was suitable for her. She therefore decided that she would not have a denture made by Dr. Henry Wong.

4. She then decided to go to another dentist, Dr. William Wong about a replacement for her denture. Dr. William Wong gave her a most comprehensive and general consultation and proposed a very extensive rehabilitation programme involving every single tooth that she had, all of which was going to be very expensive. Dr. William Wong also took x-rays and made some impressions. The plaintiff decided that she did not need all that work as Dr. Henry Wong had already done quite a considerable amount and she decided to go and see the first defendant, Dr. Philip Chan. However she did not receive any treatment from Dr. Philip Chan on this occasion as she said he told her he was busy and was about to go on vacation overseas. This was in the beginning of 1971. On the 12th of October of the same year however she did go back to see the first defendant regarding the replacement of the lower denture. She said she told Dr. Chan that she had already had treatment from Dr. Henry Wong and that the only thing was required was the making of the denture piece. She said that there was no treatment on this occasion, which seems to be supported by Dr. Chan, who simply recorded "consultation". The next appointment was on the 4th of November and the record is "prophylaxis examination. Impression of F.M. for study models". The plaintiff agreed that was an accurate record of what took place on that day. She also agrees that on the 9th November she returned when an impression was made of her lower mouth for the partial denture.

5. The next visit, and this was an important one, was on the 19th November 1971. She says on this occasion she was presented with a completed denture, that is one with the artificial teeth affixed to it. She said that Dr. Chan placed the denture in her mouth but that when he came to remove it he was unable to do so. She said it was extremely tight and Dr. Chan tried to remove it by holding her head as she said "like a football" and it was only by the use of very great force that he was eventually able to remove the denture. After this she said he did not say anything but he looked at the denture piece and he proceeded them to cut her teeth in order to change her mouth so as to fit the denture. She said he did nothing at all to the denture piece to make it fit her mouth rather than the other way round. On the question of whether her teeth had been x-rayed or whether she had taken a long x-ray film the witness was at first somewhat uncertain. She said that no x-rays were taken by the first defendant but eventually she said she did not think she had taken some x-rays with her. Later on however she was quite clear that she had not taken along any x-ray film to show Dr. Chan. The plaintiff said that after this session involving the cutting of her teeth she was putting on her coat in the waiting room and she saw her face in the mirror and was horrified to see that she had now what she described as a "granny look". She felt that the shape of her face and her appearance had been dramatically and instantly changed by what had happened. She said that in order for her teeth to meet she had to strain the lower jaw which had moved forward and upward. She said that although she did feel horror at her changed appearance she did not go back to Dr. Chan immediately but that on the 24th November she called him by telephone and made an appointment for the 30th November. She said that on this occasion she took with her a sketch which she had made and which she gave to Dr. Chan. (Exhibit P1). She said that Dr. Chan completely ignored this sketch which she had made but started to cut her teeth again in a way which she described as "furiously". She said he cut so many teeth it was difficult to know which ones or how many. She said that at this stage the denture make by Dr. Chan did come in and out considerably more easily than when he at first attempted to remove it. The plaintiff said that she drew the attention of Dr. Chan to the "granny look" and to the line that was about to form in the corner of her mouth. She said that he "definitely thought it was all a joke" and did not seem to be at all receptive to what she had told him. She said that he continued to cut her teeth in a ruthless manner and that in doing so he inadvertently chipped her front tooth and that he then cut down the other front tooth so as to match it. She said that at the end of this session on the 30th November Dr. Chan ignored all her complaints and "he just seemed to snigger and make fun of her opinion and reaction". She said that at the end of the session her teeth were left in a sharp cutting condition with jaggered edges which were cutting into the inside of her cheeks and scratching her tongue. The "granny look" was no better at the end of this session. She also said that she believed that at the end of that session Dr. Chan did not believe she would be coming back for any more adjustments. This then was the position on the 30th November, according to the plaintiff. She had been back for two sessions during which the first defendant had tried to fit the partial denture, that this had been a total failure and that the denture piece was producing muscular strain was causing pain and great discomfort. That is the last day on which, according to the first defendant's record, he saw the plaintiff. However in evidence Dr. Chan said that it may well be that if there was minor treatment, such as removal of small amounts of material from the denture to get a better fit, he would not make an entry in her record. In any event the plaintiff said that on the 24th December she went back to see the first defendant. She said she was desperate but that Dr. Chan only told her that he wanted to cut more of her teeth. The plaintiff said that she said to him it just like cutting hedges first this side and then the other there seemed to be no end. She said that she got no sympathy whatever and that the first defendant told her that if she was to go in there a hundred times all he wanted to do was to cut her teeth. She also said that the first defendant accused her of wasting his time and that all she wanted to do was to go in and talk. However it seems that on this occasion according to the plaintiff he did propose that other work would have to be done which involved the preparation of gold on-lays on her teeth which was to be a very expensive operation. Her evidence about that was, however, very vague. This then was the condition in which the plaintiff found herself, according to her own evidence, on the 24th December. She said that from then over the Christmas holiday period she was in great discomfort and that eventually while eating some slices of turkey she experienced very severe pain in the jaw and her head. She said that it felt like a sharp cutting pain behind her left eye, her facial muscles had collapsed and that she said she "almost ran" to Dr. Ken Chaun the second defendant for an emergency consultation. She said this consultation took place on the 30th December. She said that in the interval she spent a most of her days resting by staying in bed and generally doing nothing because her facial muscles were so affected that she felt exhausted. Dr. Chaun's record contains no reference to any consultation on the 30th December. The first one he records is on the 6th January 1972.

6. She said this appointment was at the recommendation of her family and that she was also related to the second defendant. She said that Dr. Chaun examined her mouth and that he was visibly alarmed. She said that he went out the room and that she could hear him talking to the first defendant Dr. Chan. She said that she could overhear what was being said although she could not see them talking to each other. She said that the second defendant said to the first defendant "what happened, you've aged her". He then went on to say "she is going to report you or sue you" or something to that effect Plaintiff said that she had in fact not said anything to Dr. Chaun about reporting or suing the first defendant at that stage. She said that the first defendant then became very angry and said "who is she asking for an emergency appointment". She said that Dr. Chaun then came back to the surgery and said that in order to stop the pain and stop her jaw from sliding out the first thing to do was to pull out her lower front tooth. She said that she agreed to that if it would eliminate the pain she was suffering from. He went on to say that he would also have to cut down her upper side teeth in order to make splints. That was the end of the consultation and in fact no actual treatment was done on that day. She said there was a further appointment on the 4th January with the second defendant but it was cancelled as she was feeling unwell. The next appointment she kept was on the 6th January when some impressions were taken of both jaws. After that she made note on her diary indicating that she had soreness in the jaw muscles and she "woke up with a tightly closed bite". And again on the 9th January she noted that her jaw had spasm and the muscle was strained.

7. The next appointment with the second defendant was on the 10th January and the plaintiff was not at all certain about happen on that occasion, which is understandable after the lapse of time. She said that she took along two sets of x-rays, one a complete set taken by Dr. William Wong and one a half set, that is the lower teeth, taken by Dr. San. She said that on the 2nd defendant's advice she had also asked if she could borrow the moulds which had been made by Dr. William Wong but that she was unable to obtain them from his surgery. Plaintiff went back again on the 12th January and her lower front tooth was removed. She went back again according to her evidence on the 13th which would have been the following day and on that day he cut down what she thought were four teeth on each side of her jaw. This was a very drastic process and she said it felt like "a sand storm. The whole place was plasted with powder substance coming out from teeth". The next appointment was on the 19th January but the plaintiff said that in the meantime she felt considerable discomfort and said she had ticks on both eyes but the one in the left eye was worse. She said that on the 19th the second defendant continued to try to find a proper bite and to rebuild the height using pieces of warm wax aided by the plastic impression he had taken earlier. She said that she went back on the 20th January and she said that at that stage she was wearing a partial denture which had been made for her by the second defendant. She said she had ceased wearing the one made by Dr. Chan and that at this stage splints were produced to put on to her upper cut-down teeth. These temporary splints have been in her mouth ever since that time although there had become damaged, which is not surprising in view of the fact that they were only temporary. She said that these splints in fact covered two teeth on each side but the extensions which covered the teeth on either side had broken off.

8. The plaintiff said that she went back to Dr. Chaun on the 21st and he again went on with great effort to try to find a proper bite. Again he was using soft wax to make an impression. The next appointment was on the 25th January then again on the 28th and another set of splints was produced. She said that this was quite a significant appointment because on this occasion she saw in a mirror, with the aid of the dentist's bright examination light, that quite a few of her teeth had been cut down and she asked the second defendant if he thought that 're-creating the height involves replacing the lost vertical dimension'. He said 'Yes, that was correct and that was why he was building the splints and they were to stop the spasm so that her teeth would not clench together.' At the end of this appointment, the plaintiff said that the second defendant then told her that at the next appointment on the 1st of February they would 'really get down to work'. He also said he would be cementing the splints in. That was the end of the medical treatment received by the plaintiff from the 1st and 2nd defendants.

9. On the same day, the 28th of January, she wrote a very long letter to the Dental Council. This is an exhibit to an affidavit which she swore on the 28th of April, 1977. She said that she went to the Secretary of the Dental Council, a Mr. Flyn, in his office in Lee Gardens. She said she did this because she was wondering if every tooth did have to be worked on which would involve a colossal expense and that she was not at all certain of the 2nd defendant's competence. She said she thought that the best thing would be to ask for a Government Dentist to examine her and see what he would say. She said that she had a very long talk with Mr. Flyn and he asked her to make a report in writing. This letter to the Dental Council is, in my view, a very important document. It clearly, I think, demonstrates what her attitude and feeling were at the time. It quite clearly, in many respects, contrasts to the evidence which she has now given.

10. In the second paragraph of this letter she refers to 'Having all my good teeth cut away with a few left about to be last also in the immediate future'. This no doubt refers to the four teeth which had been prepared by the 2nd defendant for crowning. In the third paragraph she states that in respect of the 1st defendant granting her an appointment seemed to be a big favour (in spite of the fact that my old denture was cracked beyond service and was hurtingly unwearable'. This is contrary to her evidence when she said that the old denture was in fact giving her perfectly good service and that she only wished to replace it because it had a hair-line crack and was slightly worn. She goes on to say that the 1st defendant 'began to grind and trim off my teeth leaving my mouth full of sharp-cut edges which later cut into my tongue'. In evidence she said that that situation remained until approximately one year later when her teeth were polished and the sharp edges removed. That seems to be an extraordinary statement in view of the very large number of dentists she had seen in the meantime.

11. One would have thought that the plaintiff would not have gone on putting up with the pain this must have caused her but would have asked one of those dentists to smooth off the sharp edges - after noting the then condition for use in any subsequent litigation. She said in the letter that on this occasion he heaped further insults upon her and when she asked about her granny appearance and two lines which had appeared down the sides of her mouth, was told that it would be the same if she was to go back there a hundred times. All he wanted to do was to cut some more of the other side of her upper teeth. Her letter then goes on to say that she was in considerable disstress after this and she eventually went to see the second defendant on about the 30th December. She described that the alleged conversation between the first and second defendants on this occasion and said that after the second defendant began experimenting in order to recreat a bite which experiments have not been successful.

12. The Dental Council replied to this letter on 9th February stating that as the matter did not seem to come within the disciplinary powers in the Dentists' Registration Ordinance they could not take the matter any further. It is not in dispute that at this time that the second defendant was a member of the Dental Council and the letter came to his attention. Dr. Chan said that he was not told about this letter by either the Dental Council or Dr. Chaun. This does seem surprising as he and Dr. Chaun were using the same surgery but I was impressed by Dr. Chan's evidence on this and I accept that for some reason Dr. Chaun did not tell him about the letter and communications between them were somewhat strained at this time.

13. On the 29th January the date following her interview with Mr. Flyn, and obviously without waiting a reply to her letter, the plaintiff went to see Dr. Bayley, a Dental Surgeon. Her evidence relating to this visit and Dr. Bayley's report are of some importance. She said that she went to see Dr. Bayley to seek his opinion as to whether the extensive work proposed by the second defendant would really be necessary. She did however also say that it was in her mind at that time that she would be engaging in litigation. One would therefore assume that when she asked for a report from Dr. Bayley she had in mind that he may well be a witness for her in that the action that she was contemplating against the defendants. She said in relation to this visit that Dr. Bayley was not aware of a Temporal Mandibular Joint ('T.M.J.') injury but proposed treatment for her teeth only. The plaintiff said that at this stage she was satisfied that she did have a T.M.J. problem and that she did not go on with the treatment that he proposed because she was not satisfied the dental work would solve her problem. In fact Dr. Bayley in his report of the 12th February does not mention any T.M.J. disfunction but does refer to a loss of vertical demension and says 'her bite has collapsed'. In his further report of the 29th February 1972 Dr. Bayley confirms his first report and recommends treatment. This recommended treatment is a substantial amount of crown and bridge work. As with other dentists who had recommended similar work, and indeed the second defendant, the plaintiff has clearly rejected this advice on the basis that it would be too costly. I am satisfied from her evidence that in fact the question of the cost the dental treatment she was to have was very much in the plaintiff's mind at all material times. She referred to the cost of the treatment proposed by Dr. Bayley, some $20,000, as being 'a colossal estimate'. She also later on in her evidence said that she thought Dr. Bayley's report had in fact in prepared, not by Dr. Bayley himself, but by some untrained person in his office.

14. Having rejected Dr. Bayley's advice she then went to see Dr. Henry Wong because she said that she was desperate to find a dentist who could treat her condition. She said however that he shied away. He asked her who had been treating her and when she mentioned the second defendant he said, without even looking into her mouth, that no other dentist could do anything that Dr. Ken Chaun could not do. She then went to see Dr. Q.M. Luk in early March 1972. She said that Dr. Luk had a somewhat run-down looking office and she had no confidence in him. She then went on to see Dr. Mathew Yung on the 9th March. Dr. Yung appeared to be interested in her condition and that he together with a colleague Dr. Bao, proposed a treatment using a horizontal splint which she was to wear for very long session. She said that this splint was experimental and its purpose was to try and find a new bite. However once again she did not receive satisfaction at the hands of Dr. Yung. She complained of his somewhat harassing treatment she said he made senseless remarks that had nothing to do with the work in hand. She did nevertheless go back to see Dr. Yung on many occasions and she wore the splints that he made. She said that it was a very clumsy piece of equipment and she described it as a 'great big slap' of an appliance. She said that she was supposed to put it in her mouth and wear it at home but that the appliance was 'dilapidated and filthy'. However she said that Dr. Yung's laboratory assistant had told her that he had gone to a great deal of trouble in order to make this appliance and that she should wear it. She came to the view that they were purely experimenting and did not really know what they were doing. She said that even Dr. Yung realised it was unsuitable for her purpose but he said to take it home anyway and try to see if she could put it on. Dr. Yung Produced a report which is at bundle 5, page 108 to 116.

15. The next dentist visited by the plaintiff was Dr. Ng Shui-ching. He in fact was a dentist she had first consulted when she came back to Hong Kong and whose advice she had discarded. She said he apparently was only prepared to produce a denture in gold and she felt that it was economically unacceptable and would give her a 'peasant' look. She said that Dr. Ng diagnosed, or rather observed, that she had an injured jaw. He said apparently that she should have the 'joint repaired', whatever that entailed.

16. The plaintiff went to see Dr. Hurry Fang, a leading orthopaedic surgeon. Dr. Fang conducted a thorough examination of her T.M.J. region. Particularly he examined the position of the condyle in relation to the fossar. She said at this time there was pain in the T.M.J. joint. Dr. Fang however on palpation of the area found no tenderness. Dr. Fang referred the plaintiff for a radio logical examination to Dr. Hector Ma and both Dr. Fang and Dr. Ma produced reports, which are part of the agreed bundles.

17. The plaintiff then started to consult overseas surgeons and dentists who apparently advised her that she may have a T.M.J. problem but the next dentist to examine her was a government specialist, Dr. Law who saw her in June 1972, together with a colleague, Dr. Lai. Dr. Law also produced a report in conjunction with Dr. Lai. Plaintiff agreed that this was a thorough examination and it is certainly a very comprehensive report. In the report the doctors say that the plaintiff at this time did not seem to be suffering from any discomfort. Her speech did not seem to be affected during a 3 hour-long interview. Her facial appearance did not give any clue of abnormality. I may also say, in that respect that during very lengthy evidence over considerably more than 3 hours the plaintiff did not seem now to have any difficulty in speaking, show any sign of facial pain and I could not observe any facial irregularity.

18. Drs. Law and Lai found that, with the appliances made for her by Dr. Chaun out of her mouth the plaintiff had limited excursion of the left mandible. Protrusive movement was also made with difficulty. They concluded that the denture made by Dr. Chan was of an acceptable design and well finished, that, apart from the teeth which had been prepared for crowning by the Dr. Chaun, there was no evidence of excessive grinding to fit the first denture. They say some such grinding is acceptable but should not be excessive. They found that the overclosed acclusion found by Dr. Chaun was unlikely to have been caused by excessive grinding by Dr. Chan. They said however that there was a possibility that some degree of overclosure was pre-existent and was aggravated by acclusal grinding. However they only put that forward as a theory.

19. Drs. Law and Lai said that Dr. Chaun's treatment was consistant with the concept of 'bite-raising'. They said, as does Dr. Gelb, that it normally is done by the initial use of temporary appliances but do not go as far as Dr. Gelb and condemn out of hand the method actually used.

20. In addition to dentists the plaintiff saw a number of other doctors during 1972. This included Dr. Arthur Yao and Dr. Hodgson. Dr. Yao advised some deep heat treatment which apparently did not do any good and Dr. Hodgson said he had discussed with her possible treatment including a local anaesthetic and cortisone injections and the fitting of a brace. He said in his report that she had decided she would like to have a brace to start with but again that apparently was not followed up.

21. The defendant then saw an orthodontist, a Dr. Kwong. She said, however, that Dr. Kwong was extremely busy and she got the impression that he only treated young people. Dr. Kwong said that the treatment that he could give her would be long and expensive. The treatment would involve a complete programme of oral rehabilitation. Once again she was not prepared to do that.

22. The next surgeon that she consulted was Dr. McFarlane. She said that she had got his name from the American Consulate and was glad to hear that was an American dentist practising in Hong Kong. However she said she got very scant sympathy from Dr. McFarlane. She said he was very busy and although she told the receptionist that she was in great pain and that it was an emergency he was most reluctant to examine her.

23. The next doctor to see the plaintiff was Dr. Laing who is an ear, nose, and throat specialist. She did not consider the Dr. Liang gave her a very thorough examination and complained that he caused her a considerable pain. In his report Dr. Liang says that radiologically and clinically the T.M.J. joint showed 'no pathology'. He was of the opinion that she had Costens Syndrome due to a faulty bite. The plaintiff was then seen by a neuro-surgeon, Dr. Hunter, in September 1972 who prepared a very full report. He concluded that she was a person of unusual personality and he set out in some detail the allegations that she made to him concerning the first defendant saying that she considered he had treated her badly out of malice and that he enjoyed the fact that he had altered her appearance. He said that the plaintiff told him that the first defendant could have done so out of jealousy because she was a female and was so well educated and successful. She also mentioned that he may have been resentful because she had not come to see him earlier whereas all the other members of her family had been treated by the first defendant. The plaintiff was seen by several other doctors in 1972. These included Dr. Lo, Dr. Chan, Dr. Sung, Dr. Yang and Dr. So. The next one, however, who appears to be relevant, although I am no doubt there were others in the meantime, was in 1977 when she was examined by Dr. Erlandson of the Hong Kong Adventist Hospital. He wrote two letters to her by way of medical report but quite clearly the intention of these letters, and particularly the first one, is to advise the plaintiff that she should place herself in the hands of somebody in whom she had confidence, Dr. Erlandson clearly placed great weight on that, and that she should set out on a comprehensive programme of treatment.

24. The plaintiff was seen in 1980 by several dentists and doctors. The first one is Dr. Eric Taylor who saw her and made a report in January 1980. Dr. Taylor sets out in detail how the plaintiff's teeth had moved and twisted. He is also of the opinion that the plaintiff had T.M.J. Dysfunction Syndrome. However he found no evidence of excessive grinding by Dr. Chan. He also states that treatment must be tailored to the patient's tolerance and one cannot just simply follow text-book solutions. In January 1980 she was also seen by Dr. Fali Shroff, another neuro-surgeon. In April she was sent to the United States of America and was examined by Dr. Harold Gelb in New York. Dr. Gelb produced a report and has given evidence in this matter. She also was seen, by agreement, by Professors G.L. Howe and R.K.F. Clarke at the Hong Kong University Health Clinic, also in April 1980.

25. The plaintiff was giving evidence mainly relating to events which took place at the end of 1971 and the beginning of 1972. Nine years have now passed and there was no point in trying to decide who if anybody is to blame for that delay but quite clearly memories of events must inevitably be blurred by the passage of such a long period of time. However taking that into account the fact remains that a great deal of the plaintiff's evidence is contradictory to what she said herself at the time, as for instance in the letter to the Dental Council, and it is contrary to the medical evidence. It is evidence which I considered must be treated with very great caution indeed.

26. The professional witness upon which the plaintiff relied was Dr. Gelb who is the Clinical Professor at the College of Dentistry of New Jersey. Dr. Gelb is a Lecturer in the Education Department of some ten dental schools in the United States of America and has written two books, one of them a text-book, on the Clinical Management of Head, Neck and T.M.J. Pain and Disfunction. He said he had published many articles in professional journals. Dr. Gelb said that the T.M.J. was a highly complex joint in that it was a joint which was not fixed and where the condyle floated in a fossa. It is subject to musclar spasm which may be caused by many factors, including stress. He said that any disfunction of the T.M.J. can affect the eyes, head and even further down to the back and the legs. He said that the jaw is like a horse-shoe and it is held up by various muscles. He said that in an ideal jaw where we have a perfect set of teeth the upper cusps fit into the lower fossi but in the great majority of cases that does not happen perfectly. The T.M.J. enables the jaw to move not only upwards, downwards but sideways, forwards and back. He said that if there is an imbalance in the jaw this can cause headaches and many other problems. He said that mal-function of the T.M.J. can often be seen by the use of x-rays and also by feeling the top of the jaw bone in its socket. This can be done by placing ones fingers in the ears of the patient. He said that if the teeth were not in proper place and there was a mal-occlusion the jaw would tend to 'follow the teeth' which causes musclar stress. He also said that if there is a tooth missing the teeth on either side tend to bend over into the gap and this causes a loss of vertical height. Dr. Gelb referred in some detail to work being carried out in relation to T.M.J. problems. In particular he referred to several articles which had been published between 1972 and 1977 in the Journal of Prosthetic Dentistry. He said that in his opinion there was not nearly enough taught at the under-graduate level even now relating to T.M.J. problems. He referred to an article written by Dr. Gunnar Carlsson of Sweden. This article is entitled 'Symptoms of Mandibular Dis-function in Complete Denture Wearers'. This article was published in 1976. Dr. Carlsson in this article says: "most dentists do not perform a functional examination of the masticatory system in their patients with the result that many symptoms of dis-function remain concealed. Facal pain and headache that might be associated with mandibular disfunction are not reported to dentists because patients do not think dentists are capable of handling such problems. So it is very possible for a patient to go to any health practioner and tell him what they are feeling and because his background has not widen his scope of diagnosis and treatment wide enough that information goes in here and comes there or just goes over the top of his head". Dr. Gelb said that the functional examination of muscles and joints by and large does not exist to any great extent at any dental school at the present time. He went on to describe the treatment that he would proscribe for a patient whose jaw was not in the correct position. He said that because the muscles had got used to the incorrect position it would take some considerable time to train them to tolerate the correct one. This will be done with a temporary appliance which would have to be altered from time to time, and approximately every fortnight the patient would have to be seen by the dentist who would readjust the appliance and gradually the correct jaw position would be obtained. However he said that it is a tug of war between the dentist wanting to get the jaws into a position that would be relaxed and would be in balance and, on the other side, the facial muscles. He said the dentist had to be the ears, eyes and brains of the case. He had to be the one that was to determine where the final resting place of the jaw should be. The process he said would be accomplished in most cases over a period of 3 or 4 months but that sometimes it might take considerably longer than that. Dr. Gelb gave a great deal of evidence relating to the detection of an incipient T.M.J. problem and it seemed clear from his evidence that there has been continuing progress in this field but that the knowledge possessed by the average competent dental practioner in the United States, and I am assuming that the same general level would apply in Hong Kong, is, in his view, limited. He said that if a patient, however, was to make complaints to a competent average practioner of pain in the joints, clicking noises, pain in the eyes, pain in the facial muscles or in eating or in opening and closing the jaws, these would be symptoms of a possible T.M.J. problem. In my view there is no evidence that the plaintiff had these symptoms when she first went to see the first defendant. She does, however, say that she has developed the symptoms after she had had treatment from him.

27. Dr. Gelb examined in considerable detail x-rays of the plaintiff's mouth which have been taken before the treatment given by the first and second defendants. These x-rays being taken by Dr. Ng. He said that from these x-rays he can see that at that stage, due to the missing spaces in her mouth, that there had been a rotation and bending of the teeth and that there was a loss of vertical height. He said that this loss of vertical height should have been replaced. He also stated that from the examination of x-ray photographs taken by Dr. Hector Ma that there was evidence of osteoarthritis in the right T.M.J. This seems to be not in dispute and there was evidence that in fact such osteoarthritis is common in people over the age of 40 years. He went through his report which he had made after his examination of the plaintiff. He said that he had formed the opinion that she had a T.M.J. problem and that she had some osteoarthritis in one joint. He said that her mouth opening was slightly above average but was certainly within normal limits. The capsular component of the joint was stretched permitting a much greater forward movement of the joint of the jaw than is normal. Dr. Gelb also went through a very large number of tomograms which are x-ray pictures taken with a very sophisticated type of camera. While Dr. Gelb did not agree with the findings of Dr. Hector Ma that the plaintiff's T.M.J. was apparently normal in every radiological aspect it seemed to me that his evidence after studying these tomograms was not that there was any substantial adnormality shown.

28. I do not propose to set out in any more detail the evidence given by Dr. Gelb in respect of the first defendant. He certainly disagrees with a considerable amount of the evidence and the statements made in various reports prepared by other doctors and dentists. However he himself is quite prepared to admit that there is still a great deal of debate concerning the proper treatment and diagnosis of people who have or may be about to have T.M.J. problems. Dr. Gelb does not quarrel in any way with what the first defendant did in designing the new lower denture for the plaintiff nor in the way in which he prepared some of her teeth so that this denture would fit properly and be properly supported. What he does say in respect of the first defendant is that he should have seen from a proper examination of her when she first came to him and before he had done anything, that she had an incipient T.M.J. problem. He should have directed his attention to that and should not have done any dental treatment until that possible problem had been removed. He also says that the best way to remove it was to have referred the plaintiff to a specialist. He himself would have carried out a thorough examination of the plaintiff, which would have included palpation of her facial muscles, and he would have done various other tests to see if there was a T.M.J. problem, or possible problem. He said however that such a thorough examination is carried out by only 5 or 10% of dentists in the U.S.A. even now. He is quite clear that he regards the other 90 to 95% as being negligent in not carrying out such an examination. I am quite satisfied that, even without any evidence which has been given by the first defendant or on his behalf, that the failure of the first defendant to carry out such an examination and his failure to recognise the plaintiff's incipient T.M.J. problem was not negligent. The standard of care required from a medical or dental practitioner is that of an ordinary, competent practitioner exercising an ordinary degree of professional skill, not that of a specialist dealing with his own particular field. If the plaintiff had symptoms which the first defendant saw, or should have seen, which should have warned him, as a competent general practitioner, that here was a case beyond his ability to deal with, no doubt he should have referred her to a specialist, as he says he has done in the past. Even if one accepts Dr. Gelb's evidence that the plaintiff's mal-occlusion was such that she obviously was a potential T.M.J. syndrome case, and there is a great deal of evidence to the contrary, he himself says that the majority of people have such a mal-occlusion. There is no evidence that normal professional practice is to refer such persons for specialised treatment. The first defendant gave evidence and I found him to be a witness of truth. In particular I am satisfied that he carried out treatment on the plaintiff in accordance with the record that he made. The crux of the plaintiff's case against him was that he failed to carry out a sufficiently thorough examination, did not detect her incipient T.M.J. problem and by grinding her teeth so as to get a good occlusion with the new partial denture, caused the T.M.J. problem to become a reality. In giving evidence he was at a severe disadvantage in that he was not aware of these proceedings until some 3 years after the events had occurred. I found he was perfectly honest in that sometimes he could not remember exactly what he did in 1971 but he was clear that he would never have contemplated making a partial denture without seeing recent x-rays and he would have made a thorough examination of the plaintiff's mouth. I am satisfied he did see such x-rays and from his record card, which includes a chart showing the plaintiff's teeth as he found them, he did make an examination such as would one would expect from a competent practioner. I am satisfied that the plaintiff is wrong which she says that he fitted the denture for the first time into her mouth completed with the artificial teeth attached. Dr. Chan said that there would be totally different from his normal procedure and all the expert witnesses agreed that there would be no logical reason why that should be done. I am satisfied that he fitted the frame first and that it was a good fit. I am satisfied that he then had the artificial teeth attached and that he then carried out work in adjusting the denture in order to get a good occlusion to the plaintiff's mouth. This involved some grinding of the plaintiff's teeth involving the use of occlusal paper which the patient bites on to show where the opposing teeth are coming too close together. This was very slight grinding and I am satisfied that it would not have caused the T.M.J. problem. The expert evidence is that some such occusal grinding is acceptable if done with care. I do not accept the evidence of the plaintiff as to the manner or extent of such grinding. I do accept the evidence of the first defendant and the expert witnesses that it was not excessive. In particular I am satisfied it could not possibly have caused what she described as the 'instant granny look'. The plaintiff complains that she was not treated by the first defendant with sympathy and it is agreed that there has to be a good relationship between the dentist and a patient to avoid problems resulting from stress and musclar tension. I do not think anybody who has heard both the plaintiff and the first defendant giving evidence would have any doubt whatever that the first defendant treated the plaintiff with a great deal of sympathy. His counsel described Dr. Chan as a most impressive witness. I totally agree with that statement. The first defendant found himself in difficulty in relation with the question of whether or not he had seen x-rays of the plaintiff's mouth before commencing his treatment. He says that he was not aware of these proceedings until the Writ was served on him some 3 years after the treatment had been carried out. He says that while there is nothing in his record to show that he had seen these x-rays it would be unthinkable for him to commence to make a new denture without such x-rays. It is not in dispute that the plaintiff brought recent x-rays which had been taken by other dentists to show to Dr. Chaun. She says she did this because it was an emergency. I have no doubt that she also brought these x-rays to the first defendant. In her evidence she was at first doubtful whether she had done so although later on she said she did not. I am satisfied that she did produce to the first defendant the same x-ray photographs that she produced to the second defendant and that these were recent x-rays. The first defendant was, on the expert evidence, justified in not taking any more x-ray photographs. I am therefore satisfied that the first defendant treated the plaintiff with all the skill and care that one could reasonably expect from a competent dentist in general practice and that he has not been negligent in any duty of care which he owed to the plaintiff. The plaintiff's claim against the first defendant must therefore fail.

29. The claim against the second defendant seems to me to be somewhat more strongly founded. This is because there is evidence from Dr. Gelb that before he ground-down 4 of the plaintiff's teeth in order to prepare them for caping he should have fitted temporary adjustable appliances in order to find what would be a good final jaw position. Dr. Gelb said that the course of treatment carried out by Dr. Chaun would be unacceptable. Dr. Howe who is the Professor of the Dental School of the University of Hong Kong said that such a course of treatment could be followed. He says normally it would be best to make plastic overlays in the retruded jaw position. He went on however to say that if the patient was unlikely to accept such overlays which would cover the palate and restrict the tongue then the second defendant's approach was acceptable. It seems to me very clear from the evidence that the plaintiff would not have accepted such temporary appliances. She went to see Dr. Mathew Yung in March 1972. Dr. Yung attempted a course of treatment along the lines of that advocated by Dr. Gelb - that is the use of temporary appliances. The plaintiff's evidence relating to her treatment by Dr. Yung is between pages 312 and 317 of the record. There is no point in sitting this out in any great detail but it is quite clear that the plaintiff regarded the temporary appliance as a clumsy piece - 'a great big slab of an appliance', which caused her pain. She said she regarded it as quite unsuitable for her purpose and said that the Dr. Yung thought so too. I am satisfied that the first part of that statement is true but the second part is not. The plaintiff also complained in respect of the second defendant's course of treatment - that it was experimental. At this stage the plaintiff wanted treatment that would be immediately effective, would cause her no discomfort and was not expensive. I am satisfied that there was and is no such course of treatment available. She was certainly not prepared to tolerate anything she regarded as experimental and that would include any long-term effort to find a good jaw position by the use of temporary appliances.

30. It was suggested by Dr. Gelb that the plaintiff could have had a course of orthodontic treatment which, if successful, may have avoided any actual crowning or bridging of her teeth. He did however say that the chances of such treatment being successful were about 40%. The plaintiff did consult an orthodontist, a Dr. Kwong, who told her that any programme of work that he undertook would take a long time. She therefore did not go ahead with that idea. I think her general attitude to advice given to her by various dentists is well set out in page 325 of the record. I think the plaintiff there makes it very clear that she regarded herself as the person who should decide what programme would be followed and she was certainly not prepared to accept any advice with which she was in any way unhappy. I am satisfied the programme which is advocated by Dr. Gelb would fall very much within what the plaintiff regarded as experimental. The plaintiff said that she almost ran to the second defendant in an emergency situation. That evidence is not supported by Dr. Chaun's record but even if that is true I am satisfied that she wanted and would accept nothing else but an instant cure. Dr. Howe says that having seen the plaintiff he did not think she would have accepted the use of temporary appliances. I agreed with that opinion. He says that under those circumstances the approach adopted by the second defendant was acceptable and he thinks it is a matter of regret that she has not seen fit to allow him to complete the treatment. Even so what Dr. Chaun has done has resulted in the plaintiff wearing his temporary splints for the past 8 years, damaged though they are and they seem to have helped her a great deal. Professor Howe disagrees with some of Dr. Gelb's views and considers that he places too much emphasis on the T.M.J. and the question of a proper occlusion. He says he regards this as too mechanical an approach and that he takes a much broader view. I am satisfied that there are many theories relating to this problem and that even now it must be difficult indeed for an average general practioner to know which, if any, are correct. I am satisfied that if the second defendant, rather than proceed to give the treatment that he did, had advised the plaintiff that there was an alternative form of treatment involving the use of temporary appliances, a treatment which would inevitably take a very considerable period of time and would involve a great deal of cooperation on her part, that advice would have been rejected. I am satisfied that under all these circumstances, having regard to this particular patient, that the course of treatment that he advocated and then carried out was not negligent. A doctor or dentist must use his common sense and experience in dealing with each particular patient and cannot simply adhere to a text-book course of treatment without regard to the person he is dealing with. Here I think he was justified in opting for the course of treatment he did. I am satisfied that if the plaintiff had allowed him to continue the chances of it being successful would have been good and that the plaintiff has not shown that the second defendant has been in breach of any duty of care which he owed to her. Her claim against him must also fail.

31. The only other thing I would like to say is that this has been a long and in many ways difficult case for all Counsel and Solicitors involved. The matter has been argued before me with all the skill that one would expect of experienced Counsel but I would like to say that the closing addresses on both sides, in particular, were of an extraordinary high standard and I am grateful to Counsel for their assistance.

32. The defendants are entitled to costs to be taxed in accordance with the Legal Aid Regulations. There will be a certificate for two Counsel. There will also be an order that plaintiff's own costs be taxed in accordance with the Legal Aid Regulation.

33. Since writing the above judgment Counsel have been good enough to send into my Chambers the very recent decision of the House of Lords in Whitehouse v Jordon, a case which was referred to in argument, as it was then decided in the Court of Appeal. Their Lordships cite with approval the dicta of McNair J in Bolam v Friern Hospital Management Committee⁽¹⁾ and approved by the Privy Council in Chin Keow v Government of Malaysia⁽²⁾ but, while they dismissed the appeal, they do say that when Lord Denning said in the Court of Appeal that "an error of judgment is not negligent" he must be taken as meaning that an error of judgment by a professional person is not necessarily negligent. I think that must be so - there must be many cases when an error a judgment shows lack of ordinary professional skill or knowledge and would be negligent. If, however, a professional skill or knowledge and would be negligent. If, however, a professional man takes a certain course which has unfortunate results, he is not negligent merely because of that result - he does not guarantee success. Here I am not even satisfied that there was such an unfortunate result as a result of the defendants' treatment let alone that a negligent decision was made by either defendant.

Representation:

Mr. G. Rodway & Miss A. Eu instructed by Haldene & Co. for plaintiff

Mr. Henry Litton Q.C. & Mr. Ronny Tong instructed by Johnson Stokes & Master for defendants

(1) (1957) 1 W.L.R. 582

(2) (1967) 1 W.L.R. 582