Madam Ho Hing Mui v. Attorney General and Others

HCA004321/1981

Negligence - remoteness of damage - defendants admitted liability for damages flowing from negligence in leaving a swab in patient s pelvic cavity after Caesarean section but not for results of subsequent hysterectomy - reasonable, even if possibly mistaken, medical treatment is not a novus actus exonerating original wrongdoer from responsibility for forseeable consequences of admitted negligence.

Negligence - quantum of damages

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Fuad, J.

Date: 5 May 1982

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JUDGMENT

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1. This action for damages in negligence reveals a tragic story. Madam Ho Hing Mui, the plaintiff, married in 1974. She gave birth to a son by Caesarean section during the following year. On the 26th July 1978, when she was 23 years of age, she was admitted to the Princess Margaret Hospital (a Government hospital) for the birth of her second child, and a baby girl was delivered two days later, again by Caesarean section. She decided, on medical advice, that she should not risk further pregnancies and so at the time of the birth her fallopian tubes were tied up.

2. Madam Ho w as discharged from hospital after about 11 days and went home with her baby. She attended a Government clinic as directed for post-operative and post-natal care on a number of occasions. She complained of pain in her stomach, of persistent discharges and of other ailments. She was treated but there was no improvement over a period of about five months. She began to despair and consulted several doctors in the private sector but her condition still did not imp rove and eventually, in November 1978, she went to see Dr. Leung Kai Hong, a "private" obstetrician and gynaecologist. In January 1979 Dr. Leung decided to operate and Madam Ho was admitted to st. Teresa's Hospital for the purpose. On operating, Dr. Leung found a large pelvic abscess in the utero-cervical region and inside the abscess there was a wad of surgical gauze. The doctor felt it necessary to remove the uterus, and the Left fallopian tube and ovary.

3. At the hearing, Counsel for the Attorney General accepted that the gauze had been left in Madam Ho's body when the Caesarean section was performed upon her, and admitted liability in negligence on that account on behalf of the Attorney General (the 1st defendant) and the Government medical practitioner who is the 2nd defendant. The plaintiff's claim against the 3rd defendant was thereupon withdrawn. The defendants' case put briefly is that the drastic surgery performed by Dr. Leung was not necessary in all the circumstances and therefore they should not be held liable in damages for the consequences to the plaintiff's state of health of that surgery.

4. Dr. Leung told the Court that when he examined Madam Ho he found that the uterus was enlarged. He attributed this to a possible tumour and felt an operation would be necessary. He told his patient that he might be able to remove the tumour but if it turned out to be malignant, as he feared it might, further surgery would be necessary. He also explained why a hysterectomy might be advisable and Madam Ho decided to leave the decision to him. According to Dr. Leung's evidence, when he opened the abdomen he found a firm mass in the pelvic cavity covered on its surface with intestines and omentum. The left ovary was enlarged and cystic. On careful dissection and on freeing the omentum and intestines from the mass, he observed multiple pockets of abscesses over the uterus. He found it difficult to identify the anterior part of the uterus because there were dense adhesions just opposite the urinary bladder. He opened some of the abscesses and drained out offensive smelling pus. He felt at the time that his patient's life was at risk and the safest medical procedure would be to perform a hysterectomy. He continued to free the adhesions and opened another abscess deep inside the pelvis, at the lowest part of the anterior surface of the uterus. It was then that he came upon the gauze, which he removed. He encountered great difficulty in separating the urinary bladder from the uterus and to avoid injury to the former, his dissection was mainly towards the uterine side. Finally, and with great difficulty, he removed the uterus. He then cut open the small pockets of pus remaining in the pelvic cavity and drained them. He sutured the bleeding parts and closed the vaginal opening and left a drainage tube in place so any remaining blood or pus could escape.

5. Dr. Leung said that in all his medical career (he is a M.B.B.S. and a M.R.C.O.G. in practice since 1965) he had never come across a case such as this. He did not think the organs, in the state that they were, could have been saved. He felt that if he had opened the pockets of pus on the uterus, there was a danger that pus would flow into the peritoneal cavity and result in general peritonitis. It would not have been possible, in his opinion, to drain out all the pus in the circum-stances, and so the uterus had to go. He was unable to state what had caused the cyst on the ovary - it could not be said with any degree of certainity that the presence of the gauze was responsible for this condition. He had removed the left ovary because it showed signs of pathological changes which might have needed further surgery.

6. Dr. Leung also explained that it was necessary to remove the uterus because otherwise other vital organs might have been endangered - the urinary bladder, the rectum and the ureter.

7. In cross-examination, Dr. Leung staunchly defended his surgical procedures. He said he had not counted the number of abscesses but he thought they were between 10 and 20 in number. He would describe the operation as a "total hysterectomy" although he acknowledged that a small part of the uterine muscle and endometium might have been left behind because of the dense adhesion in the urinary bladder region - a small part of the uterus might still be present. Dr. Leung accepted that had there been a solitary abscess the patient could have been treated without the necessity of moving her uterus. He was prepared to justify his surgery firmly on the basis that Madam Ho's life was at risk due to the possibility of general peritonitis.

8. Dr. Wedderburn, called by the plaintiff, was present in Court when Dr. Leung was giving evidence. He stated firmly that after hearing this testimony he had no reason to change the opinion he had formed which is set out in a letter of 22nd October 1980 addressed to the plaintiff's solicitors, written shortly after he had examined, and talked to, Madam Ho. Part of Dr. Wedderburn's report is as follows:-

"[Dr. Leung] operated on her and found a pelvic abscess due to the presence of gauze or a swab. He found it necessary to remove the uterus, the left fallopian tube, and ovary. Removal of the uterus or a sub-total hysterectomy is unusual at the present time; a total hysterectomy is usually the operation of choice, but because of the presence of infection he would remove the minimum amount of tissue necessary. The cervix and cervical canal, which protrudes into the top of the vagina was left in position and not removed. It must have been difficult to perform any form of hysterectomy in the presence of an abscess due to retention of a foreign body and in the circumstances this was the correct procedure................."

9. Dr. Wedderburn emphasized that Dr. Leung had a very difficult decision to take. Assuming Dr. Leung had accurately described what he saw when he opened the plaintiff's abdomen, he felt that Dr. Leung had correctly concluded that there was a grave risk of peritonitis. He accepted that although he had never had to deal with a case such as the present, he would have expected a single abscess or one with two "chambers" in it; this was more likely than multiple abscesses, but he had no reason to doubt, on medical grounds, what Dr. Leung had said he found in the pelvic cavity. Although this was certainly "extremely unusual", it was not inconceivable. He could not say that Dr. Leung had acted otherwise than in a responsible and competent manner. His own view was that it would be wrong to stress the danger of peritonitis - there were many other risks, such as adhesions causing an intestinal obstruction, or an abscess perforating the gut or bladder or destroying the vein of an artery. These were certainly "life and death matters". As Dr. Leung had described the state of the patient, he himself would have preferred to speak in terms of "a risk of complications" rather than a risk of death.. It would be right, I think, to note that to some considerable extent, Dr. Wedderburn's evidence was coloured by his approach that no competent doctor would have performed such a difficult and drastic operation without justifiable aid urgent reason.

10. Professor Ma, of the Department of Obstetrics and Gynaecology of the University of Hong Kong, gave evidence for the defence and she told the Court that where a young woman of 23 was concerned, she would only have performed the operation that was done, to save her life; absolutely as a last resort. This would be standard opinion in the profession. Professor Ma had made a special study of this type of case and had had personal experience in this area of surgery. She would have expected a single large abscess around a piece of surgical gauze which had been inadvertently left in a patient's body, almost filling the entire pelvis. In such a case the Standard and accepted treatment would be to drain the abscess, remove the gauze and prescribe anti-biotics. The patient could be expected to make a full recovery. She did net think that Dr. Leung's description of what he saw was a true picture of possible generalize peritonitis. The presence of a multiplicity of small abscesses in the pelvic cavity among the intestines would not seriously affect the usual treatment. Regarding Dr. Leung's evidence, the Professor (who was present in Court and heard it) thought that by the time Dr. Leung had discovered the abscess and found the gauze, the pus would have been spilt and so removing the uterus would not have helped. In fact in her view Dr. Leung had performed a very dangerous operation - there was a risk to the bladder, long anaesthesia would be necessary, and there might be serious blood loss and shock. This was not an operation to be performed when the area was full of infection. It was, in the Professor's opinion, all a matter of experience. If Dr. Leung had not previously seen a patient in that state he could easily have made an error of judgment, for the walls of an abscess of the kind encountered would look "very nasty" and he might well wrongly conclude that the uterus itself was infected. But even in those circumstances, she would have expected Dr. Leung to carry out the least risky procedures. The Professor felt that only if the usual procedures had been followed and the uterus accidentally damaged by dissection, would the surgery performed by Dr. Leung have been justified. She could find no possible justification in the evidence she had heard and she doubted if there could be a responsible body of opinion to the contrary. The Professor was, however, ready to acknowledge that Dr. Leung had performed a difficult and hazardous operation which he had felt to be in the best interests of his patient where normal procedures were followed to treat this condition, the patient had a more than 50% chance of complete recovery. The youth of the patient was another important reason why a hysterectomy should not performed unless absolutely necessary. The Professor told us that it just could have happened that the uterus was infected so that it had to be removed, but this was highly unlikely. A Consultant Physician of Queen Mary's Hospital, Dr. Chin Kwan How told the Court that, in general, he would share Professor Ma's opinion.

11. In addressing the Court on behalf of the defendants, Mr. Peter Graham (if I may say so, very properly in all the circumstances) conveyed their deep sense of regret to the plaintiff for the misfortunates that had befallen her which flowed from the admitted negligence in leaving the surgical gauze in her body after the Caesarean section. They were, and had always been, more than willing to compensate Madam Ho but their contention was that her present disabilities were wholly attributable to the fact that her uterus was removed. Damages should be assessed on the basis that the procedures described by Professor Ma had been followed and had proved successful. While it was-no part of -their case that Dr. Leung had been negligent, they did contend that he had made a serious error of judgment (possibly amounting to negligence) and that the hysterectomy was unnecessary. Mr. Patrick Woo, for the plaintiff, wished to record that her stand was mot due to any feelings of vindictiveness against the doctors who delivered her baby girl.

12. I think it necessary at this stage of my judgment to mention the question of onus. I understood Counsel to agree that since the plaintiff must prove her case, she must prove for what damage she can properly recover and thus the onus of proof, on the balance of probabilities, is on her in relation to the issues of remoteness which arise in this case. This must, I think, be the right approach.

13. Although the doctrines of causation, remoteness and novus actus interveniens are of considerable complexity, my decision must turn on the effect of Dr. Leung's intervention in the unhappy chain of events disclosed by the evidence. Of course, if it can be shown that the operation performed by Dr. Leung was necessitated by the admitted negligence of the defendants, then they will be liable for the consequences for, on any view, the chain of causation would not been broken and the further damage was not merely forseeable but a natural and probable consequence of the original wrong.

14. How then must Dr. Leung's conduct be judged? Although negligence is not expressly alleged against Dr. Leung in my view the following passage (at p. 587) from the judgment of McNair J. in Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. is of assistance:-

"I myself would prefer to put it this way, that he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. I do not think there is much difference in sense. It is just a different way of expressing the same thought. Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view. At the same time, that does not mean that a medical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion. Otherwise you might get .men today saying: 'I do not believe in anaesthetics. I do not believe in antiseptics. I am going to continue to do my surgery in the .way it was done in the eighteenth century.' That clearly would be wrong."

15. This enunciation has been consistently approved in later cases, for example Whitehouse v. Jordan and another 1981] 1 W.L.R. 246 and in view of Professor Ma's opinion that Dr. Leung had made an error of judgment, I would refer to the speech of Lord Frazer of Tullybelton in that case, where he said, at p.263 -

"Merely to describe something as an error of judgment tells us nothing about whether it is negligent or not. The true position is that an error of judgment may, or may not, be negligent; it depends on the nature of the error. If it is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant held himself out as hating, and acting with ordinary care, then it is negligent. If, on the other hand, it is an error that such a man, acting with ordinary care, might have made, then it is not negligent."

16. I have referred to these tests of what I would call "medical negligence" because the question of novus actus was discussed in the context of negligence in Robinson v. Post Office [1974] 1 W.L.R. 1178. In that case the plaintiff, who was a Post Office employee, suffered a wound on his leg when he slipped on an oily rung whilst descending a toner wagon ladder. His doctor gave him an injection of anti-tetanus serum. A few days later the-plaintiff developed symptoms due to an allergy to the serum and eventually suffered serious brain damage. The trial judge held the doctor was not negligent in administering the serum and that although he was negligent in failing to give a preliminary test dose it would have made no difference, on the facts, if he had. The Post Office admitted that the accident and injury to the plaintiff's leg was caused by negligence on its part but contended it was not liable for the serious results of the injection because they were not reasonably foreseeable. The Court of Appeal in dismissing the appeal, again approved McNair J.'S test in Bolam's case and held that on the evidence the trial judge had been justified in holding that despite the doctor's negligence in the procedure adopted for applying the test dose, that negligence had not caused or contributed to the brain damage and that he was right in holding that the doctor was not liable in damages to the plaintiff. The Court went on to hold, in the words of Orr L.J. that "the case is governed by the principle that the Post Office had to take their victim as they found him, in this case with an allergy to a second dose of ATS". In dealing with the argument by Counsel for the Post Office that conduct of the doctor falling short of negligence could be relied upon as a novus actus, Orr L.J. had this to say, p.1189:-

17. I would respectfully echo the doubts expressed in that passage but I, too, do not need to pursue the question for reasons that will appear. I would mention however that in Wong Hok-chung v. Chow Wai-kam grid others [1974] H.K.L.R. 506 (where an injury to the plaintiff's foot in a traffic accident was not discovered and treated in hospital, resulting in deformity) Morley-John J. held that to constitute a novus actus interveniens negligence had to be such as to render the medical authorities liable in damages.

18. Mr. Graham submitted that where the intervention was due, as it was here, to a conscious act of human volition the test was not one of mere force ability but that of a degree of likelihood amounting to a natural and probable result of the negligence which preceeded it. For this proposition, he relied on the decision of the House of Lords in Dorset Yacht Co. Ltd. v. Home Office [1970] A.C. 1004, and in particular on the speech of Lord Reid. In that case a party of Borstal boys were working on an island under the control of three officers employed by the Home Office. During the night, seven of the boys absconded and boarded a yacht nearby. They set it in motion arid collided with another yacht moored nearby, causing damage. The Home Office were held liable in damages. Mr. Graham's argument about the effect of lord Reid's speech was put forward by Counsel in the recent case of Knightley v. Johns and Others [1982] 1 W.L.R. 351 but it did not find favour with the court of Appeal. The matter is dealt with at considerable length by Stephenson L.J. (who gave the leading judgment at p.p. 362-364 of his judgment. He concluded that Lord Reid in the Dorset Yacht case had not altered or developed the law so as to make likelihood and not forseeability the test whether human action breaks the chain of causation. I need say no more than that I respectfully agree with, and adopt, Stephenson L.J.'s analysis of the effect of the Dorset Yacht case, and refer, as he did, to Lord Wright's well-known words in The Oropesa [1943] p.32, at p.39 -

"To break the chain of causation it must be shown that there is something which I will call ultroneous, something unwarrantable, a new cause which disturbs the sequence of events, something which can be described as either unreasonable or extraneous or extrinsic. I doubt whether the law can be stated more precisely than that."

19. It is trite to observe that a plainly unnecessary operation will, in some (perhaps most) circumstances, break the chain of causation and so excuse the original wrongdoer from responsibility for its consequences, as being improbable and unforseeable, but it seems to me an operation and its consequences cannot be relied upon as a novus actus if it was performed as a result of a reasonable (even if possibly mistaken) decision, for such treatment is very much a natural consequence of the wrongdoing.

20. I now return to the facts, and it is as well to state the obvious - the only person who can tell us what was the actual state of the plaintiff's pelvic cavity when the operation was performed is Dr. Leung. I will say at once that I formed a very favourable impression of him and in so far as credibility might be in issue, I entertain no doubt whatever that he told the truth to the best of his ability. Everyone agrees that Dr. Leung was fully qualified and had the requisite experience to perform an operation upon Madam Ho to see what was wrong with her, although he did not have the extensive experience of Professor Ma. The Professor gave her evidence clearly and very fairly, and I greatly appreciate her help in this difficult case. I have reviewed her evidence earlier in my judgment. Towards the end of her testimony she said that Dr. Leung had made his decision to the best of his judgment but that it was bad luck for her [Madam Ho]. I say this because she might hale found another doctor who would not carry out the same procedure. It might have led to a hysterectomy but the chances were very slight."

21. The gravamen of Professor Ma's fully considered and weighty opinion was that the hysterectomy should not have been done unless it was absolutely necessary. But I accept that Dr. Leung did consider that it was so necessary. Even if he was wrong (and I do not wish it to be thought that I am suggesting that he was) in view of the cogent and compelling evidence of Dr. Wedderburn, it could not be said that another obstetrician of Dr. Leung's experience would not have taken a similar decision confronted as he was with the appearance of Madam Ho's pelvic c cavity. How, then, can it be said that the defendants are not responsible in law for the ultimate consequences of their admitted negligence? The surgical gauze was negligently left inside Madam Ho after the Caesarean section. Madam Ho would surely seek medical help. There was bound to be considerable infection in the pelvic cavity. An operation to remove the swab and clear the infection would have to be performed. The patient might not have the good fortune to come under the care of a surgeon of Professor Ma's great experience, but it would be expected that she would De treated by a competent and fully qualified surgeon, as Dr. Leung undoubtedly was. I am asked, in effect, to say that the chain of causation breaks here and that the defendants could not reasonably have foreseen that someone of Dr. Leung's experience might not have come to the conclusion, on grounds that seemed reasonable to him or her, that the best interests of the patient demanded that the uterus be removed. If the decision was entirely reasonable in the circumstances of difficulty created by a wrongdoer, I do not think that that he can be heard to say that it was a mistaken decision and absolve himself far responsibility for its expected consequences. A reasonable mistake, if such it was, must surely be recognized as a risk incidental to medical treatment - this is inherent in the human fallibility of all practitioners. I find nothing in the authorities to prevent me from reaching what I am bold enough to say if a common sense conclusion. I hold, on the balance of probabilities, that it has been established that the defendants are not exonerated from liability in damages flowing from Dr. Leung's intervention.

22. What general damages should properly be awarded to Madam Ho? She now suffers from a number of complaints which are discussed in the medical reports before me. She has periodic headaches but these are of short duration. She has occasional dizzy spells. She does not sleep well. She has put on weight -from about 137 lbs to 145 lbs. She feels her memory if poor and she tends to be forgetful bat neither Dr. Wedderburn nor Dr. Chen thought that these complaints were valid. Her worry about increased body hair is more likely than not to be a product of her imagination. Dr. Wedderburn was of the opinion that the symptoms of headache, tendency to sore throats and numbness of the left side of the body were psychosomatic in origin. In his report he puts the matter in this way:-

"Although these symptoms are psychosomatic, it is not surprising that she has such symptoms. She had six months of worry, with frequent visits to doctors, and finally realized hat the reasons for her symptoms and illness was due to a pelvic abscess; it is almost certain that when she had the abscess she felt ill and would have episodes of fever and mild prostration and it is not unusual for a woman of her age to feel that her health and life have been grievously affected because of the surgical mistake."

23. Madam Ho also complained of a loss of sexual desire and pain during intercourse. While Dr. Wedderburn could find no medical reason for this he felt that the absence of one ovary or the uterus might affect her libido from a psychological aspect.

24. Dr. Chen reported that he found the plaintiff's response to be appropriate and adequate but she had shed tears when asked about the operation performed by Dr. Leung, saying "It's already too late; the uterus (has) already (been) removed." Dr. Chen's report concludes (and with this conclusion Dr. Chin agrees):-

"Madam Ho suffers from a neurotic illness in the broadest sense of the term characterized by multiple somatic discomforts, decreased sexual desire and activities which have modified her patterns of daily living and moderately affected her marital life. The disability is likely to be life long by reason of chronicity and the absence of motivation for sufficient improvement. Take altogether, the disability amounts to approximately 25%."

25. In her report of the 13th May 1981, Professor Ma concluded that the plaintiff was suffering from two conditions:-

26. In her report, Professor Ma stated that the chance of Madam Ho recovering from he post-hysterectomy syndrome was fair but she would need a long period of expert care. In evidence, Professor Ma said that making allowances for Madam Ho's condition, there was no reason physically why she should not return to work. She would, however, need a lot of counselling for hex rehabilitation. What was essential was to convince her that she was able to work. So far as Professor Ma was aware, the plaintiff had not so far been offered any such counselling.

27. Madam Ho feels less than a complete woman and has been subject to much pain, anxiety and suffering. She may have to undergo another operation. She needs help For her physosomatic (but very real) symptom which gravely affect the quality of her life; and her relationship with her husband and the enjoyment of her children. It is fortunate, indeed, that after her second Caesarean she had decided not to have any more children and have her fallopian tubes tied up but this is the only source of comfort to this unfortunate young woman. Time may help to restore her confidence in her femininity (and I very much hope that it will) and make her enjoy life once again. I must guard against the danger of inflating the award for emotive reasons which, of course, have no place in the austere atmosphere of a Court. Doing the best that I can, and in all the circumstances, in my judgment, Madam Ho should receive $85,000 by way of general damages.

28. I now turn to a consideration of the amount of special damages that should be awarded to Madam Ho. Consultation and hospital fees amounting to $4,721.00 have been admitted, as have the expenses of hiring help to take care of the baby for six months: $3,000. The sum of $7,700 has been agreed in respect of loss of earnings. But Madam Ho also claims a total of $34,000 ($1,000 per month for 34 months for "special nourishment". About this she told the Court that she had taken a variety of herbal medicines because she had felt they would do her good. No one, however, had recommended them to her and she had no receipts for the amounts she paid. Defendants in cases of this kind often take a benevolent view of claims of this sort, but here (no doubt because of the total amount claimed) the defence has put the plaintiff to strict proof on the matter. I regret to have to say that on the authorities as they stand, on any view of her evidence on this issue, Madam Ho did not come within measurable distance of proving her claim for the expenses of "special nourishment", but Mr. Graham was perfectly willing to allow her the nominal sum of $500 under this head and I award her that sum. On the evidence led I do not feel it would be justified to make any award in respect of future earning capacity.

29. For the reasons I have given, I give judgment for the plaintiff against the defendants for:-

30. Subject to any submissions Counsel may wish to address to me, I have it in mind to award the costs of the action to the plaintiff and to make the following orders as regards interest on the damages I have awarded:-

31. I am aware of the decision of the English Court of Appeal in Birkett v. Hayes (The Times, 19th March 1982) which will no doubt require a fresh look at the question of interest on general damages, but as a Court of first instance (and not, strictly being bound by decisions of the English Court of Appeal) I think it would be wrong for me to attempt to follow the suggested guidelines laid doom that case. Our own Court of Appeal will no doubt deal with the matter upon the first opportunity which presents itself. I now invite argument on these matters.

[Counsel did not wish to address the Court on costs or interest and so orders proposed were made].

Representation:

Mr. Patrick Woo, instructed by Arthur Au & Co. for Plaintiff.

Mr. Peter Graham and Mr. MacLeod, Crown Counsel, for defendants.