Kong Wai Tsang v. Hospital Authority

cacv 76/2004

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 76 of 2004

(on appeal from HCPI No. 1018 of 2002)

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BETWEEN

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Before: Hon Rogers VP and Le Pichon JA in Court

Date of Hearing: 27 October 2004

Date of Handing Down Judgment: 5 November 2004

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J U D G M E N T

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Hon Rogers VP:

1.This is an appeal from a judgment of Suffiad J given on 27 February 2004.  The matter before the judge was an appeal from the decision of the master striking out the plaintiff’s action.  At the conclusion of the hearing judgment was reserved.

Background

2.I have no hesitation in saying at the outset that anyone who has considered this case would be bound to have great sympathy for the plaintiff.  She saw her 16-year-old daughter go from a state in which she had developed a pain in her ankle, which appeared to be similar to rheumatoid arthritis, and a rash to a state where her daughter was clinically brain-dead in a little under three months.  That swift change was caused by the fact that the plaintiff’s daughter, Cheung Kong, had contracted systemic lupus erythematosus (“SLE”). 

3.SLE can either be drug related or be idiopathic.  There is no dispute in this case that the SLE was idiopathic.  That is clearly a difficult condition medically.  The initial notes on Cheung Kong’s admission to hospital were that there was no cure but the condition was controllable.  Unfortunately, that proved not to be the case.  In the early hours of the morning of 13 November 1999 a CT scan showed extensive infarction of the cerebellum and occipital lobe and significant obstructive hydrocephalus.  Effectively, that meant that Cheung Kong’s brain was dead.  She was kept on life-support until 25 January 2000 when, with the consent of her parents, the life-support system was turned off.

4.Not surprisingly, the plaintiff found it difficult to accept that Cheung Kong’s death had been inevitable and had not been caused by some neglect.  Initially, it was suggested that the medical attention on the night of the 12-13 November had been inadequate.  Blame was also put on the fact that steroids and corticosteroids had been used as part of Cheung Kong’s treatment.  But it was eventually accepted that no complaint could be made about the medical attention and that whoever might have attended Cheung Kong on 12 November would not have been able to avert the sudden lapse of her medical condition.  It was also accepted that the steroid treatment had been the appropriate treatment.  There remained one factor, however, which continued to be a source of complaint.  That had been the use of the drug carbamazepine.

5.Carbamazepine is a pain-killing and muscle relaxant drug commonly used as an anticonvulsant in the treatment of epilepsy.  It has a number of side-effects which will be referred to below.  Cheung Kong had apparently been taking carbamazepine for some time.  There is a suggestion in the papers that she might have been taking it for upwards of 10 years.  However, the plaintiff strenuously denies that.  It is the plaintiff’s case that Cheung Kong had only been taking carbamazepine for about three years.  It is said that the drug was initially prescribed in Beijing and that the father had been in the habit of purchasing the drug in the Mainland.  He would purchase 100 milligram pills and divide each pill into 4 parts, thus, assuming the pill was uniform in composition, giving a dosage of 25 milligrams a day.

6.Cheung Kong had apparently been to the emergency department of Queen Mary Hospital on 17 August 1999.  On that occasion she complained of spots on her ankle and a rash on her lower extremity.  On 27 August 1999 she attended the Sai Ying Pun medical clinic associated with Queen Mary Hospital.  She attended the same clinic, again, on 24 September 1999.  According to the plaintiff’s statement Cheung Kong had been diagnosed as having SLE on 27 August, but it seems it is the defendant’s case that she was diagnosed with SLE on 24 September.  In any event, on that latter day arrangements were made for her to be admitted to hospital on 27 September.  It was not, however, until 3 October 1999 that Cheung Kong attended the emergency department of the hospital and was admitted as a patient.

7.It is, perhaps, unnecessary to detail the full medical treatment which Cheung Kong had.  For the purposes of this case, however, mention should be made of the events around the period of 16 and 17 October.  It appears that Cheung Kong was complaining of a headache and she had been vomiting and had a “high swinging fever”.  She had an emergency CT scan and MRI of the brain showed haemorrhage in the virmis of the cerebellum. 

8.It was either on that day or the following day that the plaintiff informed the doctors who were then treating Cheung Kong that she had been taking carbamazepine regularly and, indeed, had been given it at the hospital without the doctor’s knowledge.  It is the plaintiff’s case that Cheung Kong did not suffer from epilepsy.  It is said that she had been prescribed carbamazepine for her headaches.  However, apparently, in a statement dated 25 January 2000 to the Legal Aid Department, the plaintiff is said to have said that Cheung Kong had had frequent episodes of sudden eye deviation to the right associated with impaired consciousness level since childhood.  It is said that these are recognised symptoms of some epileptic patients.  In the statement, the plaintiff apparently also said that those attacks could be prevented by the regular use of small doses of carbamazepine.  In her statement dated 1 April 2003, the plaintiff states that she had shown a bottle of carbamazepine to one of the doctors on 27 August, the day when the plaintiff says that Cheung Kong had been diagnosed as having SLE. 

9.Starting from 18 October carbamazepine was administered in dosages which ranged from 200 milligrams twice daily to later 100 milligrams three times daily to later still 200 milligrams three times daily.  It is the administration of carbamazepine to Cheung Kong that is the effective subject of complaint in this action.  It is said that the carbamazepine exacerbated the leucopenia and thrombocytopenia caused by the SLE which led to Cheung Kong’s death.

The history of this action

10.The writ in this action was issued on 11 November 2002.  The pleadings were closed following a reply which had been served on 3 April 2003.  There was a check list review hearing on 7 April.  At that hearing the plaintiff had the opinions of Dr Vincent Ip and Professor Tomlinson.  In brief, Dr Ip stated that he was of the view that the doctors treating Cheung Kong could not be blamed for not having stood much firmer against using carbamazepine.  Professor Tomlinson said that although it was his own opinion that carbamazepine should not have been used, he would not go so far as to say that the medical team was negligent in continuing to prescribe it even after Cheung Kong’s condition had been reviewed by the neurologists on 3 November 1999.  In short, as the judge noted in paragraph 24 of his judgment, neither of these two opinions supported the case that there had been medical negligence or that the defendant was responsible for Cheung Kong’s death.  The reason for this was, as was later explained by the judge in the judgment below, that in the words of MacNair J in Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 and later amplified in Bolitho v City and Hackney Health Authority [1998] AC 232:

“(a medical practitioner) is not guilty of negligence if he has acted in accordance with practice accepted as proper by a reasonable body of medical men skilled in that particular art … merely because there was a body of opinion who would take a contrary view.”

Thus it was clear at the first check list review hearing that the plaintiff did not have the evidence, even taking the medical evidence at its most favourable, to demonstrate negligence.  In those circumstances, the master adjourned the hearing to 23 July 2003 to enable the plaintiff to obtain an expert report on liability and causation which would show at least a prima facie case of negligence.  The hearing on 23 July did not take place and was postponed until 1 September 2003.  The plaintiff had not by then obtained any further expert report on liability and causation.  The master was apparently shown one of the letters from Mr Guidry, but that did not assist in establishing negligence.  The master again adjourned the hearing, this time until 10 December 2003. 

11.By that date the plaintiff had obtained reports from a pharmacologist practising in Arizona, James Guidry, and a doctor who practised in Georgia, Dr Jerry W Bush.  The master was, again, not satisfied that the plaintiff had adduced evidence sufficient to satisfy theBolam test and, on that basis, dismissed the plaintiff’s claim.

12.When the matter came before the judge the expert reports and witness statements were in the same condition as they had been before the master and the judge came to the same conclusion to which the master had come.  The judge pointed out that the totality of the plaintiff’s evidence showed that there were 2 schools of thought and that certainly Dr Ip and Professor Tomlinson demonstrated that the continued use of carbamazepine at Queen Mary Hospital was not wrong.  In the second place the judge correctly pointed out that Mr Guidry was a pharmacologist and that his expertise did not extend to permitting him to give his opinion on what was a reasonable or accepted practice of the medical profession.  As the judge pointed out, Mr Guidry’s report did not go that far.  There was speculation in that report that the physicians attending Cheung Kong either did not realise the possibility that carbamazepine might exacerbate the symptoms caused by SLE or possibly did not think of it.  Again, as the judge pointed out that was not a matter for Mr Guidry, as an expert, to speculate on. 

13.In respect of Dr Bush the judge said:

“56.      That leaves only the opinion of Dr Bush.  In short his opinion is simply that the Drug should never have been administered or continued to be administered to the deceased once the deceased was diagnosed to have SLE even though it was not a drug-induced SLE.

57.       Unlike Dr Ip and Professor Tomlinson, Dr Bush does not attempt to analyse the practice adopted by the doctors at QMH in the circumstances of the fast deteriorating condition the deceased was in after her admission to the hospital.  He never gave any opinion on the practice of the doctors attending the deceased, what Professor Tomlinson called their ‘clinical judgment’ in deciding to continue with the Drug to the deceased.  After all, the issue in this case must be focused upon such practice of the doctors at QMH tending to the deceased in the circumstances that she was in when admitted to QMH and in their judgment continuing with the Drug.  That issue is not simply the effects of the Drug upon the deceased in her condition with SLE.  In short were the doctors at QMH negligent to have taken that risk by continuing the Drug, or can it be said that was a course which no doctor of ordinary skill would have taken in the circumstances of this case.”

14.On this appeal Mr Yau, who appeared on behalf of the plaintiff, did not take issue with the legal proposition relied upon by the judge.  His primary point was that the plaintiff could choose which witnesses she would rely on and was not compelled to put forward either Dr Ip or Professor Tomlinson as an expert.  That, as far as it goes, is correct.  Nevertheless, apart from other matters such as the expert opinion provided by Dr Li to the coroner and his later report dated 21 May 2003 as well as the Queen Mary Hospital records, Dr Bush’s report also refers to Dr Ip’s and Professor Tomlinson’s expert opinions.  Thus Dr Bush’s report cannot be read in isolation.  In the second place although it is true that the side-effects of carbamazepine can include neutropenia and thrombocytopenia, there was, as was pointed out by Mr Sakhrani, who appeared on behalf of the defendant, no factual or logical basis for Dr Bush’s statement that “Within a reasonable degree of medical certainty, the Madam Kong’s clinical course was worsened by the use of carbamazepine.”

15.The question at issue is whether it can be shown that there was no competent body of medical practitioners who would have upheld the use of that drug on Cheung Kong in the hospital.  Dr Bush does not condescend to an analysis of Cheung Kong’s situation.  Had he done so he would have known that Cheung Kong’s white cell count increased at various times during the course of the treatment and there was no persistent decrease in the white cell count.  This is quite apart from the fact that the drugs which were being administered in respect of the SLE were designed to counteract any decrease in the white cell count.  It also has to be observed that at the conclusion of Mr Guidry’s letter of 1 March 2002 all he could say was “One must seriously question whether her outcome would have been more favorable if the carbamazepine had been discontinued on admission to the hospital.”  He was clearly not prepared to say that the carbamazepine was the cause of death.

16.Both Mr Guidry and Dr Bush predicated their views on the basis that it was necessary to continue with an anticonvulsant drug.  This was hardly surprising.  As already noted, Cheung Kong was suffering “high swinging fever”.  In those circumstances, no doubt the medical practitioners would have been concerned about the possibility of convulsions.  Neither of these two persons addressed the question of what should have happened when the doctors became aware, on about 18 October, that carbamazepine had been administered to Cheung Kong for a lengthy period and as to whether it would have been safe to have then and there changed the drug.  In short, their reports do not establish that the doctors at Queen Mary Hospital were acting in a manner that might not have been adopted by a reasonable body of medical men who were sufficiently skilled.  Dr Bush considered that phenobarbital was a much safer anti-seizure drug.  However, the literature does show that even that is not free from side-effects such as thrombocytopenia and hemolytic anaemia.

17.The events which led to the death of Cheung Kong undoubtedly caused considerable distress to the plaintiff and Cheung Kong’s father.  That an action should be struck out at the check list hearing is undoubtedly highly unusual.  I do not disguise the fact that this fact alone has given me great cause for concern.  But I am satisfied that the plaintiff has been given every opportunity to muster the evidence which would be required in the case and that it has been demonstrated that even giving the best reading to those expert reports which have been obtained, the case presented on behalf of the plaintiff does not show a case of medical negligence against the defendant fit to go to trial.  Whilst, therefore, expressing every sympathy for the plaintiff I am nevertheless, driven to the conclusion that this appeal must be dismissed and I would therefore make that an order and an order nisi that the costs of this appeal be to the defendant.

Hearing before two Justices of Appeal

18.This appeal was heard before two Justices of Appeal in accordance with the provisions of section 34B(4)(a) of the High Court Ordinance, Cap. 4.  To avoid any doubt about the matter and to save any waste of time and costs which might result from the matter being raised in the future, despite the fact that there was no question raised in argument, it is specifically stated that this court has considered whether the appeal was against an interlocutory order and is of the view and so decides that it was against an interlocutory order.  The matters in question are not determinative of the action, nor are they determinative of a crucial issue in the action.

19.In those circumstances the provisions of section 14(5) of the High court Ordinance apply.  See the remarks of this court in True Rank Holdings Ltd and Another v Lam Ka Chung, William and Others, CACV 38 of 2004.

Hon Le Pichon JA:

20.I agree.

Mr Albert Yau and Mr P K Chan, instructed by Messrs Raymond Cheung & Chan, for the Plaintiff/Appellant

Mr Ashok K Sakhrani, instructed by Messrs Deacons, for the Defendant/Respondent