Chan Chun Chau, The Personal Representative of the Estate of Fa Ching Chee, Deceased v. Hospital Authority
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DCPI1424/2011 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PERSONAL INJURIES ACTION NO 1424 OF 2011 --------------------
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--------------------- JUDGMENT --------------------- INTRODUCTION 1.This case involves a medical negligence claim. The original plaintiff, Madam Fa Ching Chee (“Madam Fa”), passed away on 22 April 2013. By the order herein dated 18 October 2013 made pursuant to Order 15, rule 7(2) of the Rules of the District Court, Madam Fa’s husband, Mr Chan Chun Chau (“Mr Chan”) was made a plaintiff to the cause and it was further ordered that this action be carried on as if Mr Chan had been substituted for Madam Fa. 2.Mr Chan’s allegation of medical negligence against the defendant only focused on the cervical spine laminoplasty operation performed by Dr Mak Kan Hing (“Dr Mak”), who was working at the Orthopaedics and Traumatology Department (“O&T”) of the Kwong Wah Hospital (“KWH”) at the material time, on Madam Fa on 2 September 2008 (“the 2nd Operation”). 3.The plaintiff’s allegations can be found in the Indorsement of Claim dated 18 July 2011. It was clearly stated that the plaintiff’s claim was in relation to the “negligent medical treatment and/or advice given to the Plaintiff on or about 2nd September 2008”. 4.The same position was also clearly set out in the plaintiff’s Statement of Claim dated 26 March 2012. The particulars of the alleged negligence, which were all in relation to the 2nd Operation, were set out at paragraphs 16 and 25 of the Statement of Claim. 5.The above is needed to be emphasized in order to avoid this action being distracted by numerous accusations made by Mr Chan in various places, including his Opening and Closing Submissions, his Witness Statement and his oral testimony at trial. Many of such accusations are unrelated to the plaintiff’s pleaded case against the defendant and are therefore irrelevant for the purpose of this trial. FACTUAL BACKGROUND 6.Madam Fa was born on 6 September 1944. She passed away on 22 April 2013 at the age of 68. From 1998 to 2007 7.On 8 October 1998, Madam Fa was referred to the O&T of the KWH due to, inter alia, complaint of neck pain for over one year. Madam Fa was diagnosed of degenerative cervical spine and was given conservative treatment with physiotherapy and a course of anti-inflammation drugs. 8.Between 1998 and 2001, Madam Fa attended the O&T of KWH for back pain radiating down to both lower limbs and was given conservative treatment. 9.On 10 April 2003, Madam Fa attended a follow-up at the O&T for pain in both knees and numbness on the lateral side of both legs. Physical examination showed weakness of the right L5 innervated muscles and absence of ankle jerk on the right side which were suggestive of spinal stenotic lesions secondary to degenerative lumbar spine. Madam Fa was advised to take an x-ray of the lumbar spine region and to attend a follow-up on 27 June 2003. 10.Madam Fa attended the follow-up on 27 June 2003. The x-ray report suggested mild slipping of the L4/5 disc accounting for spinal stenotic symptoms. Madam Fa was given conservative treatment and her condition improved. 11.Madam Fa continued to attend follow-ups between 2003 and 2004. 12.Madam returned for a follow-up on 27 May 2005 and was seen by Dr Mak. Physical examination showed, inter alia, weakness of Madam Fa’s right foot and right leg with numbness of the right sole and absence of right ankle reflex for more than 2 years. She could manage to walk for about 10 minutes. 13.Dr Mak therefore arranged for a magnetic resonance imaging (“MRI”) scan of the lumbar spine which was performed on 9 June 2005. The MRI scan revealed, inter alia, prolapsed intervertebral disc on multiple levels with lateral canal stenosis, but with adequate space for the dural sac. 14.In view of Madam Fa’s deteriorating condition, Dr Mak advised Madam Fa to undergo laminectomy of L3/4 to decompress the nerve roots (“the 1st Operation”). Madam Fa gave an informed consent to the 1st Operation. Dr Mak told Madam Fa there was no guarantee that the muscle power would return and she expressed that she understood that. The 1st Operation was performed on 26 July 2005 uneventfully. 15.On 5 September 2005, around 6 weeks after the 1st Operation, Madam Fa attended a post-operation follow-up at the O&T with Dr Mak. Her condition had improved with reduction in back pain and some improvement in walking distance. In another follow-up with Dr Mak on 20 February 2006, Madam Fa no longer suffered from any back pain but there was not much improvement regarding the weakness of her right foot. 16.In September 2006, a repeat MRI scan of Madam Fa’s lumbar spine region was performed and no evidence of nerve root compression was found. Madam Fa was further followed-up by the O&T in respectively April and June 2007. 17.On 24 October 2007, a MRI scan examination of Madam Fa’s lumbar spine showed no significant spinal stenosis. 18.However, in a follow-up on 12 November 2007, Madam Fa presented with involvement of the upper limb suggestive of a cervical lesion. Dr Mak ordered a MRI scan of Madam Fa’s cervical spine and referred Madam Fa to the Neuro-medical Clinic, Department of Medicine and Geriatrics of KWH (“Neuro-medical Clinic”) to investigate the possibility of Motor Neurone Disease (“MND”). 19.Madam Fa was followed up on 24 December 2007 by Dr Mak pending consultation with the Neuro-medical Clinic of the KWH. Dr Mak found that Madam Fa had progressive weakness of both lower limbs. X-ray of the cervical spine indicated features of narrowing of the spinal canal. From 2008 to 2009 20.On 4 August 2008, a MRI scan of Madam Fa’s cervical spine region was performed which showed thickening of the posterior longitudinal ligament with cervical cord compression at multiple levels. Dr Mak noted that this showed definite evidence of a diagnosis of cervical myelopathy. 21.The MRI report revealed that at C4/5, mild disc bulge with osteophytes was noted and the sagittal spinal canal was down to 6.7 mm. In his oral testimony, Dr Mak explained that for a normal person, the minimum distance for the sagittal spinal canal should be 12 mm to 13 mm. In this respect, there was serious nerve compression and the MRI evidence could completely explain Madam Fa’s condition. The investigations did not suggest that Madam Fa had MND and in the circumstances, Dr Mak considered that the chance of presence of MND was only very slim. 22.In view of the above, on 18 August 2008, Dr Mak advised Madam Fa to consider a cervical spine laminoplasty operation (ie the 2nd Operation). Dr Mak is of the firm view that the 2nd Operation was appropriate and should be done. 23.Dr Mak gave evidence that prior to the 2nd Operation, he had explained the situation to Madam Fa and Mr Chan, including the following:-
24.Madam Fa signed a Consent Form dated 18 August 2008 (the “Consent Form”) for the 2nd Operation (pages 859 to 863 of the Trial Bundle). In the fourth section of the Consent Form, which stated in Chinese that the doctor has explained to the patient the operation/medical procedure/treatment and the possible risks and complications, the following was written: “numbness, paralysis, infection”. 25.In his oral testimony, Dr Mak confirmed that the signature on the left-hand side of page 4 of the Consent Form (page 862 of the Trial Bundle) was his signature, and the witness was a nurse from the Out-Patient Department. Dr Mak further confirmed that all the Chinese words on the Consent Form, including those written in the fourth section, were written by him (and not by a female nurse as alleged by Mr Chan). I have no hesitation in accepting Dr Mak’s evidence in this regard as being truthful and reliable. 26.The 2nd Operation was performed on 2 September 2008. Madam Fa recovered smoothly and was discharged from the hospital on 25 September 2008. 27.The 2nd Operation was beneficial as Madam Fa had improvement in her lower limb power and sensation during the 3 months after the operation. 28.After the 2nd Operation, at or around the mid-autumn festival in 2008, Madam Fa gave Dr Mak some gifts to thank him for his medical care. 29.However, on 13 February 2009, it was noted that Madam Fa began to show progressive weakness of her right lower limb and both upper limbs. In Dr Mak’s clinical record dated 13 February 2009, it was recorded that “5 months after cervical myelopathy / some [transient] improvement after cervical myelopasty / improvement in the right lower limb sensation and muscle power / now progressive upper limb muscle weakness …”. 30.Dr Mak wrote a referral letter dated 13 February 2009 to Dr Ko of the Neuro-medical Service, asking him to see Madam Fa again for any features of MND. 31.Muscle biopsy was subsequently performed on 3 April 2009. On 16 April 2009, a neurologist of the Neuro-medical Clinic saw Mr Chan and his son and explained the clinical opinion of the neurology team that Madam Fa had MND and spinal spondylosis. From the records, that was the first time when the diagnosis of MND was made. 32.MND (also known as anterior horn cell disease) is a degenerative disease characterized by muscle weakness. The disease runs an inexorably progressive course, bringing about general paralysis in a patient. There is no therapy that can reverse or delay the deterioration of the condition. 33.On the other hand, a MRI scan was repeated on 6 May 2009 which confirmed the success of the 2nd Operation: it showed improved dimension of the cervical cord with no cord compression. EXPERT EVIDENCE 34.In the Joint Expert Report dated 2 November 2012 (the “Joint Expert Report”) prepared by Dr David HF Cheng (“Dr Cheng”) (the plaintiff’s expert) and Dr Lau Pui Yau (“Dr Lau”) (the defendant’s expert), both Dr Lauand Dr Cheng have given their medical opinions. Dr Lau is the expert instructed by the defendant and was called to give oral evidence at trial. Dr Cheng was instructed by the former solicitors for the plaintiff. Some comments made by Dr Cheng are against the defendant. However, the plaintiff did not call Dr Cheng to give evidence at trial. I agree with Mr Woody Chang Wah Yan, solicitor acting for the defendant, that the court should be slow to accept the opinion of Dr Cheng, without the defendant having an opportunity to cross-examine Dr Cheng regarding his comments which are adverse to the defendant. 35.Dr Lau’s expert opinion can be summarized as follows:-
DETERMINATION OF ISSUES RAISED BY THE PLAINTIFF A. Alleged wrong diagnosis of cervical myelopathy 36.The plaintiff alleged at paragraph 16 of the Statement of Claim that Dr Mak had made a wrong diagnosis of cervical myelopathy. 37.It is Dr Mak’s evidence that the clinical presentations of Madam Fa at the time, including the MRI scan performed on 4 August 2008, showed definite evidence of a diagnosis of cervical myelopathy. 38.Furthermore, Dr Lau is also of the opinion that Madam Fa was afflicted with cervical myelopathy – ie in his opinion that Madam Fa had a double pathology, namely, cervical cord compression and MND. 39.I have no hesitation in accepting the evidence of Dr Mak and Dr Lau in this regard and to hold that the plaintiff’s allegation of a wrong diagnosis is unfounded. B. Alleged insufficient pre-operation advice 40.The plaintiff alleged in paragraph 25(a) of the Statement of Claim that prior to the 2nd Operation, Dr Mak had failed to advise or sufficiently advise Madam Fa of the possibility of her suffering from MND and, if she was indeed suffering from the disease, the effect that this disease would have on her. At trial, Mr Chan alleged that Dr Mak did not advise Madam Fa of any risks at all prior to the 2nd Operation. 41.In this regard, I accept the evidence of Dr Mak that he had given the advice set out in paragraph 23 above prior to the 2nd Operation. 42.Dr Mak did not advise Madam Fa of the possibility of MND because there was definite evidence of cervical myelopathy shown on the MRI scan on 4 August 2008, which warranted the 2nd Operation. At that time, no diagnosis of MND had been made by the Neuro-medical Clinic. Dr Mak explained that MND is a rare disease the diagnosis of which should be made by way of exclusion of other causes and a muscle biopsy would not give the answer. Dr Mak further said the diagnosis of MND should be made by a neurologist. 43.Dr Mak’s clinical management of Madam Fa is supported by Dr Lau’s expert opinion (see: paragraph 35 above). Dr Lau is of the firm opinion that it was not necessary for Dr Mak to advise Madam Fa of the possibility of MND prior to the 2nd Operation. 44.I accept the evidence of Dr Mak and Dr Lau and hold that the plaintiff’s allegation in paragraph 25(a) of the Statement of Claim is unfounded. C. Alleged failure to wait for further tests before the 2nd Operation and alleged insufficient regard to Madam Fa’s MND 45.The plaintiff alleged in paragraph 25 (b) and (c) of the Statement of Claim that Dr Mak should have waited for further tests (for example, muscle biopsy) before advising Madam Fa to consider the 2nd Operation, and that Dr Mak had failed to have any or any sufficient regard to the fact that Madam Fa might be suffering from MND and, if she was indeed suffering from the disease, the effect that this disease would have on her. 46.Dr Mak’s position has been set out in paragraph 42 above. In particular, Dr Mak completely disagreed with Dr Cheng that a “simple muscle biopsy” would have given the answer as to whether Madam Fa had MND or not. 47.Dr Mak’s position is supported by Dr Lau’s expert opinion (see: paragraph 35 above). 48.I agree with Mr Chang’s submissions that the evidence of Dr Mak and Dr Lau should be preferred over the evidence of Dr Cheng, which is untested by cross-examination. I hold that the plaintiff’s allegation in this regard is unfounded. D. Alleged unnecessary operation 49.The plaintiff alleged in paragraph 25(d) of the Statement of Claim that Dr Mak wrongfully offered and carried out the 2nd Operation on Madam Fa when such operation was completely unnecessary and served no practical or meaningful purpose if Madam Fa was suffering from MND. 50.Dr Lau’s opinion on this issue has been set out in paragraph 35 above. In short, Dr Lau considered that it was reasonable for Dr Mak to carry out the 2nd Operation. There was indeed a transient period of improvement for around 3 months after the operation. It was not unusual for surgeons to perform operations on terminally ill patients in order to lessen the sufferings in the last months of their lives. 51.Furthermore, I agree with the submissions of Mr Chang that further waiting for a possible confirmation of the diagnosis of MND would not change the management options in face of the definite evidence of cervical myelopathy from the MRI scan with compatible clinical presentation:-
52.In the circumstances, I hold that the plaintiff’s allegation of an unnecessary operation is unfounded. E. Alleged failure to have any or any sufficient co-ordination between the O&T and the Neuro-medical clinic of KWH 53.The plaintiff alleged at paragraph 25(e) of the Statement of Claim that there was a failure to have any or any sufficient co-ordination between the O&T and the Neuro-medical Clinic of KWH. 54.The plaintiff’s allegation in this regard is wholly un-particularized. Further, the plaintiff has not produced any evidence to support such allegation against the defendant. 55.In the circumstances, I agree with Mr Chang that the plaintiff’s allegation is not established. F. Alleged failure to provide a safe system for provision of health care 56.The plaintiff alleged in paragraph 25(f) of the Statement of Claim that there was a failure to provide a safe system for the provision of health care. 57.Again, the plaintiff’s allegation in this regard is wholly un-particularized. Further, the plaintiff has not produced any evidence to support such allegation against the defendant. 58.I agree with Mr Chang’s submission that there is no substance in the allegation. Conclusion on liability 59.For the reasons set out above, I find that there was no negligence on the part of Dr Mak or the defendant in the clinical management of Madam Fa. I find that Dr Mak’s clinical management of Madam Fa was proper and of a reasonable standard according to the test laid down in the case of Bolam v Friern Hospital Management Committee [1957] 2 All ER 118. Accordingly, the plaintiff has failed to prove his claim against the defendant and the claim should be dismissed. QUANTUM 60.For the sake of completeness, I shall briefly consider the question of quantum should the defendant be held liable to the plaintiff's claims. 61.In the plaintiff’s Statement of Damages dated 26 March 2012, the plaintiff claimed HK$1,000,000 for pain, suffering and loss of amenities (“PSLA”). 62.In the plaintiff’s Revised Statement of Damages filed on 20 September 2012, the plaintiff asked the court to award “a reasonable sum” and listed out damages in the total sum of HK$207,000. 63.At trial, Mr Chan confirmed that the plaintiff’s claim against the defendant would not exceed HK$ 1 million. 64.It is the defendant’s position that Madam Fa’s condition was entirely caused by her MND and not by the 2nd Operation. Indeed,both Dr Cheng and Dr Lau agreed in the Joint Expert Report that Madam Fa’s subsequent deterioration and condition was caused “almost entirely” by the MND disease and not by the cervical laminoplasty operation. 65.Further, Dr Lau confirmed at trial that the 2nd Operation was successful and did not cause additional harm to Madam Fa. Dr Lau also agreed that there was some transient improvement for 3 months after the 2nd Operation. 66.Accordingly, the plaintiff’s case, taking at its highest, only involved an “unnecessary operation”. 67.Despite that a list of damages was set out in the plaintiff’s Revised Statement of Damages filed on 20 September 2012, there is nothing to show that these “damages” were caused by the 2nd Operation and not due to the MND suffered by Madam Fa. There was no attempt by Mr Chan to explain how he arrived at the figures claimed. Case authorities 68.Mr Chang cited a decision of the High Court of Northern Ireland in Elan Neeson v Phyllis Agnew and Others [2009] NIQB 10. In that case, the plaintiff sued her former solicitors for failing to pursue a medical negligence claim within time. 69.The claim there involved the plaintiff’s mother, the deceased. When the deceased was 73 years of age, a tender lump was found on her right neck. A fine needle aspiration of the lump disclosed a thyroid carcinoma on 18 February 1998. The deceased underwent a total thyroidectomy to remove this carcinoma on 25 March 1998. That operation was successfully carried out. 70.It was the plaintiff’s contention in that case that the operation was an unnecessary trauma to her late mother which ought not to have been carried out. This was because in parallel with the treatment of the thyroid lump, investigations progressed with regard to the deceased’s cough. In April 1998, the deceased was admitted to the hospital and tests disclosed that she had a well advanced and highly malignant lung cancer. She remained in hospital and died there on 7 June 1998. The plaintiff’s contention was that if she had been properly investigated in February and March 1998 this would have been obvious and she would not have been put through the trauma of the thyroidectomy as her condition was in any event without hope of survival. 71.The court assessed what damages would probably have been awarded if the claim of the estate had not been time-barred. 72.The learned judge in that case acknowledged “difficulty in putting any precise valuation on this very unusual heading of damages ie an unnecessary operation for a dying lady” and his assessment was that it would have been in the range of £7,500 to £10,000 (equivalent to around HK$96,450 to HK$128,600). 73.Bearing in mind that in the present case, Madam Fa appeared to have actually benefitted from the 2nd Operation (at least for the 3 months thereafter), I agree with Mr Chang that the appropriate award for PSLA would have been a sum of HK$80,000. Further, I also agree with Mr Chang that a sum of no more than HK$1,000 would have been the proper award for special damages. 74.Interest should be awarded at 2% per annum on general damages for PSLA from the date of writ until judgment. Interest on special damages should be awarded at half the judgment rate from the date of the 2nd Operation to the date of judgment. ORDER 75.Failing on liability, I would dismiss the plaintiff's claim against the defendant in this action. 76.I see no reason why costs should not follow the event. Accordingly, the defendant shall have the costs of this action against the plaintiff, including any costs reserved (if any). Such costs shall be taxed, if not agreed. 77.The above order as to costs is nisi and shall become absolute in the absence of any application within 14 days to vary the same. 78.Should Mr Chan require translation of this judgment into the Punti or the Minnan dialect, he can contact my clerk to arrange an appointment for a court interpreter to verbally translate this judgment to him at the Wanchai Law Courts at a mutually convenient date and time.
The plaintiff (Chan Chun Chau) appeared in person Mr Woody Chang Wah Yan, of Mayer Brown JSM, for the defendant Please refer to HCMP2053/2014 for the relevant appeal(s) to the Court of Appeal. | |||||||||||||||||||
Further hearings and rulings under DCPI 1424/2011