LEUNG KAI CHUN, suing by his mother and next friend, LAM SZE MAN v. HOSPITAL AUTHORITY

HCPI 115/2022

[2024] HKCFI 691

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 115 OF 2022

________________________

BETWEEN

________________________

________________________

DECISION

________________________

1.  The present action arose out of the alleged negligence in the management of the delivery of the plaintiff (“Kai Chun”) at the defendant (“HA”)’s hospital in 2004. HA was put on notice of the potential claim in 2008. At the request of one of the experts on liability and causation (“L&C”) engaged on behalf of Kai Chun, assessment reports were obtained from another 3 experts in physiotherapy, psychology and occupational therapy respectively between late 2014 and early 2015 (“the 3 Reports). The L&C experts then rendered their report. Armed with these, Kai Chun by his mother as the next friend (“the Mother”) commenced the present action in 2022. The parties have since ensued in correspondence in respect of their dispute over the admissibility of the 3 Reports. Hence the present application taken out pursuant to this court’s direction.

Background

2.  It was the Mother’s first pregnancy in her early 20s. On 3 October 2004, when she was in her 40^th week of pregnancy, she was admitted to the hospital in question complaining of severe abdominal contraction and sign of blood. She was seen and monitored by the responsible doctor since the early morning of 4 October 2004. Delivery by Ventouse extraction commenced at 16:36. After repeated but unsuccessful attempts, the procedure was abandoned for Caesarean section at 16:50. Kai Chun was delivered by Caesarean section at 17:05.

3.  Kai Chun was found to be suffering from apnoea and depressed primitive reflexes upon birth, and had conditions including seizures. He was admitted to the neonatal unit, and had to undergo intubation and mechanical ventilation. Kai Chun’s condition gradually improved and was eventually discharged 3 weeks after birth.

4.  In the following years of his infancy, Kai Chun had been brought to attend periodic examinations and treatments for suspected developmental delay and early features of suspected cerebral palsy. In 2008, he was referred to the hospital for long-term follow-up regarding his neurodevelopmental status together with training and therapies in various disciplines. Subsequently, Kai Chun managed to enter a main stream school, but the examinations and assessments of his psychological, neurological and motor development continued.

5.  In 2008, the Mother through the Legal Aid Department put HA on notice of the potential claim for damage to Kai Chun caused by the delay and management of his delivery. The claim however was yet to be particularized.

6.  In May and July 2014, in preparation of the claim, those acting for Kai Chun issued written instructions to physiotherapist Mr Emil Man (“Mr Man”), occupational therapist Mrs Tsang Lau Kit Ping Alice (“Mrs Tsang”), and clinical psychologist Professor W H Lee (“Prof Lee”) respectively for their expert assessments of Kai Chun. Kai Chun was then 9 years old. The instructions to the specialists recited the diagnosis of birth asphyxia and various other conditions found by then, as a result of which Kai Chun was said to be suffering from gross neurological sequelae such as seizures, gross developmental delay as well as motor and gait deficiency. The specialists were informed that for the purpose of the present action, the L&C experts had requested an updated assessment of the condition of Kai Chun and search for evidence of dyspraxia.

7.  Pursuant to the above instructions, the specialists rendered their respective reports, namely that of Prof Lee on 6 October 2014, that of Mr Man on 31 October 2014 and that of Mrs Tsang on 29 January 2015, ie the 3 Reports.

8.  Dr Daniel Connolly (“Dr Connolly”), neuroradiologist, produced his L&C expert report on 23 November 2016. Dr Michael Rogers (“Dr Rogers”), obstetrician, produced L&C expert report on 15 January 2020. On 23 January 2020, Professor Malcolm Levene (“Prof Levene”), paediatrician and neonatologist, produced his L&C expert report.

9.  As acknowledged in Dr Connolly’s report, the 3 Reports formed part of the materials sent to him for consideration. In turn, Dr Connolly’s report was sent to Dr Rogers. In his report, Prof Levene recorded that the 3 Reports as well as the reports of Dr Connolly and Dr Rogers were amongst the materials received for his consideration. Prof Levene also expressly referred to the 3 Reports in his opinion.

10.  In May 2022, the statements of claim and damages were served together with copies of the L&C experts reports.

11.  Armed with its L&C expert report from Dr Arabinda Ghosh, obstetrician and gynaecologist, dated 27 August 2022, HA filed its defence in November 2022. In March and June 2023, HA also disclosed the L&C expert reports of Professor Chu Chiu Wing Winnie, radiologist, and Dr Liu Kam Tim, paediatric neurologist, respectively. The defence was amended in June 2023.

12.  By now, both sides’ experts on quantum have also tendered their joint expert reports on quantum. It should be noted that Prof Lee and Mrs Tsang, two of the specialists responsible for the 3 Reports, also became two of the experts on quantum on behalf of Kai Chun.

13.  Those acting for HA have been taking issue as to the admissibility of the 3 Reports for some time. Correspondence ensued. The disagreement remained outstanding. In view of that, this court directed a formal application to be taken out. Hence the summons dated 3 July 2023 on behalf of Kai Chun for leave to adduce the 3 Reports. It is made clear that the 3 Reports are sought to be adduced as liability expert reports.

14.  According to the explanation by affidavit of those acting for Kai Chun, it was in fact Prof Levene (instead of “the experts” on liability and causation as suggested in the letters of instructions to the specialists mentioned above) who requested for the specialists’ assessment. It was also Prof Levene who specified that the assessment should come from a physiotherapist, an occupational therapist and a neuropsychologist with emphasis on (i) assessment of Kai Chun’s fine and gross motor developments, gait, posture and neuropsychological status as well as (ii) search for evidence of dyspraxia.

The dispute

15.  It is common ground that the 3 Reports constitute expert evidence which are admissible only with leave of the court. However, the parties differ in their views as to the nature of the expert evidence. The necessity and probative value of the 3 Reports are also in dispute.

16.  HA opposes the application on the ground that the 3 Reports were reports pertaining to damage, and hence quantum, obtained without HA’s involvement. Nor were they obtained with prior leave of the court. Hence breach of the protocol under Practice Direction (“PD”) 18.1. Insofar as the 3 Reports are said to be expert reports on liability, which is indeed what is argued on behalf of Kai Chun, they are neither necessary nor of probative value.

17.  As mentioned, it is made clear on behalf of Kai Chun that the 3 Reports were not sought or are now adduced as expert reports on quantum. They are those requested by the L&C expert (ie Prof Levene) and necessary to enable him to come up with his L&C expert report. As expert reports for the purpose of liability and causation in a medical negligence case, they, it is argued, were therefore excepted from the protocol applicable to expert evidence on quantum pursuant to PD 18.1.

Discussion

18.  For a cause of medical negligence as a matter of tort, liability and causation must be damage based. It follows that what a L&C expert is engaged for is his opinion on the causal link between the post-incident damage suffered by the plaintiff and the incident, and the issue of what a reasonably competent medical practitioner or care provider would have done in the circumstances. The post-incident condition of the plaintiff is normally expected to be evident from the medical records and reports of the treating doctors and hospitals. There were in the present case such records and reports on Kai Chun’s condition up to the time when Prof Levene was engaged.

19.  According to those acting for Kai Chun, Prof Levene’s request was twofold: an updated assessment of Kai Chun and search for evidence of dyspraxia in terms of his fine motor developments, gait and posture as well as neuro-psychological status. Besides specifying the required specialists for the assessments, Prof Levene specified the test that the occupational therapist instructed should carry out. These were recited in the written instructions of the solicitors to the 3 chosen specialists.

20.  Query is raised as to what brought about Prof Levene’s request. Counsel for HA observes that the state of the medical records and reports which Prof Levene had been provided with by the time when he made his request in May 2013 is unclear. If any inadequacy or uncertainty was attributable to the incomplete state of the medical records and reports made available to the expert, that should not be addressed by the expert’s request, let alone the request being acceded to.

21.  The concern expressed by counsel is not entire speculation, as Prof Levene did point out in his L&C expert report eventually rendered in 2020 that he still had not been provided with a complete record of Kai Chun’s course after his discharge from the hospital. As discussed below, that seems to be the fact at least insofar as the medical records and reports on Kai Chun from the treating doctors and hospitals since 2014 are concerned. For the present purpose, I shall proceed on the basis that Prof Levene in any event found the medical records and reports available by the time when he made the request in May 2013 somehow did not suffice for his purpose of compiling the L&C expert report.

22.  The solicitors proceeded as requested by Prof Levene. Counsel for Kai Chun emphasizes that the medical records and reports contain no record of actual diagnosis of dyspraxia. This is correct. However, of the request by Prof Levene as recited in the letters of instruction to the 3 specialists, search for evidence of dyspraxia was but one of the aspects in the updated assessment of Kai Chun’s condition. The expert did not request for confirmation of diagnosis of dyspraxia.

23.  Further, dyspraxia is generally understood to refer to the inability of skilled movements with accuracy, which differs from mere weakness or clumsiness. On this basis, it would be incorrect to suggest that the medical records and reports available to the expert by then contain no record of the assessments or findings in respect of compromised fine motor development, gait and posture as found by the treating doctors. For instance, there were by then occupational therapist’s assessment of his motor and movement skills carried out by the end of 2010, physiotherapist’s assessment of his motor performance carried out by mid-2012, orthopaedic specialist’s assessment of his movement and ambulation carried out by the end of 2013 as well as clinical psychologist’s assessments of his intellectual and behaviour issue carried out by late 2012.

24.  Had Prof Levene been seeking evidential basis for the diagnosis of dyspraxia, counsel for HA is fair in expecting that Prof Levene, as a paediatrician and neonatologist, should be in a position to give his opinion on the basis of the damage to Kai Chun suggested by the available medical records and reports including those mentioned above. Whilst the request was made, it is not suggested that Prof Levene considered that it would be infeasible or imprudent for him to give his opinion on liability and causation unless damage in the form of diagnosed dyspraxia was confirmed. As counsel further observes, considering the manner and extent to which Prof Levene eventually referred to the 3 Reports in his L&C expert report, the significance of confirmation of such diagnosis to the expert’s position to render his opinion on liability and causation seems to be overstated.

25.  Insofar as an updated assessment of the condition of Kai Chun is concerned, that it was requested since the last available assessments by the clinical psychologist, physiotherapist and occupational therapist may be understandable in view of the passage of time. However, the difficulty is that Prof Levene came to produce his L&C expert report some 5 years later. During the interim, Kai Chun had been followed up and his condition assessed by the doctors of Queen Mary Hospital and later Duchess of Kent Children’s Hospital in the disciplines of physiotherapy, clinical psychology and occupational therapy at intervals, and since cessation of follow-up by clinical psychologist in late 2012, by child psychiatry since 2013. The list of reference materials in Prof Levene’s L&C expert report made no mention of any medical reports arising from these subsequent consultations since 2014. The state of information about the condition of Kai Chun, even with the 3 Reports, was effectively not up to date by the time when Prof Levene rendered his L&C expert report.

26.  Counsel for Kai Chun justifies acceding to Prof Levene’s request on the basis that what the treating doctors and hospitals set out in their records and reports, including the diagnosis, were matters of fact and are not admissible as expert evidence without leave of the court. Nor may the treating doctors be turned to for such expert evidence. Counsel refers to my decision in Chan Pak Yuen v Lam Man Kit [2023] 2 HKLRD 1067.

27.  In my view, the present consideration does not have much to do with the principles which this court reiterated in Chan Pak Yuen (above). It is true that one would not expect the treating doctors of Kai Chun to give the expert evidence then requested by Prof Levene. However, insofar as findings in assessment and even diagnosis of Kai Chun’s condition by the treating doctors as matters of fact in the course of their consultations are concerned, the principles explained in Chan Pak Yuen would not render objectionable the L&C experts’ reference to those facts. It would be the L&C experts who would give their opinion on the basis of evidence of those facts. The experts, and in most cases experts on quantum, may for the purpose of giving the relevant opinion conduct their own examination and assessments to ascertain and to verify the condition of the plaintiff, and hence the damage. This is the norm. The norm is not to advocate the instructing of experts for opinion in respect of the assessment and diagnosis of the damage to the plaintiff, notwithstanding the records and reports of the treating doctors, for the purpose of L&C expert evidence as a matter of course.

28.  This brings us to the other aspect of disagreement between the parties, namely what the nature of the 3 Reports really is. HA points out that the 3 Reports should and would have been served together with the statement of claim pursuant to PD 18.1, if they, as now argued on behalf of Kai Chun, had been intended to be relied on as expert reports on liability and causation. Whilst their existence had been disclosed, they were not served with the statement of claim as PD 18.1 contemplates. This aligned with the letters of instruction which led to the 3 Reports. The specialists were specifically informed that they were not engaged as L&C experts. As to the substance of the 3 Reports, HA points out that they pertain to the issue of damage and quantum and, as such, the same should have been obtained in accordance with the protocol under PD 18.1. The joint approach has been ignored.

29.  In my judgment, the nature of the expert reports is a question of fact and substance, which is not dictated by the party obtaining them. Whilst the intention might be to obtain such expert evidence to form the basis on which the L&C expert would provide his expert opinion on liability and causation, the substance of such evidence depends on whether it pertains to the damage and hence quantum. In substance, the 3 Reports contain the specialists’ examination, findings and their opinion on the current condition and functioning exhibited by Kai Chun. In his report, Mr Man went further with his recommendation for further remedial training for Kai Chun. So did Prof Lee, together with his prognosis of the difficulties which Kai Chun would expect to encounter as he grew up. The position of Kai Chun’s side in respect of whether the substance of the 3 Reports pertains to the issue of damage is indeed fluid.

30.  Considering the matter from another perspective in view of what was discussed in the preceding paragraphs, one would readily expect that the receiving end of the claim advanced on the basis of the plaintiff’s L&C expert evidence to put forward its defence on the basis of its own L&C expert evidence. Yet the positions of the L&C experts engaged for the defence are not on par with their counterparts when the defence was not involved at all in how to obtain the expert evidence pertaining to damage for the purpose of L&C expert evidence. The situation is different from the norm, ie reference to the findings and assessments recorded and reported by the treating doctors as matters of fact in the course of Kai Chun’s medical consultations, which are available to both sides.

31.  In the absence of suggestion that Prof Levene advised that it was infeasible or imprudent for him to render his L&C expert opinion on the basis of the information contained in the medical records and reports of the treating doctors and hospitals, his L&C expert report should have been compiled. Nothing prevents the expert from stating as part of his expert opinion any qualification and recommendation with reference to further examinations and assessments by other specialists for the purpose of further opinion. This may be particularly relevant in a case involving an infant victim whose condition may take time to become apparent or stabilised for proper assessment and diagnosis. This also partly explains how things happened in the present case, including the commencement of the present action years after Kai Chun’s birth. Any further examinations and assessments proposed to be carried out on the basis of the L&C expert evidence already disclosed would then become a matter for consideration by the parties and application to the court for direction to obtain such expert evidence on damage and further L&C expert evidence on the basis of such expert evidence on damage.

32.  All things considered, I agree with HA that strictly speaking, the 3 Reports were obtained without sufficient consideration of the ramification and fairness at the relevant time.

Now what?

33.  The next question is what follows from the above conclusion. Besides asking the court to refuse the leave sought, HA asks for the exclusion of references to the 3 Reports from the L&C expert reports adduced. This course is not attractive. Extent of their express references in the L&C expert reports aside, exclusion of references to the 3 Reports as if they had not entered into the consideration of the L&C experts, whilst retaining their L&C expert reports, will be artificial and impeachment of the integrity of their reports without regard to any views on that on their parts. Further, the fact was that the L&C expert reports so obtained and relied on by Kai Chun had been taken into consideration by HA’s L&C experts for the purpose of rendering their own reports. In their reports, dyspraxia as a possible damage was considered.

34.  It goes without saying that HA will not be prevented from taking issue as to the appropriate weight to be attached to the expert evidence adduced on behalf of Kai Chun on account of what brought about the present disagreement. That said, HA should now be given the opportunity of providing to its L&C experts the 3 Reports, which had not been placed before them when they compiled their own reports, and of soliciting their further opinion, if any, with reference to the 3 Reports. The parties have yet been heard on this, and therefore this court would first give the parties the opportunity of attempting the formulation of the directions in respect of the steps to be taken and the exact further L&C expert evidence to be obtained. In the event of disagreement, they may exercise the liberty to apply to this court for resolution. The course adopted by this court as explained above should be viewed as exceptional, considering the circumstances of the case as of now, rather than the norm.

Disposition and costs

35.  Leave is given to Kai Chun to adduce the 3 Reports.

36.  Within 28 days from the date hereof, the parties shall jointly write to this court proposing the necessary directions consequential upon the leave being granted as aforesaid. In the event of disagreement, the parties should jointly apply to this court in writing stating their respective views and proposal for resolution.

37.  Though the leave sought is granted, it is not because the plaintiff is proved right but really the attempt of this court to take the matter from this point realistically insofar as the circumstances of the case permit. In other words, it is this court’s indulgence. In the circumstances, I make a nisi order that the costs of the present application, including any costs reserved, be to HA with certificate for counsel. The plaintiff’s own costs shall be taxed in accordance with legal aid regulations. In the absence of application in 14 days to vary, the nisi costs order shall become absolute without further order. Upon that, HA shall lodge and serve its statement of costs within 7 days, and Kai Chun’s side may lodge its written comment within 7 days thereafter. Costs will be summarily assessed on paper.