MA TAK KIN JOHN v. DR YU CHUNG PING

HCPI 614/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.614 OF 2002

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RULING

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1. This Ruling deals with :

(i) A Summons dated 13 April 2006 taken out by the defendant asking for an order that Interrogatories administered by the plaintiff upon the defendant and filed on 4 March 2006 be withdrawn;

(ii) A Summons dated 13 April 2006 taken out by the plaintiff asking for leave to amend the Statement of Claim; and

(iii) Orders and directions relating to a Pre-trial Review in the matter.

2. I shall deal with the Summons relating to the Interrogatories first.

BACKGROUND

3. This is a claim brought by the plaintiff, an infant, suing by his next friend for medical negligence against the defendant, a practising neurosurgeon.

4. The infant plaintiff, when aged 11, discovered weakness in his left hand.

5. As a result, he was taken to consult the defendant and upon medical examination and consultation, a tumour was found in his brain which was suspected to be cancerous.

6. There is now no dispute that the tumour was a germinoma, a kind of cancer.  Confirmation that it was a germinoma came from the result of a paraffin section biopsy and that confirmation was available on 6 August 1999.

7. However, two days before that confirmation was obtained, namely on 4 August 1999, an operation by Gamma Knife procedure was undertaken by the defendant on the tumour of the plaintiff at Canossa Hospital.

8. Some time after the operation by Gamma Knife preformed by the defendant, it was found that there was a recurrence of the tumour in the brain of the infant plaintiff.

9. The infant plaintiff was ultimately referred to Queen Elizabeth Hospital (“QEH”) by the defendant and treatment received at QEH between 6 September to 12 October 2000 by way of radiotherapy and/or chemotherapy had completely cured the cancer.  However, although the cancer has been cured, the plaintiff is left with left hemiparesis.

10. It is the plaintiff’s case now that the defendant was negligent to the infant plaintiff in :

(a) wrongly advising Gamma Knife treatment;

(b) failing to use radiotherapy and chemotherapy treatment which is the text book treatment for germinoma;

(c) failing to wait for the more definitive paraffin section biopsy result confirming germinoma which came only two days after the operation on 4 August; and

(d) delay in referring the infant plaintiff to QEH for radiotherapy and/or chemotherapy resulting in the left hemiparesis to him.

PRINCIPLES APPLICABLE

11. There is no dispute between the parties as to the principles governing the ordering of Interrogatories which is applicable to the present case.

12. The applicable principle to the present case is stated as the fifth consideration referred to by Colman J in the case of Det Danske Hedeselskabet v. KDM International plc [1994] 2 Lloyds Law Reports 534 where he said at page 537 :

“Fifthly, requests for information ascertainable by cross-examination at the trial are inappropriate unless the party questioning can establish that it is essential for the proper preparation of his case that such information is made available to him before trial, in the sense that if the matter is left until cross-examination at the trial that party will, or probably will be irremediably prejudiced in his conduct of the trial or the trial may be unduly interrupted or otherwise disorganized by the late emergence of the information.”

13. That principle cited above is not disputed by the parties.  It is also not in dispute that the information sought by the plaintiff’s Interrogatories are information which can be elicited from the defendant in cross-examination at the trial since the Interrogatories are directed to the defendant and in particular what has been stated (or not stated by him) in his witness statement.

14. What is in dispute here is that the plaintiff says that the information sought by such Interrogatories are essential for the proper presentation of the plaintiff’s case and if not made available to him before the trial will irremediably prejudice him in his presentation of his case if such information comes from the defendant under cross-examination.

15. On the other hand, the defendant submits that what is being sought by the plaintiff is no more than a “dry run” in the cross-examination of the defendant and that the information sought by the Interrogatories are information which ought properly to be asked in the cross-examination of the defendant.

16. In the light of such dispute, it is essential to look at the information sought by the Interrogatories as against what has been stated by the defendant in his witness statement.

DEFENDANT’S WITNESS STATEMENT

17. The defendant disputes the claim of the plaintiff and has served a witness statement of the defendant himself stating the factual occurrences at the relevant time.

18. The defendant’s witness statement runs to eight pages and contains 28 paragraphs.

19. The defendant’s witness statement gives his qualifications as a consultant neurosurgeon and explains what is Gamma Knife radiosurgery.

20. It goes on to state that the infant plaintiff consulted him on 26 July 1999.

21. MRI films taken in Baptist Hospital on 20 July 1999 brought along by the plaintiff’s parents showed a mass lesion at the right basal ganglia of the brain.  Appendix E to that witness statement is a diagram showing the location of the tumour in the plaintiff’s brain.

22. On the MRI film, the mass appeared to the defendant to have the characteristics of a low to medium grade malignant tumour.  The defendant then suggested to the parents of the plaintiff that he would discuss the case of the plaintiff with other senior neurosurgeons to decide on the treatment for the plaintiff, which suggestion was accepted by the plaintiff’s parents.

23. The defendant discussed the case with two other senior neurosurgeons, namely Dr Samuel Leung of QEH and Dr Christopher Poon of Kwong Wah Hospital respectively the following day.  The matters discussed were :

(a) The working diagnosis would be a localized deep seated low to medium grade tumour.

(b) Differential diagnosis included low to medium grade glioma, such as astrocytoma, obligodendroglioma, and other tumours with atypical presentations such as ependymoma and neurocytoma.

(c) Treatment options were discussed.

(d) The location of the tumour made open surgery a risky option.

(e) Among other treatment options chemotherapy and conventional radiotherapy had known toxicity and long term complications which could be more serious in a growing child before puberty like the infant plaintiff.

(f) Conventional radiotherapy would mean irradiation of the tumour as well as a large volume of the normal brain.

(g) In a child, complications would include neuro-cognitive or IQ impairment; psycho-social problems; endocrine abnormalities including growth retardation and infertility, blindness and hearing loss, and induction of second cancer many years later.

24. Resulting from that discussion it was agreed between them that, confirmation of whether the mass was a malignant tumour by stereotactic biopsy and, if so, treatment by gamma knife, with its highly precise delivery of focal radiation to the tumour with minimal damage to the surrounding brain tissue was a good option.

25. The defendant saw the plaintiff’s parents again on 31 July on which occasion the parents showed the defendant another spectroscopy report by another doctor which findings were consistent with a low grade brain tumour.  The parents also informed the defendant that the other doctor favoured open surgery.

26. The defendant, after informing the parents of his discussion with Dr Leung and Dr Poon also discussed with the parents the treatment options being open surgery, gamma knife radiosurgery alone, and stereostactic biopsy followed by gamma knife surgery.  The defendant did not include conventional radiotherapy as a treatment option for the reasons given above for the parents to consider.

27. The risks relating to each option were explained to the parents.  The risk relating to gamma knife radiosurgery being maily adverse radiation effect.  The parents were also given a Patient Information Pamphlet for gamma knife radiosurgery in English and Chinese.

28. Initially the parents chose gamma knife surgery alone as being of minimal invasiveness, but eventually agreed to the treatment plan of stereostactic biopsy under MR guidance and frozen section pathological examination, to be followed by gamma knife radiosurgery on the same day using the same stereostactic frame position, if the frozen section pathological examination confirmed malignant tumour.

29. That operation was carried out on 4 August at Canossa Hospital.

30. After the frozen section biopsy, the pathologist orally informed the defendant that the frozen section biopsy showed a medium grade malignant tumour but was not sure whether it was or was not astrocytoma.

31. Having the tumour confirmed to be malignant, the defendant’s own clinical assessment at that stage was that it was not essential to know the exact histology of the malignant tumour because a great variety of medium grade malignant tumours in the region are known to respond to Gamma Knife.  The defendant also considered that the exact histology would not affect the dose planning.  The tumour had been clearly defined on MRI and dose planning had taken into consideration the tumour’s malignant and infiltrative nature, with a 2 to 4 mm margin.

32. The parents were then informed of the result of the frozen section examination and agreed to the treatment of the malignant tumour by gamma knife on the same day.

33. The tumour was then treated by 14 Gy to the periphery with a maximum of 35 Gy at the centre.  Totally 8 shots using 8 mm collimators were used.

34. Within 24 hours of the operation, the plaintiff resumed oral diet and could sit on the bed.

35. The defendant then had a telephone conversation with the pathologist who performed the frozen section examination.  The pathologist reported features of germ cell elements (which, I am told in submission by counsel for the defendant, is an indication of germinoma) in the biopsied material.

36. According to the defendant, germinoma in the brain is very rare, and even more rare in the basal ganglia.  Nevertheless, gamma knife radiosurgery was appropriate for this rare tumour in this location because germinoma is sensitive to radiation.

37. However, because of that information from the pathologist, and in view of this rare tumour in this location, the defendant consulted Dr Lawrence Li, a specialist in clinical oncology, on whether adjuvant therapy would be required.

38. Dr Li agreed with the defendant’s management of the malignant tumour and commented that the dosage given was within the usual radiation tolerance dose for that region of the brain.  Even when it became known that the final diagnosis was germinoma, the dosage was already very adequate since that type of tumour was very radiosensitive.  Dr Li also expressed the view that adjuvant therapy such as chemotherapy should be withheld pending the response of the infant plaintiff to the treatment with gamma knife.

THE INTERROGATORIES

39. As already stated above, the interrogatories sought by the plaintiff all relate to the matters stated (or not stated) in the defendant’s witness statement.

40. Those Interrogatories, totally 9, will be dealt with below individually unless they can be categorized as a group seeking the same or similar information.

Interrogatory 1

41. It seeks to elicit from the defendant his diagnosis of the tumour before the treatment by gamma knife, apart from it being low to medium grade malignant.

42. The defendant’s statement makes it clear that there was a working diagnosis when the defendant discussed with Dr Leung and Dr Poon which was stated in his statement as well as a differential diagnosis which was also stated.  It is also clear from the witness statement that the defendant was told orally by the pathologist after the frozen section examination that (but before the gamma knife procedure) that the examination showed a medium grade malignant tumour, but unsure as to whether or was not astrocytoma.

43. I cannot see why the information sought, beyond what has already been stated by the defendant in his statement, should not be left to cross-examination of the defendant, or how the lack of that information can prejudice the plaintiff irremedially in the presentation or conduct of his case if such is left to cross-examination.

44. Furthermore, I do not accept the plaintiff’s contention that in giving the differential diagnosis as stated in his witness statement when the defendant discussed the case with Dr Leung and Dr Poon, the defendant had thereby laid a minefield without committing himself to what has been alleged by the plaintiff.  In this respect, the defendant was merely stating in his statement the factual occurrence when he discussed the case with the other two neurosurgeons. 

45. Albeit that the differential diagnosis had not found its way into the witness statement of Dr Leung, but if that was a fact discussed by them, it would emerge from the evidence of Dr Leung as a fact or otherwise whether that matter was or was not discussed by them.

Interrogatories 2, 3 and 4

46. They can be conveniently dealt with together since they ask in different ways how it was the defendant had estimated the extent of the area of infiltration or dissemination of the tumour beyond the mass of tumour identified by MRI, in other words, the basis of the defendant deciding to use a margin of 2 to 4 mm (as stated by the defendant) beyond the mass of the tumour identified by the MRI when carrying out the gamma knife procedure.

47. In his statement, the defendant had stated in paragraph 13 : “The tumour had been clearly defined on MRI and dose planning had taken into consideration the tumour’s malignant and infiltrative nature, with a 2 to 4 margin.”

48. If any further questions are to be asked of the defendant in this respect, that should properly be done in cross-examination.  Again I do not see how the absence of this information sought can prejudice the plaintiff in the presentation of its case before the defendant is cross-examined.

Interrogatory 5

49. It seeks from the defendant whether the defendant knew that germinoma was very radiosensitive.

50. In paragraph 16 of the statement of the defendant, the defendant stated that “Nevertheless, gamma knife radiosurgery was appropriate for this rare tumour in this location because germinoma is sensitive to radiation.”

51. That information has therefore already been given in the witness statement.

Interrogatory 6

52. This asks the defendant if he had known before the gamma knife procedure that the tumour was germinoma, would the defendant have advised radiotherapy and/or chemotherapy instead of gamma knife.

53. Accepting that this query has not been specifically dealt with by the defendant in the way that it has been specifically put in the Interrogatory, it has to be noted that the defendant has stated in his statement (in paragraph 9) that the defendant did not include conventional radiotherapy as a treatment option for the plaintiff’s parents to consider for those reasons stated by him in paragraph 8 of his statement, namely, because of the possible complications to an infant like the plaintiff.

54. Moreover, the defendant has also stated in paragraph 16 of his statement that gamma knife radiosurgery was appropriate for germinoma because germinoma is sensitive to radiation.

55. In the light of what has been stated by the defendant, the information sought should properly be left to cross-examination.

Interrogatory 7

56. Asks when the defendant had the telephone conversation with the pathologist as referred to in paragraph 16 of the witness statement of the defendant and whether the defendant arrived at the diagnosis of germinoma or whether he was informed of the diagnosis of germinoma from that telephone conversation.

57. It is clear from the defendant’s witness statement (paragraph 16) that the pathologist reported to the defendant features of germ cell element, which, as submitted by counsel for the defendant, is an indication of germinoma.

58. It is also clear from paragraph 18 of the defendant’s statement, that the final diagnosis of germinoma was confirmed by the pathologist in a histopathology report dated 6 August 1999.

59. Reading the two together, there can be no ambiguity as to the correct situation at the time. 

60. If the plaintiff wished to clarify any perceived ambiguity, then cross-examination is the proper time to do so.

Interrogatory 8

61. This asks when the defendant consulted Dr Li as referred to in paragraph 16 of his statement.

62. Again, while the specific time is not given by the defendant in his witness statement, it would be clear from the contents of paragraph 16 of the statement that the defendant consulted Dr Li after the gamma knife procedure had been carried out.

63. To pinpoint when after the gamma knife procedure that the defendant consulted Dr Li is not a matter that could irremediably prejudice the plaintiff in the presentation of his case before the defendant is cross-examined.

Interrogatory 9

64. This asks for the defendant to state whether the area identified as suspicious for residual tumour or recurrence referred to in paragraph 26(b) of the defendant’s statement was within the originally identified tumour area or within the margin of 2 to 4 mm treated by 14 Gy to 35 Gy gamma knife stated in paragraphs 13 to 14 of the statement or outside those area and margin not treated by gamma knife at all.

65. What is sought by this interrogatory is no different from what is sought in Interrogatories 2, 3 and 4.

66. The one difference here is that this interrogatory makes reference to paragraph 26 of the defendant’s witness statement where it makes mention of a PET scan carried out on 22 February 2000 at the Hong Kong Sanatorium & Hospital which was done with a view to distinguishing between radiation necrosis and tumour activities.

67. Sub-paragraph (b) (to which this interrogatory is specifically directed) of paragraph 26 of the defendant’s statement is to the effect that the Director of the Department of Nuclear Medicine and PET at Hong Kong Sanatorium & Hospital reported (inter alia), that the only area identified as suspicious for residual tumour or recurrence was in the roof/superior aspect of the lesion.

68. Given that what was contained in sub-paragraph (b) was something reported by someone other than the defendant, I am not even sure that the information sought by this interrogatory is something which the defendant can give an answer to.

69. For the same reasons given above relating to Interrogatories 2, 3 and 4, even if the answer to it can be given by the defendant, I do not see why it should not be asked and answered by the defendant (if he can provide the answer) in cross-examination.

70. Accordingly, for the above reasons, there will be an order that the Interrogatories filed herein on 4 March 2006 and served by the plaintiff on the defendant on the same day be withdrawn.

71. There will further be an order nisi that the plaintiff do pay the defendant the costs of and occasioned by this application.

72. Plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.

APPLICATION TO AMEND STATEMENT OF CLAIM

73. The application is made by Summons dated 13 April 2006 with the proposed amendments annexed to the Summons.

74. It is correct to say that the amendments sought all relate to the particulars of negligence either by adding to individual particulars already pleaded or by adding further particulars which has not hitherto been pleaded.

75. The proposed amendments are not objected to by the defendant save for one particular addition to the particulars, namely, the proposed paragraph (n) (f) to the particulars pleaded.

76. The effect of that proposed addition to the particulars which the defendant objects to seeks to plead in effect that the defendant took into consideration and was influenced by irrelevant and extraneous matters, namely the self interests of the defendant and that of the Gamma Knife Centre, when he advised gamma knife procedure instead of radiotherapy and chemotherapy as well as deciding not to wait for the result of the paraffin biopsy.  The self interests of the defendant and of the Gamma Knife Centre relied on by the plaintiff for such inference to be drawn is stated to be “all the circumstances and in particular the following matters :

(i) the defendant was the director and secretary of the Gamma Knife Centre;

(ii) the fees charged for the gamma knife procedure amounted to some HK$130,000.00;

(iii) the gamma knife team was standing by and waiting to proceed with the procedure on 4 August 1999; and

(iv) to carry out that procedure on another day after 4 August might upset the schedules of the Gamma Knife Centre and the defendant.”

77. The objection by the defendant to the proposed amendments contained in paragraph (n) (f) of the draft amendments is that such particulars proposed are scandalous of the defendant.

78. Moreover, it is submitted by the defendant that such proposed paragraph (n) (f) are not in itself particulars of negligence but only pleads the motive or reason for the particulars of negligence which has already been pleaded in the original Statement of Claim, namely, that the defendant advised gamma knife procedure, decided not to advise radiotherapy and chemotherapy, and that he decided not to wait for the paraffin biopsy report result before proceeding with the gamma knife procedure.

79. It is said that the pleading of the motive or the reason for the negligence already pleaded is irrelevant since there is no claim for aggravated or exemplary damages and therefore the mental state of the defendant, where only negligence is alleged against him, is irrelevant.

80. For my part, I am prepared to allow the proposed amendment contained in the proposed paragraph (n) (f).  It would be scandalous if it was pleaded with no other purpose other than to scandalize the defendant.

81. Here, I am satisfied that with the material before me, the proposed amendment is relevant to a proper litigious purpose.

82. Moreover, I do not accept that the proposed amendment is wholly irrelevant.  While it may not be a particular of negligence in itself strictly speaking, it can support the allegation of negligence relied on by the plaintiff if what is pleaded can be established by the plaintiff, by showing that the defendant acted out of his own self interest, rather than upon the interest of the plaintiff.

83. For these reasons, I am prepared to grant leave to the plaintiff to amend the Statement of Claim as per the draft amendments.

84. There will be an order in terms of paragraphs 1 to 5 inclusive of the plaintiff’s Summons to amend dated 13 April 2006 save that under paragraphs 4 and 5 thereof, the defendant will have six weeks from this Order to file and serve its Amended Defence and that any Amended Reply of the plaintiff to be filed and served within 14 days thereafter.

85. There will further be a costs order nisi that the costs of and occasioned by such amendments be to the defendant in any event and that the plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.

THE PRE-TRIAL REVIEW MATTERS

86. The major dispute between the parties in so far as the Pre-trial Review is concerned relates to the application by the plaintiff to obtain an expert psychiatric report relating to the infant plaintiff.

87. The basis upon which this is sought by the plaintiff is that in the Rehabilitation Consultant Report of Ms Shelley Chow dated 19 August 2005, at page 6 of that report, it is stated that “In May/June 2003 [the plaintiff] sought information on the internet to find the best way to commit suicide so the clinical psychology appointments were increased in frequency.  At that time he just lay on his bed, not eating and not doing anything.  They reported he seemed a bit better this year.”

88. Relying on that sentence in the report of Shelley Chow, counsel for the plaintiff says that there is concern as to the psychiatric condition of the plaintiff and since Shelley Chow is neither medically qualified nor have expertise either in the field of psychology or psychiatry, the plaintiff should have leave to commission a proper psychiatric report to deal with that aspect.

89. It would also appear that the plaintiff has for some time been treated by a clinical psychologist, Ada Yuen.

90. There is a report from her, although undated, the date of assessment was given to be 7 July 2003.  In that report, Ada Yuen came to this conclusion :

“The patient’s overall cognitive functioning was estimated to fall within the ‘High Average’ range according to the HK-WISC results.  His overall auditory memory functioning was well preserved.  Nonetheless, impairment was detected in his ability to recognize learned visual materials as he was susceptible to environmental distractors.  He could also have difficulties in distinguishing component parts from the whole configuration.  His overall learning ability was well preserved and his mental flexibility was normally developed.  However, he was slow in psychomotor speed and was below average when switching of attention was required in a visual scanning task.  Further investigation would be necessary to see if the identified cognitive impairment affected the patient’s daily functioning and academic performance.  Appropriate compensation strategies and/or rehabilitation programs would be recommended accordingly.”

91. It would be noted firstly that no mention is made by Ada Yuen of any suicidal ideation of the plaintiff.

92. Secondly, the only impairment of the plaintiff mentioned by her in that conclusion is one aspect of cognitive impairment.  There is nothing which remotely comes close to psychiatric disorder.

93. As for the cognitive impairment mentioned, the plaintiff was examined by a neurologist, Dr Edmund Woo, instructed by the plaintiff.  Dr Woo categorically states that the plaintiff does not suffer from any cognitive impairment.

94. Furthermore, I also note that the mention in Shelley Chow’s report of the plaintiff trying to find the best way of committing suicide from the internet was something which happened in May or June 2003, some three years ago.

95. Since that time, it does not appear that anything along those lines have happened, and nothing to show any suicidal ideation of the plaintiff.

96. Given all the above, I am not persuaded that a sufficient case has been made out by the plaintiff to warrant leave being given to obtain a psychiatric report relating to the plaintiff.  Form all the material before me, that would clearly be a waste of time and legal expenses.

ORDERS ON THE PRE-TRIAL REVIEW

97. Leave to the plaintiff to serve the supplemental witness statements of the plaintiff and his father as per the draft lodged with the court by the plaintiff’s solicitors on 24 May 2006.

98. Leave to the defendant to serve supplemental witness statement in reply thereto within 28 days.

99. Leave to the plaintiff to serve the report of Ms Shelley Chow already served on the defendant as rehabilitation expert and to call her as a further expert witness at the trial.

100. Leave to the plaintiff to serve the supplemental report of Dr Edmund Woo already served on the defendant.

101. The plaintiff’s application to instruct a psychiatric expert and/or to serve a report thereof is refused.

102. Leave to the defendant to serve further and/or supplemental reports from its experts, Professors Wara and Lindquist and Dr Tse within six weeks to respond to the amended case and/or the further expert reports of the plaintiff.

103. Plaintiff is to file and serve an updated Revised Statement of Damages if so advised on or before 1 August 2006 and time for doing so is to be strictly complied with, failing which, the Revised Statement of Damages is to stand for the purposes of the trial.

104. Leave to the defendant to file and serve, if so advised, an answer to such updated Revised Statement of Damages on or before 21 August 2006, time for doing so to be also strictly complied with, and failing which the Answer already filed to stand for the purposes of the trial.

105. A final Pre-trial Review to be held before the PI Judge at 9.30 a.m. on 20 September 2006 for any further direction and for setting down.

106. Costs of the Pre-trial Review to be costs in the cause with certificate for counsel, such costs order being an order nisi.

107. Plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.