CHENG MAN CHI v. DR TAM KAI TAI CARL

HCPI 1094/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1094 OF 2006

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J U DG M E N T

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Introduction

1.  The defendant in this case was at all material times a registered dentist and practicing general dentistry at his clinic in San Po Kong.  There is no dispute that apart from his practice in general dentistry, the defendant did not have any specialist training in orthodontics, prosthodontics or maxillofacial surgery.

2.  The plaintiff’s claim against the defendant is for wrongful extraction of her four upper incisors and wrongful removal of a substantial portion of the bone above her upper incisors in the dental treatment given to her by the defendant.  The extractions and bone removal complained of by the plaintiff took place in or around 14 June 2001.

3.  The plaintiff’s primary cause of action is in trespass.  Her alternative claim is based in negligence.

4.  It is the plaintiff’s case that the removal of the bone above her upper incisors was carried out by the defendant without her knowledge and consent.  As for the extractions of the four upper incisors complained of by the plaintiff, her case is that such extractions were done by the defendant without her real and informed consent due to the misrepresentation by the defendant to her that the extractions of the four upper incisors was the only way in which the plaintiff’s problem could be remedied and it was due to such misrepresentation that the plaintiff agreed to the extraction of her four upper incisors.

Plaintiff’s evidence on issue of liability

5.  The evidence from the plaintiff can be summarized as follows.

6.  The plaintiff was born in November 1967 and was 33 years old when the matters complained of by her happened.  At the time when she consulted the defendant, she was working as an accounts clerk in a construction company.  Her education level was up to Form V.

7.  In early 1998, the plaintiff had noticed that her front upper teeth were protruding giving an appearance of a bulging mouth.  Through a friend she was recommended to consult the defendant, a dentist.

8.  She paid her first visit to the defendant’s clinic on 30 November 1998 and sought his advice as to whether her protruding teeth could be corrected.  The defendant told her that he could provide dental treatment which would make the teeth in her upper jaw less protruding.  The defendant quoted his fees to be $9,000.

9.  Her second visit to the defendant was not until some eight months later, on 2 August 1999 when she told the defendant that she had decided to go ahead with the treatment suggested by him.  However, the defendant on this occasion indicated that orthodontic appliances had to be placed on both the upper and lower teeth.  But as she found nothing the matter with her lower teeth, she requested to have such appliance placed only on her upper teeth and paid a deposit of $500.

10.  As a result, extraction of the plaintiff’s upper left and right pre-molars were carried out under local anaesthetic.

11.  On her third visit to the defendant’s clinic on 6 August, the defendant insisted that orthodontic appliances had to be placed on the lower teeth as well and explained to her that it was to ensure that the upper and lower teeth would match.  After hearing that explanation, she felt that she had no choice but to accept his suggestion.  As a result the fees were increased to $19,000 totally.

12.  On her fourth visit on 13 August she paid an initial fee of $5,000 and it was agreed between them that the balance by instalment of $500 every two weeks when she would attend for follow up until the entire fee agreed was paid off.

13.  Thereafter she attended the defendant’s clinic for follow up on the orthodontic treatment.  The plaintiff continued wearing the braces installed on both her upper and lower teeth.  Up to May 2001 the progress of the orthodontic treatment was good and the defendant also provided a headgear with instructions for the plaintiff to wear it each night when she went to bed.

14.  Towards the end of May or early June, the plaintiff noticed that both her upper canines were tilting slightly forward.  She told the defendant about this and the defendant explained that it was caused by the gaps left when her pre-molars were removed at the outset of the treatment.  The defendant also told the plaintiff not to stop wearing the orthodontic appliances.

15.  On 6 June, the plaintiff noticed the canines had protruded even more and again told the defendant about it.  After examining her teeth, the defendant told her that the orthodontic treatment could no longer work and the only way out was to remove the four upper incisors and to wear a dental bridge.  The defendant explained to her the process saying that her gums would shrink slightly after removing the incisors but would return to normal in about two months when the dental bridge could be put on.

16.  Since the defendant had told her that was the only way, the plaintiff believed there was no other alternative and feeling that she had no choice, agreed to have the four incisors removed as suggested by the defendant and for a dental bridge to be put on. 

17.  The defendant charged a further $1,200 for the extraction which the plaintiff paid on 11 June.

18.  The four incisors were extracted on 14 June, after which a temporary denture was fitted in their place.

19.  On 13 August 2001, the plaintiff went to collect her dental bridge for which the defendant charged her $11,600.  When she tried it on, it did not look good and she requested the defendant to have a second dental bridge made.  The second bridge was still unsatisfactory and unacceptable to the plaintiff and which she had to complain to the defendant several times about.

20.  Finally the defendant agreed to have another bridge fabricated for her from another manufacturer saying that he would give her a 10% discount.

21.  On 18 September 2001 she went to pay a deposit of $3,000 for the new bridge but found it to be even worse than the previous ones.  When she asked the defendant if there was any other way to fix her protruding upper canines, the defendant advised her to have a transparent plastic crown placed over her upper row of teeth and then to press it down with force to see if the canines could be pressed downwards adding that the plastic crown was to be worn after the orthodontic appliance was removed.

22.  It was then that the plaintiff realized that the defendant had been deceiving her when he previously told her that the removal of the four incisors was the only way to deal with her protruding canines.

23.  She then left the defendant’s clinic but suppressing her misgivings for what she had come to realize.

24.  The plaintiff then consulted another dentist Dr Cheng Chi Yin who recommended another course of dental treatment for her.  She then stopped consulting the defendant and turned to Dr Cheng for treatment.

25.  At the end of November 2001, she returned to the defendant’s clinic to inform him that she no longer wished to have treatment from him and to request the refund of the $3,000 deposit which the defendant returned to her.

26.  At the time she was consulting the defendant she did not know that it was unnecessary and unjustifiable to extract and remove her four incisors in her case.  If she had known that to be the case, she would not have agreed to the extraction of her upper incisors.

Defendant’s evidence

27.  The defendant has been practicing as a general dental practitioner for 16 years.

28.  The plaintiff first consulted him on 30 November 1998 complaining that she was unhappy with the protrusion of her upper front teeth and gums.  After examination he found her to have an overjet of some 8 mm of the upper jaw which brings the plaintiff within the classification of “Malocclusion Class II” whereupon he advised the plaintiff as follows :

(a)      that the protrusion complained of by the plaintiff was caused by the bone above her upper incisors and therefore heavy cosmetic treatment was required and she should seek help form a specialist orthodontist or orthognathic surgeon;

(b)     the approximate fees of a specialist would be around $100,000;

(c)     he, as a general practitioner, could provide dental treatment on her upper arch to make her teeth less protruding by extracting the two upper pre-molars and putting on braces to retract the canines and the four upper incisors.  His fees for doing so would be $9,000; and

(d)     the plaintiff should consider her options carefully.

29.  Because he was a general practitioner it was his standard practice to advise patients to consider specialist treatment before deciding to undergo orthodontic treatment with him.

30.  The plaintiff came back on 2 August 1999 and informed him that she would go ahead with the treatment to her upper arch as suggested by him.  He then prepared study models and took four radiographs of the plaintiff’s upper arch.  Having satisfied himself that the plaintiff was suitable for orthodontic treatment he proceeded to extract the plaintiff’s right upper pre-molar under local anaesthetic.

31.  On 6 August, the plaintiff’s left upper pre-molar was also extracted under local anaesthetic.  The plaintiff then asked him if he could close the gap on her lower arch left behind due to her missing lower pre-molars.  He agreed to provide additional dental braces on her lower arch but that his fees would have to be increased from $9,000 to $19,000 to which the plaintiff agreed.  The plaintiff then paid a deposit leaving $18,000 balance outstanding.

32.  The plaintiff attended again on 13 August 1999 when dental braces were installed on her upper and lower arches.  It was also agreed between them that the outstanding balance of the fees would be paid by instalments of $500 fortnightly when the plaintiff attended for follow up.

33.  On 14 January 2000 a face bow was provided to the plaintiff to be worn by her for orthodontic purpose when she went to be each night.  It was to provide extra oral traction and anchorage to prevent forward drifting of the molars.  He had instructed the plaintiff to follow his instructions when applying the face bow and not to adjust it by herself. 

34.  On 20 October he found that the plaintiff was adjusting the face bow by herself without his prior approval.  He believed that it was due to the plaintiff’s impatience and wanted to speed up the progress of the treatment by increasing the traction force of the face bow.  He told the plaintiff this was dangerous and could cause irreversible damage.

35.  In January or February 2001, the plaintiff told him that she was impatient with the progress of the treatment and was concerned about the gaps to the left and right of her upper canines.  He then took steps to close those gaps.

36.  Between February and May 2001 the plaintiff was still unhappy with her appearance and that her upper gums and teeth were still protruding.  He therefore advised the plaintiff to be patient and to finish the brace treatment which could further retract her front teeth, but the plaintiff was impatient and wanted to know if there was any other method to reduce the protrusion of her upper front teeth and gums.

37.  He also advised her to see a specialist orthodontist or orthognathic surgeon since her problem was due to her oversized upper jaw which was a skeletal problem.  As a general practitioner he could provide treatment which was to extract the four upper incisors and trim the bone of the sockets left behind in order to smooth out any irregularities which would remedy the protrusion she complained of as it would reduce the size of the upper front bone.  He could also provide model surgery to simulate her appearance after the extraction and bone removal.  He would then install a temporary set of dentures for her to allow her upper front gums to stabilize before a permanent dental bridge would be installed.

38.  The suggested treatment would cost her $9,000 and the temporary denture a further $1,200.

39.  He told her to consider her options before making her decision since that procedure would be irreversible.

40.  Between 23 May and 6 June 2001, he performed model surgery on the plaintiff to simulate her appearance before and after the extractions of her four upper incisors and bone removal and to explain to the plaintiff with the aid of the models how the dental bridge would be installed.

41.  On 6 June the plaintiff agreed to the course suggested and paid $1,200 for the temporary dentures.  He then took an impression of the plaintiff’s upper arch for the set of temporary dentures to be made.

42.  On 14 June 2001 the extraction of the four upper incisors and the bone removal was performed.  One to two mm of bone was trimmed off.  The temporary denture was installed on the plaintiff’s upper arch.

43.  On 7 July the plaintiff complained to him that the bone around her upper canines was prominent therefore he filed off some bone under local anaesthetic to smooth the prominence.

44.  On 13 August, a dental bridge was provided to the plaintiff and temporarily cemented on.  Because he had been told by the lab technicians that the plaintiff’s canines were too weak to support the dental bridge, he explained this to the plaintiff who then agreed to have her pre-molars cut to increase the retention of the bridge.  The plaintiff also agreed to pay an extra $2,600 in addition to the $9,000 agreed for the dental bridge.

45.  After a trial period of some 10 days, the plaintiff returned on 23 August saying that she was happy with the appearance of the dental bridge.  It was then permanently cemented into place.

46.  On 28 August, he performed a routine check on the bridge and the plaintiff had no complaint about the bridge.

47.  However, on 18 September 2001 the plaintiff returned to complain that she was unhappy with the bridge because her colleagues were laughing at her.  The plaintiff also said that her canines looked obvious and prominent because they were bulging out.  The plaintiff asked him if he could trim the crown and the bones above her canines.  In reply, he suggested to remove the bridge and only trim the crown of her canines and to install a second bridge as any attempt to trim the bone above the canines would result in root exposure.  The plaintiff agreed with his suggestion and that was done.  He gave a discount of $2,600 to the plaintiff at her suggestion such that the cost of the second bridge and trimming of the crown would cost $9,000.  The plaintiff then paid him a deposit of $3,000 and another model was made for the second bridge.

48.  On 3 October 2001 he temporarily cemented the second dental bridge but two days later, the plaintiff expressed dissatisfaction with it.  On 18 October, a third dental bridge was made free of charge for the plaintiff.

49.  Between 18 October and 7 December 2001 the plaintiff informed him that she had consulted another dentist being unhappy with his work on her.  The plaintiff asked for her money back and he told her that he was only willing to return the $3,000 deposit paid for the second dental bridge.

50.  In September 2002, the plaintiff made a disturbance at his clinic and he had to call the police to stop her.

51.  The plaintiff came again to his clinic on 6 May 2003 and requested for her treatment record kept by him.  He told her to come back the next day when he will give her a copy of the record.  Before the plaintiff returned on 7 May, he added several paragraphs to the treatment record to describe what had happened.

Assessment of the evidence

52.  The important factual events in dispute between the parties in this case took place between 1998 and 2001, therefore well over eight years ago from the trial in this case.

53.  I note that the plaintiff would suffer from a natural handicap in giving her evidence from memory alone since, as a patient, she would not have taken a contemporaneous note of what happened at each consultation as and when it happened.

54.  However, the same does not apply to the defendant, for as a dental medical practitioner, he was under a duty to make a contemporaneous notes for the medical record which he kept in relation to each patient and would have such record to assist him in recollecting what actually transpired on each occasion.

55.  In this case, the credibility of the plaintiff and the defendant are of prime importance in resolving the conflict between their evidence in so far as the disputed facts are concerned.

56.  Dealing first with the plaintiff, having heard and seen her in the witness box giving her evidence, I found her to be very simplistic and uncomplicated person, at times even to the point of being naive.  However, she came across as a truthful and credible witness.  She was quite prepared to admit that in consulting the defendant as a dentist, her initial purpose was to make her appearance better looking.  That is hardly surprising for a single unmarried female at the age she was when she consulted him.

57.  There were, however, some less important parts of her evidence which her memory did not serve her well and she had forgotten but not much turn on those matters.  These deal mainly with timing and I shall come to deal with them in due course.

58.  Of the more important and crucial matters in dispute between the parties, I accept the submission by counsel for the plaintiff that the credibility of the plaintiff in respect of the evidence given by her can be gleaned from the complaint letter which she made to the Dental Council.  Admittedly the letter to the Dental Council is a self-serving piece of evidence.  However, it was written by the plaintiff before she had the benefit of legal advice, but more importantly, at a time when she had not been examined by experts and therefore before she came to know of the bone removal by the defendant.  The complaint by the plaintiff at that time to the Dental Council was only in respect of the misrepresentation made to her by the defendant.

59.  It is clear from her first letter to the Dental Council dated 10 January 2002 that at the time, the plaintiff did not even know that the defendant had performed bone surgery on her, rather, she thought that the alveolar bone had shrunk after the extraction of the four upper incisors.  This point was elaborated upon by the plaintiff in her letter dated 17 October 2005 to the Dental Council and from which can be seen that she had no knowledge at the time that the defendant had removed some parts of her alveolar bone, still thinking at that time that the alveolar bone had shrunk after the extraction of the four upper incisors.

60.  This lends credibility to her evidence that the defendant had not told her about the bone removal carried out by him which was in addition to the extractions of her four upper incisors.

61.  A number of points have been made by counsel for the defendant in relation to the credibility of the plaintiff.

62.  Firstly, it was said that the plaintiff’s evidence that the defendant never mentioned to her when she first consulted him that her problem was skeletal and related to her bone was at variance with the statement in paragraph 3 of the plaintiff’s witness statement when the plaintiff said that the defendant “told me that the orthodontic treatment also allowed my jawbone to get slightly inwards to avoid protrusion”.

63.  However, it was explained by the plaintiff that when the defendant told her about the orthodontic treatment, he did not use the word “jawbone” but merely pointed at the upper lip.  The word “jawbone” was a terminology used by her in her witness statement to describe what was conveyed to her by the defendant since after seeing so many dentists within the seven years, she came to know such terminology herself.

64.  Secondly it was said that the words stated in the plaintiff’s letter to the Dental Council dated 10 January 2002 to the effect that the defendant “failed to fulfil his duty of explaining clearly to me that my gums would keep on shrinking after the removal surgery …” was inconsistent with the plaintiff’s evidence in paragraph 9 of her witness statement where it states “he also told me that my gums would shrink slightly after the extraction but would get back to normal in about 2 months and by then I could have the dental bridge put on”. 

65.  However, given what is now known, that at the time the plaintiff wrote that letter to the Dental Council, she was still in the dark as to the bone removal having been carried out by the defendant and believed it to be the gums shrinking caused by the effect of the extractions, it is not difficult to see how she would have made such a mistake when writing that letter to the Dental Council.

66.  Thirdly, it was submitted that the plaintiff’s complaint as to the tilting of her canines was not supported by the study models prepared by the defendant, none of which showed her canines to be tilting or drifting forward.

67.  The difficulty however is that the study models which were produced into evidence did not have any dates on them to show when they were made.  The lack of dates on the study models was such that even when they were viewed by the experts, the experts had difficulty as to ascertaining the sequence and the time frame when each of them were made.

68.  On the other hand, there is some evidence from Dr Ricky Wong that it was possible, due to the upper jaw of the plaintiff being wider than her lower jaw, that when the canines were being moved along the upper arch (from wearing the braces) that they may look to be coming out and protruding.

69.  There was also some evidence from Dr Cheng Chi Yin (in the form of a note) to the effect that when he examined the plaintiff in October 2001, he found her canines to be tilting forward.  

70.  Given that evidence and the lack of dates on the study models, I do not see that this point assist the defendant in impeaching the credibility of the plaintiff.

71.  Counsel for the defendant also relied on a number of somewhat obscure points in his attempt to discredit the plaintiff, such as her forgetting that the defendant had at some time after she first consulted him moved his clinic from Yan Oi Street to Tseuk Luk Street, both being in the San Po Kong area, and also on the fact that the plaintiff had obviously made a mistake when referring to the Prince Philip Dental Hospital (“PPDH”) as being the Madam Thatcher Dental Hospital.

72.  These can only show the frailty of memory which afflicts almost everyone at the best of times when it comes to the less important or even insignificant details.  In my view they do not cast the slightest doubt as to the credibility of the plaintiff as a witness.

73.  Turning now to deal with the defendant’s evidence.  His credibility is affected by a number of matters in his evidence as follows.

74.  Firstly, the advice which he says he gave to the plaintiff as stated in his witness statement dated August 2007, almost 9 years after the event, was from his memory since no record of same was contained either in his treatment record of the plaintiff or even in his letter to the Director of Legal Aid (“DLA”) dated 1 December 2005.

75.  As for his advice to the plaintiff to consult a specialist orthodontist or orthognathic surgeon, although there appears an entry against the date of 30 November 1998 in the treatment record card relating to the plaintiff with the words “Ortho consult”, the defendant admits in cross-examination that these words were not written in on the treatment record on 30 November 1998 but at a much later time in August or September 2001, yet nothing on the record card shows that those words were added in at that later time.  The purpose for adding those words onto the record card against the date of 30 November 1998 was, according to the defendant, to remind himself in case questions would be asked of him by the plaintiff.

76.  In cross-examination, the defendant agreed that in his letter to the DLA dated 1 December 2005, there is no mention in that letter of the advice which the defendant now says he had given to the plaintiff to consult specialist orthodontist or orthognathic surgeon.  The reason for that, according to the defendant, was that he was advised by his lawyers that there was no need to include such in the letter in reply to the Director of Legal Aid, although he had put that down in an earlier draft.

77.  It was also the defendant’s evidence that apart from advising her to consult specialists, he had also informed her that the fees charged by the specialists would be $100,000.  The plaintiff on the other hand denies that the defendant had ever advised her to consult specialists or made mention of the fees the specialists would charge.  Under cross-examination, the defendant said he told the plaintiff that the treatment he could provide would be different from what the specialist could provide, but at the same time admitted that he had never told the plaintiff what sort of treatment would be provided by the specialists, although he could quote what fees the specialists would charge her.  He only told her what dental treatment he could provide.

78.  The defendant agreed under cross-examination that the only way the plaintiff could know what treatment the specialist would give to her was to find that out from the specialist herself, yet because the plaintiff did not ask him for any referral letter to consult a specialist, he did not provide her with a referral letter.

79.  Under cross-examination, the defendant admitted that the entry “pt. Discussed extraction of upper anteriors Warnings were given” against the date 23 May 2001 was written into the treatment record by him in or about September 2001 and not on the date against which that entry appeared.  Again nothing on the treatment record shows when that entry was added in except that the ink of the added entry was different from the ink on the original entry against the date of 23 May 2001.

80.  The defendant also admitted to adding a supplement to the treatment record which was written by him on 7 May 2003 in anticipation of the plaintiff coming to collect a copy of it.  In cross-examination he agreed that he had asked the plaintiff to sign the treatment record when she came to collect it on 7 May 2003 but denied that in so doing his purpose was to get the plaintiff to acknowledge that supplemental narrative which he had added.  Rather he said that his purpose in asking the plaintiff to sign was for her to acknowledge receiving a copy of it.

81.  The defendant further agreed that in the supplemental narrative written by him on 7 May 2003, there was still no mention of his having advised the plaintiff to consult specialists for her problem.

82.  In the letter written by the defendant to the Director of Legal Aid dated 1 December 2005, it was stated that it was the plaintiff who had requested the extraction of the anterior teeth (i.e. the four upper incisors) and indeed, it was put to the plaintiff by counsel for the defendant that she had requested the extraction because she wanted her front teeth to look less protruding.  The plaintiff disagreed with that suggestion.  However, when the defendant gave evidence from the witness box, he conceded that it was he (and not the plaintiff) who had suggested the extraction of the four upper incisors.

83.  Given the above matters, I found the evidence of the plaintiff to be far more reliable than that of the defendant albeit that her timing in respect of some of the less relevant events (such as when her upper pre-molars were extracted before the braces were put on, or when X-rays were taken of her teeth) were off, due, no doubt, to memory lapses.  However, nothing of any great significance turn on the timing of those events.

84.  On the other hand, the defendant’s evidence was at great variance to the treatment record kept by him even concerning important matters such as the relevant and important advice to consult specialists which he had given the plaintiff during the time when he treated her.

85.  It is mind-boggling when the defendant’s evidence is to the effect that from the outset, he had realized that the plaintiff’s problem was a problem with her jawbone which is beyond his competence to correct and that was the main reason why he had advised her to consult specialists, and yet this very important advice which he saw fit to give to the plaintiff never found its way into the treatment record.  Even when the defendant at some later date decided to make additions to various dated entries of the treatment record and also to add a supplemental narrative at the end of the treatment record before the plaintiff came to collect a copy of it, such important advice he had given to the plaintiff was never recorded by him.

86.  When he responded to the letter of the DLA, that again afforded him a further chance to put down such advice which he says he had given to the plaintiff yet no mention of that was contained in his letter to the DLA.

87.  Another important piece of evidence which seriously undermined his credibility was his attempt to blame the plaintiff for having requested the extraction of her four incisors, a matter which he finally conceded was suggested by him and not by the plaintiff.

88.  The absence of any written record of such advice which the defendant says had been given to the plaintiff cause me considerable doubt as to the veracity of his evidence, not only in relation to the advice he said he gave to the plaintiff but to the rest of his evidence which is at variance with that of the plaintiff upon the major issues in this case.

89.  In the circumstances, I have no hesitation in accepting as true the evidence given by the plaintiff as to what transpired between herself and the defendant during the course of her treatment by him where the defendant’s evidence is at variance with that of the plaintiff on the major factual issues in this case.

Findings of Fact

90.  On the major and important issues in this case, I find the following facts :

(1)     on the first visit of the plaintiff to the defendant in November 1998, the defendant only informed the plaintiff that he could provide dental treatment to make the teeth of her upper jaw less protruding but did not advise her that her problem was a skeletal one and she should consult specialist orthodontist or orthognathic surgeon for correction;

(2)     on her second visit to the defendant in August 1999, the defendant informed her that she had to apply orthodontic appliances (braces) to both her upper and lower arches although the plaintiff found nothing wrong with her lower teeth;

(3)     on her third visit to the defendant, the defendant repeated the suggestion of applying braces to both the upper and lower arches explaining that it was to align the teeth of both arches.  As a result of that explanation the plaintiff accepted that suggestion of the defendant and the fees was agreed at $19,000;

(4)     thereafter the plaintiff attended fortnightly at the defendant’s clinic for follow up of the orthodontic treatment;

(5)     in January 2000, the defendant provided a face bow (or headgear) to the plaintiff to apply at night when she went to bed with instructions as to its application.  I am satisfied that the plaintiff had followed and complied with the instructions given to her by the defendant when using the face bow and at no time adjusted the force of the face bow on her without he defendant’s prior approval;

(6)     some time in May of 2001, the plaintiff complained to the defendant that her upper canines appeared to be tilting outwards and asked if he could remedy that problem.  Initially the defendant told her not to stop the orthodontic appliances, but when the plaintiff repeated that complaint to him on 6 June 2001, the defendant informed her that the orthodontic treatment could no longer work and the only way out was to extract her four upper incisors and to replace them with a dental bridge;

(7)     believing what she was told by the defendant that the removal of her four upper incisors was the only remedy to correct the tilting canines, the plaintiff agreed to such a course of treatment;

(8)     the plaintiff’s four upper canines were extracted on 14 June 2001.  Quite apart from extracting the four upper incisors, the defendant had also filed off and removed some of her alveolar bone above the extracted incisors but without informing the plaintiff of his doing so;

(9)     a temporary denture was fitted on for the plaintiff after removal of her four upper incisors;

(10)    between mid August and September 2001 three dental bridges were made for her but she was not satisfied with any of them;

(11)    on 18 September when she chanced to ask the defendant whether there was any other way to deal with the protruding canines, and when the defendant suggested a transparent plastic crown to be placed where her incisors used to be, she realized that the defendant had misled her into extracting her four upper incisors when he told her that was the only way of dealing with her complaint of the protruding canines in June; and

(12)    thereafter she lost confidence in the defendant and instead went to consult another dentist to remedy her problem.

The Law relating to trespass to the person in medical treatment context

91.  The law is quite clear that if a patient’s consent to medical treatment has been obtained by misrepresentation (or fraud) then it is not a valid consent.  The misrepresentation (or fraud) has to be such that it goes to the nature of the act or the treatment given as opposed to the quality of it.

92.  This is clearly borne out in the words of Lord Donaldson in the case of Sidaway v Bethlem Royal Hospital Governors [1984] 1 All E.R. 1018 at page 1026 :

“I am wholly satisfied that as a matter of English law a consent is not vitiated by a failure on the part of the doctor to give the patient sufficient information before the consent is given.  It is only if the consent is obtained by fraud or by misrepresentation of the nature of what is to be done that it can be said that an apparent consent is not a true consent.”

And also by the words of Bristow J in the case of Chatterton v Gerson [1981] 1 All.E.R. 257 at 265 where he said :

“In my judgment once the patient is informed in broad terms of the nature of the procedure which is intended, and gives her consent, that consent is real, and the cause of the action on which to base a claim for failure to go into risks and implications is negligence, not trespass.  Of course, if information is withheld in bad faith, the consent will be vitiated by fraud.”

A further difference between a claim based on negligence and a claim based on trespass can be seen from the following words of Bristow J in the case of Chatterton v Gerson at page 265 of that judgment where he said :

“In my judgment what a court has to do in each case is to look at all the circumstances and say, ‘Was there a real consent?’  I think justice requires that in order to vitiate the reality of consent there must be a greater failure of communication between doctor and patient than that involved in a breach of duty if the claim is based on negligence.  When the claim is based on negligence the plaintiff must prove not only the breach of duty to inform but that had the duty not been broken she would not have chosen to have the operation.  Where the claim is based on trespass to the person, once it is shown that the consent is unreal, then what the plaintiff would have decided if she had been given the information which would have prevented vitiation of the reality of her consent is irrelevant.”

93.  There is no dispute between the parties as to the applicable law in the present case.

94.  Indeed it is conceded by counsel for the defendant that if the evidence of the plaintiff in this case is accepted by the court, that evidence will be sufficient to found a case of trespass to the person as claimed by the plaintiff.

95.  The dispute between the parties here is therefore purely factual.

Expert Evidence relating to issue of liability

96.  The plaintiff called two experts, Dr William Yung, a specialist in prosthodontics and Dr Ricky Wong, a specialist in orthodontics.

97.  Dr William Yung, in his first report dated 16 February 2006 gave his opinion which can be summarized as follows :

(a)      the defendant, without a full set of study models before his diagnosis and treatment plan of the plaintiff, failed to fully appreciate the complexity of the plaintiff’s case;

(b)     the defendant failed to advise the plaintiff of other treatment options;

(c)     the plaintiff should have been referred to a specialist before orthodontic treatment started for her;

(d)     the model surgery used by the defendant misled the plaintiff into making a decision to have her four incisors extracted to be replaced by a dental bridge; and

(e)      the defendant should have consulted a specialist before deciding to extract the plaintiff’s four incisors which was irreversible, especially when the incisors were sound and nothing wrong with them.  This treatment option of the defendant was wholly inappropriate.

98.  In his second report dated 12 January 2008, Dr Yung his further opinion as follows :

(a)      the defendant, being a GP without specialist training in orthodontics, should not have taken on the plaintiff’s case (which was a Class II overjet with 8 mm on a skeletal Class II base) which might involve orthognathic surgery;

(b)     a GP taking up the plaintiff’s case should provide the same standard of care as a specialist in orthodontics.  Here the defendant failed to meet up to that standard in that the study models were (according to the defendant’s own statement) taken just before the extraction.  Therefore the defendant failed to properly study them in preparing the treatment plan which ought to have been done with the assistance of a lateral cephalic radiograph but which the defendant never took;

(c)     the remedial plan of extracting four sound incisors to be replaced by a fixed prosthesis was wrong and inappropriate and go against all known medical literature;

(d)     the osteotomy and bone trimming of upper anterior was totally unnecessary and would produce further bone loss making pontic look long and ugly; and

(e)      The prosthodontic work done by the defendant was far below standard of a reasonable competent prosthodontist.

99.  Dr Ricky Wong gave one expert report dated 10 April 2006.  The opinion expressed by Dr Wong can be summarized as follows. 

100.  The orthodontic treatment provided by the defendant fell far below the standard of a reasonably competent practitioner in that :

(a)      there was lack of adequate record for planning the orthodontic treatment;

(b)     there was inadequate planning for the orthodontic treatment;

(c)     the treatment provided was not consistent with standard practice;

(d)     the extraction of the four incisors was unacceptable as it would cause irreversible and irreparable damage to the patient.  Extraction of all the four incisors (all of which are sound) is never advised and goes against all medical literature; it was also destructive to the plaintiff; and

(e)      the defendant, without specialist training, performed complicated orthodontic practice and without consulting any specialist in orthodontics is unacceptable practice. 

101.  The defendant also called two experts, Dr Kei Lee Hoi, a specialist in prosthodontics and Dr Alexander Tang, a specialist in orthodontics.

102.  Dr Kei, in his expert report which was undated but came about as a result of his examination of the plaintiff on 26 June 2007, the opinion given by him from paragraphs 16 to 21 inclusive, and which was under the heading “Conclusion” were all of them fact findings and therefore outside the province of an expert witness.  When this was pointed out, counsel for the defendant indicated that he would only rely on paragraphs 11, 12, 14 and 15 of that report the contents of which were matters falling within the realms of an expert.

103.  Those four paragraphs relied on by counsel for the defendant can be summarized as follows. 

104.  Dr Kei agreed with Dr Ricky Wong that there was no medical literature to suggest the extraction of all four incisors of the plaintiff when the incisors are not subjected to occlusal load or periodontal attacks.  However he says that there can be exceptions such as supernumeraries, mal-formed incisor or impacted incisor being the more normal exceptions.

105.  Secondly, he says that the defendant’s treatment plan changed from an orthodontic approach to a surgical-restorative approach and the extraction of the incisors became a prosthetic need rather than an orthodontic option.  The changing of a treatment plan is not uncommon in daily dental practice.

106.  Thirdly, the model prepared by the defendant will show to the patient some bone loss through bone resorption.

107.  Lastly, the extraction of the four incisors, while not something commonly done, should only be used as a last resort when all other options were exhausted.

108.  In cross-examination, Dr Kei agreed that the four incisors of the plaintiff which were extracted were healthy and normal.  As part of the philosophy in dentistry healthy teeth should be preserved and healthy teeth should not be removed unless there is a good reason for it.

109.  Dr Alexander Tang gave an expert report dated 2 October 2007.  Being a specialist in orthodontics, he confined his opinion to only the orthodontic treatment given by the defendant to the plaintiff.

110.  In that respect, his opinion was that very often, patients with Class II occlusion are commonly treated by tooth movement alone to reduce the gap between the upper and lower front teeth.  In the present case, it did not surprise him that the plaintiff was treated in a conservative way (i.e. with braces) in so far as the orthodontic treatment went.

111.  Dr Tang further commented that from the study models, the tooth movement of the plaintiff seemed to be in an orderly manner.

112.  Dr Tang also stated that although the treatment record kept by the defendant was “an over-simplified daily record”, he would not conclude from it that the defendant lacked understanding of orthodontic principles or deviated from standard practice.

113.  As for the extraction of the four upper incisors, Dr Tang took the view that although the extraction of the four incisors were said to be part of the orthodontic treatment plan by Dr Wong in his report, he was of the view that the extractions of the four incisors were unlikely related to any orthodontic treatment plan as orthodontic treatment had finished before the extracations and no tooth movement had been induced thereafter.  He considered the extractions to be part of the prosthetic treatment plan which followed the orthodontic treatment and since his expertise was only in orthodontics, he declined to give any comment or express any opinion on the extractions due to his not having any expertise on prosthodontics.

114.  Under cross-examination Dr Tang agreed that the treatment record kept by the defendant was “over-simplified” if those records were the only records kept by the defendant.  However, he had not seen any other records relating to the plaintiff.  He further agreed that the treatment records kept by the defendant did not contain any orthodontic treatment plan and that was unacceptable.  Nor did it note down any change in the treatment plan.  Dental students were taught to keep a detailed record of all these matters.

115.  Dr Tang was also asked about the study models made by the defendant.  He agreed that he was dissatisfied with the study models because they were undated nor did they have the patient’s name on them.  That is the normal practice taught to all dental students.  Because of the absence of any date on the models, he cannot tell which model related to the condition of the plaintiff’s teeth in June 2001.  That had to be done by a rough guess inferring from whether bracket marks can or cannot be seen from those models.  Even then it cannot be an exact inference.

116.  He was also asked about paragraph 9.3.7 of his expert report in cross-examination.  Dr Tang said that he was of the view that if the orthodontic treatment had been continued by the defendant, it would be likely that the plaintiff’s occlusion problem could have been cured.  From that point of view, it was not reasonable to say that the malocclusion could only be cured by the removal of the incisors.  Speaking only from the orthodontic point of view, it would be sufficient only to retract the incisors without removing them.  He described the removal of the incisors as “aggressive”.

Decision on liability

117.  On the facts as found above by me, there can be no question but that the initial consent given by the plaintiff to have her four upper incisors extracted was not a real consent given the misrepresentation to her by the defendant that the extraction of the four upper incisors was the only way to remedy the dental problem of the plaintiff.

118.  That misrepresentation of the defendant went to the nature of the act complained of and not merely to its quality.

119.  Moreover, coupled with the plaintiff’s evidence, and the court’s finding, that she was never told by the defendant of the osteotomy of the bone above her incisors, these acts of the defendant constitute trespass upon the person of the plaintiff by the defendant.

120.  In so far as the expert evidence in this case is concerned, it is quite apparent that all the experts are at least agreed on one aspect of the case, namely, that the extraction of all four of the plaintiff’s upper incisors all of which were sound and healthy at the time of the extraction, is a procedure which went against all the known medical literature.

121.  Although Dr Kei did try to alleviate the defendant’s position by saying that there are exceptions to the general rule, however, none of those exceptions are applicable to the present case.

122.  Indeed there can be no proper justification for the defendant to embark on this course of treatment as indeed it was the defendant’s own evidence that he was aware of other options available other than the extraction of the four incisors.

123.  In coming to this conclusion, I can only infer from all the facts of this case, that the defendant, being a general dental practitioner for some 16 years, must have known that the extraction of the four incisors were unnecessary but had deliberately misrepresented the position to the plaintiff because he knew she would not have consented to the suggested treatment had she known the true position.  Going one step further, it would also appear that his purpose in misrepresenting the position to the plaintiff was for personal gain in getting the plaintiff to agree to accepting the extractions and the installation of dental bridge on the pretext of remedying the plaintiff’s problem for her.

124.  On the alternative claim for negligence, this case being a medical negligence case, and given the expert evidence in this case relating to the extraction of the four incisors being a wholly unnecessary treatment procedure, I can safely come to the conclusion that what was done by the defendant was something which no reasonably competent dental practitioner in the position of the defendant would have done in the circumstances.  To that end the Bolam test is satisfied.

125.  I therefore find both the plaintiff’s primary case in trespass as well as her alternative case in negligence proved against the defendant.

Limitation

126.  The Writ in this case was issued on 24 October 2005.

127.  In so far as the claim of trespass is concerned, there is no difficulty with the limitation period since the plaintiff has 6 years from the date on which the cause of action accrued to bring the action.  Therefore even counting from the date of the act complained of being 14 June 2001, the plaintiff was well within the period of limitation when the Writ was issued.

128.  In so far as the claim for negligence goes, the limitation period is 3 years from the date on which the cause of action accrued or the date (if later) of the plaintiff’s knowledge as provided for in section 27(1) of the Limitation Ordinance (“the Ordinance”).

129.  Section 27(6) of the Ordinance provides that the date of the plaintiff’s knowledge is the date on which the plaintiff first knew, inter alia, that the injury in question was significant and that the injury was attributable in whole or in part to the defendant’s negligent act or omission.

130.  Section 27(8) of the Ordinance provides that the plaintiff shall not be fixed with knowledge of a fact ascertainable only with the help of expert advice.

131.  It is the plaintiff’s case that an integral part of her injury was the loss of a substantial portion of the bone above her upper incisors which was removed by the defendant in the osteotomy.

132.  It is also the plaintiff’s case that neither the plaintiff nor her legal advisers was aware that the defendant had performed the osteotomy on her until so informed by Dr William Yung in a conference held on 20 October 2006.

133.  This matter has not been disputed by the defendant.

134.  Therefore in so far as the claim in negligence goes, time did not start to run until the plaintiff’s knowledge of the osteotomy carried out by the defendant which was on 20 October 2006.

135.  In the premises, the plaintiff’s claim in negligence is not time-barred.

Quantum

Remedial treatment

136.  After discontinuing her treatment with the defendant, the plaintiff consulted Dr Cheng Chi Yin for remedial treatment commencing 26 October 2001.

137.  Between December 2001 and August 2004 Dr Cheng treated her with orthodontic treatment and the plaintiff also received a total of 5 operations for the installation of four implants in her upper incisor area.  However, the treatment given by Dr Cheng was not successful and the implants turned out to be either mobile or mal-positioned.  That was due to the bone loss in the upper incisor area being too severe.  Dr Cheng then informed the plaintiff that there was no other way to remedy her condition except by way of removable prosthesis.

138.  In October 2004, the plaintiff then sought treatment at PPDH.  That treatment started in November 2004.

139.  After examination of the plaintiff, her canines and pre-molars on both sides were restored with temporary crowns with the plaintiff still wearing fixed orthodontic appliances in both her upper and lower arches.

140.  However, on 25 February 2005 she was diagnosed at the Joint Implant Consultation Clinic to have a failing implant and improper positioned implants.  All implants were recommended to be removed and to reconstruct the bony defect with a titanium mesh and bone harvest from right anterior hip.

141.  The plaintiff received her first surgical operation at Queen Mary Hospital (“QMH”) for the removal of the implants under general anaesthetic on 18 April 2005.

142.  After her convalescence from the operation, the plaintiff agreed to receive mandibular advancement surgery to correct her malocclusion.  This took place on 10 January 2006.

143.  On 1 August 2006, she had another surgery for the removal of titanium mesh tray and for the placement of four implants in the anterior alveolar ridge under general anaesthetic at QMH.

144.  On 11 August 2006, the temporary bridge in her anterior maxilla was re-cemented, occlusal filling of lower right first molar done and relining of the temporary acrylic denture performed.

145.  The plaintiff received endodontics for her upper left second pre-molar on 11 October and for her upper right canine on 22 November 2006.

146.  On 27 March 2007 the plaintiff underwent vestibuloplasty by palatal graft at QMH being the second stage implant surgery, but due to the unsatisfactory healing of the wound, a second vestibuloplasty was performed on 29 June 2007.

147.  On 7 May 2008, the plaintiff returned to hospital as an emergency case due to pus discharge from the left maxillary quadrant.  Pus was found extruding from the implant.

148.  The plaintiff received another endotontics in her upper left canine on 8 July 2008.

149.  On the last review on 21 July 2008, there was still swelling in the distal region.

150.  Up to the time of trial, the plaintiff’s treatment at PPDH continues.  As and when the surgery wounds have healed and all infections brought under control, an appointment will have to be made with the prosthodontist to restore the implants and replace her temporary crowns with ceramic crowns.

Plaintiff’s psychiatric condition

151.  When the matters complained of by the plaintiff occurred in the second half of 2001, the plaintiff had a job as an accounts clerk with the Union Construction (Group) Limited.

152.  Before the extraction of her incisors, the plaintiff was happy and carefree with good inter-personal relationship.  But after the event, she felt that people turned away from her and was afraid to look at her.

153.  In time, her condition worsened and she wore a face mask to hide her face from others.  She felt that her colleagues were looking away from her.

154.  Her stress and tension got the better of her and quite abruptly on 4 May 2004 the plaintiff resigned from her job in the middle of a working day unable to tolerate what she perceived to be rejection by her colleagues because of the way she looked.

155.  Thereafter she spent most of her time at home preoccupied with her dental problem.  By October 2004 she became depressed and weepy with difficulty sleeping.  By the end of that year she began hearing voices asking her to die.  She felt people passing her in the streets were grimacing at her and gesturing about how she looked.  She knew she had a psychiatric problem.

156.  In 2005 her depression slightly improved when some progress was made in the treatment she received from PPDH and QMH.

157.  The plaintiff was examined by Dr  Chan  Chee  Hung, a psychiatrist, on 3 October 2006.  He diagnosed the plaintiff to suffer from a major depressive disorder with mood congruous psychotic symptoms.  The symptoms included weepiness, moodiness, insomnia, irritability, loss of interest, concentration and motivation for daily activities, poor appetite and weight loss.

158.  Dr Chan was of the view that she will benefit from a course of psychiatric treatment and psychotherapy.  Dr Chan recommended one year’s intensive treatment.  Total costs for such treatment comes to $39,600 for the one year.

Pain suffering and loss of amenities

159.  This head of damage has been agreed by the parties at $700,000 and the same will be awarded.

Pre-trial loss of earnings

160.  The parties have agreed the amount of Pre-trial loss of earnings and MPF to be at $685,190 and that agreed amount will be awarded under this head of damage.

Special damages

161.  The plaintiff claim special damages in the amount of $98,115.30. 

162.  The defendant is agreeable to $41,115.30 of the amount claimed by the plaintiff.

163.  The remaining $57,000 in dispute between them represents the fees paid to Dr  Cheng  Chi  Yin by the plaintiff for the remedial treatment which Dr Cheng attempted to carry out for her.

164.  The defendant does not dispute that amount as having been paid to Dr Cheng.  The defendant’s objection to the plaintiff being able to claim back those fees paid to Dr Cheng is that the defendant says from the evidence given by Dr Yung it is clear that the implants installed by Dr Cheng should not have been attempted by him as it should have been obvious to Dr Cheng, if he had done the appropriate preparatory work, that there was not enough bone in the area to support the implants which resulted in excessive and uneven bone resorption.  Therefore it would be wrong in principle to allow the plaintiff to claim for the fees paid to Dr Cheng.

165.  I do not accept that submission by the defendant.

166.  Firstly, that there was insufficient bone to support the implants was a direct result of the wrongful acts of the defendant in this case.

167.  Secondly, it has to be borne in mind that the plaintiff consulted Dr Cheng to carry out remedial treatment caused by what was done by the defendant.  While it is easy for Dr Yung to speak with the wisdom of hindsight when he commented that it should have been obvious to Dr Cheng at the outset that there was insufficient bone to support the implants, it may well be a different story from Dr Cheng’s perspective when he first attempted the remedial treatment.  It is only reasonable to expect Dr Cheng to have attempted the remedial treatment when he thought there was a possibility that it could be successful.

168.  In any event that was a judgment of Dr Cheng, a matter which the plaintiff had to leave to the professional.

169.  Here the wrong was done to the plaintiff by the defendant and the plaintiff had paid Dr Cheng for the attempted remedial treatment which ultimately proved unsuccessful.

170.  In those circumstances, I do not see why the plaintiff should not be allowed to recover such fees paid with a view to remedying the wrong of the defendant.

171.  For the above reasons, I will assess the special damages to be $98,115.30 as claimed by the plaintiff.

Other expenses

172.  The parties are agreed that $12,800 be the amount to be awarded under this head.

Future loss of earnings

173.  The plaintiff claims future loss of earnings on the basis that she will not be able to work for the next two years by reason of the fact that she will have to continue her treatment with PPDH and also to receive psychiatric treatment and psychotherapy and thereafter it will take time for her to find a job.

174.  It is therefore estimated that it will be at least for two more years before she could resume gainful employment.

175.  There is no dispute that the plaintiff’s earnings when she resigned from working as an accounts clerk in May 2004 was $11,725 per month.  It is also agreed between the parties that if she had continued working she would be earning $12,900 today.

176.  The defendant dispute that the plaintiff will not be able to resume work for another two years on the basis that firstly, her performance in court as a witness showed her no longer to be suffering from Major Depressive Disorder. 

177.  Secondly, it is said that the in the report of Cheung Lim Kwong, Chair Professor of Oral and Maxillofacial Surgeon, dated 22 January 2008 where it is stated that “there is no justifiable permanent disability if the dental implant bridge can enable [the plaintiff] to restore her oral functions” this shows that there is no physical handicap to stop her working.

178.  Thirdly, the defendant submits that Dr Chan Chee Hung, the plaintiff’s expert psychiatrist, recommended treatment for a further 12 months only.

179.  That statement in the report of Cheung Lim Kwong relied on by the defendant admittedly states that there is no permanent disability.  However, that is qualified by the following words “if the dental implant bridge can enable Madam Cheng to restore her oral functions”.  It is also apparent in this case that the plaintiff is still continuing her remedial treatment at PPDH and her oral functions have not yet been fully restored.

180.  In coming to an assessment for this head of damage, I have regard firstly to the length of time which had already been spent for the remedial treatment to the plaintiff.  Even if one were to ignore the remedial treatment from Dr Cheng, the treatment given to the plaintiff from PPDH and QMH has already taken over four years (from November 2004) and it is still continuing.  Given the length of time the remedial treatment has taken, perhaps the estimate of another two years is not altogether out of place since complications (of the kind which has already happened) cannot entirely be ruled out.

181.  However, also taking into account the accelerated receipt by the plaintiff in respect of future loss of earnings and given all the circumstances in this case, I will use a multiplier of 1½ years rather than two as suggested by the plaintiff.

182.  Future loss of earnings and loss of MPF is therefore assessed as follows :

          $12,900 x 18 x 1.05 = $243,810.

Future expenses

183.  The plaintiff claims totally $197,320 under this head of claim broken down into seven separate items.

184.  The defendant does not dispute the claim in respect of the first five items amounting to $127,320. 

185.  In dispute between the parties are only the last two items being the cost of further surgical treatment, hospitalization and dental treatment in respect of PPDH and QMH ($20,000) and also the cost of follow-up consultation and treatment ($50,000).

186.  In respect of these two items in dispute, I am told that there is no direct evidence from any of the experts to support them.  The basis upon the claim in respect of these two items were made was that they were estimated by counsel.

187.  However, it should be noted that within the first five items not disputed by the defendant, three of those items amounting to $87,720 was for costs of cosmetic or laser treatment ($50,000), cost of ceramic crowns from PPDH ($1,720) and cost of four ceramic upper incisors and accessories ($36,000).

188.  I further note that the amount of fees already incurred by the plaintiff for the pre-trial period paid to PPDH is only $12,564 for treatment since November 2004 and her fees paid to QMH to date is only $1,750.

189.  Quite obviously since her treatment is still continuing at PPDH, there will be some future fees which need be paid by her, but a claim for $70,000 as being fees for her future treatment from PPDH and QMH must be excessive and therefore unreasonable given all the circumstances.

190.  Using the fees already incurred by the plaintiff vis-a-vis PPDH and QMH as a rough guide, I would assess future expenses for the further surgical and dental treatment as well as the hospitalization at PPDH and QMH to be $10,000.

191.  Accordingly, the total claim for future expenses is assessed at $137,320.

Interest

192.  Interest on general damages for PSLA will be at 2% p.a. from the date of the Writ.

193.  Interest for all pre-trial and special damages will be at half judgment rate from 14 June 2001.

Summary of Assessment

Conclusion

195.  There will accordingly be judgment for the plaintiff for the judgment sum of $2,173,083.30 which is already inclusive of interest up to the date of judgment.  Thereafter interest will run at judgment rate until payment.

Costs

196.  There will be an order nisi that the defendant do pay the plaintiff’s costs of this action to be taxed if not agreed.