LEE YIN YAN v. ST. PAUL'S HOSPITAL

HCPI 771/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 771 OF 2006

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J U D G M E N T

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1. This is an appeal against the decision of Master Kwan given on 4 February 2008 dismissing the plaintiff’s application for further and better particulars of the re-amended defence with costs to the defendant. 

2. The matter arises in this way.  The plaintiff is an infant suing by her father and next friend.  The plaintiff was born on 7 December 2002 at the defendant hospital which is a private hospital (“the hospital”).  The plaintiff’s mother (“the mother”) was admitted for labour and delivery of her first child on the same day as the delivery namely, 7 December 2002.  The mother was under the care of her private obstetrician Dr. Joseph Woo (“Dr. Woo”) who admitted her into the hospital.

3. The plaintiff’s pleaded case is that the mother was admitted at term into the maternity ward of the hospital at 8:45 a.m.  At that time she was in early labour with mild uterine contractions.  Dr. Woo saw her at around 9:30 a.m. and delivery was expected to be in the early evening.  The plan was for re-assessment at around 12:30 p.m. and 3 p.m.  Continuous foetal heart rate monitoring was commenced at around 12:40 p.m. at which point the foetal heart rate was 145 per minute and regular.  Dr. Woo left the hospital to go elsewhere for another operation.  He left instructions that he was to be kept informed of the progress of labour.

4. The plaintiff’s case is that at around 2:35 to 2:40 p.m. a nurse at the hospital informed Dr. Woo of a deceleration of the foetal heart rate down to about 100 per minute.  Dr. Woo instructed the nurse to monitor the situation and to keep him informed of further changes.  

5. A few minutes later, at around 2:40 to 2:42 p.m., the nurse informed Dr. Woo of another deceleration in the following contraction.  Thereupon, Dr. Woo instructed the nurse to call the on-call obstetricians at the hospital to attend to the mother.  However, none of the hospital obstetricians responded to the call. 

6. At about 2:47 to 2:50 p.m. Dr. Woo was informed by the nurse that the hospital obstetricians did not respond to the call and that the foetal heart rate had dropped to about 60 per minute.  Thereupon, Dr. Woo decided to immediately proceed to perform an urgent Caesarean section operation himself.  He asked the nurse to prepare for the operation and he returned to the hospital.  By this time, there was still no obstetrician at the hospital to attend to the mother.

7. Although the defendant’s times are different, the plaintiff’s case is that Dr. Woo arrived at the hospital at around 3:10 p.m. when he urgently prepared himself for the operation.  The mother was put under general anaesthesia immediately and incision started at about 3:15 p.m.  The plaintiff was delivered at 3:20 p.m. by the urgent Caesarean section operation.  The time taken from decision to operate to delivery was a total of about 30 to 33 minutes.  As I have said, these times are disputed by the defendant. 

8. On birth the plaintiff was flaccid with a feeble heart rate.  She suffered from severe asphyxiation and is now severely disabled. 

9. It is the plaintiff’s case that if a resident or stand-by obstetrician of reasonable and competent skill had responded to the call he would have immediately proceeded to perform a crash Caesarean section operation to deliver the plaintiff.

10. The plaintiff’s claims are in contract and in tort as pleaded and particularized.  It is the plaintiff’s case that by the hospital’s negligent failure to provide competent and/or timeous medical service the plaintiff has suffered loss and damage namely, severe spastic quadriplegia cerebral palsy with profound global retardation. 

11. In its re-amended defence the hospital denies that it is liable either in contract or in tort.  The hospital denies that it has been negligent as alleged. 

12. The plaintiff sought further and better particulars of the re-amended defence by its request dated 11 October 2007.  As no particulars were supplied a summons was issued by the plaintiff on 7 November 2007.  One day before the hearing before the Master the defendant provided voluntary particulars dated 16 January 2008 (“the voluntary particulars”).  As a result of this, the plaintiff did not pursue some of its requests but persisted on the others.  Of the remaining requests the Master dismissed the summons with costs to the defendant.  As I have said, this is the appeal from the Master’s order. 

13. There were a total of 8 requests made by the plaintiff.  Requests 2 and 4 have not been pursued.  That leaves Requests 1, 3, 5, 6, 7 and 8.  I shall deal with each of these in turn.

Request no. 1

14. This deals with the plea by the hospital that it only agreed to provide “limited medical services” to patients including the mother who were admitted into the hospital by private treating doctors. 

15. Mr. Li, for the plaintiff, has now modified the request.  The request should now be “what the ‘limited medical services’ were as far as these are relevant to the issue in this case regarding the attendance or non-attendance of the resident obstetricians?”.  I understand from Mr. Giblin, for the defendant, that there is now no objection to this request.  I will make an order in terms of the modified request as I have stated.

Request nos. 3 and 5

16. Request nos. 3 and 5 can be taken together.  It refers to an allegation in the re-amended defence that following the deceleration of heart rate, the foetal heart rate reverted to a regular beat.  The plaintiff simply wants to know what the defendant’s case is on what it considers to be a regular beat.  I see no difficulty in giving a simple answer to a simple request.  It seems to me that it is proper to order the particulars sought.  I will make an order in terms of the Request nos. 3 and 5.

Request no. 6

17. Request no. 6 arises from paragraph 18 of the re-amended defence.  The positive plea by the defendant is that the time taken to perform the Caesarean section operation on the mother was appropriate and in accordance with “best medical practice” irrespective of the attendance upon the mother of any resident obstetrician employed by the hospital. 

18. The plaintiff wishes to know what the defendant’s case is on “best medical practice”.  That is Request no. 6(a).  Request no. 6(b) has already been answered. 

19. The objection on behalf of the hospital is that these are matters relevant to issues to be considered by expert evidence which the defendant will in due course adduce.  I do not regard that as a valid objection. 

20. The hospital has pleaded that it acted in accordance with “best medical practice”.  Where a practice is pleaded it should be fully particularized so that the opponent knows what case it has to deal with and prepare evidence to deal with that.

21. It seems to me that if a party pleads a practice in a pleading it ought to have some material on which to base the pleading.  It is not sufficient to plead a practice without giving full particulars.  The plaintiff is entitled to know the defendant’s case on this. 

22. I will make an order in terms of the Request no. 6(a).

Request no. 7

23. I turn to Request no. 7.  This deals with an allegation in the re-amended defence in paragraph 23 where the hospital positively avers that the medical conditions suffered by the plaintiff would have occurred irrespective of and notwithstanding the matters complained of. 

24. This it seems to me to be on the borderline of whether this is a request for evidence.  On balance, I think this is a request for evidence and is not something that I would be prepared to order.  Whether or not the medical conditions would have occurred irrespective of the matters complained of is something that the experts would have to deal with.  There are no facts, in my view, that the defendant is able to give.  It is a matter of expert opinion in my view. 

25. I will not make an order in terms of Request no. 7.   

Request no. 8

26. As to Request no. 8, the defendant pleads the statutory defence under section 22B of the Law Amendment And Reform (Consolidation) Ordinance (Cap. 23).  This is in paragraph 26 of the re-amended defence. 

27. By section 22B(5) :

“ the defendant is not answerable to the child, for anything he did or omitted to do when responsible in a professional capacity for treating or advising the parent, if he took reasonable care having due regard to the then received professional opinion applicable to the particular class of case; but this does not mean that he is answerable only because he departed from received opinion.” 

28. The plaintiff simply wants to know what “the then received professional opinion” was, giving full details of such opinion and its source.

29. The objection is that this is another request for evidence and is a matter that would be dealt with by the expert report of the defendant in due course.  I disagree.  The plaintiff is entitled to know what the defendant’s case is on this as pleaded.  The defendant has pleaded that having regard to “the then received professional opinion” it took all reasonable care.  Surely the plaintiff is entitled to know what that professional opinion is that the defendant relies on. 

30. In my judgment Request no. 8 has to be answered.  I will make an order in terms of the Request. 

31. The appeal is allowed.  I make an order in terms as I have indicated in respect of the Requests save for Request no. 7.