CHAN PAK YUEN v. LAM MAN KIT

HCPI 199/2021

[2023] HKCFI 818

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 199 OF 2021

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R E A S O N S    F O R    D E C I S I O N

A N D

A S S E S S M E N T    O F    C O S T S

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1.  The defendant complained that the medical reports of the urologist and the psychiatrist adduced by the plaintiff amounted to solo expert reports obtained and adduced without leave and contrary to the direction of the court. The plaintiff disagreed on the ground that they were mere reports of the plaintiff’s treating doctors. The defendant therefore took out application to expunge the reports, which the master allowed in terms as she ordered. The plaintiff appealed. After hearing, this court dismissed the appeal with costs. These are my reasons and summary assessment of such costs.

BACKGROUND

2.  The plaintiff commenced the present action in October 2019 against the defendant for injuries suffered as a result of a traffic accident. Interlocutory judgment on liability for damages to be assessed was entered by consent on 12 November 2020 (“the 12/11/2020 Order”).

3.  By the 12/11/2020 Order, leave was granted for the filing of the joint orthopaedic expert report dated 16 February 2019. It was ordered that no further or additional expert report should be obtained or adduced without leave of the court.

4.  After the statement of damages has been filed, the plaintiff’s solicitors disclosed to the defendant’s solicitors in August 2019 a report of Dr Leung Yuen Shan, psychiatrist (“Dr Leung”), dated 27 December 2018 and a report of Dr Yip Wai Chun Andrew, urologist (“Dr Yip”), dated 5 December 2018.

5.  The defendant’s solicitors took issue as to the above reports on the ground that they, as they were so written, amounted to the specialists’ solo expert reports adduced without leave and contrary to the 12/11/2020 Order. They warned the plaintiff’s solicitors of the risk of the incidental costs in accordance with the established legal principle and practice in personal injury action.

6.  In their first response, the plaintiff’s solicitors somehow referred to their client’s liberty to seek medical treatments from specialists. That of course was not quite the issue taken by the defendant. The plaintiff’s solicitors proceeded to include these reports in his list of documents in these proceedings.

7.  By the end of 2021, there were in addition to the above report of Dr Leung her further reports dated 8 July 2019 and 2 September 2019. Relying on them and the report of Dr Yip mentioned above, the plaintiff’s witness statement was filed in October 2021, and his statement of damages was revised and filed in December 2021.

8.  The defendants’ solicitors repeated their stance in respect of the above reports, and issued ultimatum to the plaintiff’s solicitors in January 2022. This time the plaintiff’s solicitors replied that these are reports of Dr Leung and Dr Yip as treating doctors concerning their treatment provided to the plaintiff, and do not constitute medical expert evidence. The defendant’s solicitors disagreed, and their summons filed on 21 February 2022 (“the Summons”) followed.

9.  By the Summons, the defendant applied to expunge the above reports and to bar the plaintiff from adducing expert evidence from these doctors in the assessment of damages. The defendant also sought consequential costs on an indemnity basis.

10.  It should be noted that the defendant’s solicitors made clear in their letter dated 4 February 2022 prior to the Summons that they would have no objection to the plaintiff’s adducing medical reports from the same doctors as treating specialists purely on the treatments to him. Such stance has been maintained throughout.

11.  The parties have filed affirmations for the purpose of the Summons.

12.  After the hearing of the Summons before the master on 15 August 2022, Dr Yip provided his supplemental report dated 26 August 2022. Considering further submissions of the parties, the master gave her written ruling on 23 November 2022.

13.  The master ordered that part of the content of the reports of Dr Leung, the psychiatrist, should be redacted so that the rest would be admitted as her report as the plaintiff’s treating doctor. She ordered that the report of Dr Yip, the urologist, should be expunged and reproduced in its proper form and terms his report on the treatment to the plaintiff. The master also ordered the relevant parts of the revised statement of damages and the plaintiff’s witness statement with reference to these reports to be redacted accordingly and re-filed. Following that event, party-and-party costs were ordered against the plaintiff.

14.  At the same time, the master gave leave to the parties to adduce evidence from a psychiatric expert and a urological expert for each party with incidental directions.

15.  The plaintiff filed his notice of appeal on 1 December 2022. He sought to have the order of the master in respect of the reports of Dr Yip and Dr Leung mentioned above set aside. In other words, he insisted that those reports were admissible, as they were, in their entirety. The plaintiff advocated no alternative stance in this appeal.

16.  The defendant has lodged no cross appeal. Through counsel, he indicated that he would be prepared to stand by the order of the master if this court saw fit.

THE PRINCIPLES

17.  As an appeal from the master, this was the re-hearing of the Summons. In doing so, it is trite that the judge is not bound by the reasoning of the master but has the liberty to adopt any part of it as he sees fit to do so in the circumstances: see O58, r.1 of Rules of the High Court, Cap 4A; Hong Kong Civil Procedure 2023 (Vol 1) at §58/1/2.

18.  In the present matter, the disagreement between the parties lied in whether the reports of Dr Yip and Dr Leung, as they were, were entirely those on the treatments to the plaintiff by them as treating doctors or whether they contained statements of their opinion tantamount to expert evidence. That the reports predated the master’s direction under the 20/11/2020 Order was irrelevant.

19.  If the difference between a medical record or report of the treating doctor in respect of his diagnosis and treatment on the one hand and a report of medical expert opinion on the other still requires explanation, I would borrow what was said in Wong Cheuk v Falcon Insurance Company (Hong Kong) Limited, DCEC 688/2008 (20 May 2009) by HHJ Marlene Ng (as Hon Marlene Ng J then was):

“43. … the Applicant’s solicitors by their letters dated 19^th November and 1^st December 2008…insisted that Dr Lau’s Report (inclusive of the aforesaid matters of opinion) be adduced as non-expert medical treatment report, and even went so far as to say they had no control over how Dr Lau compiled his report.

44. In my view, such arguments are plainly fallacious, and reflect a fundamental misunderstanding as to the difference between a professional factual witness and an expert witness.

45. A treating doctor renders his medical report and/or testify in court as a professional witness on observed facts (eg what the patient told him, what symptoms were reported, what investigation/examination was undertaken, what medical advice/treatment was given, etc) rather than offer expert medical opinions (eg opinions on the causation, aetiology, diagnosis and/or prognosis etc of the injuries). Thus, information from the treating doctor is normally non-controversial, and his medical reports/records are usually admitted without calling him to testify in court.

46. On the other hand, an expert doctor is qualified by his experience and expertise in a medical specialty, and usually has no prior therapeutic involvement with the injured party. He is expected to give impartial opinion on particular medical issue(s) to assist the court on the basis of assumptions of fact provided to him in written or other form and/or his own examination of the injured party. His opinion/report is for the benefit of the court and independent of such party. Permission of the court is generally required for adducing such expert opinion evidence at trial.

47. In the present case, Dr Lau’s Report fell into the grey area between expert and treatment medical reports. It spoke to both matters of fact (eg the symptoms reported by the Applicant and the treatment given) and opinion (eg the causation of the injuries and the impairment resulting therefrom). However, the fact that Dr Lau has been the Applicant’s treating doctor does not excuse the Applicant from having to seek leave of the court before adducing matters of expert opinion from Dr Lau.”

20.  I should perhaps add this. It is no excuse by arguing that a treating doctor’s diagnosis must somehow be built on his assessment on the basis of the history, complaints and symptoms presented by the patient. That the treating doctor came to, and recorded, his diagnosis on the condition and problems of the patient that require treatment is never the objectionable part.

21.  It follows from the above that the mere statement of the diagnosis by the treating doctor in his report per se is not offensive if this was made for the purpose of relating that to the treatment and medication that he prescribed. This also explains what Hon Bharwaney J said in Hung Sau Fung v Lai Ping Wai [2012] 1 HKLRD 1:

“46. A report of a treating doctor is always admissible to prove the fact that the injured person was receiving treatment, the nature of that treatment, and the opinion and diagnosis of the treating doctor which was communicated to the injured person. These are all matters of fact. Whilst the diagnosis reached and the treatment plan recommended by the treating doctor is the product of his expertise, his diagnosis and treatment plan and their communication to the injured person is a matter of fact. However, the opinions expressed by the treating doctor in his report are not admissible as expert evidence unless leave to admit it for that purpose has been obtained from court. That principle is easy to state but sometimes difficult to apply. It is often a difficult and time-consuming exercise to redact parts of a treating doctor’s report containing his expert opinion, which is admissible only with the leave of court, from those parts of the same report setting out his diagnosis and the opinions he has expressed to his patient, which are always admissible as matters of fact.”

22.  Some judgment call is required when a medical report of the treating doctor was specifically obtained for the purpose of litigation. One counts on the judgment of the doctor to confine himself to the fact of the consultation, diagnosis, treatment and medication prescribed. As observed by the court in Wong Cheuk (above), this normally is not expected to entail controversy. Yet all still depend on how the report was compiled.

23.  As also explained in Wong Cheuk (above), it is no excuse to say that one has no control over how the treating doctor compiled his report. It is the professional duty of the legal representatives to exercise judgment call to ensure that the form and substance of the report of the treating doctor do not offend the rule and direction of the court in respect of admissibility of opinion evidence. Otherwise, the kind of potentially problematic areas referred to by the court in Wong Cheuk (above) and Hung Sau Fung (above) could arise. In dealing with those areas, the court in Hung Sau Fung did not advocate an approach different from that in Wong Cheuk.

THE REPORTS IN THE PRESENT CASE

24.  At the receiving end of the reports produced by the plaintiff, both the defendant and the court could only read and understand the contents of the reports as they are. So read and understood, the reports of both Dr Yip and Dr Leung in the present case were clearly problematic. This was made clear by the defendant’s solicitors from the outset when the reports were disclosed.

25.  As in any interlocutory application, evidence by way of affidavit was adduced for the purpose of arguing the Summons. The plaintiff sought to explain that the reports consisted of the communication between the specialists as treating doctors and him during the consultations. The defendant was not in a position to know or infer all those alleged circumstances from the reports per se. His explanation did not resolve the problems in the reports as they were. In some respects, the credibility of the explanation was actually doubtful.

Dr Yip’s reports

26.  Obviously Dr Yip’s report came about at the request of the plaintiff’s solicitors. Equally obvious was that the doctor perceived such request as one also for his specialist opinion. The doctor made this clear in his letter enclosing the report to the plaintiff’s solicitors. So did he by including in his report a section on his comments with reference to the list of medical literature as well as his curriculum vitae setting out not only his qualification but also his clinical experience. Amongst other things, he referred to his experience of giving medical expert opinion for court cases. He somehow saw fit to verify his report, not only in respect of his statements of fact but also those of his opinion. All those were unexpected from a report of a treating doctor.

27.  To describe that the plaintiff’s legal representatives somehow failed to be alerted to those features of the report of Dr Yip would be an understatement. They positively took the view, as they did in this appeal, that a report with such features had no problem whatsoever. That per se was a problem.

28.  Insofar as the substance of the 13 paragraphs of the first part of the report is concerned, I have the following observations:

(1)  §§1 to 5 would be acceptable insofar as they are record of the plaintiff’s information and complaints.

(2)  §§6 and 7 would be acceptable as record of the examination conducted.

(3)  §8 is the diagnosis, which would be acceptable as a statement of fact necessary for explaining the treatment and medication prescription set out in §9.

(4)  §§10 to 12 would be acceptable as record of the follow up consultations and the plaintiff’s complaints then.

29.  Other than the above, §13 was a statement of opinion on the prognosis while the concluding statement of diagnosis was redundant serving only as opinion.

30.  The section on comment immediately following the above contained obvious opinion evidence, and was therefore inadmissible without leave.

31.  Amongst others, Dr Yip gave his opinion on the diagnosis of post traumatic disorder (“PTSD”), straddling beyond his own discipline of practice. In his supplemental report dated 26 August 2022, Dr Yip went so far as stating that the diagnosis of PTSD is straight forward and can be made by any general practitioner, let alone a specialist such as a urologist. That is unexpected, if not bold. In any event, even that per se amounted to expert opinion.

32.  That Dr Yip, as urologist, might consider that psychological or psychiatric factors are in play in the case of the plaintiff is not the problem. However, that does not put him in a position to tender his own opinion evidence in connection with psychiatric diagnosis. Whether or not the doctor happens to be also knowledgeable and experienced in multiple disciplines is neither here nor there. Dr Yip was engaged as a urologist, and as such he was expected to compile his treatment report.

33.  In terms of judgment call mentioned above, that the plaintiff’s legal representatives saw fit to rely on such opinion of Dr Yip for insisting on his client’s stance before the master and in this appeal without compromise was just unexpected.

34.  On this basis, the report of Dr Yip, as it suffered from the above problems both in form and substance, should be expunged, but its content to the acceptable extent as explained above may be set out in proper form and presented as a medical report in respect of the consultation and treatment of the plaintiff.

35.  This part of the appeal fails.

Dr Leung’s reports

36.  Similar analysis of the 3 reports of Dr Leung was carried out.

37.  Of the report dated 27 December 2018, its content up to page 7 contains:

(1)  the source of information (including the examinations by the doctor on various dates and other medical records during the same period made available to her);

(2)  the personal history (which could be taken to have come form the plaintiff);

(3)  the past medical history (which could be taken to have come from the plaintiff);

(4)  family history (which could be taken to have come from the plaintiff);

(5)  personality and way of life before the accident (which could be taken to have come from the plaintiff);

(6)  the accident (which could be taken as the plaintiff’s account to the doctor);

(7)  his mental symptoms after the accident (which could be taken as the plaintiff’s complaint to the doctor);

(8)  his physical condition and its impact on his mental condition (which came from the medical records and the plaintiff’s account to the doctor); and

(9)  the mental state examination on 28 September 2018 (which was the first consultation with the doctor).

38.  These are matters of record up to the first consultation with Dr Leung. The doctor carried on to set out her diagnosis of PTSD and its impact and progress until the date of the report. That led to the description of the medication prescription and its effect on page 8 of the report. That was followed by the result of the mental state examination during the most recent consultation on 19 December 2018.

39.  In my view, the report so far is not objectionable. Apparently the master took a similar view. The problem lied in the last section, which was the summary and psychiatric opinion.

40.  Counsel for the plaintiff somehow read this last section as nothing more than a summary of the plaintiff’s account and complaints to the doctor. He was also minded to treat or construe the section sentence by sentence in isolation. In that case, he ran the risk of failing to understand what the doctor was saying in the context of this section. As the doctor chose to put it, this section was her summary and her psychiatric opinion.

41.  As such, the second sentence of the first paragraph of this section, stating that the plaintiff also suffered from sexual dysfunction in the form of erectile dysfunction and premature ejaculation could only be understood to be the doctor’s acceptance of the plaintiff’s complaint that such condition was the result of the plaintiff’s accident. That was the doctor’s expression of opinion on causation.

42.  As the treating doctor, what concerned her was expected to be the existence or not and, if yes, the extent of the problems complained about by the patient, ie diagnosis, that might call for treatment. Her view on the causation between the problems and the accident would be a matter of opinion evidence. The doctor indeed carried on to give her opinion on the impact of the psychiatric condition on the plaintiff’s work capacity as well as career and earning capacity. The doctor concluded with her recommendation generally for continuation of future psychiatric treatment.

43.  The report of Dr Leung dated 8 July 2019 was expressly rendered to explain the treatment progress of the plaintiff since January 2019. The consultations since then until late June 2019 were listed. This was followed by an account of the condition of the plaintiff over this period, which could be taken as that provided by the plaintiff. This was concluded with the description of the latest medication prescription. The result of the most recent mental state examination was recorded. So far this report is not objectionable.

44.  The problem lied with the last section again under the heading of summary and psychiatric opinion. In this section, the first paragraph stating that the plaintiff has been suffering from major depressive disorder and history of PTSD might well be a summary of her diagnosis. Differing from the master, I would be prepared to accept that the first two sentence of the second paragraph stating that the plaintiff is still suffering from multiple complications and that he is still attending follow-ups from various practitioners to be those of record of the plaintiff’s information to her.

45.  However, what followed in terms of the impact of his condition on his ability to work, family and marital situation as well as her recommendations were matters of the doctor’s opinion as opposed to report on the treatment progress. They could only be viewed this way, when nothing in them suggested that it was mere record of what the doctor advised the plaintiff during particular consultations, contrary to what the plaintiff sought to suggest for the present purpose.

46.  In her report dated 2 September 2019, Dr Leung again explained the treatment progress of the plaintiff, including the further consultations between late July to late August 2019 and her record of the plaintiff’s complaints. As before, the latest medication prescription was recorded. The result of the most recent mental state examination in late August 2019 was set out. All these are not objectionable.

47.  Similar problem existed in the last section, which was her summary and psychiatric opinion. Again, the statement that the plaintiff has been suffering from major depressive disorder and history of PTSD should survive criticism. However, what followed obviously could not. What the doctor specifically stated was her opinion on the degree of permanent impairment of the plaintiff as a result of his psychiatric condition, including quantitative assessments in terms of percentages with reference to the AMA Guides to the Evaluation of Permanent Impairment. She further concluded by general recommendation on the then further treatment of the plaintiff.

48.  Such opinion on the degree of permanent impairment and future treatment regime of the plaintiff must be expert opinion evidence which was inadmissible in the absence of leave of the court. As mentioned, the attempt of the plaintiff to explain that the report contained merely what the treating doctor communicated to him during consultations was in some respects incredible. This was one of those respects.

DISPOSITION

49.  What the master ordered was the redaction of the parts of the reports of Dr Leung. As mentioned, the defendant indicated its readiness to stand by the order of the master. I differed only in respect of the first and the second sentence of the second paragraph of her report dated 8 July 2019 as discussed above.

50.  As to the report of Dr Yip, the master was clearly right in ordering its expunge. The master’s order for the plaintiff to provide a proper report from Dr Yip as the treating urologist could not be faulted.

MEDICAL EXPERT EVIDENCE

51.  No issue was taken in respect of the master’s leave to obtain and to adduce expert evidence from independent psychiatric and urological experts.

REVISED STATEMENT OF DAMAGES; WITNESS STATEMENT OF THE PLAINTIFF

52.  Following the above, the plaintiff should adjust his revised statement of damages and witness statement by removing from them content with reference to the substance of how the reports of Dr Leung and Dr Yip were now disposed of. The master rightly gave direction to that effect.

CONCLUSION AND ORDER

53.  The appeal had no merit. It was therefore dismissed, save that the extent of redaction of the report of Dr Leung dated 8 July 2019 should be varied as discussed above.

COSTS

54.  Counsel for the plaintiff somehow claimed part success on the basis that this court’s view was not identical to that of the master. However, as mentioned, the stance of the plaintiff was never about the extent of the master’s order in respect of the reports in question. His stance was that the reports should be admissible in their entirety, and the master was completely wrong. Counsel also argued that the hearing also served case management purpose. The fact was that it was his client’s appeal, which failed.

55.  Costs should therefore follow the event.

56.  I awarded costs of the appeal to the defendant with certificate for counsel, such costs shall be summarily assessed. Counsel for the plaintiff was then heard on the defendant’s statement of costs.

SUMMARY ASSESSMENT OF COSTS

57.  As a re-hearing on the basis of the same materials before the master, the defendant’s costs of and occasioned by that are now summarily assessed at the sum of HK$65,000, which is payable by the plaintiff within 14 days.