MARTIN JACQUES AND ANOTHER v. HOSPITAL AUTHORITY

HCPI 1162/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1162 OF 2002

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BETWEEN

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RULING

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1. This Ruling deals with matters raised at the Pre Trial Review (“PTR”).

2. Initially there were three matters which were outstanding between the parties and which needed to be resolved at the PTR.  The three matters are as follows :

(a)      employment expert reports;

(b)     difficulty with five witness statements; and

(c)     expert report of Professor Oh, the plaintiff’s expert on Intensive Care.

Employment expert reports

3. The plaintiffs have obtained two reports from Mr Keith Carter, an employment expert in the United Kingdom.

4. The first report concerns the employment prospect of the deceased (had it not been for the accident and therefore the death of the deceased).  This report was served on the defendant on 15 December 2008.

5. The second report concerns the employment prospect of the 2^nd plaintiff, being the husband of the deceased, who brings his claim as a secondary victim on the basis that he has suffered nervous shock in witnessing the negligent management of the deceased by the defendant hospital and/or its servants or agents and consequently her death.  This report deals with the employment prospect of the 2^nd plaintiff had it not been for the difficulty he faced as a result of such nervous shock.  This report was served on the defendant on 31 December 2008.

6. At the PTR hearing, upon counsel for the plaintiffs confirming that the 2^nd plaintiff will not be seeking to amend the Revised Statement of Damages of the 2^nd plaintiff but will be relying on what has already been pleaded therein in respect of his loss of earnings, the defendant’s position now is that the defendant need to reserve its position and to take further instructions relating to the two expert reports from Mr Keith Carter.

7. It is only fair that the defendant be given some time to take instructions in the matter seeing that the two reports were only served on the defendant recently.

Difficulty with witness statements

8. Originally, the stance taken by the defendant in its PTR Notice was that the defendant would object to the witness statements of Graham Huntley, Ian Hargreaves, Will Hutton, Sue Douglas and Tony Hall, all of which were served by the plaintiff as factual witnesses.

9. Graham Huntley is a senior partner of the solicitor firm of Lovells in which firm the deceased was employed as a solicitor before her death.

10. The other four witnesses are either colleagues or former colleagues of the 2^nd plaintiff.

11. All five witness statements contain mainly factual evidence by these witnesses relating to the deceased or the 2^nd plaintiff in their work.

12. Mr Fung, appearing for the defendant, has now clarified, quite properly in my view, that the objection of the defendant is not to the entirety of the each of the five witness statements but only to some parts of them in which the defendant says that opinion (rather than fact) has been expressed by the witnesses.

13. In the circumstances, and after Mr Leung for the plaintiff has referred me to marginal note 38/2A/9 of the Rules of the High Court, this issue has now by and large resolved itself in that the parties accept that the five witness statements being in the main factual, any such objections as contemplated by the defendant ought to be raised at the trial rather than at this stage of the proceedings.

The expert report of Professor Teik E Oh

14. That really leaves the real issue in dispute between the parties being the expert report of Professor Oh, an expert on Intensive Care instructed by the plaintiff.

15. The defendant’s objection to Professor Oh’s report takes the following form :

(a)      the opinion expressed by Professor Oh in his report criticizing the standard of care adopted by the defendant’s doctors and nurses have not been pleaded by the plaintiff in the particulars of negligence in the Statement of Claim and therefore the defendant is unable to deal with same since those do not form the plaintiff’s case on negligence;

(b)     some of the matters contained in Professor Oh’s report and on which he expressed opinion are outside his field of expertise; and

(c)     the plaintiff, having already instructed Dr Cohen as its expert on Intensive Care, should not be granted leave to have another expert whose expertise is in the same field without some cogent reasons for doing so.

16. Dealing with the first objection of the defendant, that matters on which Professor Oh has expressed opinion have not been pleaded by the plaintiffs as part of the plaintiffs’ case on negligence.  Complaint is made by the defendant that the following matters have not been pleaded by the plaintiffs in the particulars of negligence :

(a)      Professor Oh’s opinion that the deceased’s respiratory failure was caused by a number of factors, principally her convulsion and the Valium administered to her;

(b)     Professor Oh stated in his report that the deceased, in her depressed consciousness, was unable to fully maintain her airway and to cough up secretions, and both factors gave rise to partial airway obstruction which aggravated her acute respiratory failure and hypoxaemia and that Dr Chan failed to recognize the deceased’s acute respiratory failure;

(c)     Professor Oh’s comment that Dr Chan failed to implement potential life-saving management of acute respiratory failure but instead left after staying a total of only 13 minutes with the deceased when she was in acute respiratory failure and that at the very least Dr Chan should have communicated to the nurses that the deceased was in acute respiratory failure and they had to be prepared for a possible semi-emergency endotracheal intubation;

(d)     the opinion expressed by Professor Oh that if Dr Chan had recognized that the deceased was in acute respiratory failure and if he had remained with her to implement treatment, on balance of probabilities, cardio-respiratory arrest and the death of the deceased would have been averted and that such failure was a serious breach of care; and

(e)      Professor Oh’s postulation that the only explanation of the deceased ABG (Arterial Blood Gas) is total apnoea due to misplacement of the endotracheal tube in the oesophagus.

17. The defendant therefore says that on the basis that these matters have not been pleaded by the plaintiffs as part of the particulars of negligence, what is stated by Professor Oh in his report cannot be relevant to the plaintiffs’ claim in negligence.

18. The defendant submits that because the above matters had not been pleaded, the opinion thus expressed by Professor Oh in his report is not relevant to the plaintiffs’ case as pleaded.

19. I am, however, unable to accept that submission by the defendant.

20. The particulars of the negligence complained of by the plaintiffs are pleaded in paragraph 20 of the Statement of Claim.  It is compartmentalized into three distinct categories, A, B and C.  Part A relates to management of the deceased following her admission into Ruttonjee Hospital.  Part B relates to the management of the deceased following her epileptic fit during the time between 8.40 a.m. and 9.05 a.m. on the morning of 2 January 2000 and Part C relates to the management of the deceased from 9.05 a.m. onwards.

21. For present purposes, the relevant parts of the particulars are Part B and C.

22. Paragraph 20B(iii) pleads that Dr Chan, the doctor responsible for the administration of the valium to the deceased, left the deceased in the care of nursing staff while the deceased was still hypoxic (90%) and on 28% oxygen.  It further pleads that it was negligent of the doctor not to stay with the patient until she had been stabilized and until her oxygen level returned to normal.

23. Sub-paragraphs (iv) and (v) go on to plead that oxygen level should have been increased to 100% which would have prevented the respiratory and cardiac arrest that the deceased had.

24. Sub-paragraph (vi) then pleaded that even if 100% oxygen was not effective to restore the oxygen saturation level, then the deceased ought to have been effectively ventilated following her second fit and that would have ensured that she did not suffer respiratory and then cardiac arrest.

25. In Part C of the particulars pleaded, sub-paragraph (vii) pleaded that the resuscitation given to the deceased when she had the respiratory arrest was ineffective and negligent.

26. Sub-paragraph (iv) further pleaded that the blood gas analyses taken indicated that the cardiopulmonary resuscitation and the ventilation of the deceased were ineffective and inadequate.

27. Lastly, sub-paragraph (ix) pleaded that if the deceased had received competent and effective CPR and adequate ventilation she would have survived her arrest without neurological damage and would have made a full recovery.

28. In so far as the pleading went, whilst it is true that the words “acute respiratory failure” has not been used by the plaintiffs in pleading the particulars of negligence, however, looking at the particulars of negligence as pleaded in its entirety, I agree that the plaintiffs’ pleaded case has adequately covered the matters on which the Professor Oh now states in his report.

29. At best, it can only be said that the postulation of Professor Oh as to the misplacement of the endotracheal tube in the oesophagus is factually new and has not been pleaded by the plaintiff as a fact.  However, that postulation of Professor Oh merely goes to explain why the ventilation of the plaintiff was ineffective and inadequate, a matter which had already been pleaded in the particulars of negligence.  This is a technical matter which can be put right either by a slight amendment to the particulars or even by voluntary particulars furnished by the plaintiffs.

30. I therefore do not accept the defendant’s submission that the matters stated by Professor Oh in his report are matters which are not relevant to the case of the plaintiffs as pleaded.

31. Secondly, complaint is made that Professor Oh has commented on SUDEP (“Sudden Unexpected Death of Epileptic Patients”) as well as nursing practice in his report when his expertise is only on Intensive Care.

32. I do not find any merit in such complaint by the defendant.  As was rightly pointed out by Mr Leung for the plaintiffs, in a case as the present, there will necessarily be a great deal of overlap in the areas of expertise.  Such overlap has resulted in SUDEP being commented upon by all of the other experts instructed in this case and has not been restricted only to the province of the experts in neurology, and medical literature has been furnished in support of their comments.  This is true of both of the defendant’s experts (other than their expert in neurology) Professor Kumana, an expert in Clinical Pharmacology & Therapeutics, as well as Professor Rainer, the expert in Accident and Emergency Medicine.

33. Given the circumstances, and the fact that in commenting on SUDEP, Professor Oh has, like the other experts, also enclosed medical literature to support those comments of his in his report, there can be little justification to disallow him from doing so.

34. Turning now to deal with the last matter raised in objection by the defendant to the report of Professor Oh, namely, that the plaintiffs have already engaged Dr Cohen as the expert on Intensive Care and no good reason has been put forward why there should be another expert in the same field engaged.

35. In this respect, it was pointed out by Mr Leung for the plaintiffs that Professor Oh, on the issue of the inadequacy and ineffectiveness of the CPR and the ventilation to the deceased goes much further than Dr Cohen in his expert report.

36. Indeed it was from following up from the ABG of the deceased that Professor Oh was able to come to the postulation of the possibility of the misplacement of the endotracheal tube in the oesophagus, either initially incorrectly placed or subsequently dislodged, which then caused the ineffective or inadequate ventilation for the deceased.

37. While Dr Cohen in his report recognized from the blood gas analyses as showing poor oxygenation, he stopped short by saying that it called into question the efficiency of the CPR and the adequacy of the ventilation administered.  Dr Cohen did not go further to postulate (as Professor Oh did) the reason for that.

38. Secondly, quite apart from the expert in neurology, of which each party has one, and the expert in psychiatry (which only relates to the issue of quantum and which the defendant has declined to call although leave was granted to them to do so) there remains on the part of the defendant Professor Kumana and Professor Rainer.  While on the part of the plaintiffs there is only Dr Cohen.

39. For the reasons given above, a level playing field can be established by granting leave to the plaintiffs to engage Professor Oh as a second expert in Intensive Care.

40. From a case management point of view, and given the above circumstances I cannot see any valid objections or prejudice to the defendant to allow Professor Oh’s expert report to be adduced by the plaintiffs.

41. In light of this ruling, I shall now hear the parties as to the orders or consequential orders which they seek.

Mr Raymond Leung, instructed by Messrs Burke & Company, for the 1^st and 2^nd Plaintiffs

Mr Alfred Fung, instructed by Messrs JSM, for the Defendant