HO YEE-SUP AND ANOTHER v. DR MAY CHAN YUK-MAY AND OTHERS

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. This is a claim by a relatively young couple for damages for an unwanted birth after sterilization. In medico-legal terms, it was a "wrongful birth".

2. The wife plaintiff was born in 1954. She was married just over 21. She is now 36. She had her first child when she was 22, her second at 24 and her third on the 1st December 1980 at 26 almost 27. They are all boys.

3. Immediately following the birth of her third son, she underwent a sterilization operation. After their three sons, the plaintiffs were surprised by a daughter who was born on 14th June 1985 when the wife plaintiff was about 31. All the four children were delivered by Caesarean section. The first two boys were both delivered by Lower Segment Caesarean Section carried out electively i.e. before the wife plaintiff went into labour (ELSCS). It was evident or, as the doctors put it, indicated that for the delivery of her third son, the wife plaintiff would have to endure another ELSCS. Repture of the scars (scar dehiscence) at birth would be more likely with a history two previous Caesarean sections. Immediately after delivery of the third son by ELSCS, as requested by the plaintiffs sterilization was performed on the wife plaintiff. Sterilization was the "husband's idea" with which the wife plaintiff agreed. Sterilization may be attempted after birth (post partum sterilization - "PPS") following a Caesarean section operation. It may be carried out immediately or at an interval after a normal or induced birth (puerperium) or abortion. Obviously, it can be performed at any time. The PPS operated on the wife plaintiff with her Caesarean section for the third son was by way of the modified Pomeroy method. That involved the tieing (ligation) of a loop of the Fallopian tubes with plain catgut, followed by cutting (resection) and crushing the cut ends of the ligated loop.

4. There is a natural tendency to recanalize in sterilization operations, including one by the modified Pomeroy technique. In a successful operation by the modified Pomeroy method, late recanalization occurs in about four to five cases in a thousand (0.4% - 0.5%). For the purposes of the plaintiffs' claims, I shall call it "the failure rate". If that technique is engaged at the same time as the termination of a pregnancy or in the immediate after-birth, the failure rate would multiply by about 2.4 times (0.96% - 1.2%). Therefore, the sterilization operation undergone immediately following the delivery of the third son by Caesarean section carried a small risk of failure rate of 1%, i.e. one in a hundred. In other words, it was almost 99% sure that further conception of the wife plaintiff could be avoided. Contraception practised with the use of condoms has a success rate of only 94%. The Pomeroy method, as modified, was regarded as a simple, sensible and appropriate technique in conjunction with an ELSCS. Practically and emotionally, the timing after another normal baby was pre-eminently apt. Reversal of the sterilization effect by rejoining the tubes (tubal anastomosis) may be successfully achieved in 75 cases out of a hundred. The other twenty-five women in these statistics will be disappointed.

5. The plaintiffs' complaint is that they were not advised, in advance or at all, on this small risk of 1% failure rate. After the wrongful birth of their daughter, a more drastic operation for sterilization was carried out, in which a section of each of the wife plaintiff's Fallopian tubes was excised. No failure rate has so far been reported in such a more savage undertaking. But medical science has never ceased to surprise : there are 27 reported cases of conception even after hysterectomy!

6. During the pregnancy of the wife plaintiff with her third son, the plaintiffs discussed and decided to seek sterilization. The main reasons were financial and the previous two Caesarean section operations.

7. The wife plaintiff claimed that she was not informed of the need for another Caesarean section operation before her admission for the birth of her third son. A nurse passed a form to the wife plaintiff after she had requested sterilization from a doctor, and she immediately handed it over to her husband waiting for her in the lobby. The wife plaintiff was unclear whether it was a form called the "Request Form" in Chinese at page 5 of the Bundle of Documents, but the other document signed or thumb-printed by the plaintiffs is the back page of exhibit "P1" which is known as the Hospital Folder. In the Bundle of Documents for trial, photostats of that back page may be found at page 7 and page 39. Page 7 contains an additional annotation of a date "27th November 1980", but nothing turns on it. On the left hand column of all three, "P1", page 7 and page 39, there is no translation for the chop of nine Chinese characters, but the parameter of this Consent of the plaintiffs set by the chop was explained by Dr Dominic Li as "a consent for delivery including, if necessary, a Caesarean section." It is reasonably clear that the Hospital Folder for the "Obstetric Unit Record" never left the Tsan Yuk Hospital, and therefore it must have been the Chinese document at page 5 of the Bundle which had been taken away by the plaintiffs for assistance before it was signed or thumb-printed. The wife plaintiff claimed that her husband signed that Request Form the same day after he had consulted his colleagues on it. She had no recollection as to where and when she herself thumb-printed the Chinese Request Form.

8. At one time, the wife plaintiff could not remember the time after admission, when she was first given to understand that she would require a Caesarean section operation for her third son. Then she claimed to have been told about the operation when she was invited to sign on a form for her Caesarean section on her way to Operation Theatre. The wife plaintiff was probably referring to another of her thumb-print next to the baby's foot-print on the back page of the Hospital Folder. She also described how, in response to a request to thumb-print a document, she left her bed and walked towards the nurse. She added that "the nurse was inside the ward". The wife plaintiff was adamant that no one ever discussed the sterilization operation with her. Although she was always cautious and alarmed over matters about her health, she admitted that she did not ask what her sterilization would involve and what effect such an operation would entail. The ambit of her case is, as is her husband's, narrower. It focuses exclusively on the alleged failure to counsel about the small risk of an unwanted pregnancy after her sterilization operation.

9. The husband plaintiff was not permitted to enter the ward. The nearest to the ward he could reach was the Nurses Station. Whatever was the confusion over the Chinese Request Form or the back page of the Hospital Folder and the time at which any particular document was signed or thumb-printed, the wife plaintiff was well and mobile in the ward. The ink for thumb-printing was kept in the Nurses Station where patients were expected to go to have documents thumb-printed and witnessed. She must have presented herself for thumb-printing at the Nurses Station to which her husband had access.

10. On 27th November 1980, the wife plaintiff was admitted into the Ballentyne ward. Dr Dominic Li was in charge. He was a member of the Green Team in the Tsan Yuk Hospital under the tutorship of Madam Grace Tang. In 1980, there were three hospital teams for obstetrics and gynaecology. Madam Grace Tang headed the Green Team, of which Dr To was her assistant. To her team, two more seasoned doctors were attached : Dr Wong was then about to take the membership examination and Dr So had had some years of training experience. Also in the Green Team were two first-year trainees, Dr May Chan and Dr Dominic Li. In addition, the Green Team had the service of three House Officers.

11. It was complained that plaintiffs were never counselled about any risk of future pregnancy. It was principally for her "health" reasons that a decision was taken to undergo a sterilization operation. The wife plaintiff claimed that if she had been told of any future risk of a wrongful pregnancy, the advice "would have left a deep impression on (her) memory". She was positive that she had never been so counselled.

12. The husband plaintiff accompanied his wife to the Tsan Yuk Hospital for the birth of their third son. Apart from this, he had virtually no recollection of any material fact. He could recall little of his discussion with his wife even about the sterilization. He was a monumentally unhelpful witness.

13. Dr May Chan was, by turn, to carry out the Caesarean operation and Sterilization on the wife plaintiff. In her Grand Round in the Ballentyne Ward, Madam Grace Tang decided to supervise the operation. Madam Grace Tang would not be available until 1st December. The wife plaintiff was given home leave until 30th November and her operations, both Caesar and Pomeroy, were rescheduled for 1st December.

14. The wife plaintiff maintained that if she had been advised of the failure rate, she would have taken contraceptive pills or other measures after her sterilization.

15. On 1st December 1980, the third son of the plaintiffs was delivered by Caesarean section and the wife plaintiff underwent a modified Pomeroy sterilization. In 1983, her menstrual period stopped for three months. Thereupon, the wife plaintiff consulted a Dr So in private practice. She was advised that it was a normal symptom for a sterilized patient. In November 1984, after her period had again stopped for three months, she was diagnosed to be pregnant for a like period by Dr So who referred her to the Tsan Yuk Hospital. The wife plaintiff was given an option for registering for birth at the Tsan Yuk Hospital or an abortion at the Sai Ying Poon Clinic. She elected for an abortion, but at the Sai Ying Poon Clinic, she was briefed as to the possibility of "feminine complaints" from an abortion. In any case, the condition of the foetus was questionable, and the wife plaintiff was sent to the Queen Mary Hospital in December 1984 for a foetus viability probe. Her pregnancy was found to be normal and she was lectured as to how heartless it would be to have the bady aborted. The wife plaintiff volunteered the information that she was mainly driven by her selfish fear of deteriorating health, said to be likely to be brought about by an abortion operation, to keep her baby who was born "Ching Yee" on 14th June 1985. "Ching Yee" was in court most of the time. she appears to be a healthy, normal girl. To the plaintiffs, with three sons, it is not difficult to imagine that she must be a real joy to the family. She has almost monopolized the close personal attention of the wife plaintiff who insisted on taking her to and from Kindergarten. I have no doubt that out of care and affection rather than necessity, the parental escort would continue, even after September this year for her primary school. In Udale v. Bloomsbury Health Authority [1983] 1 WLR 1098, at pp. 1109-1110, Jupp, J. was of the view that since the birth of a normal healthy child could not be regarded as anything other than a blessing to the family, it would have been offensive to the notions of public policy for the court to award any compensation for the event as if it had been a calamity, thus tempting all, including medical practitioners, to seek an abortion just to avoid a medico-legal claim. Mr Justice Peter Pain took a different view in Thake v. Maurice [1984] 2 AER 513 following an earlier decision of Watkins, J. in Sciuriaga v. Powell (1979) 123 S J 406. See also the cautious dictum of Waller L.J. in Sciuriaga v. Powell in the Court of Appeal, (unreported), 24th July 1980. At p.667 Letter B, Pain J. was unable to support the rationale of Jupp, J., which he found less than compelling. The English Court of Appeal upheld the decision of Peter Pain, J. in Emeh v. Kensington & Chelsea & Westminster Area Health Authority [1985] I QB 1012. At page 1021 Letter D/E, Waller L.J. rejected the public policy objection as unconvincing on his analysis of the double-edged effect of a monetary award :

"I do not find the arguments in favour of the public policy objection convincing. If public policy prevents a recovery of damages, then there might be an incentive on the part of some to have late abortions. On the other hand, damages can be awarded which may, in some cases, be an encouragement and help to bring up an unplanned child."

At page 1028 Letter H, Lord Justice Purchas summed up the morality debate in terms of the economical reality :

"This child is welcome in the family, albeit she will be a burden, a welcome burden no doubt, to the mother for very long time indeed."

16. It has been decided that a plaintiff in a negligence suit for a wrongful birth cannot be expected to, in mitigation of damages, remove her dilemma by undergoing an abortion. See Emeh v. Kensington & Chelsea & Westminster Area Health Authority supra. At page 1024 Letter H, Slade L.J. did not subscribe to the view that except for a medical or psychiatric need, a woman was unreasonable in declining to abort an unwanted pregnancy after sterilization. The English Court of Appeal rejected a defence of novus actus interveniens and a charge of failure to mitigate loss mounted on a mother's decision not to terminate her wrongful pregnancy. It was held that the mother's "failure to do so was not so unreasonable as to eclipse the wrong doing" of the surgeon.

17. These cases were referred to, but no concession was specifically made by Mr Sarony to their rationes decidendi. I need say on the record that I regard myself as properly guided by the conclusions reached by the English Court of Appeal in Emeh.

18. The plaintiff's claim in this action was encapsulated in para 4(1) of their Re-Amended Statement of Claim which reads as follow:

"4(1)    In the premises, it was part of the duty of care owed by the defendants to the plaintiffs to give the plaintiffs a warning that there was a risk that the 2nd plaintiff may become fertile again and that they should be alerted to this possibility."

For such alleged negligence resulting in the wrongful birth of "Ching Yee", the plaintiffs sue Dr May Chan as the 1st defendant, Madam Grace Tang as the 2nd defendant, and the Director of Medical and Health Services as the 3rd defendant.  In his closing submission, Mr Sarony, counsel for the plaintiffs, stated his stance in these terms :

"If Your Lordship found a fact there were two bodies of obstetricians and gynaecologists in Hong Kong in 1980 and one was of the view that it was unnecessary to counsel on failure rate in relation to sterilization operation, then my clients would fail to establish negligence."

19. Dr Dominic Li, Dr May Chan and Madam Grace Tang were all avowed followers of the practice of counselling about the small failure rate in a sterilization operation. Mr Sarony submitted that it was absurdly unreal for these doctor defendants, themselves professing to practise counselling about the remote risk of recanalization and unwanted pregnancy, to try to evade liability by relying on an alleged irreconcilable standard of practice to justify a shortfall, if any, in their own performance. Counsel argued that the defence is particularly unsavoury when Madam Grace Tang, head of the Green Team, had herself been trained in the Royal College of Obstetricians and Gynaecologists which staunchly advocated counselling. Madam Grace Tang and her Green Team put into use this practice. Moreover, so Mr Sarony stressed, the defendants, including the Director of Medical & Health Services, must have also known that a fair proportion of obstetricians and gynaecologists in Hong Kong had received similar training in the Royal College or its affiliated institutions. But one must not lose sight of the central issue, i.e. whether in 1980 in Hong Kong, there was a responsible body of obstetricians and gynaecologists who would not counsel on the risk of recanalisation and unwanted pregnancy. The general practice in England in or about 1980, the Royal College training, the preference and the self-discipline of Madam Grace Tang and Dr May Chan, now also a member of the Royal College, and the same code of conduct followed by some members of the professions in 1980 and their background are largely evidential matters. Within the narrow compass of the plaintiffs' pleaded case of negligence, my initial criticism as echoed by Mr Sarony can have but little bearing. A comparable situation may be found in Sheila Cronin v. Islington Area Health Authority, (unreported) the judgment of which was delivered by Caulfield J. in the Queen's Bench Division on 18th February 1987. In that case, the consultant Mrs Spencer practised counselling. Nevertheless a defence was successfully run that there was a responsible body of obstetricians and gynaecologists who would not have included such a warning in their pre-operation advice.

20. Ultimately, as Mr Sarony submitted, the Hong Kong trends and whatever advice the plaintiffs received in 1980 must be judged by the evidence adduced in this case. The practice in the United Kingdom may reflect the Hong Kong scene in 1980. It cannot be decisive.

                    "To establish liability by a doctor where deviation from normal practice is alleged, three facts are required to be established. First of all, it must be proved that there is a usual and normal practice. Secondly, it must be proved that the defendant has not adopted that practice, and thirdly (and this is of crucial importance) it must be established that the course the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care". These are the words of Lord President Clyde said in the Scottish Case of Hunter v. Hanley (1955) SLT 213 at p.217. This has become the touchstone with which medical negligence cases are tested in Scotland. This formulation of principle has been acknowledged by the English courts with a measure of variations. It is claimed that this reformulation of the rule has led to widely-ranged debates in English medical negligence litigation. See a contributed article "Medical Negligence, Hunter v. Hanley 35 years on", The Scots Law Times 1990, Part 46, 16th November 1990, p.325 at p.327.

21. The English position for our present purposes seems to be relatively less involved. As long ago as 1957, in his summing up to a jury in Bolam v. Friern Hospital Committee, [1957] 1 WLR 582, at p,587, McNair J. referred to the clear principle propunded by Lord President Clyde but introduced his own guideline : "It is just a question of expression. I myself would prefer to put it this way, that he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, and I do not think there is much difference in sense. Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view." The test of McNair J. cannot be the same. Another passage of McNair J.'s summing up in Bolam supra. at p.586 "the standard of the ordinary skilled man exercising and professing to have that special skill" was repeated with approval by Lord Edmond-Davis in White House v. Jordon, [1981] 1 WLR 246 at p.258. In Maynard v. West Midland Regional Health Authority, [1984] 1 WLR 634 at p.638, Lord Scarman unreservedly supported Lord President Clyde. The Bolam test was re-ventilated and re-affirmed by all the law locus except Lord Scarman in their Lordships' House in Sidaway v. Governor of Bethlem Royal Hospital, [1985] 2 WLR 480. This case falls to be decided on tire Bolam test.

22. Returning to the rather subjugated allegation of the plaintiffs', viz. whether a patient for sterilization should be warned of the risk of failure, Gold v. Haringey Health Authority [1987] 3 WLR 649 is a decision in which a responsible body of medical opinion was found to exist in 1979 in England, who would not have warned a sterilization patient of the small risk of recanalisation and unwanted pregnancy. Naturally, if a patient of sterilization is inquisitive, the surgeon would be obliged to keep her sufficiently well-informed. See p.655 Letter H per Lloyd L.J. What was in issue in Gold was the volunteering of unsought information about the risk of medical treatment. All the witnesses, including those called by the aggreived patient, testified that they would themselves have counselled about the risk of failure rate in a sterilization operation but that there existed a body of responsible English doctors in 1979 who would not have warned on those lines. See p.658 Letter A. Gold was decided in mid April 1987. Some two months earlier in February, before Caulfield, J. in Sheila Cronin v. Islington Area Health Authority, supra. Professor Brandt testified that a warning of the small failure rate in tubal ligation should have been given in 1981. Mr James Diff, a distinguished gynaecologist and a then senior lecturer cum honorary consultant at the University of Leicester, described the gradual change in practice for the 10/15 years before 1987. His understanding was that the gradual change "was partly fashion and partly because of the fear of doctors of the medico-legal consequences". Mr Diff disclosed that in 1979 he did not himself include such counselling in his advice to his sterilization patients. He stated that "this question of giving a warning varied between consultants, and it was not until 1984 that the consultants (at Leicester) met and added the warning that should be given in a situation such as this". "I am sure" so Mr Diff concluded, "there was a difference of opinion until 1982 .... There was no uniform practice at Leicester till 1984, and I certainly would not castigate consultants who did not warn in 1981". His account was accepted by Caulfield, J. Earlier in time, in 1984, Mr Maurice confirmed to Peter Pain, J. in Thake v. Maurice supra his own practice of counselling. No evidence of other medical inclinations was led. Dr Walzman, Mr Greenhalf, Mr Woolfson and Dr Pugh all testified to following the same practice before Ognall J. in Jones v. Berkshire Area Health Authority, (unreported, judgment was delivered on 2nd July 1985).

23. The plaintiffs in this case leaned heavily on a yet later unreported decision. That is the case of Keane v. Plymouth Health Authority decided in 1988. It is referred to in a reputable medical journal, "The AVMA Medical & Legal Journal", Issue Number Two, April 1990 at page 10 ("AVMA" for "Action For Victims Of Medical Accidents"), in an article contributed by a gentleman on the editorial staff under the heading of "Failed Sterilisation and Wrongful Birth". At p.12, it reads :-

24. Another reference to Keane as decided by Steyn, J. can be found in a summary of his decision in Nigel Harris' "Medical Negligence" published by Butterworths at p.710, para.31.153 :

"It has been accepted for 20 years that women seeking sterilisation should be warned that the operation should be regarded as irreversible. It should not be contemplated or undertaken, therefore, unless childbearing is complete. This warning is given almost without exception. However, emphasis on the irreversibility of sterilisation leads many women to believe that this also means that it cannot fail. But failure of sterilisation is a relatively common occurrence, which is in no way related to the concept of irreversibility. The medical defence organisations have been advising for several years that their members should take care to warn of the risk of failure (Figure 31.11). It has been accepted by the courts in Keane v. Plymouth Health Authority that since 1979 a surgeon does have a duty to warn of the risk of failure." (Emphasis supplied).

25. In Gold, all the medical witnesses went one way that whilst they would have themselves warned patients of the small risk of failure rate, there was a responsible body of professional members who would not, when unasked, have done so. The court was not called upon to adjudicate on any conflicting medical opinions. On the other hand, in Keane, Professor Huntingford and Sir John Dewhurst were antagonistic in their views on warning of the failure rate in 1980. Keane was not so much decided on judicial preference of Professor Huntingford's evidence over that given by Sir John Dewhurst. Rather it was felt that the view expressed as a medical expert in court by Sir John did not seem to have been consistently held in his own publications in 1976 and in 1981. The later edition "was already in the pipeline in 1980". The eminence of both Sir John Dewhurst and Professor Huntingford cannot be doubted, but the decision in Keane was reached on what seems to be a blatant self-contradiction of no less an authority than Sir John. That the rationale of the judgment as given in the synopsis was obliquely critical of Sir John's scholastic integrity is almost beyond belief. There must be some explanation. The parties tried in vain to secure a copy of the judgment in Keane. The accuracy of the synoposis in the above issue of the AVMA Medical & Legal Journal and Nigel Harris' "Medical Negligence" cannot be verified. It is not even known whether Gold was cited and how, if indeed it was,  Gold was disposed of. In Nigel Harris' "Medical Negligence", the contributors of which included Professor Huntingford, the practice to warn of the risk of failure was said to have been entrenched only since 1979. See para. 31.153 at p.172. Even if 1979 is the cut-off date for England, there is no telling that by 1980 the same duty to warn had successfully filtered through to Hong Kong. For all these reasons, Keane seems to have little to offer.

26. The wife plaintiff displayed a fair level of intelligence, though apparently lacking in formal education. She was unable to recollect most of the events, particularly with reference to dates. Her difficulty was magnified by her ignorance even as to the number of days in the month of November. After the more brutal sterilization in 1985, she has put her husband on condoms in sexual intercourse. She was atrociously cross-examined on the basis that in 1988 she mentioned no such contraceptive practice since 1985 to a doctor in the Prince of Wales Hospital. The wife plaintiff sought to explain that the subject-matter was hardly broached in the interview. When the record of the Prince of Wales Hospital was produced, despite an objection by counsel for the plaintiffs, the entry against "Contraception - Present Method :" read "Sterilization done in 1985 at PWH". That lends some support to the version given by the wife plaintiff. The notes were not even taken by a doctor as intimated but by a then medical student, Ms Helen Ko. I remain, as I was prior to the cross-examination on her allegedly contradictory version given to a doctor in the Prince of Wales Hospital in 1988, impressed by her sincerity. She was particularly sensitive to matters concerning her health. If she had been advised against the small risk of failure rate, she was positive that as an important piece of information, it "would have left a deep impression on (her) memory". The husband plaintiff's evidence is discouraging. The wife plaintiff appeared genuine and the seemed to be veracious in the voicing of her grievance. I accept that she has used condoms even after her 1985 savage sterilization operation out of fear and distrust, though it must be an absurdity in utility. The favourable impression that I have gained from her testimony and demeanour should not be allowed to be lightly displaced except by very cogent evidence. It is reported that "some 50% of the patients do not recall what they were told almost immediately after out-patient consultations : tape recording of the interview and the patient's interpretation of it have demonstrated this". See "How to Avoid Medico-Legal Problems in Obstetrics and Gynaecology", p.59, Cap. 11 "Sterilization - Legal Pitfalls" by G. Chamberlain and C. Orr, 1990. Dr Moolgaoker, called on behalf of the plaintiffs, believed that 90% of patients would readily appreciate the medical advice given. Mr Moolgaoker was speaking on immediate comprehension rather than recollection. It was further acknowledged that much would depend on the doctor, the patient, the effort made and the manner and circumstances in which information was fed. Mr Moolgaoker was ultimately driven to the position that he "would not argue with this finding" of as many as half of the patients being remarkably forgetful. If I found against the wife plaintiff, this probably would be the reason for her unshaken belief in what she put up as a just claim.

27. I will deal with the medical evidence. Mr Moolgaoker and Mr Austin-Pugh were experts for the plaintiffs and Mr K.H. Lee and Mr Lewis Mullins for the defendants. Far be it for me to have to reiterate the formidable academic achievements and experience of these gentlemen. They are all qualified and I accept them as expert witnesses.

28. Failure of a tubal ligation, so Mr Moolgaoker explained, mostly arises from faulty technique, recanalization or fistula formation. In these proceedings, we are dealing with the neglect to warn as to the inherent failure rate and not negligence caused by other forms of lack of care. The nature of the operation is also not in issue although there existed in 1980 more dependable surgical means than the modified Pomeroy, such as the Oxford technique, Stallworthy technique, Irving's technique or the Shirodkar's technique. Mr Moolgaoker took the view that in this case the patient should have been warned of the irreversibility of the operation and the remote possibility of the object of the exercise being frustrated in future. Reversal in a modified Pomeroy operation enjoys a 75% success rate, but the consensus was that the permanent nature of the operation should nevertheless be highlighted without undue emphasis. The common sequelae of a sterilization operation include period problems (menorrhagia) in up to a quarter of the patients operated on and a much smaller percentage of these patients experiencing pain during and after intercourse. Psychologically, the possibility of regret is real. More importantly, one in every ten to twelve failures results in an ectopic pregenancy which means the foetus develops elsewhere than in the normal site of the uterus. Ectopic pregnancy is, in many instances, a life-threatening situation. There is all the more reason, so Mr Moolgaoker summed up, for a prudent doctor to alert his/her patient to this danger. She should not be lulled by a false sense of security into treating her period problems as a mere post-operation symptom. She should promptly seek assistance, for instance, by submitting to an early ultra-sound examination. An ectopic pregnancy may then be detected for an immediate termination. The small risk of failure and the possibility of a probably life-threatening ectopic pregnancy had been well known to obstetricians and gynaecologists the world over from the 70's onward, but they were nurtured only much later in the textbooks which are usually five, ten years behind the times. Mr Moolgaoker concluded that there was a groundswell of professional opinion long before the advice or instructions for warning patients of failure rate appeared in print. Mr Moolgaoker maintained that the practice of so counselling dated back to 1971 and that by 1980 all the hospitals in the United Kingdom were counselling their sterilization patients very carefully. The World Health Organisation saw fit to give adivce on the need for giving a warning of this nature in 1976 and in 1980. Mr Moolgaoker was firm on his observation that all who had received training or obtained membership from the Royal College or its affiliated institutions must similarly, on their requisite world-wide exposure, honour the duty to warn sterilization patients cautiously, even in a Hong Kong setting. He informed the Court that there was no self-respected obstetricians and gynaecologists in 1980 in the United Kingdom who would have held the view that it was not necessary to counsel about the small failure rate prior to sterillzation. The warning would have, at least, provided a much needed opportunity for the couple to opt for a more dependable technique, vasectomy or even both.

29. Mr Austin-Pugh worked under Mr Moolgaoker and described him as one of the greatest surgeons in the United Kingdom. That compliment was not challenged as underserving. After a time in England and Saudi Arabia, Mr Austin-Pugh commenced practice in Hong Kong in 1980 which is the year under consideration. He corroborated the background and evolution so very succinctly given by Mr Moolgaoker. He made time for cultivating his local colleagues in the early years of his Hong Kong practice. Amongst his social and professional acquaintances, he found no reputable body of medical practitioners in obstetrics in Hong Kong in 1980, who would not have regarded it as a pre-requisite to warn a patient about to undergo sterilization of the risk of failure. He agreed with Mr Moolgaoker that advice on both the irreversibility of the operation and the risk of failure rate was somewhat contradictory in concept and that the surgeon must retain a residual discretion to limit or withhold information imparted to the patient, which in his rightly-held view would or might otherwise unjustifiably deter a patient from receiving essential treatment. Therefore, a surgeon must use his discretion in presenting a well-balanced scene to his or her patient. One should not over-emphasize any aspect but a clear caution on irreversibility is still necessary. Indeed, both Mr Austin-Pugh and Mr Moolgaoker would not expect their patients to leave their surgeries with the impression that after sterilization, she could still have more babies later. Mr Moolgaoker and Mr Austin-Pugh both believed in the wisdom and practice of keeping notes of such counselling, in which irreversibility and failure rate ought to be mentioned. Mr Moolgaoker found it desirable to allow the patient time to reflect and deliberate on the advice. Hence, the date of counselling should be recorded.

30. Mr Moolgaoker did not personally know any U.K. gynaecologist or obstetrician not warning about the small risk of failure in 1980. Mr Austin-Pugh was at a loss as to where this elusive squad of Hong Kong obstetricians and gynaecologists had been, who, the defendants now claim, would not have counselled about the risk of recanalization.

31. Mr Lewis Mullins was attached to Nethersole Hospital in Hong Kong from 1968 to 1977. He was the head of the Department of Obstetrics and Gynaecology between 1970 to1977. Between 1973 to 1977, he was also the Medical Superintendent of the same hospital. He joined a sizable local firm of medical practitioners in 1977, and he is still a member today. He was Honorary Clinical Lecturer in his field with the Hong Kong University from 1971-1980. He was an Examiner on Obstetrics and Gynaecology for the Licentiate Examination of the Hong Kong Medical Council between 1979 and 1980. He was a member of the Preliminary Investigation Committee of the Medical Council in 1974 and between 1976 to 1977. He was President of the Hong Kong Obstetrical and Gynaecology Society between 1975 to 1979. He was President of the Hong Kong branch of British Medical Association between 1976 and 1979. He was a member of the Joint Medical Ethics Advisory Committee of the Hong Kong Medical Association and the British Medical Association between 1987 and 1989. He has since 1990 been Vice-President of the Hong Kong branch of the British Medical Association. He is a Founder Fellow of the Hong Kong College of Obstetrics and Gynaecology in 1988, and since 1989 he has been its council member. He has since 1989 been a member of Post-Graduate Training Committee and the Chairman of Fellowship Selection Committee of the same college. Mr Mullins testified that there was no such counselling in the Nethersole Hospital in 1977. He explained that counselling about such risk was an American practice in response to litigation before it gradually spread to the United Kingdom and other countries. Even for the United Kingdom, he did not believe that such counselling had by early 80's become a routine and that most hospitals there followed any universal practice in the late 70's and early 80's. His opinion was that as far as Hong Kong was concerned in 1980, most of the obstetricians did not regard it their duty so to warn. The Hong Kong University was a forerunner in advising surgeons so to counsel, but even in 1980, except for University hospitals, such as Queen Mary Hospital, Tsan Yuk Hospital, Queen Elizabeth Hospital, Princess Margaret Hospital, there was no standard hospital practice here for such counselling. The University tended to lead and react sooner than others to events in the United Kingdom and elsewhere overseas, but Mr Mullins recalled that most of Hong Kong in 1980 had not adopted any set practice of counselling. Warning of failure rate has finally become the general practice in Hong Kong but Mr Mullins is no less cynical to-day. He was quick in pointing out that except for avoiding the medico-legal claim, there is no medical value in giving a warning about so small a risk because the result of the operation would not be different. At times, it could even be self-defeating so to counsel a couple as it would induce a feeling of uncertainty, cause disruption in normal married life and leave them in a state "very unsettling". What is sought in sterilization is peace of mind with no more fear of pregnancy. Mr Mullins discarded the risk of an ectopic pregnancy as one even more remote, and he believed that in any case most women would seek advice after missing the second if not the first period. In addition, so Mr Mullins elaborated, other symptoms not infrequently accompanying an ectopic pregnancy would alert the patient. Even today, according to Mr Mullins, many doctors are still sceptical of the need for mentioning the risk implications of a sterilization operation to the patient.

32. Mr K.H. Lee was graduated as a doctor in Hong Kong in 1958. He had a long service with local hospitals until 1975. Since 1975, he has been in private practice. He was a member of the Hong Kong Medical Council between 1974 to 1977. He was President of the Obstetrical and Gynaecological Society of Hong Kong between 1973 to 1975. He was Honorary Secretary of the Hong Kong Medical Association between 1970 to 1982. He has since 1990 been a Vice-President of the Hong Kong Medical Association. Since 1988 he has been Chairman of the Joint Hong Kong Medical Association and British Medical Association Ethics Advisory Committee and a member of the Licentiate Committee of the Medical Council of Hong Kong as well as the Chairman of the Exemption Sub-Committee of the Licentiate Committee. I do not propose to embark upon his enormous list of publications, a fair portion of which are allied to his local experience. He maintained that there was no standard practice in Hong Kong to counsel about failure rate of tubal ligation in 1980 and that even for Government hospitals the practice of warning patients of such failure rate varied from hospital to hospital and, as a matter of fact, from unit to unit within the same hospital. He concluded that, the majority of profession in Hong Kong in 1980 would not give such a warnings. As the Honorary Secretary of the Hong Kong Medical Association for 12 years between 1970 to 1972, if he had been consulted in 1980 he would have advised that it was not obligatory in Hong Kong so to counsel. However, his advice had never been sought. The trend to counsel for obtaining an informed consent had its origin in America. By 1980, the practice of counselling about failure rate in tubal ligation had almost come into full swing in the United Kingdom but, according to Mr Lee, definitely not in Hong Kong. He shared the view of Mr Mullins' that it was out of balance and might well be self-defeating to give such a warning which was motivated by a desire to avoid litigation rather than any genuine concern for the patient's welfare. Mr Lee was also of the opinion that a woman would, in any case, seek early medical treatment after missing her period.

33. To all medical experts, it was incredibly naive of a couple to practise contraception after sterilization by using condoms. After all, sterilization is by far a much safer form of contraception.

34. Mr K.H. Lee was not invited to discuss what his own counselling practice was. He was not well versed with the attitude of the University today. He was inaccurate on the information given at p.95 of the 4th edition of a Handbook published in 1974 by the International Planned Parenthood Federation on the subject of sterilization. He had not had the benefit of the opinion expressed by Professor Dewhurst in his "Integrated Obstetrics and Gynaecology for Post-Graduate", 2nd edn., 1976 to the effect that "it is only fair that the very low possibility of failure should be mentioned".

35. Of the seven gynaecologists before me, Mr Moolgaoker, Mr Austin-Pugh, Mr Mullins, Mr K.H. Lee, the 2nd defendant Madam Grace Tang, the 1st defendant Madam May Chan and Mr Dominic Li, five in 1980 followed the practice of giving the warning which is featured in this case. The practice of Mr K.H. Lee was not solicited, and only Mr Mullins categorically stated that he did not so counsel in 1980.

36. Insofar as the cases commended for my consideration are sought to be relied upon as establishing any practice of obstetricians and gynaecologists at a particular time, let no one overlook the crucial fact that these cases were decided solely on the expert evidence the litigants had chosen to place before the courts in an adversarial system. There is cause for debate on the conclusion reached in Keane. No judgment of Steyn, J. was made available for a more critical examination. Mr Maurice in Thake and every doctor in Jones were practising counselling. But Mr Diff as against Professor Brandt in Cronin, all the doctors in Gold, Sir John Dewhurst versus Professor Huntingford in Keane are exponents on the other side of the fence. It is reasonably clear therefore that there have throughout been respectable members of the profession who acknowledge, with conviction, the existence of a body of responsible doctors in England as late as 1979 and 1980 - perhaps 1982, who would not have given any warning as to the failure of female sterilization to a patient in the position of the wife plaintiff's. By the same token, it was hardly surprising to hear the sweeping condemnation from Mr Moolgaoker and Mr Austin-Pugh.

37. But the experts were in agreement that it was a matter of impression. The plaintiff's expert Mr Austin-Pugh just came into private practice in Hong Kong in 1980 and he finally agreed that "those members of the profession who were long-standing, in particular, and other made a conscious decision that counselling on this area was not appropriate, would not in 1980 have counselled". Mr Moolgaoker recognised the fact that he had no opportunity to garner impressions of the practice of the profession in 1980 in Hong Kong. However, to both he and Mr Austin-Pugh it appeared to be inconceivable that with most of the practitioners here receiving training from the Royal College or institutions affiliated with the Royal College, the need for counselling could have been so capriciously ignored in Hong Kong in 1980. No survey or verification of the practices in Hong Kong was submitted for the comfort of this Court. In fact, none is available.

38. It would be unprofitable to roam over more publications alluded to in counsel's submissions. The countervailing views expressed with confidence by the experts on opposite sides in the English decided cases and in this case provide ample food for thought. But it must not be forgotten that the central issue is the Hong Kong practice in 1980 and that each case must be decided on its particular established facts, including medical views.

39. The weight of evidence of local practice from Mr K.H. Lee and Mr Mullins is overwhelming. Their roots are in Hong Kong and both have substantial local connections and expertise. They have enjoyed a close parochial link with every facet in this field from educational institutions to professional bodies to community services. They have occupied and still occupy leadership and responsible positions. I have no hestitation to accept the views held by Messrs. K.H. Lee and Lewis Mullins and find that in 1980, there was a responsible body of obstetricians and gynaecologists practising in Hong Kong who would not have counselled the wife plaintiff about such failure risk.

40. I have outlined my evaluation of the evidence of the plaintiffs, particularly the wife plaintiff. From the outset, I have to say that I am at least equally impressed by Madam Grace Tang's evidence and her demeanour. She recounted an event in her membership examination in 1977, in which by sheer coincidence in her clinical, she was given a patient requesting for sterilization without any organic pathology. From the end of November 1976 to April 1977, she had been working under the auspices of Professor Morris in his Psychosometic Department of Obstetrics and Gynaecology on counselling of patients, including sterilization. Soon after she returned to Hong Kong, a Psychosometic Clinic in Obstetrics and Gynaecology was set up in the Sai Ying Pun Clinic. By 1980, she had become head of the Green Team in the Tsan Yuk Hospital. She practise counselling about the small risk of failure rate in her unit. She constantly monitored counselling of her team by making unscheduled checks on her doctors and patients. She was satisfied with the performance of her team. She had no recollection of the wife plaintiff but reconstructed the events from the standard practice she set up for her team, her Grand Round to the ward, her participation in the operations and the documentary evidence, such as the Request Form in Chinese, the Consent for Delivery, including a Caesarean operation together with the Consent for Sterilization on the back page of the Hospital Folder and the notation "PPS" on its front page. All these were either signed or thumb-printed by the plaintiffs, with the back page of the Folder duly witnessed by a nurse in the ward. Madam Grace Tang was perfectly satisfied that the plaintiffs must have been warned of failure risk.

41. The usual advice on a sterilization operation given by Madam Grace Tang, Dr May Chan and Dr Dominic Li at the Tsan Yuk Hospital was almost in the same format.

42. Madam Grace Tang was composed and assertive with as well perspicuity as candour. She is one of the most impressive witnesses in my experience. She told the Court that the Chinese Request Form for sterilization would be either handed out by or returned to a doctor or a nurse. Whenever a doctor was involved with the dissemination or receipt of this form, some counselling would be done, and if the Chinese Request Form had been returned to a doctor on admission, counselling would have then been given in the admission room. The Chinese Request Form was passed out by a nurse, and the wife plaintiff was unable to assist this Court as to the identity of its recipient upon its return.

43. For the defendants, no counselling at this stage was sought to be proved. On the contrary as I shall endeavour to show, it is doubtful whether any warning had been given on admission. The Hospital Folder and the Treatment Sheets, which commence from page 19 of the Bundle of Documents, and other papers were prepared on admission and thereupon sent up, in the charge of an amah together with the patient, to the ward. It was the Ballentyne Ward in this case. From the notes made on a Treatment Sheet (page 19 of the bundle), it would appear that the House Officer admitting the wife plaintiff must have counselled on the Caesarean operation, but on another entry, viz. "PPS?" in those notes, Madam Grace Tang doubted if any or any full warning about sterilization had been given by the House Officer. The relevant portions of these notes of the House Officer read : "Fast after midnight for (E) LSCS mane and PPS (?)". Evidently, Post Partum Sterilization appeared to be questionable to the House Officer, and Madam Grace Tang was not prepared to assume that any counselling had been offered.

44. But according to Madam Grace Tang, when the patient was admitted to the Ballentyne Ward, the set practice of the Green Team required the doctor in charge to counsel "all over again or double-check". Dr Dominic Li was the doctor in charge of the Ballentyne Ward.

45. A trainee would have to create on the front page of the Hospital Folder a box called the "PPS Box" after he or she was satisfied that the patient had been counselled for sterilization, that her consent had been obtained and that the case was one fit for sterilization. The senior doctor's authorization for sterilization was necessary and approval was signified by his initialling the "PPS Box". Dr To initialled the box.

46. Madam Tang was adamant that the Chinese Request Form and the Consents on the back page of the Hospital Folder would not have been allowed to be signed or thumb-printed without proper counselling.

47. Finally, in every operation she supervised as head of the Green Team, she would enquire whether the patient had been counselled. No operation would have been allowed to proceed if Madam Grace Tang had not been completely satisfied that the counselling practice she had introduced to and imposed on members of her Green Team had been followed.

48. Madam Grace Tang explained that if a husband accompanied his wife on admission, waiting in the Nurses Station outside the ward, the relevant forms would not have been signed by the husband unless he had also been duly counselled. Madam Grace Tang's observation is applicable to the husband plaintiff who was waiting outside the ward and signed the forms. The signatures of the husband plaintiff on back page of the Hospital Folder were witnessed by the nurse of the Ballentyne Ward. On Madam Grace Tang's analysis, he must have been also properly counselled.

49. Dr May Chan, the 1st defendant, and Dr Dominic Li were then the first year trainees. From the Treatment Sheets, she told the court that the wife plaintiff was initially scheduled only for Elective Lower Segment Caesarean Section (ELSCS). That would probably account for the House Officer's uncertainty symbolised by his "PPS (?)" on a Treatment Sheet. Dr May Chan corroborated, in substance, Madam Grace Tang's evidence of the standard procedure of the Green Team. It was Dr May Chan who put down the "PPS Box" on the front page of the Folder. I attach no real significance to the variations in the narratives of Dr May Chan and Dr Dominic Li as to how the "PPS Box" came to be made on the front page of the Folder. Dr May Chan was responsible for the "PPS Box" and she confirmed that she would not have created the box unless counselling had been given, necessary consents had been obtained and both operations were regarded as appropriate. A more informative entry, preferably dated, as to counselling about irreversibility and failure risk would be welcome, but the then standard procedure merely required the making of the "PPS Box" and its initialling for authorization. It was also her practice to visit the patient the morning before the operation, particularly when the wife plaintiff was 39 weeks pregnant and could have gone into labour over the weekend. She would have again spoken to the wife plaintiff about the nature and effect of the sterilization operation and the small risk of the tubes become patent later giving rise to future unwanted pregnancy. She would have sought confirmation from the patient of her continued desire to undergo the requested sterilization operation. She would also have sought clear instructions on the decision to be taken in the eventuality of any palpable sign of an abnormal birth. This was the second or third Caesarean operation in her fifth month of training and she would have exercised extra caution.

50. Dr Dominic Li was also called. He confirmed that he must have counselled in the Ballentyne Ward. Without counselling, so Dr Dominic Li testified, the Consents on the back of the Hospital Folder would not have been processed and witnessed by the nurse, although he had no personal recollection of counselling both the wife and the husband plaintiffs. Dr Dominic Li offered a less than satisfactory explanation for the creation of the "PPS Box" by the other trainee. Unlike Dr May Chan he would simply put the patient on notice that the sterilization operation would be withheld upon discovering any sign of an abnormal birth. He volunteered his view that the Consent for delivery, if necessary, by a Caesarean section was implied by the very presence of the patient in a labour ward. The general tenor of his evidence is that despite his own view, the practice of the hospital in 1980 required the signing of a Consent Form for delivery and that the form could not have been completed without proper counselling. The true effect of Dr Li's evidence is, therefore, that the wife plaintiff, as well as the husband plaintiff, must have been properly counselled.

51. There existed in 1980 the prevalent standard practice for the Green Team under the meticulous supervision of Madam Grace Tang. She monitored the practice closely. Madam Grace Tang procured final confirmation in the Operation Theatre in every operation under her tutorship. Not only was the system well entrenched and its observance jealously guarded, in this case, she also had the benefit of a Grand Round in which she decided to oversee the operations rescheduled for 1st December. There is an uncertainty as to what counselling, if any or at all, had been offered by the admitting Housing Officer, but the trainee in charge of the Ballentyne Ward and the other trainee who carried out these operations could not have, in the circumstances, failed to warn. Dr May Chan provided a vivid reconstruction of her additional morning visit before the operations. In sum, Madam Grace Tang would not have rescheduled the operations if she had had misgivings as to counselling. She sought confirmation in the Operation Theatre. Dr Dominic Li must have counselled as the trainee doctor in charge of the Ballentyne Ward, and the nurse would not have processed the Consents without instructions that counselling had been given. Dr May Chan would not have created the "PPS Box" without proper counselling, and she paid the wife plaintiff a morning visit for final instructions. Is it possible that the precautionary measures so taken could have all failed?

52. Corroboration is provided by no less than five documentary sources, namely, the Chinese Request Form, the Consents on the back of the Hospital Folder, the witnessing of the nurse in the Ballentyne Ward, the "PPS Box" and its authorization by a senior doctor.

53. There are no known material lapses or lacunae. The evidence of counselling about the small risk of failure rate, though predominently reconstructed, is cogent and overwhelming. It is virtually unacceptable that Madam Grace Tang was in any way disapported in her effort in this instance. There is no evidence that the House Officer was given the Chinese Request Form. It would appear that the wife plaintiff was initially shown on a Treatment Sheet as having only a Caesarean operation. The House Officer also duly recorded his doubt by including the "PPS (?)" symbol in his notes. Even this could not be a sign of an inadvertent omission. I have also borne in mind the attacks mounted by Mr Sarony at the set practice and procedure of the Green Team, but they have no more than peripheral importance. I find that both plaintiffs were properly warned. Bearing in mind their educational background, status in life and the acknowledged general poor power of retention of some patients, I am driven to conclude that the plaintiffs have, on probabilities, wholly forgotten the advice they received on the usual risk of failure rate in tubal ligation.

54. In conclusion, there was no duty of care owed to the plaintiffs so to warn in 1980, as indeed there was then a responsible body of obstetricians and gynaecologists in Hong Kong who would not have counselled about such failure rate. Moreover, on the evidence, I find that the plaintiffs were so warned.

55. Otherwise, I would find that $600 per month as the additional costs for maintaining and upkeeping Ching Yee. I accept that Ching Yee, in the situation of the plaintiffs, would not likely be maintained beyond the age of 16. I would give an eight years' purchase, a higher figure than usual for the reason that the mortality rate and life expectancy of a young person up to 16 is more optimistic. I would readily agree with counsel's concession that loss of earning should be limited to September 1991 from about December 1984. The wife plaintiff was doing "outwork" at about $1,000 plus another $400 - $500 in November 1984. That would be, in real terms, approximately $2,000 today. I would take the mean of $1,500 and $2,000 as $1,750. The total loss would, therefore, be $1,750 per month from December 1984 to September 1991, plus $600 a month as additional maintenance for a period of eight years. Stress, pain and anxiety would attract a compensation of $30,000 on the basis of the award of £2,750 made in Jones v. Perkshire Area Health Authority, the judgment of which was delivered by Ognall J. on the 2nd July 1986. The decision of the plaintiffs not to undergo an abortion for the pregnancy of Ching Yee cannot, on the authority of Emeh, sustain the defence of novus actus interveniens or a failure to mitigate damages.

56. On my findings, the plaintiffs fail in their claims against the defendants. I find for these defendants on the issue of liability. This action is accordingly dismissed with an Order nisi for costs against the plaintiffs, such costs to be taxed on Legal Aid Regulations. The plaintiffs' own costs be likewise taxed.