KWAN YUEN MEI v. LAU SUI YUEN

HCPI 569/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 569 OF 2009

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DECISION

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1.  This is an appeal by the plaintiff against the decisions of Master R Yu on 2 September 2011 and 17 April 2012, dismissing the plaintiff’s claims for medical negligence against the defendants in both actions whilst allowing the plaintiff to maintain a claim for assault and battery against some of the defendants but not the defendant in HCPI 569/2009.

2.  According to the court records, there are proper notices of appeal against the order dated 2 September 2011.  For the second order, it seems that the plaintiff has, on 30 April 2012, obtained a hearing date on 4 September 2012 for the appeal hearing against the order dated 17 April 2012.  However, the plaintiff has not filed the relevant notices of appeal until 5 September 2012.  Despite such omission, Mr Wong, counsel for the defendant in HCPI 569/2009 and the 2^nd to 5^th defendants in HCPI 570/2009, has no objection for the court to treat this as an appeal against both orders of the Master.  In fact, the reason for the adjournment of the first hearing on 14 December 2011 was to enable the court to consider both orders together.

3.  The appeal hearing is conducted in Chinese. However, since the pleadings and the Judgment and Ruling of the Master are all in English, I decide to hand down this Decision in English.  If required, there will be an interpreter to offer assistance to the plaintiff at the time of the handing down of this Decision.

BACKGROUND

4.  These are two related actions issued by the plaintiff against a doctor and various nurses of Our Lady of Maryknoll Hospital (“the Hospital”) relating to treatments received by the deceased, the plaintiff’s mother (“the deceased”), during her stay in the Hospital.  The only defendant in HCPI 569/2009, Dr Lau Sui Yuen (“Dr Lau”), was the treating doctor of the deceased.  The 1^st to 4^th defendants in HCPI 570/2009 were the nurses taking care of the deceased and the 5^th defendant is the Hospital itself.  The plaintiff is now suing in the capacity as the administratrix of the estate of the deceased.

5.  The defendants in both actions, except the 1^st defendant in HCPI 570/2009, took out an application to strike out the plaintiff’s claims.  Apparently, the writ has not been served on the said 1^st defendant as she cannot be located.

6.  On 2 September 2011, Master R Yu struck out the plaintiff’s claims for medical negligence against all the defendants.  However, the Master took the view that there is a possible claim of battery by the plaintiff against some of the defendants in both actions for carrying out urine test on the deceased without the appropriate consent.  As there were insufficient particulars to support such possible claim in the pleadings, the Master adjourned the hearing for the plaintiff to file revised Statements of Claim.  In the hearing on 17 April 2012, Master Yu, after considering the draft revised consolidated Statement of Claim of the plaintiff, allowed her to maintain a claim for battery against some of the defendants for carrying out the urine test on the deceased.  The Master, however, did not allow the plaintiff to pursue the battery claim against Dr Lau.

7.  The issues in this appeal are therefore:

(i) whether the Master was right in striking out the plaintiff’s claims for medical negligence against all the defendants; and

(ii) whether the Master was right in not allowing the plaintiff to pursue the claim for battery against Dr Lau.

THE CLAIMS FOR MEDICAL NEGLIGENCE

(i) The plaintiff’s complaints

8.  The deceased was diagnosed to have suffered from invasive transitional cell cancer of the right kidney in 2004.  The deceased refused clinical intervention by way of surgery in respect of her cancer and opted for palliative treatment.

9.  The deceased was first seen in the out-patient clinic of the Palliative Care Unit of the Hospital in December 2005 and had been under palliative care until she died on 9 September 2006.  The cause of the deceased’s death was cancer of right kidney.

10.  In 2006, the deceased was repeatedly admitted to the Hospital for the management of cancer symptoms.  On some occasions, morphine was prescribed for the deceased to relieve her pain.  As the deceased was suffering from terminal cancer, her general condition deteriorated.  The deceased was last admitted to the Hospital on 29 August 2006.  Her condition fluctuated and she finally died on 9 September 2006.  A summary of the treatments given to the deceased during her last hospitalisation can be found in the pleadings filed by the defendants in both actions.

11.  In short, the plaintiff’s complaint is that the defendants had intentionally used a series of inhumane ways to hasten the deceased’s death including the following:

(i) wrongful deprivation of 3 medicines;

(ii) over dosage or wrong dosage of laxatives;

(iii) deprivation of pain relief medication;

(iv) wrong decision to provide food and medicine to the deceased by feeding when she could not swallow, resulting in hunger and dehydration;

(v) carrying out urine test without the consent of the deceased or her family members, and using catheter to collect urine from the deceased damaging her kidney;

(vi) forcing the deceased to sit up whilst in a coma causing  suffocation and failing to follow the doctor’s prescription to provide antibiotic to the deceased; and

(vii) over dosage of IV fluid resulting in a swollen balloon-like object on the deceased’s arm thereby speeding up the death.

(ii) The legal principles

12.  The Bolam test is a well established legal principle for medical negligence claims.  In determining whether a medical practitioner is guilty of negligence, the test is the standard of the ordinary skilled doctor or nurse exercising and professing to have that special skill.  In this regard, it would be necessary to refer to professional practice or opinion in that expertise, and so a medical practitioner is not negligent if he or she acted in accordance with a practice accepted as proper by reasonable body of practitioners skilled in the relevant field.

13.  In order to substantiate the plaintiff’s claims, there must be expert medical evidence to deal with issues such as whether the treatments provided to the deceased fell below the standard of an ordinary skilled medical practitioner, and whether the treatments provided by the defendants conform with the practice accepted as proper by a reasonable body of practitioners skilled in the relevant field.  Without expert evidence on these particular issues, it is simply impossible for the plaintiff to satisfy the Bolam test in the present case.

14.  Further, O 18 r 12(1A) of RHC provides that a plaintiff shall serve with the Statement of Claim a medical report, which is defined under O 18 r 12(1C) as a report substantiating all the personal injuries alleged in the Statement of Claim which the plaintiff proposes to adduce in evidence as part of his or her case at the trial.  Such medical expert report must comply with the following formalities.  Firstly, it must contain a declaration by the relevant expert to verify that he or she has read the code of conduct and agrees to be bound by the provisions in O 38 r 37C of RHC.  Secondly, the report has to be verified by a Statement of Truth as required by O 41A r 2.

15.  In addition, the relevant medical expert report must cover both the issues of causation and liability, namely that whether the deceased’s death or additional pain and suffering as claimed, was caused by the defendants’ acts or omissions and whether the defendants or any of them was or were liable for negligence in accordance with the standard of the Bolam test (see: Elijah Saatori v Raffles Medical Group [2010] 2 HKLRD 263 at §§5-7 and Practice Direction 18.1 at §66(5)).

16.  In the striking out application of a medical negligence claim, the question that has to be asked is whether the expert evidence adduced by the plaintiff, when taken its highest, can show a prima facie case of negligence against the defendant having regard to the legal principles mentioned above (see: Kong Wai Tsang v Hospital Authority, unreported, HCPI 1018/2002, decision on 27 February 2004 at §§47, 51, 52 & 58).

(iii) The medical expert reports relied on by the plaintiff

17.  In support of her claims, the plaintiff has so far adduced the following purported expert reports:

(i) report dated 11 March 2011 by Professor Vivian Lee (“Professor Lee’s Report”);

(ii) assessment report dated 30 June 2011 by Dr Wan (“Dr Wan’s Report”);

(iii) medical care report dated 22 December 2011 by Ms Yeung Wai Ming (“Ms Yeung’s Report”); and

(iv) case review letter dated 19 July 2012 by Dr John H Gong, MD (“Dr Gong’s Report”).

18.  Applying the legal principles mentioned above, it is clear that these reports cannot assist the plaintiff in establishing a prima facie case of medical negligence against any of the defendants.

19.  I first start with Professor Lee’s Report. Professor Lee is an Associate Professor in the School of Pharmacy of the Chinese University of Hong Kong.

20.  Professor Lee’s Report cannot assist the plaintiff’s claims for two reasons.  Firstly, Professor Lee’s Report does not comply with the aforesaid formalities of an expert report.  Secondly, Professor Lee’s Report only lists out the functions and side effects of the medicines prescribed to the deceased.  It does not go on to deal with the important question as to whether it was appropriate to prescribe such medicines to the deceased applying the Bolam test.

21.  In the Judgment handed down on 2 September 2011, the Master made the following observations about Professor Lee’s Report at §38:

“To support the Plaintiff’s case, the medical report must be relevant on the issues of causation and liability as [analysed] above. Unfortunately, the report of Professor Lee is nothing more than academic record of various effects and side effect of the medicine. But Professor Lee has not commented on whether the prescription of the medication, or withdrawal of the medication from the deceased is proper or not, and what is the effect on the deceased. The Plaintiff could not rely on the opinion of Dr. Lee and attempt to relate the effect to the condition of the deceased, which is an expert opinion. The Plaintiff is not an expert and is not allowed to give opinion. And the Plaintiff cannot ask this Court to speculate what would be the effect of the medicine on the deceased. The report itself is not helpful to the Plaintiff’s case.”

22.  I agree entirely with such dicta of the Master.

23.  I then turn to Dr Wan’s Report.  Dr Wan studied medicine in the Mainland, though he is apparently a qualified medical practitioner in Hong Kong.

24.  Dr Wan’s Report cannot assist the plaintiff’s case for the following reasons.  Firstly, the report does not comply with the formalities of an expert report.  Secondly, in relation to the 10 issues raised in his report, Dr Wan fails to express his opinion as whether the treatments provided to the deceased fell below the standard of an ordinary skilled doctor.  He also fails to refer to professional practice or opinion in that expertise in dealing with the treatments provided to the deceased.  Without these opinions or assessments, it is simply impossible for the court to find that the defendants are liable for medical negligence by reference to the Bolam test.  Thirdly, Dr Wan’s Report is inadequate because he has failed to specify in his report: (i) the documents that had been supplied to him in writing the report; (ii) his background, qualifications and experience; and (iii) the reasons and the academic basis in support of his conclusions.  Fourthly and more importantly, since Dr Wan has already retired, the plaintiff confirms in the hearing that Dr Wan will not provide further assistance to her in respect of this litigation, including the preparation of a supplemental report to clarify some of issues mentioned above or the giving of oral testimony at the trial.  In such circumstances, Dr Wan’s Report is quite useless for the plaintiff’s claims.

25.  The third report was prepared by Ms Yeung Wai Ming who is a registered nurse and has obtained a Bachelor degree of Science in Nursing from the Hong Kong Polytechnic University.

26.  Ms Yeung only gives her opinion on the necessity of obtaining urine samples by catheter from the deceased.  However, Ms Yeung very fairly admits that she is not qualified to say whether it was medically right or wrong to obtain such samples.  She also agrees that good medical reason (of which she is not in position to comment on) may justify the taking of the samples.  Ms Yeung merely doubts the necessity of obtaining the samples as the procedure may amount to an inappropriate and burdensome intervention to the deceased.  There is also no mention whether the collection of the samples conforms to the practice approved by the medical profession.  Even if she does, it cannot assist the plaintiff’s claims because she is not a doctor.  Further, Ms Yeung has failed to demonstrate what constitutes the proper procedure of carrying out the operations by the nurses and that the defendants or any of them acted below the standard thereby affecting and injuring the deceased.

27.  Finally, it seems that Ms Yeung’s Report is mainly related to the claim for battery for conducting the urine test without the appropriate consent.  The report contains nothing about the other allegations of medical negligence against the defendants.  In such circumstances, Ms Yeung’s Report is not relevant to the claims already struck out by the Master.

28.  After the two hearings before the Master, the plaintiff has asked one Dr John H Gong to write a case review letter with a view to support her claims for medical negligence against the defendants. Apparently, Dr Gong is a doctor practising in the United States.

29.  Again, I am of the view that Dr Gong’s Report cannot assist the plaintiff’s claims.  Firstly, Dr Gong’s Report does not comply with the formalities of a proper expert report.  Secondly, Dr Gong does not mention in his report: (i) what medical reports that he had read; (ii) his background, qualifications and experience; and (iii) the reasons and the academic basis in support of his conclusions.  Thirdly, his opinions are only general comments of the treatment of transitional cell kidney cancer, and there is no mention of any acts or treatments by any of the defendants which would be regarded as falling below the standard of ordinary skilled doctor or not complying with the practice approved by a reasonable body of medical professionals.  Fourthly, the plaintiff only seeks to adduce Dr Gong’s Report after the hearings before the Master.  According to O 58 r 1(5) of RHC, in the case of an appeal against the decision of a master, no further evidence (other than evidence as to matters which have occurred after the date on which the judgment, order or decision was given or made) may be received on the hearing of an appeal except on special grounds.  As the plaintiff was given amble time to obtain the supporting expert reports prior to the hearings before the Master, there is no special ground to justify the receipt of the new evidence.

30.  The plaintiff is not legally represented, and her repeated applications for legal aid have all been rejected.  Without the benefit of legal advice, it would be quite difficult for her to obtain the supporting expert reports or to establish a prima facie case of medical negligence against the defendants.  In such circumstances, the court should grant appropriate indulgence to her.  If there is a chance that the plaintiff is able to make good the claims, the court should not strike out the claims at this stage.  However, I understand that this case has been adjourned a number of times to enable the plaintiff to obtain expert medical reports to substantiate her claims.  Despite her effort, the reports are still inadequate.

31.  Should the court grant further indulgence to her?  Despite the time given to the plaintiff, the expert medical reports adduced by the plaintiff are still inadequate.  Further, the plaintiff confirms in the hearing that she cannot find any experts in Hong Kong who can write a report in support of her claims, and she does not have the financial resources to arrange any overseas experts to come to Hong Kong to testify on her behalf.  In such circumstances, I cannot see what more can be done by the plaintiff to substantiate her claims.  Hence, the plaintiff’s claims on medical negligence are bound to fail and the Master was right in striking out such claims against the defendants.

DISMISSAL OF THE CLAIM FOR ASSAULT AND BATTERY AGAINST DR LAU

32.  It is the plaintiff’s case that Dr. Lau had directed the other defendants who were the registered nurses to carry out urine test on the deceased without the consent of the deceased or her family members.  However, since it is common ground that the test was not carried out by Dr Lau personally, Master Yu dismissed the claim for battery against Dr Lau who is the only defendant in HCPI 569/2009.

33.  Under the law of torts, a person is liable not only for the torts committed by himself, but also for those torts he has authorised or subsequently ratified.  Authorising a tort involves instigating or procuring another to commit a tort.  The act of authorisation renders the tort the act of the authoriser so that he becomes vicariously liable (see: Clerk & Lindsell on Torts, 20 ed, at §§6-01 & 6-02).

34.  As Dr Lau was the treating doctor of the deceased, there is reason to believe that he had procured and authorised the carrying out of the urine test.  It is, therefore, arguable that Dr Lau is liable for the tort of battery together with the other defendants.  Hence, the Master was wrong to dismiss the claim for battery against Dr Lau.

CONCLUSION

35.  From the Ruling of the Master dated 17 April 2012, it seems that the plaintiff agrees not to pursue the claim for battery against the 1^st, 3^rd and 4^th defendants in HCPI 570/2009.  Further, the plaintiff has made no other specific complaint against the order dated 17 April 2012 in HCPI 570/2009, and so I do not propose to disturb that particular order.

36.  Since the plaintiff is now allowed to pursue the claim for battery against Dr Lau, I make the following order:

(i) leave to the plaintiff to file the notices of appeal against the orders of Master Yu on 17 April 2012 in both actions out of time;

(ii) the appeal against the orders made by Master Yu on 2 September 2011 in both actions be dismissed;

(iii) the appeal against the order made by Master Yu on 17 April 2012 in HCPI 569/2009 be allowed and the said order be set aside;

(iv) leave to the plaintiff to re-amend the Writ of Summons in HCPI 569/2009 by amending the title of the plaintiff to “Kwan Yuen Mei, the administratrix of the estate of Chan Shuit Chan, deceased”;

(v) leave to the plaintiff to file and serve a re-amended Statement of Claim against the defendant in HCPI 569/2009 in terms of the plaintiff’s revised Re-Amended Statement of Claim lodged on 15 September 2011 within 21 days from the date hereof; and

(vi) the appeal against the order made by Master Yu on 17 April 2012 in HCPI 570/2009 be dismissed.

37.  Since it is not easy to navigate through all the documents in the court files, there is a possibility that I have not dealt with all the outstanding issues in this Decision.  I therefore provide for general liberty to apply.

38.  In respect of the issue of costs, I make the following order nisi:

(i) costs of the striking out application in HCPI 569/2009 be paid by the plaintiff (which is in line with the costs order made by the Master in the striking out application in HCPI 570/2009);

(ii) the costs of the appeal against the orders of Master Yu on 2 September 2009 in both actions be paid by the plaintiff;

(iii) the costs of the appeal against the order of Master Yu on 17 April 2012 in HCPI 569/2009 be paid by the defendant; and

(iv) the costs of the appeal against the order of Master Yu on 17 April 2012 in HCPI 570/2009 be paid by the plaintiff.

39.  The aforesaid order nisi shall be made absolute 14 days after the date of the handing down of this Decision.

40.  I would like to make the following observations about the future conduct of this case.  Firstly, as mentioned by the Master in his Ruling dated 17 April 2012, there should be a consolidation of both actions.  Secondly, since there is no medical expert evidence to prove the causal link between the carrying out of the urine test and the death of the deceased, even if the plaintiff can succeed on the claim for battery, the damages would be limited to the pain and suffering suffered by the deceased during the limited time of her hospitalisation.  In such circumstances, the present claims may fall within the jurisdiction of the District Court, and so the parties should consider whether to make an application to transfer the case to the District Court.

41.  I also direct the parties to make an application within 28 days for a checklist review hearing before the PI Master.