LAI WING CHEUNG v. YEP CHAU CHUNG

                                                          HCPI 43/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.43 OF 2005

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REASONS  FOR  RULING

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1. At the Pre-trial Review hearing on 27 January 2006, there was an application by the Third Party in this matter that the Third Party claim brought by the defendant be struck out.  This application for striking out was resisted by the defendant.  After hearing arguments on the matter, I ordered that the Third Party claim by the defendant against the Third Party be struck out and indicated that I will give my reasons in writing which I now do.

Background

2. The main action is brought by the plaintiff against the defendant claiming damages for personal injuries arising out of a traffic accident on 24 February 2002.

3. It is the plaintiff’s case that on the day in question, the plaintiff was a pedestrian walking on the pavement at the junction of Yuk Wah Street and Tsz Wan Shan Road while the defendant was driving a private car DW7148 proceeding eastbound along Yuk Wah Street.  On reaching the traffic lights controlling the junction of Yuk Wah Street and Tsz Wan Shan Road, the defendant had stopped his car in front of those traffic lights which was red and was waiting for the lights to turn green for traffic.

4. Suddenly, DW7148 dashed forward at speed, traveled across the junction and mounted the pavement of Yuk Wah Street after knocking down the railings and knocked down the plaintiff on that pavement causing the plaintiff personal injuries.

5. It is the plaintiff’s claim that the accident, in particular the mounting of the pavement by DW7148 was due to the negligent driving of the defendant.

6. In his Defence, the defendant admits the facts of the accident pleaded by the plaintiff including the fact that DW7148 mounted the pavement and knocked down the plaintiff.  However, the defendant denies that was due to any negligence on his part.

7. It is pleaded by way of defence that on that morning at breakfast time, the defendant started to feel unwell experiencing dizziness and hearing problem.  As a result the defendant consulted Dr Lin Hin Wu, the Third Party in this matter, who, by way of treatment, administered an injection of “Stemetil” to the defendant.  Dr Lin also prescribed oral medicine to the defendant, however, such oral medicine prescribed has no bearing on the accident since the defendant had not taken any of the oral medicine before the accident.

8. When given the injection by Dr Lin, it is the defendant’s case that Dr Lin only told the defendant that the injection would stop his dizziness but did not warn the defendant that he might experience adverse side effect and/or should refrain from driving a vehicle after receiving the injection.

9. The defendant no longer felt unwell after being given the injection by Dr Lin.

10. The accident to the plaintiff occurred at about 1.30 p.m. the same day after the defendant had consulted Dr Lin and after being injected.

11. The defendant admits to having stopped his car DW7148 at the junction of Yuk Wah Street and Tsz Wan Shan Road in front of the red traffic lights.

12. It is the case of the defendant that immediately prior to the accident, because of the adverse side effect of the injection given him by Dr Lin, he had a sudden onset of confusion which developed into a cramp leading to the loss of consciousness and loss of voluntary control of his limbs and therefore the defendant did not have control of DW7148 leading to this accident.  On that basis the defendant says that the accident was not caused by any negligence on his part.

13. On the very basis of such defence put forward by the defendant, Third Party claim was issued against Dr Lin Hin Wu.

The Third Party claim

14. The cause of action in the Third Party claim against Dr Lin was negligence and breach of contract.

15. The pleaded particulars relied on for the claim against the Third Party are as follows :

(a) Failing to have any or any adequate regard to the well documented acute and  chronic adverse or side effects of the injection, in particular drowsiness and other involuntary movement disorders.

(b) Failing to give any warning and/or advice to the defendant of the nature, purpose, risks, complications and side effects of the injection.

(c) Failing to give any warning and/or advice to the defendant of the need to avoid driving and engaging in hazardous activity such as operating vehicles or other type of machinery which requires alertness after the injection.

(d) Failing to use his diligence, care, knowledge, skill and caution in administering the injection.

(e) Failing to heed professional literature and the modern professional practice concerning the need to give advice regarding the side effects of the injection.

16. Effectively therefore the Third Party claim is a claim against a professional doctor for negligence in the discharge of his professional duties.

The expert evidence relied on by the defendant

17. The defendant obtained two expert reports.  The first report from Professor C.R. Kumana of the Department of Medicine, University of Hong Kong, who is himself a specialist in Clinical Pharmacology and Therapeutics, specializing in all aspects of drug usage in clinical practice.

18. Professor Kumana states in his report, having been supplied the facts of the case, that in prescribing and administering 12.5 mg of intra-muscular prochlorperazine (trade name Stemetil), Dr Lin likely diagnosed that the defendant was suffering an acute vestibular disturbance.  The diagnosis and the injection was probably reasonable and appropriate.

19. Professor Kumana then goes on to say that prochlorperazine belongs to a class of drugs called phenothiazines that give rise to well documented acute and chronic adverse side effects on the central nervous system, particularly involuntary movement disorders called Extrapyramidal Reactions which consists of a) “dystonias”, b) motor restlessness, c) muscle rigidity and tremors akin to what is known as “Parkinson’s disease”, and d) a rare form of severe muscle rigidity associated with very high temperatures, varying conscious levels and other features.

20. Dystonias typically present suddenly, may be very distressing to the patient and consists of writhing and or jerky spastic contractions or cramps of one or more discrete muscle groups (e.g. those affecting the neck face, tongue, jaw, eyes, swallowing and also the extremities).  They tend to ensue early in the course of treatment (usually within four days), are generally transient (lasts hours) and readily reversible with medication.

21. The uncontrollable movements and cramps of the hands, feet, mouth, jaws, and tongue (dystonia) and other features (confusion) that preceded the defendant’s accident were therefore entirely consistent with dystonia and other well known CNS adverse effects of prochlorperazine.  The fact that typical symptoms ensued within one to two hours of an intra-muscular injection of this drug is compelling circumstantial evidence that the prochlorperazine was very likely responsible for the abnormal movements which evidently precipitated the accident.

22. However, published reports of acute dystonic reactions following intra muscular injection of prochlorperazine are rare.  (Medical literature “Stemetil Injection (Drug Information Insert) — issued by May & Baker 2/92” cited.)

23. Even the Stemetil package from the pharmaceutical manufacturer only mentions dystonia as an adverse effect in children, although the insert does warn against drowsiness after starting treatment and correspondingly advises against driving and operating machinery at times.

24. Based on the above, Professor Kumana came to the following conclusions :

(I) Most competent medical practitioners extending reasonable care to patients would not normally mention the possibility of a dystonic reaction following an intra muscular injection of prochlorperazine, because such reactions continue to be quite rare.

(II) However, a competent, reasonable and responsible medical practitioner would and should mention the possibility of drowsiness after such an injection, and if necessary the need to avoid driving under these circumstances.

(III) Finally, irrespective of the treatment given, a competent, reasonable and responsible medical practitioner would and should also warn that a person suffering from significant dizziness (the defendant’s present symptoms) needs to avoid driving till such symptoms have abated.

25. The second expert instructed to give an expert report by the defendant is Dr Richard Kay, a specialist in neurology in private practice, and an honorary professor at the Chinese University of Hong Kong as well as a full member of the Academy of Experts in London.

26. After giving a summary of the events upon which he was instructed in this case, Dr Kay was of the opinion that what had happened to the defendant was not diagnostic of epileptic seizure and that the defendant has no constitutional tendency to develop epileptic seizures.

27. Dr Kay was further of the opinion that the prochlorperazine injection given to the defendant the same morning of the accident can cause acute dystonic reactions which consists of severe twisting and uncomfortable postures of the limbs, trunk, neck, tongue and face that are described as “dramatic” in Merritt’s Neurology (10^th edition, p.696).  Such fixed posture could last for hours to minutes, or could be easily reversed by medication.  The incidence of dystonia/dyskinesia has been estimated as 2.7 per million prescription from data gathered by the UK Committee on the Safety of Medicines (Q J Med.1968).

28. Prochlorperazine is also known to cause sedation which is usually described as mild but should be well known among physicians who prescribe it, especially if the drug is given intravenously or intramuscularly.

29. In his view, dystonic reaction (rather than epileptic seizure) was more likely the cause of the defendant’s condition leading to the accident.

30. Dr Kay further states that drowsiness was not the cause of the accident since the defendant was said to be feeling perfectly well before the accident happened.  Dr Lin therefore should not be held responsible for an effect that did not occur and which did not cause the accident.

31. The more likely cause for the accident being the acute dystonic reaction which was associated with the administration of prochlorperazine, Dr Lin should not be held responsible since such reactions are extremely rare, 2.7 per million.

32. Dr Kay therefore concludes that the defendant’s condition leading to the accident was more likely to be a dystonic reaction which was beyond his voluntary control.  The administration of the prochlorperazine had probably caused the dystonic reaction but such incident is so rare, Dr Lin should not be held responsible for not having warned the defendant about it.

The standard of care in medical negligence

33. There is no dispute that the test applied by these courts in cases of medical negligence is that expounded by MacNair J in the case of Bolam v. Friern Hospital Management Committee [1957] 2 All ER 118 and later amplified in Bolitho v. City and Hackney Health Authority [1998] AC 232 contained in the following words :

“(a medical practitioner) is not guilty of negligence if he has acted in accordance with practice accepted as proper by a reasonable body of medical men skilled in that particular art … merely because there was a body of opinion who would take a contrary view.”

34. Applying that test laid down in Bolam’s case, a plaintiff, in order to establish medical negligence, must prove (i) there is a normal practice which is applicable to the case; (ii) the defendant has not adopted it; and (iii) the course taken by the defendant was one which no professional man of ordinary skill would have taken, had he been taking ordinary care.

Decision

35. Applying that test in the present case, it is clear from the expert opinion of Professor Kumana and Dr Kay that the normal practice is that the ordinary medical practitioner would not normally mention the possibility of a dystonic reaction to a patient following an intra-muscular injection of prochlorperazine because such reactions are so rare.

36. Although Professor Kumana did mention in his report that a competent reasonable and responsible medical practitioner would and should mention the possibility of drowsiness after such an injection, and if necessary to avoid driving under such condition, that, as pointed out by Dr Kay, was not the cause of the accident on the facts of the defendant’s case.

37. Therefore once the premise is reached that a reasonable medical practitioner would not normally warn of dystonic reaction after an intra-muscular injection of prochlorperazine because such reaction is so rare, that really is the end of the defendant’s claim against Dr Lin, the third party.

38. When this matter was heard in argument, Mr Chung who appeared for the defendant submitted that Dr Kay’s report may not have been entirely accurate because it was suggested that Dr Kay may not have been given the full facts of the case for him to have given his opinion, although it was accepted by Mr Chung that the facts upon which Dr Kay gave his opinion, being the defendant’s expert, were supplied to Dr Kay by the defendant’s instructing solicitors.

39. I was prepared to give the defendant a further opportunity to obtain, if necessary, a further or supplemental report from Dr Kay such that any opinion expressed by Dr Kay and relied on by the defendant would be put on a proper footing.

40. However, such invitation to the defendant was wholly declined by Mr Chung who said in no uncertain terms that the defendant had no wish to obtain any further or supplemental expert report from Dr Kay.

41. In the circumstances, the matter could only be decided on the opinions of both the experts for the defendant as they stand in their respective expert reports.

42. It was for the above reasons that the Third party claim brought by the defendant against Dr Lin was struck out with costs of the Third Party proceedings awarded to Dr Lin to be taxed if not agreed.