CHONG CHEONG HEI and Another v. WONG WAI SAN

1995 No. PI 790

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

PERSONAL INJURIES

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J U D G M E N T

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1. This is a claim for damages by a widow under the Fatal Accidents Ordinance 1986 and the Law Amendment and Reform (Consolidation) Ordinance arising out of the death of her husband on 12th April 1989. She brings this action on behalf of herself, her daughter Cheuk Nga Lai born on 13th September 1981, now almost 15 years of age, her son Cheuk Wing Fai born on 28th December 1985 now a little over 10½ years of age and Cheuk Yiu Yick, who was the father of the deceased and who died in June 1992 at the age of approximately 75.

2. The deceased was a construction worker and was born on 22nd July 1952 and was therefore almost 37 years of age at the time of his death.

3. The Defendant operated a medical or acupuncture clinic in Tai Wai, Shatin, New Territories. He had qualified at the Chinese University of Medical Services in the Peoples' Republic of China as a Bachelor of Medicine, Surgery, Paediatrics, Obstetrics, Gynecology & General Medicine. He did not, however, have any training or qualification to enable him to be registered as a medical practitioner under the Medical Registrations Ordinance in Hong Kong. According to a visiting card or practice card, the Defendant carried on his practice with a female Mo Tam Choi believed to be his wife.

4. The proceedings were commenced on 17th September 1991 and until quite recently the Defendant was represented by solicitors. However, approximately 2 weeks ago they applied to remove themselves from the record as being without further instructions and thereafter the Defendant represented himself.

5. The date of this hearing had been fixed for sometime and the Defendant attended personally upon the directions hearing before me last week. It was clear on that occasion that he well knew the date of commencement of this trial and had indeed asked for it to be postponed. I was not prepared to accede to that application for a variety of reasons. One of which was that the Plaintiff's medical experts had made arrangements to give evidence at this trial on the dates which had been communicated to them sometime ago and another was the lapse of time since the course of action arose; furthermore the history of the Defendant's efforts to obtain medical evidence in Hong Kong showed a lack of expedition and proper preparation.

6. I decided that it was wholly wrong to adjourn the trial of this case. The Defendant accordingly knew that he would have to attend Court on Monday, 22nd July if he was to take any part in the trial of this action against him.

7. On that date the Defendant did not appear and efforts were made to contact him using the telephone numbers acquired from his former solicitors, one of which was the telephone number on the practice or business card. Those efforts were unsuccessful and I decided to commence the trial having made what I consider to be proper allowance for any accidental delay in his arrival at Court. He did not attend Court at all on 22nd July, nor even on 23rd July and no contact had been received from him.

8. The deceased was a young man in comparatively good general health. He had undergone a splenectomy in or about 1984. That same year, he visited his general practitioner Dr. Lo Bin in April complaining of pain in the right knee which had existed for over a year. X-rays taken of the knee showed ostearthritic changes and he was given a two-day course of oral analgesic and anti-inflammatory drugs.

9. He consulted Dr. Lo Bin approximately 4 months later and again approximately 1 month after that and was referred to the Kwong Wah Hospital for further investigation. Dr. Lo Bin's treatment was of the same nature as initially. He made further visits to see Dr. Lo Bin for treatment for the knee pain in December 1984, March 1985 and August 1985 and January 1988. His last visit to Dr. Lo Bin was on 5th April 1989, one week exactly before his death, when for the knee pain, the doctor prescribed oral analgesic and anti-inflammatory drugs, including an injection intramuscularly.

10. The evidence as to what happened to the deceased between his last visit to Dr. Lo Bin and his admission to hospital on 12th April comes from his work-colleague and neighbour, Mr. So Yeung Tim and from his wife, the Plaintiff.

11. Sometime on or about 9th April the deceased visited Mr. So and Mr. So took him to see the Defendant at his clinic. Mr. So stayed in the waiting-room or sitting-room outside that in which the deceased was seen by the Defendant. According to Mr. So, the deceased told him, after the visit, that the Defendant had given him an injection. The most material part of Mr. So's evidence was his own experience of the Defendant in that on a previous occasion he had received a hypodermic injection and oral medicine from him and Mr. So indicated that he had no complaints about treatment received.

12. It was on 9th April that the Plaintiff returned home from a few days in China, to find her husband lying on his bed complaining of pain in his knee. He told her that he already visited a doctor in Tai Wai, clearly the Defendant and on the next morning, 10th April she went with her husband back to the Defendant's clinic. She saw the Defendant give some form of treatment and a woman, at the clinic, give the deceased an injection in his buttocks. She saw some needles inserted, one on either side of her husband's knee which needles were connected to a wire.

13. Later that day, her husband complained further of pain and the Defendant agreed to come over to visit the deceased at his home. Again, the Defendant examined the deceased's knee and gave him further injections, this time on both sides of the knee. He did not use acupuncture needles, he used the syringe taken from a plastic bag in his briefcase, the Plaintiff describing the plastic bag as resembling a sandwich bag. She described the needle as being already in the syringe which was made of glass. He used the same needle for all the injections.

14. At some stage prior to the injection, he rubbed the skin around the knee with a cotton wool piece taken from a small box in his briefcase. Two injections were given in the buttocks with the same syringe and the same needle. On each occasion, the Defendant cleaned the needle with a piece of cotton wool and returned the syringe to his briefcase after the treatment. The Defendant asked the Plaintiff's daughter to throw away the cotton wool used. She described the fluid injected as having come from two small bottles. No acupuncture was used on that occasion, and some western style medical pills were also given. At no time did the Defendant advise that the deceased should go to hospital.

15. On the next day 11th April, the deceased's condition had clearly deteriorated and the Plaintiff rang the Defendant and asked him again to come to the house to see her husband. He looked at the right leg again, said the problem was sciatica, that it was of a type that would last a long time before it was cured, and cited the example of a patient who had taken almost ½ year to recover. He said that dizziness was not important. He gave two hypodermic injections in the knee following the same procedure as she had seen the previous day. She had not, in fact, seen the injections take place herself but the Defendant had said he had given four in total.

16. Sometime after the doctor left she prepared the meal, her husband went to bed and in the early hours she was aware of his lying on the floor, clearly having fallen out of bed, and complaining of feeling dizzy. She called the police and he was admitted to the Prince of Wales Hospital at about 7.00 in the morning. Tragically, all treatment was to no avail and he died at about mid-day on 12th April.

17. An inquest was held. A number of features was noted during the internal examination at the post-mortem. These were particularly severe cellulitis (infection) and myositis (inflammation) of the right lower leg and haemorrhagic lesion in the medial muscle compartment above the right knee. The cause of death was septicaemia with shock to the lungs, probable secondary to the cellulitis and myositis of the right lower limb.

18. The pathologist who examined the deceased in order to ascertain the cause of death stated at the inquest that the most striking aspect was the very swollen right leg. He referred to there being no obvious wound except the needle puncture marks around the knee cap. There were needle marks on the buttock but no swelling or inflammation there. The puncture marks were tiny, probably a needle, indicating either acupuncture or an injection. Closer examination showed that there was a pure growth of staphylococcus aureus.

19. The septicaemia resulting from the introduction of bacteria had caused lung abscess and pneumonia. He was unable to say how long the septicaemia had been present but it would not have been more than a week and was probably a few days. The fact that the deceased had no spleen made him more vulnerable to infection. It was clear from her evidence that the site of the introduction of the bacteria leading to the extreme septicaemia was the right knee. Dr. Arnold gave as his opinion that the bacteria was introduced through the puncture marks.

20. Dr. Wong Koong-sang, who is a forensic pathologist now of some 20 years standing, gave as his opinion that the most likely means of the bacteria being introduced was the injection or puncture sites on the right knee. The cause of that could be a dirty needle or the skin itself being dirty. The upper limit of time from the introduction of the infection was 7 days and the actual length of time would depend upon the damage and how healthy the body was and its ability to resist infection. Lack of a spleen, he said, reduces resistance to infection and this, of course, was confirmed by the medical evidence I have heard at this trial.

21. The Defendant gave evidence to the coroner describing himself as a practitioner of Chinese medicines. He said he called his practice an acupuncture clinic because he was unable to describe himself as a western doctor in Hong Kong. He recalled the deceased attending his clinic, he says, on 9th April, accompanied by Mr. So. He said the deceased told him he had pain from rheumatic arthritis and had had it for 4 - 5 years, but the pain was so bad in the last few days he was unable to sleep.

22. The next part of his evidence is quite significant. He said the right knee was bandaged, the deceased explaining that a bone-setter had put on the bandage. That bandage was about 9 inches long covering the whole of the knee. That measurement suggests that it referred to the area of the knee region covered by the bandage. The Defendant said, somewhat astonishingly that he did not take the bandage off but examined the knee outside the bandage and found the thigh rather red and swollen. He said the deceased also complained of pain in his scrotum. He said he suspected rheumatic arthritis and sciatica. He said he recommended hospital treatment and that the effect of acupuncture might not be good but that he nonetheless gave him analgesic pills and stomach pills and performed acupuncture. The deceased showed him 2 bags of pills which he had been given to take by earlier doctors but the Defendant said that he did not open them in order to see what those pills were.

23. When the deceased visited him the following day with his wife, he says he examined the right knee and gave him acupuncture. On each occasion on which he saw him, he said he suggested that he should go to hospital. He denied at any stage using any hypodermic syringe to give an injection. On the last occasion on which he saw the deceased, he said noticed a bluish patch near his knee cap which had not been present on the previous day and that there were a number of puncture marks on both sides of the deceased's right knee which had not been present earlier. He denied any use of needles in that knee region.

24. I am satisfied that the Defendant held himself out as a doctor practising western style medicine and furthermore, that he used a hypodermic needle in order to give injections of some fluids in the course of this practice. That is the evidence of Mr. So and also of the Plaintiff which I accept as being accurate and truthful evidence. I am also satisfied that the Defendant purported to treat the deceased's arthritic pain in a western style by seeking to inject pain-killing fluid and/or anti-inflammatory drugs. I accept that this is the only sensible inference to be drawn from the observation of puncture marks which he himself says he saw on the last occasion on which he visited the deceased, in the region of the knee. Those puncture marks were caused by his use of a hypodermic syringe to inject some substance in or around the knee region.

25. The evidence of Dr. Dickens who was present to hear that given by Mr. So and by the Plaintiff sets out the appropriate treatment for the complaint of the deceased in relation to his knee joint. He gave evidence as indeed did Dr. John Simon, of the proper sterilising procedure and proper aseptic treatment and measures necessary to provide a proper medical approach to the deceased's problem. I am satisfied on the evidence given by these two medical experts and on the evidence given by the Plaintiff herself that no proper sterile and aseptic measures were adopted by the Defendant. Furthermore, he tried to adopt aspects of western medicine which he was not qualified to carry out and yet which he held himself out as capable of providing. He fell far short of the standard to be expected of any reasonable medical practitioner or of any acupuncturist for that matter.

26. His own evidence to the coroner at the inquest indicated a complete lack of competence in the assessment, diagnosis and treatment of the deceased's condition. It is inconceivable that any reasonably competent practitioner would have sought to provide any treatment, whatever its nature, without removing the bandage around the knee with which he says the deceased presented on the first occasion. I do not, in fact, accept that there was any such bandage around the knee. I think, on the other hand that this is something the Defendant has conceived as a means of providing in his own way of thinking, some explanation for what happened and to hide his own shortcomings. It is equally inconceivable that any practitioner seeking to give any treatment would fail to ascertain from the patient the nature of the medicine which he had been taking and which had been given to him by another practitioner.

27. Having been satisfied that the Defendant was, in fact, using hypodermic syringes or a syringe of the old style that is not a disposable one (which is disposed of after one use), I am equally satisfied that he did not take proper steps to sterilise the needle after each injection.

28. The septicaemia which eventually caused his death was, in my view, caused by the negligent use of a hypodermic needle which caused infection either because the needle was not itself sterile or because the area of flesh into which the needle was inserted had not been properly sterilised in preparation. All the proper precautions and preparations which had been described by Dr. Dickens and Dr. John Simon were lacking on the occasions on which this Defendant carried out the treatment described by the Plaintiff. If he did indeed think that the deceased ought to be treated in hospital and that the acupuncture which he said he was performing would not do any good, he should have taken steps to make sure that he did not, in any way, carry out any treatment.

29. That, however, is only one of the aspects of what I consider to be one of the clearest cases of negligence on the part of a practitioner that I have heard.

30. The Defendant persisted over a period of 4 days in giving the same sort of treatment to the deceased when according to him he had serious doubts about any benefit being derived by the patient from it. In these circumstances, it was a wholly irresponsible course of action even if he were a registered medical practitioner in the western tradition. And it was clearly a case where the patient should have been referred to an expert in that particular field.

31. To this date, it is not clear what substance the Defendant was injecting into the deceased because he kept no records of any kind and, of course, in any event, denies that he was using other than acupuncture needles. On the evidence available, it seems at best that he was introducing a short term analgesic which would have provided no sensible benefit whatsoever, at worst he was introducing substances which would simply have aggravated the problem and indeed accelerated the septicaemia. In my view, this is a clear case of negligence and the Plaintiff must succeed.

Quantum

Funeral expenses

I accept the Plaintiff's evidence on this aspect. There is no reason to question it. The Defendant when represented, had adequate opportunity to put forward any realistic challenge to it.
The appropriate figure is as pleaded:	$10,000.00
Interest at 11.5% to date of judgment.	$8,311.00

Bereavement Award

This is the statutory figure appropriate at the time. It bears interest at the same rate to the date of judgment.	$40,000.00
	$33,232.00

Fatal Accidents Ordinance Claim

I accept that the dependency figure would have increased from the $4,500.00 monthly figure (representing the sum paid to the Plaintiff for the benefit of the family and payments he himself made, out of sums retained by him, for the benefit of the family) would have increased to approximately double that figure by 1996 and it would be fair to take a median figure of $6,000.00 per month. To the date of judgment there has been a loss of	$516,000.00
(representing 7 years and 2 months)
Interest at half the rate (5.75%)	$214,346.00
It is necessary to assess the multiplier for the future loss. For a breadwinner aged 36 a minimum of 13 years would be appropriate. Had he had an entirely healthy record I would have allowed a higher multiplier but a seriously arthritic knee would inevitably have shortened his working life in the construction business.
A multiplier of 6 for the future period of dependency of $8,000.00 per month produces:	$432,000.00

Dependency of his father

At the time of his death he was contributing $500.00 per month to the maintenance of his father. His father died in June 1992, a little over 3 years later. Taking a median dependency figure of $550.00 per month this produces:	$20,850.00
Interest at half the rate for half the period (it would have crystallised as an item of loss at the father's death) 5.75%.	$4,331.00
At 11.5% from death of father to date of judgment.	$8,662.00

Law Amendment & Reform (Consolidation) Ordinance

Following the death of his father the deceased would have had approximately $600 per month extra for the family's benefit. Furthermore when his children left school and started work they would either have contributed to the family in which case more of his income would have been available to his wife, or for the benefit of his family in savings, or, their having left home he would, by the same token, have given more to his wife or saved more for their benefit. He had made a modest saving of almost $4,200.00 at his death. Though modest it indicates a careful man. His income was not substantial enough to accumulate more.
From June 1992 onwards he would have been able to save or utilise for the family benefit at least $600.00 per month or $7,200.00 per annum.
That would have been increased as the children became self-supporting. I anticipate however, in the context of a normal loving family, they would have continued to benefit financially from him. But using a rough and ready yardstick, this is essentially an arbitrary calculation, he would have, from June 1992, $7,200.00 per year available. Applying a multiplier of 10, that produces:	$72,000.00
Some of that would have earned interest but I ignore that in this overall exercise. The figure would probably increase by $1,000.00 per month (at least) in about two to three years time. ($19,200.00 p.a.) applying a minimum multiplier of 3 produces:	$57,600.00
	$129,600.00
This total excluding interest as the sum had increased, represents either the loss of savings, or the increased benefit by way extra dependancy of the family.
Overall total:	$1,417,332.00
There will be judgment for the Plaintiffs in that sum. The dependancy for the widow and the two children totals:	$730,346.00
	$432,000.00
	$1,162,346.00

32. I need to apportion the sums for the two children:

33. For the daughter now 14 years of age and for the son now almost 11 years of age I have decided on reflection that share should be an equal sum of $150,000.00. That sum will be invested on their behalf until they respectively reach their majority.

34. The sum in respect of the deceased father's dependancy is really payable to his estate though that is a matter which the family will be able to resolve. That balance of the award (i.e. $1,417,332.00 less ($20,850.00 + $12,993.00 = $1,383,489.00) will be paid into court for administration by the Master. The widow will be entitled to $1,083,409.00 but that is far too large a sum for her to cope with without some form of court supervision.

35. The circumstances of the Defendant, he is uninsured and believed to have few assets, means that the Plaintiff will be fortunate if she is able to recover the damages awarded. It may assist if I indicate that there should be no sum set aside for the children until the widow has received a minimum of $750,000.00 of the award. The order of priority should then be the children's apportionment, the balance of the widow's entitlement, and then the sum due to the deceased's father's estate.

36. The Plaintiff's will have their costs paid by the Defendant. There will also be an order for Legal Aid Taxation of the Plaintiff's costs.

(Conrad Seagroatt)

Judge of the High Court