LIM MAN LEE v. CONGRUENCE MEDICAL SERVICES LTD t/a CONGRUENCE ORTHOPAEDICS & REHABILITATION CENTRE AND OTHERS

HCPI 912/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 912 OF 2008

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BETWEEN

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REASONS FOR DECISION

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1.  After hearing the parties, I dismissed the defendants’ application, under O.18 r.19 of the Rules of the High Court and the inherent jurisdiction of the court, to strike out paragraphs 24(b) and (c) of the plaintiff’s Statement of Claim dated 11 August 2009 on the ground that the allegations of medical negligence contained therein were not supported by medical expert evidence. These are the reasons for my decision.

2.  Whilst it is rare to find a party making such an application at the eve of trial, I concluded that the defendants were wholly justified in making the application and, notwithstanding my dismissal of the application, I awarded the defendants the costs of the application up to 31 October 2011, to be taxed if not agreed.  On that date, the affirmation of the plaintiff’s solicitor, Ms. Monita Lau Wai Yee, was served on the defendants.  I ordered that the costs incurred thereafter, including the costs of the hearing which lasted some 1 hour 20 minutes, be the plaintiff’s costs in the cause, to be taxed if not agreed, and I also ordered that the plaintiff’s own costs be taxed pursuant to the Legal Aid Regulations.

3.  The Plaintiff suffered from cervical myelopathy and consulted a number of surgeons outside and in Hong Kong.  She was advised that the cause of her problem was compression of the spinal cord from the front of the cervical spine and that surgical intervention was necessary to remove the compression.  It is common ground that the symptoms were severe enough to warrant surgical decompression.  She decided that the defendants should perform the operation and she agreed that they should undertake a laminoplasty and proceed by way of a posterior surgery to enlarge the spinal canal in order to decompress the spinal cord.  The operation was performed on 5 October 2005. The surgeons carried out a single hinge laminoplasty whereby a hinge is made on one side of the lamina and the other side is cut through.  The lamina is then lifted up and hinged on the hinged side.  The elevated bony structures are then kept in place and supported by stitches to prevent the opening from being closed.  This opening creates more space in the spinal canal and enables decompression of the spinal cord to occur.  It is common ground that a posterior decompression, as opposed to an anterior decompression, and the choice of surgery by means of a single hinge laminoplasty were justified.      

3.   It is also common ground that the surgical procedure performed by the defendants did not result in the desired outcome of enlarging the spinal canal permanently.  The improvement after the operation of 5 October 2005 was of short duration, lasting only 2-3 weeks.  New symptoms of neck and shoulder pain appeared 1 week after the surgery.  Symptoms related to cervical cord compression increased 2-3 weeks after the surgery.  An MRI taken 3 months after the surgery indicated cervical cord compression requiring an urgent operation to release the compression. Professor Keith Luk of Queen Mary Hospital was consulted.  He was of the view that the surgery done on October 2005 failed to decompress the cervical spinal cord and he advised an urgent operation to relieve the compression.  Similar advice was obtained from Professor Jia in Shanghai some 2 weeks later, who later performed a successful anterior decompression.                                         

4.  It is common ground that loss of expansion of the spinal canal post-operatively, following a laminoplasty procedure carried out even by experienced hands, is an accepted and known complication.  In his report dated 30 October 2009, Professor John Leong, President of the Open University of Hong Kong and Honorary Professor of the Department of Orthopaedics & Traumatology of the University of Hong Kong, referred to medical literature pointing to an 8% chance of loss of expansion of the spinal canal post-operatively. 

5.  The question that arises in the present case and which was addressed by Professor PC Leung, Professor Emeritus of the Department of Orthopaedics & Traumatology of the Chinese University of Hong Kong, the plaintiff’s expert, is whether the failure to achieve spinal cord decompression was due to the accepted and known complication of loss of expansion of the spinal canal post-operatively or whether it was due to the fact that the operation was not carried out to the standard to be reasonably expected of competent orthopaedic surgeons.    

6.  In his first report dated 14 July 2009, Professor PC Leung stated :

“There was however, no complication of infection, nerve damage or instabilities.  I agree with Prof. Keith Luk that since no improvement of upper limb symptoms occurred after Dr. Tse’s operation and MRI showed persistent stenosis, the surgery was a failure.  I also agree with Prof. Keith’s findings that the release of compression was too little, or too little bone had been removed from the back (laminae).  This showed the weakness and imperfect technique of the surgeons.  Therefore, [the defendants] have fallen below the standard of competent orthopaedic surgeons.  In fact, all orthopaedic surgeons performing decompression surgery on the spine should be able to achieve adequate release.  As [the defendants] failed to do so, the practice is “below standard”.”

7.  In his further report dated 14 January 2010, Dr. PC Leung agreed that, according to the operation notes, complete osteotomy (cutting through) of the unhinged side was done.  His report went on to state :

“2) However, the operation records did not give clear indications of adequate decompression, which according to [medical literature], the decompression should give a 12 mm gap, 4 mm of which could be the result of bone removal.

3) Likewise, the records did not give clear indications of the stitching procedure to prevent collapse of the hinged laminae. According to [medical literature], stitching must be carefully done and the stitches should hold the bases of the spinous processes and tied to the tight capsules of the facet joints on the hinged side. If not carefully done this way, loss of the hinging would follow.

4) If the records supported these most important procedures, the decompression could be considered adequate. If not, the surgical procedures could be considered “below normal standard”.

……

7) … The loss of spinal canal expansion or failure to maintain the expansion (whether adequate or not) was due to surgical techniques that were below the normal standard.  I could not support the allegation that surgical decompression was adequate because the surgical record and video were too brief and not convincing.”

8.  In reliance on the expert opinion of Professor PC Leung, the plaintiff pleaded the following particulars of negligence of the defendants :

“(b) Failing to perform the Surgery up to a reasonable standard in that there was insufficient lifting of the laminae, insufficient bone removal or falling back of the lift; and

(c) Causing the failure of the Surgery and making it necessary for the plaintiff to undergo the 2^nd Surgery.”  

9.  Although expressed as two separate particulars of negligence, in effect, the plaintiff was pleading a case of negligence in the carrying out of the posterior laminoplasty in that there was either an insufficient lifting of the laminae, or insufficient bone removal, or that there was a falling back of the lift, which resulted either in a failure to achieve a decompression of the spinal cord or a failure to maintain any decompression that was achieved. 

10.  On 5 May 2011, at the hearing of a pre-trial review, I ordered that a joint meeting of Professor PC Leung and Professor John Leong be held to discuss and prepare a joint statement indicating those parts of their evidence on which they are, and those on which they are not, in agreement and the reasons for any non-agreement, in relation to the issues identified in the Agreed List of Issues prepared by the parties. In compliance with that Order, a joint statement was prepared dated 18 May 2011 which stated, inter alia :

“(2) Whether the 2^nd and 3^rd Defendants were negligent in the 1^st Surgery because of the following matters :

(a) Inadequate decompression

Professor PC Leung’s opinion is that after the surgical procedure performed by the 2^nd and 3^rd Defendants, the expected outcome of the decompression was not achieved. Professor John Leong’s opinion is that the surgical technique to achieve the compression was adequate.

Both of us agree that there was no negligence on the part of the 2^nd and 3^rd Defendants.

(b) Failure to the take effective measures to maintain the decompression

We both agree that there are a variety of effective measures to maintain the opening of the spinal canal after the laminoplasty, including stitching at the hinged side of the laminoplasty, using a spacer to occupy the space of the opening after complete osteotomy, and fusion of the hinged side in combination with either stitching or using a spacer. The 2^nd and 3^rd Defendants used the method of stitching on the hinged side.

We agree that there was no evidence of negligence.”

11.  Upon sight of this joint statement, the defendants’ solicitors, quite understandably, issued the summons to strike out paragraphs 24(b) and (c) of the Statement of Claim.  The plaintiff’s solicitors opposed the application and her solicitor, Ms. Monita Lau Wai Yee, filed and served an affirmation which she had made on 28 October 2011 in opposition to the application in which she exhibited two further reports from Professor PC Leung dated 6 October 2011 and 14 October 2011.  The earlier of those two reports did not contain any material to suggest that Professor PC Leung was resiling from the joint statement.  However, in his report dated 14 October 2011, he sought to clarify what he meant by the statements contained in the joint statement of 18 May 2011.  In that report of 14 October 2011, he stated :

“a) Owing to insufficient contemporaneous evidence, I could not pinpoint positive evidence of the Defendants’ “negligence”. That is why I stated in the Joint Medical Statement that there was “no evidence” of negligence.

b) However, the operation was plainly a failure, which calls for an explanation by the Defendants.

c) Unless and until the matter can be explained, I am inclined to the view that the operation was not done up to the expected standard.” 

12.  It is common ground that I can only strike out the particulars of negligence pleaded in paragraphs 24(b) and (c) of the Statement of Claims if it is plain and obvious that the plaintiff cannot succeed in establishing them at trial.  It is also common ground that I should proceed on the assumption that the plaintiff’s expert evidence will be accepted by the trial judge. 

13.  Mr. Alfred Fung, counsel for the defendants, submitted, rightly in my view, that the doctrine of res ipsa loquitur cannot help the plaintiff in the present case, given the common ground between the experts that loss of expansion of spinal canal post-operatively is an accepted and known complication.  He cited from Medical Negligence by Michael A Jones.  The 2008 Edition contains the following statement on p.317 at 3-147 :

“As a general rule, the maxim will not apply where the injury sustained by the claimant is of a kind recognised as an inherent risk of the treatment, since such accidents can occur without negligence.”

14.  He also referred to the Court of Final Appeal decision in Yu Yu Kai v Chan Chi Keung (2009) 12 HKCFAR 705.  In that case, a prima facie case of negligence was established and arose from the trial judge’s finding that external compression of the radial nerve of the plaintiff’s left arm caused radial nerve palsy.  Radial nerve palsy is not a known complication of radical prostatectomy (removal of the prostate gland).   

15.  However, whilst the evidential rule, res ipsa loquitur, may be inapplicable in the present case, in my judgment, a triable issue has been raised, given the evidence and the expert opinion of Professor PC Leung, as to whether or not spinal canal expansion was achieved and, if achieved, whether or not the post operative loss of spinal canal expansion occurred because of a sub-standard operation carried out by the defendants, or because of the known complication that actually materialised in the present case.  If the trial judge finds that adequate decompression was never achieved because of a sub-standard operation carried out by the defendants, or that loss of spinal canal expansion occurred post-operatively because of a sub-standard operation carried out by the defendants, then liability will be established.  If the trial judge finds that loss of spinal canal expansion occurred post-operatively because of an unknown reason, liability will not be established.  It cannot, therefore, be said that the particulars of negligence pleaded in this case, the subject matter of this application,  ought to be struck out because it is plain and obvious that they are wholly unsustainable.      

16.  In support of his submissions, Mr. Fung referred me to the Canadian decision in Rocha v Harris 36 D.L.R. (4^th) p.410.  This was a decision of the British Columbia Court of Appeal given on 13 February 1987.  The case concerned the plaintiff who was paralysed following cervical surgery performed by the defendant, a neurosurgeon.  The trial judge found that the defendant had failed to inform the plaintiff of the risks of the operation and that such breach of duty caused the plaintiff’s injuries.  Having come to that conclusion, the trial judge found it unnecessary to deal with the allegation of negligence in the carrying out of the operation and the application of res ipsa loquitur in the case, and gave judgment for the plaintiff on the issue of liability.  On appeal, the Court of Appeal, having overturned the trial judge on his findings on the issue of informed consent, had to deal with the allegation of the negligent carrying out of the operation.  After considering the testimony in the case, the Court of Appeal concluded that there was no basis for the application of res ipsa loquitur, given the agreement of the medical witnesses that there was a risk of paralysis in this type of operation without negligence on the part of the surgeon and others associated with the operation, and that there was no basis for a finding of negligence in the carrying out of the operation.  That conclusion, of course, was arrived at by the Court of Appeal after considering all the evidence that had been adduced in the case.  As Mr. Paul Lam, counsel for the plaintiff, rightly submitted, the decision of the Court of Appeal was not a decision on a striking out application but a decision that was based on the evidence that had been adduced and heard.  It was a decision on the facts of that particular case and was clearly right, given the weak evidence emanating from the plaintiff’s own expert on the issue of alleged negligence in the conduct of the operation.  As recorded at p.413 of the judgment, the plaintiff’s expert witness did not say, or even imply, that the defendant had been negligent in the surgical procedure.  The decision in that case was a decision made after the conclusion of the trial, and was arrived at after considering all the facts and evidence adduced at trial.                

17.  I do not fault the defendants for bringing this application.  They were clearly right to do so. However, the subsequent expert report of Professor PC Leung raised, once again, the triable issue that had been raised in his earlier report.  The lesson to be learnt from this case is that expert witnesses must be careful in the manner in which they express themselves, particularly in joint reports.  If what they mean to say is that there is no direct evidence of negligence in the case, but that the facts and circumstances of the case may give rise to an inference of negligence, then they should say so clearly. The purpose of without prejudice meetings between experts is to enable the experts to meet and to discuss their opinions with a view to narrowing issues and reducing disagreement.  Without prejudice meetings are valuable for this reason.  As a result of such without prejudice discussions, experts often change their minds and their views initially held in the case.  An expert who has changed his initial view should expressly say so in any joint statement prepared after a without prejudice meeting.  The resolution or narrowing of differences between experts can often help to avoid the costs and expenses of a lengthy trial and the consequent stress of litigation imposed on the parties involved.