RE HOSPITAL AUTHORITY

1994, MP No. 2079

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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1. On 7th May 1993, Mrs. Ng Wai Ling gave birth to a baby boy at United Christian Hospital. Sadly, the baby died a few hours later. A coroner conducted an inquest from 3rd to 6th May 1994. At the conclusion of the inquest, the jury returned a verdict of death by natural causes aggravated by lack of care. The jury added a rider that consideration be given to the automatic review by an adequately experienced doctor one hour after full dilation is achieved for a nullipara (that is, a woman who has not previously given birth).

2. With leave the Hospital Authority (the Authority), which is responsible for United Christian Hospital, applies for judicial review of the decision of the coroner to leave to the jury the verdicts of death by lack of care and death by natural causes aggravated by lack of care; of the coroner's direction to the jury in relation to lack of care; and of the inquisition insofar as it records the verdict of death by natural causes aggravated by lack of care. The Authority asks for a declaration that the coroner erred in law in his direction to the jury and for an order of certiorari to enable this court to quash the verdict by expunging the words "aggravated by lack of care".

3. At the hearing of the application, the coroner was represented by Crown Counsel. Mrs. Ng was present together with her husband, Mr. Chan Wai Wah. It is a great pity that these two people, with whom everyone has the greatest sympathy, should have to suffer this further painful experience.

4. For the most part, the facts are not in dispute. I say, for the most part because Mrs. Ng, when she addressed me during the hearing, questioned certain measurements taken by one of the doctors who attended her and questioned the competence of another. As I explained to her, these are issues which may have to be investigated in other proceedings. They are not relevant to the present proceedings. As I further explained to Mrs. Ng and her husband, because it is difficult for laymen to appreciate the distinctions between a coroner's enquiry, proceedings by way of judicial review and a civil action for damages based on negligence, the function of a coroner's enquiry is to ascertain what happened or how a person died. It is not the function of that enquiry to point the finger of blame at anyone. If blame is to be attached to the Authority or any of its staff, that will have to be done in separate civil proceedings at which all parties are properly represented and the interests of the doctors, whose actions may be under scrutiny, can be properly protected. It is worth reminding everyone of these distinctions, as it is worth me reminding myself that my function in these proceedings by way of judicial review is simply to determine whether or not the coroner acted lawfully in the sense that he gave proper directions to the jury on the law and did not leave to the jury verdicts which were not open on the evidence available at the enquiry. It is not my function to review all the material that was before the jury and substitute some other verdict which I might consider to be more appropriate in all the circumstances.

5. On 6th May 1993, Mrs. Ng was admitted to hospital. The following morning, cervical dilation began. Mrs. Ng was examined by a doctor at 0745 when she was found to have dilation of 8 cm. At 0935, Dr. Mok Chung Wai, an obstetrician, carried out a physical examination and found everything acceptable. Dr. Tang Chun Kit, a houseman, and therefore a very junior doctor, carried out a further examination at 1025 when he found dilation in excess of 9 cm. Dr. Tang further examined at 1125 when dilation was approaching 10 cm. Dr. Tang found full dilation of 10 cm. at 1205 when Mrs. Ng was taken to the labour ward. There, Mrs. Ng was under the care of midwives who, when she had been in the second stage of labour for some 45 minutes, in accordance with the hospital's practice, informed Dr. Tang of the situation. Dr. Tang carried out a further examination at 1300 when he found full dilation of 10 cm. Because of the lack of progress, he informed a medical officer, Dr. Fan Yuen Man, at 1310. Dr. Fan arrived at the labour ward a few minutes later and prepared Mrs. Ng for vacuum extraction by the use of a ventouse cup. This procedure was unsuccessful and at 1335, Dr. Mok, the obstetrician was informed. He arrived at 1350. After two more unsuccessful attempts with the ventouse, Dr. Mok took over and at the sixth pull or traction on the ventouse, the baby was born at 1449. Sadly, the baby died about eight hours later.

6. A post mortem was carried out. The pathologist found three causes of death, namely, subaponeurotic haemorrhage; subarachnoid haemorrhage and intrauterine asphyxia. Of these, the pathologist thought the first to be the most important and most likely to have caused the baby's, death.

7. A report was obtained from Dr. Michael Scott Rogers, an expert in the field of obstetrics and a practitioner at the Prince of Wales Hospital. His report was critical of the management of Mrs. Ng in two respects. First, Dr. Tang's failure to call a more senior medical officer following his examinations at 1025 and 1125 when it was apparent that cervical dilation was proceeding more slowly than normal, the norm being about 1 cm. per hour. Second, the way in which the ventouse was used.

8. In due course, the inquest began. In the course of the inquest, the coroner indicated that there was a significant risk that a verdict involving lack of care would be found. In the absence of the jury, the Authority's solicitor made submissions to the coroner concerning the ambit of lack of care in relation to coronial proceedings. In particular, he drew the coroner's attention to the then recent decision of the Court of Appeal in R. v. H.M. Coroner for North Humberside ex parte Jamieson [1994] 3 W.L.R. 82. In that case, Sir Thomas Bingham, M.R., reviewed the authorities in relation to inquests generally and a verdict of lack of care in particular. He came to 14 conclusions of which 4 are of particular importance in relation to lack of care.

9. The official Law Report was not available at the inquest. The report in the Times was and it contained in detail the numbered conclusions. Nonetheless, the coroner left 5 possible verdicts to the jury, including lack of care and natural causes aggravated by lack of care. As to lack of care, he said,

10. The tape recording of the summing up was unfortunately lost. The coroner supplied a reconstruction from his notes. The infelicities might be forgiven.

11. It was accepted that the decision in Jamieson represents the law in Hong Kong. It was also not in dispute that circumstances which afford ground for review of a coroner's verdict and inquisition include: misdirection on law, failure to sum up the evidence to the jury, or an absence of facts in the evidence to justify the verdict reached.

12. It is immediately apparent that the coroner, in his summing up, confused the two distinct concepts of lack of care, in the special sense in which it is used in coronial proceedings, and of negligence which can give rise to an action for damages in civil proceedings. The coroner's directions to the jury were hopelessly wrong as a matter of law. Further, what is not immediately apparent is where there was evidence of lack of care used in its proper and restricted sense.

13. Mr. Bradley, who represented the coroner, accepted that the coroner's summing up was wrong. He maintained, however, that there was evidence which might be regarded as showing lack of care; that whether or not that evidence amounted to lack of care was a question essentially for the jury; and that the jury had, not withstanding the summing up, plainly grasped the essence of lack of care by virtue of the rider to the verdict. The lack of care, said Mr. Bradley, was the failure on the part of Dr. Tang or anyone else involved in the management of Mrs. Ng to take any steps during the first stage of her labour in the morning when labour was not progressing at the normal rate.

14. Mr. Bradley drew attention to passages in the judgment of Sir Thomas Bingham in Jamieson where he referred to the judgment of Croom-Johnson L.J. in R. v. Southwark Coroner Ex parte Hicks [1987] 1 W.L.R. 1264. The passages appear at page 94 of Sir Thomas Bingham's judgment;

15. Mr. Bradley also drew attention to the last sentence of conclusion 10 in Sir Thomas Bingham's judgment. He contended that during the morning there had been an insufficiency of medical treatment for Mrs. Ng and that there had been lost an opportunity to halt or cure the fatal condition.

16. I am wholly unable to accept that argument. The comments of Croom-Johnson L.J. must now be looked at in the light of the judgment in Jamieson. I suppose if a person is admitted to hospital but left without the attention even of a nurse, that might amount to an insufficiency of medical treatment amounting to lack of care. Once a person is in hospital, however, and under management, as was Mrs. Ng, almost by definition there can be no lack of care. The quality of the medical treatment might, as here, be called in question but that gives rise to very different considerations from lack of care.

17. Mrs. Ng was attended by midwives and from time to time by a doctor. There simply was no lack of care in the sense in which it is now understood in coronial proceedings.

18. Even if the evidence might give rise to a lack of care situation, then, as Mr. Thomas for the Authority pointed out, there is simply no clear and direct causal connection with the unhappy death of the baby. It appears more probable than not that the subaponeurotic haemorrhage was caused by the use of the ventouse. But at the end of the day, the criticism voiced by Dr. Rogers in his report had evaporated once Dr. Rogers had heard the evidence from the doctors involved in managing Mrs. Ng. Dr. Rogers was simply left saying that the failure to call a more senior doctor at an earlier stage was simply a contributing factor. Although he, Dr. Rogers, would have proceeded by way of caesarean section if he had been called in the morning, he conceded that another doctor may have made the same decisions as were in fact made. Indeed, Dr. Mok said he would have done the same as Dr. Tang because, although Mrs. Ng's labour was not progressing as fast as the norm, she was still within the two hour limit, only after the expiry of which was it the hospital's practice for a more senior doctor to be informed. It boiled down, therefore, to a matter of judgment. Different doctors may have proceeded differently.

19. In my judgment, there was no evidence which, as a matter of law, gave rise to a lack of care situation. Further, the evidence which was suggested to show lack of care had no causal connection with the cause of death. In any event, the coroner was in error in his directions to the jury in relation to lack of care.

20. Accordingly, I grant the declaration sought by the Authority. I grant an order of certiorari so as to remove into this court and to quash the verdict, by expunging the words "aggravated by lack of care". I am satisfied that this is not a case for quashing the whole verdict and ordering a new enquiry.