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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R U L I N G

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Background

1.  These are 2 related actions issued by the plaintiff (“Madam Kwan”) against a doctor and various nurses of Our Lady of Maryknoll Hospital (“OLMH”) on treatment received by her mother (“the decease”) during her stay and treatment in OLMH.  Messrs. P. C. Woo & Co. represent the defendants in both actions, except the 1^st defendant in HCPI 570/2009.  By summons application, Mr. Sit of Messrs. P.C. Woo & Co. applies to strike out the claims in both actions under Order 18 rule 19 of the Rules of High Court and the inherent jurisdiction of the High Court.

2.  The summonses in both actions came before me for argument in July 2011.  On 2 September 2011, by a written judgment, I have allowed the defendants’ application in part, namely, that all claim based on medical negligence has been struck out.

3.  And according to the pleadings before me, and taking into account the submission of Madam Kwan, there is a possible claim by the plaintiff against one or some of the defendants in the Actions for carrying out a urine test on the deceased without the appropriate consent.  I refer to paragraph (3) on page 6 of the amended statement of claim (“paragraph (3)”)when it is stated that –

“Using a sharp instrument through the catheter to destroy [the deceased]’s urinary system causing a large volume of blood be lost.”

4.  It has been explained in submission that what Madam Kwan complains of is how a urine test has been carried out on the deceased without the consent of the deceased and/or her family members.  That appears to be the tortuous claim of assault and battery.  But even for this relief, there is not sufficient particular in the statement of claim, which is mainly on medical negligence.  I therefore direct Madam Kwan to file a revised statement of claim to give sufficient particulars of the claim based on the carrying out of the urine test without the consent of the deceased and/or her family member, and I would consider further if this head of claim should be allowed to proceed, and if so, the direction on amendment if appropriate.

5.  Madam Kwan did lodge in Court a draft revised statement of claim which concentrates on the claim regarding the urine test.  The parties come back to me in November 2011 and the defendants object to the amendment.  I set the matter down for full argument, which I heard today.

Some Technical Issues

6.  I would refer to the contents of the draft revised statement of claim hereinafter.  Madam Kwan has filed a “consolidated” statement of claim for both actions.  This is sensible as I have commented in my judgment that if the actions are to continue, they should be consolidated at some stage.  But for record, the 2 Actions have not been consolidated.

7.  Madam Kwan also specifies in the revised statement of claim that she is now claiming as administratrix of the estate of Chan Shuit Chan, the deceased.  She confirms in the Court that she has obtained the letters of administration for the deceased and the defendants have no objection to the capacity of the plaintiff be changed to the administratrix of the deceased.  This matter would be dealt with at the end, if necessary.  For convenience, I shall call Madam Kwan Yuen Mei “Madam Kwan” and her mother “the deceased” in this short ruling.

8.  In HCPI 570/2009, Madam Kwan has named the superintendent of OLMH as the 5^th defendant.  Mr. Sit of Messrs. P.C. Woo & Co. confirms that the proper party, since OLMH is under the Hospital Authority, should be the Hospital Authority.  And Mr. Sit confirms he has instruction to act for the Hospital Authority and he has no objection to amend/replace Hospital Authority as the 5^th defendant, if necessary.  Madam Kwan agrees to the amendment.  I would come back to this if necessary.

9.  Madam Kwan also complains that the cases have been transferred to the Lands Tribunal.  Madam Kwan could have misunderstood the position.  The applications of the defendants have been heard by me when I was sitting as a High Court Master.  The applications have not been finalized as I have reserved in my judgment for my further consideration of the issue on urine test.  The hearing of the defendants’ summons is a part heard matter.  It is usual for part heard case be adjourned to be heard by the same judge or judicial official.  I am now sitting as a Deputy District Judge in the Lands Tribunal.  But according to the High Court Ordinance, I have jurisdiction to deal with my part heard cases when sitting as a High Court Master.  Hence for today, I am exercising my jurisdiction as a High Court Master.  The case has not been transferred to the Lands Tribunal.

Madam Kwan’s case

10.  That deals with all procedural issues and I would turn to the key issue of today’s application, namely, whether the revised statement of claim revived a reasonable cause of action by the deceased against the defendants such that I should not strike out this part of the claim.

11.  The key pleading on the revised claim is set out in paragraph 3 of the revised statement of claim.  Madam Kwan refers to the medical notes kept by OLMH dated 7 September 2006 and the discharge summary by OLMH printed on 9 September 2006.  She pleads –

“The catheterized urine check so ordered by Dr. Lau Sui Yuen above mentioned was done without the consent of [the deceased] and/or her family members. Further, when using catheter to collect urine from [the deceased], the handling nurse (MAU Ka Yan – Registered Nurse according to the medical record) has caused injury to the urinary system of the Patient.

12.  Madam Kwan also pleads in the revised statement of claim that she has written to OLMH for copies of all the written consent records by the deceased and/or her family members.  Madam Kwan says “it is verily believed by [her] that there was no such written consent given by [deceased] and/or her family members to OLMH”. Madam Kwan said that OLMH and its medical personnel has failed to obtain the necessary consent before carrying out the catheterized urine check, and further contends that “this was done on purpose because “daughter not coping well” as mentioned in the Discharge Summary…”

13.  By reason of the defendants’ negligence, Madam Kwan pleads that the deceased suffered loss and damages.

14.  I have also mentioned in my judgment that medical evidence should also be disclosed.  It is required under Order 18 Rule 12(1A) of the Rules of High Court that a medical report shall be served with the statement of claim as this is a requirement for all personal injury cases (Order 18 rule 12(1A)).  No medical evidence has been adduced and Madam Kwan stated in the revised statement of claim that medical evidence in support of the injuries and damages to the deceased shall be adduced in due course.

15.  In the original written submission in Chinese presented by Madam Kwan, she has not abandoned her claim on medical negligence.  And she has produced a medical care report prepared by one Ms. Yeung Wai Ming, a registered nurse, who claims to have prepared the report on the principle of the Bolam’s test.  I believe what Madam Kwan is intending to submit is that the administration of the urine test is inappropriate for the medical condition of the deceased.  I doubt if Ms. Yeung is in a position to give medical opinion as she is not a doctor.  But as I have ruled on the issue of medical negligence, it is not opened for me to re-consider the matter.  That would be matter for appeal and I am given to understand that Madam Kwan has appealed against my judgment, which appeal has been adjourned and to be restored after this hearing.

16.  Madam Kwan also relies on the medical care report by Ms. Yeung as medical evidence in support of the injuries and damages to the deceased.  She also agrees to file a statement of damages in due course if the Court allows the action to continue. The point is noted.

17.  Madam Kwan has in fact lodged another written submission in English, in response to the written submission by Mr. Sit.  She relies on paragraphs 3(c) and 4 of the revised statement of claim which I have set out above as sufficient plea on the negligent act of the defendants.  And on medical evidence, she relies on the report by Ms. Yeung as evidence on injuries caused to the deceased.  The injuries to the deceased are “aggravated urinary tract infection” and “unnecessary pain and suffering caused by the urinary catheterization until the deceased died two days later”.

18.  Madam Kwan also filed a draft order with the English submission.  In the draft, she suggested the 2 actions be consolidated.  She asks to discontinue the claim against the 1^st defendant of HCPI 570/2009, Lee See Ching.  She also agrees to allow the claims against the 3^rd and 4^th Defendants in HCPI 570/2009, Cheng Sui Yee Christina, and Chan Sau Chu, be dismissed with costs to them.  That would leave behind 3 defendants, Dr. Lau Sui Yuen, Ms. Mau Ka Yan and the Hospital Authority.

19.  And before today’s hearing, Madam Kwan has lodge a revised Chinese written submission.  She repeats her argument.

The defendants’ case

20.  Mr. Sit also provides me with a written submission.  He asks me to consider only the issue on the urine test without consent, which I agree is the only issue before me today.

21.  Mr. Sit said “while [Madam Kwan]’s complaint on the urine test without consent may be arguable, the draft revised statement of claim is defective in a number of issues.”

22.  Mr. Sit first complains that the revised statement of claim is ambiguous on who failed on the issue of consent, is it Dr. Lau Sui Yuen or Ms. Mau Ka Yan.  If Madam Kwan claims against Dr. Lau on simple tort, there is no reasonable cause of action against Dr. Lau.  While Dr. Lau ordered the urine test, as pleaded, it was Ms. Mau who used catheter to collect urine from the deceased.

23.  Further, Mr. Sit submits that the revised statement of claim is not clear on the necessary consent.  Is Madam Kwan suggesting that the consent shall be in writing only, and from whom and how such consent should have been obtained?

24.  And if the Court accept that there is a cause of action against Ms. Mau and not Dr. Lau, HCPI 569 of 2009 should be struck off and Hospital Authority should be named as the sole defendant in HCPI 570 of 2009, as Hospital Authority (without making any admission to Madam Kwan’s or the deceased’s claim) should be vicariously liable for the wrongful conduct of its staffs.

Discussion and Ruling

25.  Madam Kwan has referred to the judgment of Mr. Justice Suffiad in HCA 16885/1998 given on 11 August 1999.  It is said by Mr. Justice Suffiad that “[an application to strike out the plaintiff’s claim] should only be granted in plain and obvious cases.  Matters in dispute must never be decided upon a mini trial on affidavit.”  She submits that I should not have struck out the claim on medical negligence.

26.  I have no disagreement with this principle.  And my reason for striking out the cause of action on medical negligence has been set out in my judgment.  I am not dealing again with any of the issue that I have made a ruling.  But this principle is relevant to my consideration on whether the remaining claim of Madam Kwan in these actions should be struck out.

27.  Madam Kwan submits in her English submission that the defendants are negligent in failing to obtain the consent from the deceased and/or her family members before administering the urine test. 

28.  The revised statement of claim also states that the defendants have been negligent in failing to obtain the necessary consent before they carry out the test.  Be it deliberate or neglect on the part of the defendants, the result is a medical test carried on the body of the deceased without her consent. 

29.  There is no suggestion by the defendants that consent has been given.  The complaint of Mr. Sit that the statement of claim does not specify whether it is oral or written is neither here or there, as Madam Kwan’s case is no consent has been obtained. 

30.  While it has not been specified in the revised statement of claim, it has been stated in affidavit and from submission, and in paragraph (3), the test involves the use of sharp instrument that has to enter the private part of the deceased which caused the deceased injuries.  I accept that a prima facie case on negligence or assault and battery is pleaded.  And I cannot say that for this head of claim, there is no reasonable cause of action.

31.  It is also the case of Madam Kwan, set out only in her written submission that the injuries to the deceased is aggravated tract infection and unnecessary pain and suffering caused by urinary catheterization.  While such particulars are not set out in the revised statement of claim, and may not be sufficient, these matters should be sufficiently pleaded in the statement of damages to be filed.

32.  Mr. Sit has not really submits against the argument that there is a prima facie case on tortuous claim.  But he has observed that in the revised statement of claim, Madam Kwan only mentions the act of 2 defendants in relation to the urine test.  She mentioned that the urine test was ordered by Dr. Lau.  But there is no suggestion that Dr. Lau carried out the test himself.  Madam Kwan in reply submits that the medical team work in concert and should be equally liable. But the revised statement of claim does not state that Dr. Lau is a party to the carrying out of the urine test without consent, and there is no suggestion of conspiracy.

33.  Madam Kwan also refers to a criminal case on indecent assault.  I do not see the relevance of the case.

34.  In conclusion, I therefore accept the submission of Mr. Sit that, even on the revised statement of claim, there is no reasonable cause of action against Dr. Lau.  As Dr. Lau is the sole defendant in HCPI 569/2009, I do order that the whole action be struck out with costs to the defendant.

35.  As for HCPI 570/2009, I note from the draft order of Madam Kwan that she agrees to dismiss the claim against the 3^rd and 4^th defendants.  I only need to add that, the revised statement of claim has not shown any reasonable cause of action against the 3^rd and 4^th defendants. Hence the claim against them should be dismissed.  And I see no reason why they should not have the costs of the action, which Madam Kwan concedes in her draft order.  I therefore grant them costs of this action.

36.  Madam Kwan has not served the action on the 1^st defendant in HCPI 570/2009.  There be leave to Madam Kwan to withdraw the claims against the 1^st defendant.  There be no order as to costs.

37.  And on the above analysis, I found that the action HCPI 570/2009 should be allowed to continue by the estate of the deceased against the 2^nd defendant and Hospital Authority (to be substituted as the 5^th defendant in due course) on the claim of carrying out urine test on the deceased without the proper consent and thereby causing injuries and loss to the deceased.  Corresponding directions on amendment to the writ and the statement of claim should be given. 

38.  Accordingly, I grant leave to Madam Kwan to re-amend the Writ in HCPI 570/2009 by amending the title of the plaintiff to “Kwan Yuen Mei, the administratrix of the estate of Chan Shuit Chan, deceased”, and the title of the 5^th defendant to “Hospital Authority”. 

39.  Secondly, the amended statement of claim in HCPI 570/2009 be struck out and there be leave to the plaintiff (in the re-amended writ) to file and serve a re-amended statement of claim against the 2^nd defendant and the 5^th defendant (Hospital Authority) in terms of the revised statement of claim within 21 days from today.  She may also incorporate paragraph (3) in the re-amended statement of claim.

40.  Further direction on filing of statement of damages and medical report, and filing of defence is necessary.  In view of the appeal, it may be sensible to defer such steps to be taken after hearing of the appeal.  I would direct Mr. Sit to take out a summons before a PI Master within the next 7 days when the parties could discuss further if the matter should be deferred, or that a time-table should be fixed by PI Master at this stage.  Parties should also have liberty to apply for further direction if necessary.

41.  And on costs for the 2^nd and 5^th defendants in this application, they are successful in striking out a substantial part of the statement of claim and there has to be fresh pleadings to the remaining claim of urine test.  I would give an order nisi that they should have the costs of the summons (including both hearings before me and any reserved costs of the summons) to be paid by Madam Kwan (who at the material time is the plaintiff) in any event, such cost to be taxed if not agreed.  The order nisi is to become absolute within 14 days from today.