YAN MING KIT AND ANOTHER v. ST PAUL'S HOSPITAL AND OTHERS

HCPI 902/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 902 OF 1999

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R U L I N G

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1. This ruling is in respect of the liability for the costs of an application for discovery by a non-party. In view of the unusual circumstances of the situation which gave rise to the application itself and the resultant involvement of six firms of solicitors one of whom instructed counsel, I decided to give my decision and the reasons for it in writing in the hope that parties may be discouraged from allowing a similar situation to develop again.

2. This is a claim in medical negligence on behalf of the Dependants and estate of a Police Officer who died in Tang Shiu Kin Hospital on 16 August 1996 following admission for treatment of a critical condition which was wrongly diagnosed as pharyngitis, when in fact it was epiglottitis, a potentially, and in this sad case, actually fatal illness.

3. The action is brought against St Paul's Hospital and its administrators the Sisters of St Paul de Chartes (the 1st and 4th Defendants), the Hospital Authority (being the body responsible for Tang Shiu Kin Hospital, the 2nd Defendant) and Dr Suen Ming Lai (the 3rd Defendant), a private practitioner at St Paul's Hospital. This application directly concerns the Hospital Authority who are represented in this action by Messrs Johnson, Stokes & Master.

4. One of the members of the staff of the Tang Shiu Kin Hospital against whom specific allegations of negligence are made is a nurse on duty at the time that the deceased presented himself. She could not be identified at the time that the Statement of Claim was served and so her name does not appear in that pleading. She has since been identified but as I have decided that no purpose would be served by my referring to her by name, and to do so might cause quite unnecessary embarrassment, I will simply refer to her as "the Nurse". Some time after her father died one of the daughters of the deceased made a formal complaint against the nurse which was referred to the Nursing Council. There was it appears a preliminary investigation but it was decided that no disciplinary proceedings would be taken against her.

5. In due course the Plaintiff's solicitors sought discovery by the Hospital Authority of the documentation in respect of this complaint through the Authority's solicitors. This was an entirely proper, indeed necessary avenue of inquiry for the proper preparation of the claim against the Defendants. It is simple to deduce that the relevant documents would include not simply the letter of complaint but also a statement by the nurse concerned, possibly a communication by the Hospital Authority (or the Hospital itself) and a finding or consideration of the material acquired by the Nursing Council. It follows that since the nurse was the subject of a complaint and possibly of disciplinary proceedings, the Hospital itself (or the Hospital Authority) as employer of the nurse would have a very real interest in the matter. As the employer it would have an interest in common with that of the employee.

6. The Plaintiff's solicitors first raised the matter of disclosure of these documents in their letter of 30 January 2002:

".... we note:-

a) No discovery of documents re complaint against [the] nurse ...."

The Defendant's solicitors had by that time served a statement by the nurse in which she had said:

"I can remember a lot of details .... because in 1997 his widow made a complaint against me to the Nursing Board at which time I had to recall those details. The complaint was dismissed .... "

In reply to the letter from the Plaintiff's solicitors and on the specific topic identified above, Johnson, Stokes & Master wrote (31 January 2002):

"You request for discovery of documents re complaint against [the] nurse.

What complaint are you referring to?"

This reaction was coy or obtuse. It is possible, though unlikely, that the writer was unaware of the content of the statement from the nurse which had so recently been served by his own office.

7. Burke & Company replied swiftly pointing out:

"The complaint regarding [the] nurse, is referred to her in her own witness statement and relates to the complaint by the deceased's family following his death regarding her conduct .... "

8. A few days later Johnson, Stokes & Master replied in a manner which suggests that they were playing some form of semantic game:

"It is not clearly stated in your letter but presumably you are referring to the complaint made by the first-named Plaintiff, Madam Yan Ming Kit, to the Nursing Board against [the] nurse."

The receiver of this letter, if he was not used to this type of time-wasting exchange, must have wondered what on earth the writer was trying to do.

9. The next three paragraphs of the letter of 5 February 2002 from Johnson, Stokes & Master were in my view patently obstructive. I need to repeat them to complete the picture at this stage, though this is very far from being the complete picture:

"First of all you have not explained why the documents you seek are relevant to the matters in issue in the present Action. Bearing in mind that the first named Plaintiff was the complainant, if the Plaintiffs had thought that the documents relating to the complaint were relevant to matters in issue in the present Action, the Plaintiffs would have disclosed documents in their possession, such as a copy of the complaint to the Nursing Board, in the Plaintiff's List of Documents. No such disclosure has been made in the Plaintiff's List of Documents.

Second, Ms. Pak is not a party to the present Action. She is a witness. It cannot be assumed that documents in her possession are documents in the possession, custody or power of our client, the Hospital Authority even though the Hospital Authority is Ms. Pak's employer.

Third, some of the documents you seek, if they exist, would appear to be the documents of the Nursing Board, a statutory body. Those documents are not within the possession, custody or power of our client."

10. A complaint made against a hospital's nurse in relation to alleged negligence which is the subject of civil proceedings is highly material. There is likely to be a disclosure by the hospital and/or the nurse of a statement or statements and/or records material to the subject matter of the complaint which are also material to the issues or, at least one issue, in the civil action. As for the non-disclosure in the Plaintiff's List of Documents of the letter of complaint, the Plaintiff may not have kept a copy of it, it may have been on an official form supplied by the Hospital but that is in any event quite trivial given the contents of the nurse's statement and the way Johnson, Stokes & Master dealt with a simple, reasonable request from the outset.

11. Although of course the nurse is not a party to the action, she is the employee of the 2nd Defendant Hospital Authority, and as such their servant or agent. Negligence is alleged against her in that capacity. The Hospital Authority is vicariously liable for her acts or omissions in the course of her employment. Her employer has a clear legal interest in such a complaint and any consequential action. It would be surprising, to say the least, and would give rise to a number of queries to the Hospital concerned if the Hospital Authority did not have written notice of the complaints, any statement from the nurse in response to it and any records provided or generated in relation to it. As will appear later the Hospital Authority did have certain documents. Although the nurse's contract of service or employment has not been disclosed (it would not be necessary to disclose it on the ordinary and sensible state of affairs) I anticipate certain obligations are imposed upon nursing staff in respect of complaints against them.

12. There may be certain documents in the possession of the Nursing Board which would not necessarily be in the possession of the Hospital Authority. The Hospital Authority's solicitors needed to apply their minds to what was sought and what was available rather than be totally dismissive of and obstructive in relation to a proper request.

13. Having considered this letter from Johnson, Stokes & Master, Burke & Co. replied temperately to the effect that they would communicate with the Nursing Board. The tenor of subsequent correspondence from Johnson, Stokes & Master is to be regretted.

14. In due course Burke & Co. received a reply from the Nursing Council which clearly indicates that the Council required a form of consent from the nurse before they would release the documents sought. Again acting reasonably, and indeed pursuing the only course to be followed in the circumstances, they sent the form to Johnson, Stokes & Master asking for them to obtain the nurse's signature, or to indicate if the nurse should be approached directly. If consent was not forthcoming it was stated that an application for discovery against a non-party would be pursued.

15. Although I do not have the subsequent correspondence it is clear that Johnson, Stokes & Master declined to obtain the requisite consent and, expressly or impliedly, the documents themselves. I do however have the correspondence passing between Burke & Co. and the Nursing Council on one hand and the nurse concerned on the other. The consequence was that Burke & Co. met with a stonewall. An application for discovery was thus inevitable. At this stage, it is clear that although the Plaintiff's solicitors were concerned with discovery 'in toto' on the topic, they primarily wanted a copy of the nurse's statement to the Council. This was likely to be the earliest statement and therefore closest in time to the events under scrutiny. This may also have generated a statement by some other member of the hospital staff relevant to the issue.

16. The letter from the Nursing Board to Madam Yan Ming Kit of 8 July 1998 referred to material obtained by it from the Administration Manager of the hospital as well as a visit by the Board's Chairman to make a personal inspection of the Accident and Emergency Unit. There is therefore clear material which justified the pursuit by the Plaintiff's solicitors of discovery.

17. Solicitors for the nurse also became involved. I anticipate that someone, probably her employers advised her to obtain legal representation. I shall revert to that aspect later. P C Woo & Co.'s letter of 8 April 2002 declining to provide a copy of the nurse's statement to the Council contains mistaken argument in support of the refusal and a misunderstanding of the fairly simple issue.

18. The Plaintiff's solicitors issued their application against the Nursing Council and the nurse concerned on 3 May 2002 with a return date of 16 May. It came before me with a battery of representation. Only the solicitors for the 1st and 4th Defendants (St Paul's Hospital) were absent having indicated by letter that they were not opposing the application. They had adopted an entirely sensible and practical course. The solicitors for the Hospital Authority (Johnson, Stokes & Master) stated that they adopted a neutral stance as did the solicitors for the 3rd Defendant (Messrs Richards Butler). It was clear that an argument was going to be pursued on behalf of the Nursing Council and the nurse with the main opposition coming from the nurse, the Nursing Council having earlier indicated that its attitude had to be determined by the absence of consent from the nurse. There was already fixed for 3 June a Pre-Trial Review of the action. I decided all the issues could best and most economically be determined then and after a short discussion of the merits of the issue, and having expressed my concern about the way the Hospital Authority's solicitors had dealt with this issue of discovery and in the hope that positive reflection in the meantime would resolve the issue, I adjourned the hearing until 3 June.

19. On that date all the parties returned joined by Mr Reeves for the 1st and 4th Defendants as an interested observer as well as for the more relevant purpose of the Pre-Trial Review. I was informed by Mr Burke for the Plaintiff that all the parties and non-parties had agreed to the discovery sought. There remained of course the vexing question of costs. The Plaintiff's solicitors had proposed what seemed to be a happy compromise formula for these costs. However it was not acceptable to everyone and so an examination into the position was necessary.

20. I had throughout been concerned that the nurse had had to obtain separate legal representation i.e. that her employers' lawyers were not looking after her interests. The financial burden was thus on the face of it considerable for a nurse whose means were likely to be such that she would probably be eligible for legal aid.

21. It emerged during the course of my discussion with Mr Lester Huang for the nurse, that her employers had given her an indemnity in respect of her legal costs. Since there was obviously no conflict between the nurse and her employers it is difficult to see why she required separate representation in the first place.

22. Mr Daniel Chan's argument on behalf of the Nursing Council was essentially that the Hospital Authority should have disclosed the statement by the nurse and any other documents generated. The nurse was the Hospital Authority's servant or agent and had the power so as to be able to disclose the statement at least. I agree with him. In fact the matter went further because Mr Chan was able to tell me that the Hospital Authority forwarded to the Nursing Council a copy of the nurse's statement in response to the complaint. This came as no surprise to anyone. It was a reasonable expectation that the nurse's statement would have been prepared with the assistance of, or even by the Hospital Authority. It meant moreover that the Hospital Authority had possession of, never mind power or control, over the document which was at the very heart of the Plaintiff's solicitors application for discovery, or as Mr Daniel Chan put it - the document must relevant to the Plaintiff's application. In the event all the posturing by the Hospital Authority and its solicitors have led to this circular activity involving considerable waste of costs.

23. If the solicitors had asked their client, the Hospital Authority, for all relevant documents, the Hospital ought to have disclosed the nurse's statement and any other document in relation to it in their possession. If the solicitors had not asked for such documents it was an omission of some significance. I was informed by Mr Tse of Johnson, Stokes & Master that the Hospital Authority had not disclosed the document(s) to him. What I was not told was whether, in the light of the knowledge of Johnson, Stokes & Master of the existence of such a statement, the solicitors had asked the Hospital Authority for a copy of the document(s). Instead they adopted what I regret to have to call an obfuscatory approach. As a consequence I can well understand in any future action against the Hospital Authority if a claimant's solicitors were to insist on discovery on affidavit or affirmation followed by interrogatories if there were to be good reason for thinking that the obligations in relation to discovery were not being taken seriously.

24. In relation to this application I am left with the situation whereby had the Hosptial Authority acted openly and properly there would have been no need for this convoluted process to be undertaken. The Plaintiffs are entitled to their costs. I order that the 2nd Defendant pay the costs of and occasioned by the application. The 1st and 4th Defendants and the 3rd Defendant were not involved in the conflict and so there is no need for any order in relation to them. The costs of the Nursing Council both in relation to compliance with the order, and of and occasioned by the application shall be paid by the 2nd Defendant who clearly had the capacity to relieve it of any burden and could have obtained all the documents. The costs of the nurse are also to be paid by the 2nd Defendant which has in any event given her an indemnity in relation to such costs. The costs of actual compliance with the order for discovery, which are minuscule in comparison with the overall costs of and occasioned by the application, will be costs in the cause.

25. It is to be hoped that the circumstances illustrated by this application are not a fair reflection of litigation as conducted by practitioners. The posture demonstrated has gone far beyond the adversarial.