WONG SHUI KING v. DR WU HIN TING AND OTHERS

HCPI 440/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 440 OF 1997

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J U D G M E N T

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THE BACKGROUND

1. The plaintiff had an accident while travelling on a China Motor Bus on 24 April 1994. She instituted proceedings in respect personal injuries against the driver and the bus company (the 2nd and 3rd defendants respectively) in respect of the accident and also against Dr Wu Hin Ting, the 1st defendant, an eminent and respected neurosurgeon. Her case against the 1st defendant is in respect of injuries caused to her hip joints allegedly by the doctor's negligent treatment prior to the traffic accident, but which only came to light as a result of the accident. Counsel requested me to determine the issue of liability as between the plaintiff and the 1st defendant only, leaving the issue on quantum (if the question of liability is resolved against the 1st defendant) to be determined together in the proceedings against the 2nd and 3rd defendant.

THE PLAINTIFF'S CASE:

2. The plaintiff is a housewife, now 36 years of age. She had been a sewing worker but became a full time housewife a few years after her marriage. She has a daughter who is now 20 years old. She had a history of epilepsy since November 1991 and had been admitted to Prince of Wales Hospital. She complained of weakness and numbness on the right side of her body. On 29 July 1992, she slipped and fell in a lift and was admitted to Prince of Wales Hospital where she complained of paralysis of the right side of her body. Magnetic resonance image scan (MRI scan) of the brain revealed medial sclerosis of the left hippocampal. She was diagnosed as suffering from epilepsy as a result of medial sclerosis of the left hippocampal.

3. Her neighbour, a Mrs. Kong, suggested the plaintiff to seek consultation from the 1st defendant. She went to see the 1st defendant on 10 August 1992, together with her daughter and the daughter of her neighbour as she still had difficulties walking. She gave her medical history to the 1st defendant and showed him the medication given by the doctors of Prince of Wales Hospital and her MRI scan. She was given some medication for three days, including some yellow pentagonal tablets which the 1st defendant told her to take three tablets four times a day.

4. Three days later, she consulted the 1st defendant again. She told him that she was feeling better and could raise her arm higher. The 1st defendant gave her an injection and similar medication for a week and told her to return in a week's time. She continued to have treatment from the 1st defendant for about a month on a weekly basis and was prescribed, among other drugs, the same pentagonal tablets and had injections.

5. About a month after the initial consultation, the 1st defendant reduced the dosage of the pentagonal tablets by 50%. Shortly after that, the plaintiff experienced cramps in her left leg. She informed the 1st defendant on her next consultation, who then increased the dosage of the pentagonal tablets to the initial level of 12 tablets per day.

6. Two to three weeks later, the 1st defendant again reduced the dosage of the pentagonal tablets, but this time, gradually. By November 1992, this medication was completely withdrawn. Since then, she felt pain at her right hip. She informed the 1st defendant about the pain, but he said there was no problem. She repeated her complaint on the following consultation, but the 1st defendant said there was nothing serious. When she repeated her complaint for the third time on 19 November 1992, the 1st defendant referred her to The Giant Medical Laboratory, a radiologist's laboratory in the same building as the 1st defendant's clinic, for an X-ray film to be taken of her right hip. She had the film taken on the same day. On her next consultation, the 1st defendant told her that the X-ray film showed no problem with her hip. But she still felt the pain.

7. She had further regular weekly follow up consultations from the 1st defendant. On and off, she complained of right hip pain to the 1st defendant. Eventually, the 1st defendant sent her for another X-ray film of her right hip on 30 December 1992. On her next follow up consultation, the 1st defendant told her that the X-ray film showed there was no problem with her hip. She continued to have weekly consultations from the 1st defendant until January 1993. She then had bi-weekly consultations from him until February 1993.

8. During the course of her treatment by the 1st defendant, the 1st defendant never told her what the pentagonal tablets were or their possible side effects. Had she been told that the pentagonal tablets were corticosteroid and would induce avascular necrosis, she would not have consented to the treatment. She did, however, inquire about the injection. The 1st defendant told her that it was a tonic injection as she was too slim. During that same period, the plaintiff's body weight increased from about 90 pounds to about 130 pounds. This is clearly illustrated by the photographs taken of her at various times from 1991 to 1993.

9. On 2 March 1993, at the suggestion of her friend, Miss Wendy Sin, the plaintiff consulted a neurologist, Dr Edmund Woo. She was accompanied by her husband and Miss Sin. She gave her medical history to the doctor and showed him the MRI scan and report from St. Theresa's Hospital and the two X-ray films from The Giant Medical Laboratory. She also showed the drugs which the 1st defendant prescribed her and described the pentagonal tablets which she had taken between August and November. Dr Woo showed her a sample of dexamethasone tablets which she identified as similar to the pentagonal tablets prescribed to her by the 1st defendant. Dr Woo suspected her to be suffering from steroid induced avascular necrosis (also known as osteonecrosis) of the hip bone. He gave her some non-steroid medication and told her to stop taking the medication given by the 1st defendant. He also suggested her to consult a rheumatologist if his medication did not prove helpful. She continued receiving treatment from Dr Woo as the condition of her hip improved. In November 1993, Dr Woo opined that no further treatment was necessary. She was able to carry out her daily household chores with no problem.

10. Unfortunately, on 24 April 1994, she had an accident while alighting a China Motor Bus. She was admitted to Tang Shiu Kin Hospital and later referred to Prince of Wales Hospital. On 10 May 1994, she was diagnosed as suffering from avascular necrosis of both hip joints. She had an operation on 27 October 1994 when her left hip joint was replaced and again in April 1996 when her right hip joint was also replaced.

THE 1ST DEFENDANT'S CASE:

11. The 1st defendant's case is that the plaintiff only consulted him three times for a second opinion about her epilepsy. He could not even recognize her face. He first saw the plaintiff on 10 August 1992. The plaintiff gave him her medical history and showed him the MRI scan and report from St. Theresa's Hospital. In the MRI report, the radiologist diagnosed the plaintiff as suffering from medial sclerosis of the left inferior hippocampal. He agreed with that opinion and suggested the plaintiff to increase the dosage of epilim prescribed by the doctors of Prince of Wales Hospital from 200 mg twice daily to 200 mg in the morning and 400 mg in the evening. He could not recall whether he had just made the recommendation or whether he had supplied her with additional epilim. If he had supplied her with epilim, he could not recall whether the quantity was to last for a specific duration or to supplement her for the additional dosage until her follow up visit to the Prince of Wales Hospital. He told her to inform the doctors of Prince of Wales Hospital about the increased dosage. He did not tell the plaintiff to return for any follow up with him. He considered his duty ended there and then, as he was only to give a second opinion.

12. He agreed with the radiologist's diagnosis of medial sclerosis of the left hippocampal. He did not and would not have diagnosed her as suffering from multiple sclerosis which would call for treatment by corticosteroid. He denied giving the plaintiff dexamethasone. He said that the dexamethasone he stocked in his clinic was and is in the form of a small blue round tablet and not a pale yellow pentagonal tablet as described by the plaintiff.

13. He next saw the plaintiff on 19 November 1992 when she complained of hip pain. He arranged for her to have an X-ray film taken of her right hip from The Giant Medical Laboratory in the same building. He received the report from the laboratory on the same day. He informed the plaintiff, who was waiting in his clinic, that the X-ray film showed no abnormality. He prescribed her calcium lactate, panadol and stugeron. Panadol is a well-known pain killer and stugeron is to treat her dizziness. He gave her calcium lactate as a calcium supplement for her bone because she was suffering from osteoporosis, i.e. thinning of the bone.

14. He next and last saw the plaintiff on 30 December 1992 and she repeated her complaint of hip pain. The plaintiff had another X-ray film taken of her right hip on the same day which again showed no abnormality. She waited for and was informed of the result on the same day. He did not prescribe her any drugs. He produced Exhibit D-1, the medical record he kept of the plaintiff. It showed the record of three consultations only.

LIMITATION:

15. The action was instituted more than three years after the alleged negligent treatment of the plaintiff by the 1st defendant. Hence the 1st defendant pleaded limitation under the Limitation Ordinance, Cap. 347. Counsel requested that I hear the evidence before deciding on the issue of limitation. However, counsel differed as to whether I should rule on it as a preliminary issue or after deciding on the merit. I concur with the views of Mr Coleman, representing the 1st defendant, that I should deal with it as a preliminary issue. I shall deal with that now.

16. The relevant provisions are sections 27 and 30 of the Ordinance. These sections provide:

27.	Time limit for personal injuries
(1)-(3)
(4)	Except where subsection (5) applies, the said period is 3 years from -
	(a)	the date on which the cause of action accrued; or
	(b)	the date (if later) of the plaintiff's knowledge.
(5)
(6)	In this section, and in section 28, references to a person's date of knowledge are references to the date on which he first had knowledge of the following facts -
	(a)	that the injury in question was significant; and
	(b)	that that injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and
	(c)	the identity of the defendant; and
	(d)	if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant,
		and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.
(7)	For the purposes of this section an injury is significant if the plaintiff would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.
(8)	For the purposes of this section and section 28 a person's knowledge includes knowledge which he might reasonably have been expected to acquire -
	(a)	from facts observable or ascertainable by him; or
	(b)	from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek,
	but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.
(9)-(10)
30.		Court's power to override time limits
(1)	If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which -
	(a)	the provisions of section 27 or 28 prejudice the plaintiff or any person whom he represents; and
	(b)	any decision of the court under this subsection would prejudice the defendant or any person whom he represents,
	the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.
(2)
(3)	In acting under this section the court shall have regard to all the circumstances of the case and in particular to -
	(a)	the length of, and the reasons for, the delay on the part of the plaintiff,
	(b)	the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 27 or 28, as the case may be;
	(c)	the conduct of the defendant after the cause of action arose, including the extent, if any, to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant;
	(d)	the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;
	(e)	the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;
	(f)	the steps, if any taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.
(4)-(8)

17. The combined effect of subsection (4) and (6) of section 27 is that time started to run from the date of the plaintiff's first knowledge that the injury was significant and that it was attributable in whole or in part to the act or omission of the 1st defendant. A significant injury is defined under subsection (7) as one which the plaintiff would reasonably have considered it sufficiently serious to justify her instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment. The 1st defendant, being a medical practitioner who has been insured against liability for professional negligence, the question of his ability to satisfy judgment does not arise.

18. Mr Coleman submitted that on 2 March 1993 the plaintiff would reasonably have considered the injury sufficiently serious to justify instituting proceedings. According to the plaintiff, she was only told by Dr Woo that the drugs prescribed by the 1st defendant contained steroid which might have damaged her bone membrane, particularly the hip. Dr Woo said he would prescribe her some drugs to treat the hip pain and suggested her to consult a rheumatologist if the drugs could not help. Dr Woo did not tell her how serious the injury was and whether the injury was reversible. I have no doubt that Dr Woo did not tell her the seriousness of the injury as he did not order any X-ray or MRI scan or other diagnostic procedures, whether on 2 March 1993 or at any stage thereafter. As things turned out, the pain subsided and the doctor even told her to discontinue with treatment in November 1993. The plaintiff is an unsophisticated housewife who is not highly educated. It is natural for her to assume that she had fully recovered and the injury was not sufficiently serious to justify instituting proceedings especially in professional negligence against an eminent neurosurgeon.

19. Dr Woo, being a neurologist, may consider the injury serious and irreversible. He saw the two X-ray films taken two to three months before, which showed no abnormalities. On 2 March 1993, he had not positively diagnosed the plaintiff as suffering from steroid induced avascular necrosis. At that stage, he only suspected that to be the cause of the hip pain as indicated by his note, "? problem now in R hip due to steroid". Even assuming that as a result of the subsequent treatment, Dr Woo's suspicion was confirmed, he never told the plaintiff of the serious nature of the injury. In view of her recovery, it is unreasonable to expect the plaintiff to investigate either with Dr Woo or other experts the true extent of her injury. By virtue of section 27(8), the plaintiff shall not therefore be fixed with the expert knowledge of Dr Woo.

20. It was not until 24 April 1994 that the problem of her hip became manifest as a result of the traffic accident. Mr Coleman submitted as she brought to the attention of the doctors at that time the fact of the steroid treatment two years ago she must certainly be sufficiently aware of the seriousness of the injury.

21. I do not agree. There is nothing to suggest that she volunteered that information to the doctor. Rather it was only as a result of X-ray films taken after the injury that the doctor prompted the answer from her. There is undisputed medical evidence that avascular necrosis is a progressive disease. The plaintiff's condition deteriorated with time and the trauma on 24 April 1994 triggered the acceleration of the process with earlier onset of symptoms. The plaintiff did not appreciate these consequences until 10 May 1994 when the doctors of Prince of Wales Hospital made an initial diagnosis of avascular necrosis. That diagnosis was only confirmed after an MRI scan performed on her next consultation. Putting aside the confirmation by the MRI scan, I find that 10 May 1994 is the earliest date when the plaintiff had knowledge that her injury was significant. Hence, time did not start to run against her until then. The claim which was filed on 7 April 1997 is therefore within time.

22. If I were wrong about this date, the facts of the case is certainly one which I should exercise my discretion under section 30 to disapply section 27. The plaintiff certainly had no knowledge that the treatment she received from the 1st defendant was improper while she was still consulting him. Assuming, as Mr Coleman submitted, that 2 March 1993 was the occasion when she first had knowledge of the improper treatment, she was thirteen months out of time. Mr Coleman submitted that the delay has rendered the 1st defendant's evidence likely to be less cogent than if the action had been brought in time.

23. However, as early as 9 August 1996, the plaintiff's solicitors had written to the 1st defendant alerting him of the possible action. That was only 5 months after the three year limitation period. The medical record kept by the 1st defendant is still available. All the witnesses he wanted to call in support of his defence are available. There is nothing to suggest that any witness he wanted to call had become unavailable through lapse of time. The witnesses have been in his employ continuously from the material time until the date of hearing. In view of the letter from the plaintiff's solicitors in August 1996, the 1st defendant could have no difficulties in obtaining statements from his witnesses or drawing their attention to the incident at a much earlier stage when their recollections were still fresh.

24. Mr Coleman argued that books and records which could have supported the 1st defendant's case that the plaintiff had not consulted him for more than three times had become unavailable. However, according to the defence evidence, the appointment books which would confirm if the plaintiff had been a weekly visitor between August 1992 and February 1993 were discarded soon after the respective years ended. The accounting records were discarded in June 1996, two months before the letter from the plaintiff's solicitors was received. There is nothing to suggest that the accounting record contained evidence of receipt of fees from the plaintiff as would destroy the plaintiff's case. Perhaps, it may contain evidence of payment to drug suppliers to support the 1st defendant's evidence as to his source of dexamethasone. He only had himself to blame for not keeping his business records for the usual period of seven years. Indeed, he could have overcome that difficulty by seeking discovery from his dexamethasone supplier, Christo Pharmaceutical Limited, which must have kept its business records for the usual seven years.

25. For the above reasons, I am unable to find that the 1st defendant suffered any or any real prejudice that could not be remedied. Balancing, on the other hand, all the circumstances, including the background of the plaintiff, the early notice of possible legal action by the plaintiff's solicitors and the short length of delay, I consider it inequitable not to allow the plaintiff to proceed with the action.

CREDIBILITY OF PLAINTIFF'S WITNESSES:

26. The plaintiff bears the burden of proof. Though the standard in civil case is one on a balance of probability, this is a particularly high standard for the plaintiff in view of the particular nature of her allegations and the defence. Her credibility has to be tested against that of a very eminent and experienced neurosurgeon and his independent witnesses. Apart from establishing her credibility, she has to prove that her avascular necrosis was induced by the dexamethasone prescribed by the 1st defendant, but she no longer has any of the dexamethasone tablets left; and the event was almost eight years ago.

27. The plaintiff is a simple minded housewife. She is not a sophisticated person. Her answers in cross examination are straight forward and direct. She is the most crucial witness. Her evidence is corroborated by her husband and by Miss Sin. I shall deal with my assessment of her credibility after considering that of her other witnesses.

28. Miss Sin was searchingly cross examined by counsel. She impressed me as a very precise and responsible witness. She was not shaken in cross examination and did not exaggerate. If the questions asked were beyond her recollection, she frankly admitted so.

29. She testified that she accompanied the plaintiff to see Dr Woo and saw the plaintiff produce medicine which the plaintiff told Dr Woo as having been prescribed to her by the 1st defendant. The medicine included a bottle of white liquid medicine and some coloured pills. There are discrepancies among the plaintiff's witnesses as to whether the plaintiff had brought along the medicine she still had and shown them to Dr Woo. Understandably, Dr Woo could not recall such fine details as he saw so many patients a day. However, according to his record, he noted, "discontinue P. Wu's drugs". This implies at least that he had been told by the plaintiff that she still had some drugs prescribed to her by the 1st defendant when she consulted Dr Woo. Seeing or hearing discrepancies is just part of life in court. The above discrepancies do not go to the root of credibility. Witnesses were asked to recall events which took place eight years ago. It is too good to be true that the evidence of all witnesses is identical.

30. She also recalled hearing the plaintiff describe the pentagonal tablets prescribed to her by the 1st defendant and she saw her identify the tablet sample shown to her by Dr Woo. This part of the evidence is also corroborated by Dr Woo. I have no doubt that Miss Sin is a truthful witness and accept her evidence in its entirety.

31. The husband accompanied the plaintiff on two occasions when she consulted the 1st defendant and when she consulted Dr Woo for the first time. He confirmed that he reminded the plaintiff to take medication and recalled seeing the pentagonal tablets. Counsel suggested that his evidence about the 1st defendant using the stethoscope to listen to the plaintiff's head was odd. Be that as it may, even the 1st defendant in his own evidence admitted that as a known clinical procedure, though he denied having done so to the plaintiff. His credibility as well as the plaintiff's case do not stand or fall on that evidence. He is not as impressive a witness as Miss Sin, but I do consider him honest and credible. I accept his evidence, save where it differed from Miss Sin's.

32. The plaintiff's evidence is also corroborated by Dr Woo, whose credibility and integrity, I have no reason to doubt. Dr Woo impressed me as a fair and responsible witness. The medical record he kept of the plaintiff is comprehensive, especially when compared with that kept by the 1st defendant. He was able to recall from his record seeing the plaintiff on 2 March 1993. He recalled she exhibited Cushingnoid features (including "moon face"), characteristic of excessive corticosteroid in the body. These features are corroborated and illustrated by the photographs she produced, which were taken at various times between 1991 and 1993. Dr Woo corroborated the plaintiff's evidence that she had made a contemporaneous and consistent statement that she had been prescribed a pentagonal drug by the 1st defendant during August and November 1992. Dr Woo's evidence is also supported by the very comprehensive contemporaneous medical record he kept of the consultation.

33. This aspect of her evidence is also supported to some extent by Dr Kay of the Prince of Wales Hospital, who was able to recall from the record he kept that the plaintiff had told him during her consultation on 21 September 1992 that she was then receiving consultation from a private neurosurgeon. He recalled the plaintiff had told him the name of the private doctor she was consulting, but he could not now recall the name. However, to his knowledge at the time there were only a handful of neurosurgeons in active private practice, including the 1st defendant. The name of the private doctor given by the plaintiff was among those handful of names he then had in his knowledge. Hence he wrote down in the record "seeing private neurosurgeon". Dr Kay is a disinterested doctor from the Hospital Authority. I have no reason to doubt his credibility, honesty, and the reliability of his recollection as supported by the contemporaneous record he kept. I accept his evidence.

34. According the plaintiff, she was given the pentagonal tablets by the 1st defendant seven and half years ago. About six weeks after first seeing the 1st defendant, he told Dr Kay that she was consulting a private neurosurgeon. At the time, she was satisfied with the treatment she received from the 1st defendant. She said she was feeling better as she could raise her arm higher. At that stage the problem of her hip pain had not arisen. Most importantly, that statement was not made with litigation in mind. She could not have foreseen the traffic accident and her hip injuries. She could not have planted that statement seven and half years ago from today or four and half years ago from the date of the writ. She has never had in mind suing the 1st defendant until she was so advised by her solicitors assigned by the Director of Legal Aid. I have no doubt about the truthfulness of her statement that she was consulting a private neurosurgeon in September 1992. Of course, the identity of the neurosurgeon referred to in that statement remains to be ascertained from the totality of the evidence.

35. I also have no doubt that in March 1993, she identified to Dr Woo that the neurosurgeon she consulted was the 1st defendant. Dr Woo has noted down the name of the 1st defendant in the plaintiff's medical record. At that time, the accident on the China Motor Bus had not yet occurred. Though she may not be fully satisfied with the treatment she had from the 1st defendant, nevertheless, she did not have litigation in mind. Similarly, she could not have planted a case against the 1st defendant before the traffic accident occurred and four and half years before she was advised by her solicitors to sue the 1st defendant.

36. The plaintiff is a simple woman, as I have found her, and has no knowledge about the effect of dexamethasone and that it was marketed in the form of a yellow pentagonal tablet. She could not have invented the story of being prescribed a pentagonal drug by the 1st defendant to tell Dr Woo four and half years prior to the issue of the writ. Similarly, she could not have invented a story as to how she felt hip pain about a month after the pentagonal drug was first withdrawn and how it was reintroduced and then tapered off by the 1st defendant, which made good medical sense according to the evidence of Dr Woo and also according to the expert evidence of Dr Kumana. This suggests she was telling the truth.

37. Mr Coleman suggested that the plaintiff was a "doctor shopper" seeing various doctors for second opinions and treatment. It is true that the plaintiff was seeing quite a number of specialists during the same period: endocrinologists and neurologists in Prince of Wales Hospital for her thyrotoxicosis and epilepsy respectively, a private gynaecologist for her birth control, Dr Woo and the 1st defendant. She also admitted seeing a private general practitioner for her flu during the trial. The medical records of Prince of Wales Hospital show that she was a person with genuine health problems resulting in repeated admissions to the hospital. It is wrong to criticize her for seeing various specialists for various special problems and for a woman to see a gynaecologist for birth control. It is also understandable for her to see a general practitioner for her flu rather than to see any of those more expensive specialists. She sought consultation from the 1st defendant after her discharge from Prince of Wales Hospital in the hope of getting better private medical attention to her really serious problem. She then saw Dr Woo instead because the 1st defendant did not prove to be effective. I do not consider her a "doctor shopper". I certainly do not consider she would have mistaken which of those doctors she saw had prescribed her the pentagonal drug.

38. Mr Coleman referred to a number of notes from the plaintiff's medical record in Prince of Wales Hospital in which the doctors have noted the plaintiff as having said that she was given steroid by a "GP" (i.e. a general medical practitioner). He therefore suggested that the plaintiff had been shopping for doctors and had been given the steroid by a general medical practitioner and not the 1st defendant who is a neurosurgeon. One of the authors of those notes, Dr Wan, an orthopaedist, who gave evidence, said that his practice was to put down "GP" to represent any medical practitioner other than an orthopaedic specialist. Thus his notes do not damage the reliability of the plaintiff's allegation that the steroid was given to her by the 1st defendant.

39. The makers of the other similar notes were not called. There is no burden on the 1st defendant to call those doctors. I have examined those notes. They are all in English. I would assume the actual conversation between the plaintiff and the doctors was in Cantonese and the doctors then translated that into English during their note taking process. Like Dr Wan, the other doctors may have their own short hand codes and definitions. References to "GP" may have been inaccurate as a result of the peculiar note taking and translation process, or may have special meanings according to their authors, as in the case of Dr Wan. Those notes were taken in 1996 and 1997. They are not contemporaneous of the event in 1992. On the other hand, Dr Kay's notes were contemporaneous of the event in September 1992 when the plaintiff was consulting the 1st defendant. There Dr Kay noted the plaintiff as having said that she was consulting a neurosurgeon. I attach more weight to Dr Kay's notes. I attach no weight to the letters "GP" in the other notes. I assume they meant private medical practitioners.

40. It is impossible for the plaintiff to have obtained the pentagonal drug herself as it is a prescribed drug. If she had been prescribed the pentagonal tablets by a general practitioner, there is no reason why she did not say so to Dr Woo. There is also no reason why she did not sue that doctor, but instead chose to sue this eminent neurosurgeon and to run the risk of loosing a good action by suing the wrong person.

41. Mr Coleman submitted that the plaintiff only consulted the 1st defendant for a second opinion and it was unlikely that a patient would have consulted a specialist regularly on a weekly basis. According to the 1st defendant, after confirming the diagnosis and advising her to increase the evening dose of epilim, he considered his duty ended and the plaintiff did not see her again until three months later in relation to her hip pain. Mr Coleman submitted that the plaintiff was under the primary care of Prince of Wales Hospital for her epilepsy and continued to see the doctors there on a regular basis every eight to sixteen weeks. He suggested that when Dr Kay increased the evening dosage of epilim to 400 mg, it was done on the advice of the 1st defendant. Dr Kay could not really recall whether it was increased on his own initiative or as a result of the 1st defendant's advice. In my opinion, whether the plaintiff did consult the 1st defendant on a weekly basis does not turn on the fact whether it was the 1st defendant or Dr Kay who first decided to increase the evening dosage of epilim. According to the plaintiff, the 1st defendant told her to continue with the epilim from Prince of Wales Hospital in addition to the medication he gave her. Since the follow up consultations in Prince of Wales Hospital were of the interval of eight to sixteen weeks, it is not incredible that the plaintiff sought regular treatment from the 1st defendant especially because she felt better with the medication given by the 1st defendant. There is also nothing strange with her seeing a specialist regularly. She also subsequently consulted Dr Woo, a neurologist, regularly on weekly intervals until she was told to return on a bi-weekly basis and eventually to stop consultation altogether.

42. I do not consider Mr Coleman's criticism of her credibility justified. After considering the totality of the evidence, including those of the defence, I am fully satisfied with her credibility. In essence, I accept her evidence as summarized under the plaintiff's case above. In coming to this conclusion, I have been mindful of the fact that she had at one stage received psychiatric treatment for depression as a result of her physical condition. Having read the hospital notes, observed her demeanour and heard her answers in cross examination, I am fully satisfied that what she told me is not the result of any paranoid ideas or the result of hallucination.

CREDIBILITY OF DEFENCE WITNESSES:

43. The 1st defendant's case is that the plaintiff consulted him three times only; on the first occasion for a second opinion about her epilepsy and on the other two occasions about her hip pain. He produced the contemporaneous medical record kept by him as evidence in support of those three visits. Assuming that the 1st defendant's account is true, assuming that he took accurate record of what happened during the consultation, and assuming that the plaintiff gave a true account of her condition to the 1st defendant during the consultation, one would expect the record kept by the 1st defendant would tally with those kept by the doctors of Prince of Wales Hospital.

44. According to the plaintiff's medical record kept by the 1st defendant, Exhibit D-1, the plaintiff gave a full history of her illness during the first consultation and then complained of repeated albeit reduced epileptic attacks on the second consultation and persistent seizure on the third consultation. But this is not her clinical picture as reflected by the medical records of Prince of Wales Hospital. After the plaintiff was discharged from the hospital on 1 August 1992, she had a follow up consultation with Dr Kay on 21 September 1992. According to the notes of Dr Kay, the plaintiff confirmed that she had no further loss of conscientiousness. That was the occasion when she informed Dr Kay that she was consulting a private neurosurgeon. Presumably, Dr Kay considered her condition stable and ordered follow up after eight weeks. She was then seen by another doctor in Prince of Wales Hospital on 16 November 1992 when the doctor noted that the plaintiff had no fits since August. Presumably the doctor considered her epilepsy well under control and ordered follow up after 12 weeks. She was then seen by a doctor in Prince of Wales Hospital on 8 February 1993 when it was recorded that she had no further attack and no headache. The doctor ordered a longer follow up after 16 weeks.

45. The 1st defendant is an experienced neurosurgeon of great reputation. If his account were true, it is unlikely that he would have made an inaccurate record of what the plaintiff told him during the last two consultations. On the other hand, there is no reason to suppose the plaintiff was planting a case against him four and a half years in advance by giving a false account of her condition. The plaintiff was paying very high consultation fees for his expert opinion. There is no reason why she should have given him a false account of her condition. There is also no reason why she should have given a different account to the doctors of Prince of Wales Hospital as it was in her interest to cure herself. I have no doubt about the truthfulness and correctness of the record of Prince of Wales Hospital. I am bound to find that the 1st defendant's record in Exhibit D-1 is not a true record of what happened on 10 August, 19 November and 30 December 1992; and is not a true and complete record of all of the plaintiff's consultations with him.

46. The 1st defendant's demeanour under cross examination also betrayed him. He said on 19 November 1992 he prescribed the plaintiff calcium lactate as a calcium supplement because he suspected her of suffering from osteoporosis. He said that he came to that opinion because she was a chronic smoker and had suffered from hyperthyroidism. His own record contains no reference to those conditions. When counsel suggested to him that he only came to know about her smoking habit and hyperthyroidism from the medical notes obtained from discovery, he became very nervous and his face markedly turned pale. He had a long pause and then repeated himself, while grabbing the bottle of dexamethasone he had earlier placed on the witness table. Mr Coleman ably and admirably argued that the 1st defendant has mixed up the state of his knowledge at the time of the consultation in 1992 with the state of his knowledge now after reading all the medical records obtained after discovery. I do not agree. The 1st defendant is a man of high intelligence as evidenced by his achievement. If he had so mixed up, he would have readily corrected himself under cross examination and then offered a reasonable explanation as to why calcium lactate was prescribed. He failed in both.

47. The 1st defendant gave two affidavits that he had discarded the records of his stock of medicine for the period from August 1992 to March 1993, his accounting records and appointment books. Thus there is no way he could rebut the plaintiff's allegation about weekly consultation by using those documentary records or verify his source of dexamethasone during the material time. He said he discarded the accounting record, including those for 1992 and 1993 in June 1996 after an investigation by the Inland Revenue Department in March 1995 was completed. He said he did not know that he was obliged by law to keep his accounting record for seven years. For these words to come from the mouth of a person who has been in business for thirty years is appalling. When dealing with the limitation issue, I have mentioned that the passage of time has not rendered his evidence less cogent as he could have sought third party discovery against his drugs supplier to show that the dexamethasone tablets he stocked were in the blue round form. He did not do so. As for the appointment books, he discarded them shortly after the respective years ended.

48. The 1st defendant called his three staff who have been in his employ since the material time. Miss Kong, the dispenser, has worked for the 1st defendant for thirty years. She said during these thirty years the 1st defendant seldom used dexamethasone and has never stocked dexamethasone in the form of pentagonal tablets. She was cross examined about the medical record card of the plaintiff kept by the 1st defendant, Exhibit D-1. She was confused as to whether any drugs were prescribed to the plaintiff on her first and second consultations shown on the card. She said she could not understand the 1st defendant's notes in the record card. For that to come out of the mouth of someone whose job for the last 30 years was to read and decipher the 1st defendant's notes and to dispense medication accordingly is incredible. She did not appear to be willing to study the medical record card of the plaintiff or to look at the place where prescriptions are written and give an answer. In my opinion, she was not nervous but was evasive and defensive and has something to hide. She was afraid to say anything other than that which she has committed to say, i.e. the dexamethasone tablets stocked by the 1st defendant for the past 30 years were all in the blue round form. I give no weight to her evidence.

49. Miss Lee is the nurse attending the 1st defendant in the consultation room. She said she did not recognize the plaintiff as having been a regular patient. She also said fairly that if the plaintiff had only been a regular weekly patient for three months but had not visited the clinic for the last seven and half years, she could not recognize her anyway. The plaintiff's case is that she had consulted the 1st defendant regularly for six and half months and not three months. There was nothing remarkable during the plaintiff's six and half months' consultation. Miss Lee must have seen many patients during those six and half months and many more patients during the seven and half years thereafter. After taking all this into account, I give no weight to her evidence of not being able to recall the plaintiff as a regular patient because of the long lapse of time.

50. Miss Lau is the registrar or receptionist who prepared patient's appointment cards and medical record cards. She confirmed discarding the accounting records and appointment books. She could not recall when the records were discarded or for which year. These are not matters which she could be very specific about after all these years. Anyway, nothing turned on that now.

51. Miss Lau testified that she could identify a patient if she had made weekly visits to the clinic for eight months and that she could not recall the plaintiff as having been a regular patient. She is now asked to recall this after a period of seven and half years. She has seen many patients during the intervening period. At the material time in 1992 and 1993 there was nothing to draw her attention to the plaintiff and the plaintiff has since not visited the clinic for seven and half years. I give no weight to this part of her evidence.

52. She also testified that the plaintiff's appointment card, Exhibit P-1 and her medical record card, Exhibit D-1, were prepared by her in that she wrote down the plaintiff's name and address. She confirmed that the handwritings were hers and were written on the same occasion, though obviously the handwriting styles are in some respects different. Her evidence is to lend support to the 1st defendant's evidence that Exhibit D-1 is a genuine and contemporaneous record. Mr Cheung, for the plaintiff, does not challenge that the handwriting on Exhibit D-1 was not hers. He only suggested that it was not written by her on the same occasion as she wrote the appointment card, implying that what the 1st defendant wrote on the card was not a contemporaneous but a fabricated record. Preparing record cards is part of her daily routine. It is not impossible for her to have been induced by the 1st defendant on an obscured occasion since 1996, when the 1st defendant was first alerted by the plaintiff's solicitors about the claim, to prepare Exhibit D-1 without her knowing that it was intended to be a false record. Having considered this probability against the totality of the evidence, I give no weight to this aspect of her evidence.

53. Mr Coleman submitted the suggestion that a neurosurgeon of the 1st defendant's standing and experience would fraudulently destroy relevant evidence and then falsify evidence in the circumstances of this case is untenable. He said that such conduct could not be worth the risk to this medical practitioner's integrity and reputation, his practising certificate and livelihood. He therefore submitted that the plaintiff's case rests upon a fraudulent conspiracy of not insignificant proportion and by contrast, the 1st defendant's case rests only upon the fact that the plaintiff is mistaken.

54. I do not think the plaintiff has to prove conspiracy in order to be believed or to discredit the defence witnesses. It is all a matter of the court's assessment of credibility of the witnesses and the reliability of their evidence. Witnesses could be honesty mistaken or can be misled without being aware of it. This is probably true of Miss Lee and Miss Lau. I give no weight to their evidence. This might also be true of Miss Kong or that she has conspired with the 1st defendant to give false testimony. I have seen her demeanour. For reasons as I have given, I reject her evidence. In reaching that conclusion, I have borne in mind the seriousness of the allegation of conspiracy. Whether the risk of conspiracy is one worth the 1st defendant taking is a question for him. The 1st defendant is insured against professional negligence. He may not suffer financially for being negligent, but other consequences may follow from his being negligent. If he had in fact been negligent whether in his treatment of the plaintiff or in his failure to warn her of the side effects of dexamethasone, he certainly has a reward to gain for the risk.

55. Having considered the totality of the evidence, and tested the evidence of the witnesses against one another, and against the uncontroverted evidence, I am satisfied the plaintiff was telling the truth and the 1st defendant and his witnesses were not. In particular, I do not regard the 1st defendant as an honest and credible witness. I do not accept his evidence. I do not accept Exhibit D-1 as a true record of the plaintiff's consultations with him from August 1992 to February 1993. For reasons I have already explained, I give no weight to the evidence of his three witnesses.

56. I regret to have to reach this conclusion against an eminent and reputable neurosurgeon, which also means rejecting the evidence of all the members of his staff. This conclusion was not reached lightly. Mr Coleman and myself have left no stone unturned in search of an innocent explanation for the 1st defendant. But, the plaintiff's contemporaneous statement to Dr Woo about having been prescribed the pentagonal tablets by the 1st defendant, and her contemporaneous statement to Dr Kay about seeing a neurosurgeon, which were both made seven or seven and half years ago and not in contemplation of litigation, cry out loudly and clearly that the 1st defendant was not telling the truth.

OTHER COLLATERAL ISSUES:

57. The 1st defendant said that he agreed with the diagnosis of epilepsy caused by medial sclerosis of the left hippocampal, that there was no need for steroid therapy and that he had not prescribed any dexamethasone to the plaintiff. Dr Kumana said that he did not consider steroid therapy to be appropriate for treating the plaintiff's epilepsy or sclerosis of the left hippocampal, unless there was an associated acute pathology causing cerebral oedema or hydrocephalus. Thus, it is a mystery why a neurosurgeon of the standing and experience of the 1st defendant would have prescribed dexamethasone when there was no indication for steroid therapy. Mr Coleman submitted that while there is no need for the plaintiff to supply a reason for the treatment, but if the mystery is unexplained, it would cast serious doubts on the plaintiff's evidence that the 1st defendant was the one who prescribed her the pentagonal tablets.

58. Dr Kumana is the expert on clinical pharmacology and therapeutics. He is less of an expert in neurology or neurosurgury than Dr Woo and the 1st defendant respectively. According to Dr Woo, he was not really in agreement with the radiologist's opinion that the MRI scan showed medial sclerosis of the left hippocampal. He therefore noted in the plaintiff's medical record, "reported as showing hippocampal sclerosis but I feel that it is normal." On the basis of the plaintiff's medical history as at August 1992, Dr Woo opined that it was reasonable for a doctor to diagnose the plaintiff as being at an early stage of multiple sclerosis (especially if the MRI scan is ignored). The plaintiff experienced one sided weakness and numbness for a number of days, lost of vision of one eye because of inflammation attack on the nerve fibre, double vision and slurring of speech. She had remissions and relapses which suggest that various parts of the white matter of the brain were being affected. This is consistent with diagnosis of multiple sclerosis. MRI scan may or may not show any signs of multiple sclerosis. Dr Woo opined that steroid therapy is appropriate for multiple sclerosis, but if a doctor does prescribe steroid therapy, he is under a duty to inform the patient about the treatment, its short term and long term side effects. The short term side effects include discomforts in urination and inability to sleep well. Prolonged exposure to steroid treatment may result in hypertension, diabetes, ulcer and osteoporosis. Dr Woo was not called as an expert witness as such, but his expertise as a neurologist is not challenged and is not in doubt, in view of his curriculum vitae.

59. The 1st defendant did not seek to dispute the above aspect of Dr Woo's evidence but said that he had not diagnosed the plaintiff as suffering from multiple sclerosis and had not prescribed her dexamethasone. I accept this aspect of Dr Woo's evidence. It offers a possible explanation why the 1st defendant prescribed dexamethasone and rendered the plaintiff's account more likely. Despite his denial, it is possible that the 1st defendant might have considered steroid therapy appropriate for what he might have suspected to be multiple sclerosis. He therefore gave the plaintiff a trial dose of three days. As the plaintiff said she felt better, he attempted a short course of steroid therapy. He might have neglected to warn her of the side effects or might even have recklessly decided to gamble on the plaintiff's luck with a short course of dexamethasone. However, what was intended as a one month course had to be extended to about three months because the abrupt withdrawal proved to be unsuccessful. Of course, on this basis, Dr Woo's evidence points not to negligent treatment, but failure to warn of side effects.

60. Understandably, Mr Coleman attacked the stance taken by Dr Woo. He said that Dr Woo was faced with a patient who was suffering a serious and irreversible condition of avascular necrosis allegedly caused by the 1st defendant's steroid therapy. He criticized Dr Woo for not contacting the 1st defendant to confirm the drug prescription by the 1st defendant. He criticized the doctor for not making more sophisticated examination of the hip or not advising her as to what steps she might take, or ought to have taken to slow down the progression of the disease. Mr Coleman submitted that had Dr Woo so informed the 1st defendant, the 1st defendant would be in a better position to defend his case.

61. It is easy to say what one might have done with hindsight. However, in view of the Cushingnoid features that the plaintiff was displaying, there is no reason for Dr Woo to doubt the truthfulness of the plaintiff's allegation. He had verified the allegation by showing her a sample of the hexagonal dexamethasone tablets. Obviously, he was satisfied with the truth of what he was told and it would appear meaningless to seek confirmation from the 1st defendant. Contact with the 1st defendant would not help to reverse the condition of the plaintiff but would only hurt comity between Dr Woo and a more senior member of the profession. I have no doubt about Dr Woo's credibility, honesty and integrity. Unless one was preparing for litigation at that stage, I think it is understandable that Dr Woo would wish to avoid the embarrassment of discussing the plaintiff's case with the 1st defendant. The plaintiff's subsequent progress rendered such discussion unnecessary for the treatment of the plaintiff. I do not think there is any justification for the criticism of Dr Woo's credibility and integrity.

62. I have considered all these collateral issues before arriving at my conclusion on the credibility of Dr Woo, the plaintiff and her witnesses as well as the defendant and his witnesses.

WHETHER THE 1ST DEFENDANT PRESCRIBED PENTAGONAL TABLETS TO THE PLAINTIFF:

63. Having found the plaintiff a credible witness and having rejected the evidence of the 1st defendant, I find that the plaintiff did consult the 1st defendant on a weekly basis from August 1992 to February 1993 and was prescribed medication including a drug in the form of a pale yellow pentagonal tablet. The dosage prescribed by the 1st defendant was 12 tablets per day for an initial period of four to five weeks, which was then reduced to 6 tablets per day for one week. The dosage was then restored to 12 tablets per day for 2 or 3 weeks and then tapered off gradually until it was completely withdrawn in early November 1992. The total course of this therapy was about 3 months.

WHETHER THE PENTAGONAL TABLETS WERE DEXAMETHASONE:

64. The issue here is whether the pentagonal tablets prescribed by the 1st defendant were dexamethasone. No more of those tablets are now available for chemical analysis. I have to make my finding on the basis of inference.

65. The plaintiff's evidence is that the pentagonal tablets prescribed by the 1st defendant physically resembled the 0.5 mg dexamethasone tablets produced before me by Dr Woo. Her identification has all the defects of a "dock identification". But that is about all the physical evidence I have.

Cushingnoid features:

66. There is undisputed evidence, including expert medical evidence that dexamethasone is a synthetic glucosteroid, which if taken in large doses over a long term will produce Cushingnoid features, characteristic of excessive corticosteroid in the body. These features include increase in body weight with rapidly developing adiposity of the face, neck, and trunk, but less so of the limbs; and dusky or red complexion on the face.

67. Dr Woo said that the plaintiff was presented with Cushingniod features when he first saw her on 2 March 1993. He noted in his record as "marked Cushingnoid features." I have shown the 1st defendant the photographs of the plaintiff taken at various times from 1991 to the end of 1993. He said none of those photographs show that the plaintiff had a "moon face". I accept that a person's perception on seeing an actual person may be different from seeing a photograph of that person. The photographs may not show the plaintiff's complexion correctly. They do not allow reliable comparison of the fattening conditions of the face with the limbs. The purpose for showing him the photographs was to refresh his memory only. I shall not use my view on those photographs as a basis for my decision as I am not a medical expert. But the obvious change in appearance of the plaintiff as depicted by the photographs supports Dr Woo's evidence that she displayed marked Cushingnoid features on 2 March 1993.

68. During the same period, the plaintiff has been examined by four different doctors of Prince of Wales Hospital on 24 August 1992, 21 September 1992, 16 November 1992, and 8 February 1993. The photographs show that her fattening condition was not very prominent in November. Assuming that the features have not fully manifested themselves in November 1992, at least two other doctors in Prince of Wales Hospital, like the 1st defendant, failed to notice the Cushingnoid features. According to the contemporaneous medical records in Prince of Wales Hospital, these doctors were not told about the hip pain or alerted of the pentagonal tablets. Thus the question of excessive corticosteroid intake or Cushing's syndrome may not have been as apparent to them as they may have been to Dr Woo.

69. Having considered the totality of the evidence, I accept Dr Woo's evidence that the plaintiff was presented with Cushingnoid features when he first saw her on 2 March 1993. I reject the 1st defendant's evidence that the plaintiff was not exhibiting Cushingnoid features or "moon face". It does not matter for this purpose whether he was deliberately lying or honestly mistaken.

70. As these Cushingnoid features took weeks to months to develop and even longer time to disappear, I conclude on the basis of Dr Woo's and Dr Kumana's expert evidence that the plaintiff had an excess of corticosteroid in her body at least some months prior to 2 March 1993 when she consulted Dr Woo. This is consistent with the plaintiff having taken corticosteroid in August 1992.

Possible sources of corticosteroid:

71. The source of corticosteroid could be intrinsic or extrinsic. There is nothing to suggest from the plaintiff's medical records in Prince of Wales Hospital that she had any endocrine problems associated with her adrenal glands which would result in excessive corticosteroid production from within her own body. These Cushingnoid features subsequently disappeared without any treatment related to her endocrine system. This suggests that the source of corticosteroid which was once responsible for the Cushingnoid features was an extrinsic one, i.e. by external intake.

72. The plaintiff had not taken any other drugs on a regular basis during the period from August 1992 to February 1993 other than the drugs prescribed to her by the 1st defendant, epilim prescribed to her by the doctors of Prince of Wales Hospital and the contraceptives. Epilim is not a steroidal drug. Contraceptives contain steroids but not corticosteroid and are not responsible for the Cushingnoid features or avascular necrosis.

73. The plaintiff had applied a Chinese medicinal oil to her hip on two or three occasions when she felt painful in her hip. She had not taken any Chinese medication or Chinese herbs which may contain steroids. Her husband said that the plaintiff had seen a Chinese herbalist but there is no evidence to suggest that she had as a result taken Chinese herbs on a regular and long term basis. According to Dr Kumana, corticosteroid would have to be administered in high doses over a long term to produce Cushingnoid features or to result in avascular necrosis. Even if the Chinese medicinal oil and herbs contained corticosteroid or glucosteroid, these were not applied in significant heavy doses over a long term as would produce Cushingnoid features. Hence, I rule out the possibility that the extrinsic source of corticosteroid came from Chinese medication or Chinese herbs or medicinal oil, which she might have taken or applied occasionally.

The Inference:

74. According to the plaintiff, her body weight increased from about 90 pounds prior to taking the pentagonal tablets to about 130 pounds in December 1992. This increase in body weight with the appearance of Cushingnoid features followed the intake of the pentagonal tablets. About four months after those tablets were withdrawn completely in November 1992, the Cushingnoid features gradually disappeared with reduction in body weight. Though this reversion lagged behind the withdrawal of the pentagonal tablets by four months, this is in fact in accord with Dr Woo's evidence that it took a much longer time for the features to disappear than for them to develop. The increase in body weight with development of Cushingnoid features and the reversal four months after the pentagonal tablets were completely withdrawn is some evidence from which I may infer that the pentagonal tablets were corticosteroid responsible for the change.

75. Another piece of evidence from the plaintiff is that when the pentagonal drugs were reduced by 50% in September 1992, she suffered cramps in the leg. The 1st defendant then restored the dosage of the pentagonal tablets to its initial level for two to three weeks and then reduced the dosage gradually by stages. This is consistent with Dr Kumana's expert evidence that an abrupt withdrawal of corticosteroid may cause pain in the hip joints, which may be interpreted by the plaintiff as cramps in the legs. The reintroduction of the pentagonal tablets to its initial dosage by the 1st defendant and then subsequent reduction by stages is also consistent with the way that corticosteroid should be withdrawn. The result of its abrupt withdrawal and the subsequent reintroduction and gradual withdrawal single the pentagonal tablets from the other drugs prescribed by the 1st defendant as the drug responsible for the Cushingnoid features. These are evidence on which I may draw inference that the pentagonal tablets, abruptly withdrawn, reintroduced and then gradually withdrawn again were corticosteroid.

76. There is no evidence that the pentagonal tablets are unique, but they are quite distinctive in shape and colour. The plaintiff has identified the dexamethasone tablets shown by Dr Woo as the pentagonal tablets prescribed to her by the 1st defendant. Though her identification could be criticized in just the same way as a "dock identification" could be criticized, the surrounding circumstances as I outlined above are such that the irresistible inference is that the pentagonal tablets prescribed by the 1st defendant were dexamethasone.

77. The same conclusion could also be drawn by an empirical approach. The 1st defendant is a medical specialist. On my finding, he prescribed the plaintiff a pentagonal drug similar in appearance to the dexamethasone tablets produced by Dr Woo, which is suspected of being a corticosteroid, because of the Cushingnoid features produced on the plaintiff, the hip pain, the effect of its abrupt withdrawal, its reintroduction and gradual withdrawal. He lied about having prescribed anything pentagonal. He falsified his patient's (i.e. the plaintiff's) medical record. If there were any innocent explanation, he would have offered that and would not have lied and falsified the plaintiff's record. From these circumstances, I can also draw as the only irresistible inference that the pentagonal tablets were dexamethasone and the 1st defendant knew it.

78. At one stage, his very capable counsel suggested that the plaintiff might have been mistaken about the shape of the drug, and counsel referred to the original propranolol tablets ("Inderol") in the form of yellow hexagonal tablets. If that were the 1st defendant's case, he could have so pleaded and said that he prescribed her propranolol in the form of yellow hexagonal tablets of similar size, and supported that evidence with the plaintiff's medical record showing her symptoms which called for that medication. The plaintiff rejected the suggestion that she had been so mistaken. I am sure she had not been so mistaken, as there was no indication for treatment by propranolol. I also note in passing that according to Dr Woo, the common form of propranolol in the local market is the generic drug in the form of pink round tablets.

WHETHER DEXAMETHASONE PRESCRIBED BY THE 1ST DEFENDANT CAUSED AVASCULAR NECROSIS:

79. There is no dispute that the plaintiff suffered avascular necrosis as a result of which both of her hip joints had to be replaced. The issue is whether it was a pre-existing condition before treatment by the 1st defendant and whether it was caused by the dexamethasone prescribed by the 1st defendant.

Plaintiff's avascular necrosis started in November 1992:

80. In March 1993, on the assumption that the plaintiff had been prescribed corticosteroid and on the basis of the symptom described by the plaintiff, Dr Woo diagnosed her as suffering from avascular necrosis. For my fact finding purpose, his diagnosis is inconclusive. At that stage, he only had the two X-ray films of the plaintiff's hip taken in November and December 1992 which showed no abnormalities. Of course, the undisputed medical opinion is that avascular necrosis may not necessarily show up in X-ray films, particular during the early stages. An MRI scan might have been more useful, but that has not been performed.

81. However, a year later, when Dr Lau of Tang Siu Kin Hospital examined the plaintiff on 24 April 1994 after the accident, he confirmed that the X-ray film taken of the plaintiff's pelvis showed osteoarthritic change of both hip joints. As avascular necrosis is a progressive disease, the osteoarthritic process must have started much earlier, including an early stage when the change was not detectable under the X-ray. The plaintiff had no complaint about hip pain since treatment by Dr Woo in March 1993 until the accident in April 1994. This then points to the persistent hip pain in November 1992 as the time when the osteoarthritic process first began. The process progressed and became detectable under the X-ray in April 1994. Thus Dr Lau's report confirmed Dr Woo's diagnosis as correct. I therefore find that when the plaintiff consulted Dr Woo in March 1993, she was suffering from avascular necrosis, with the osteoarthritic process having started in November 1992 after the dexamethasone treatment.

Plaintiff's avascular necrosis not pre-existing or due to traumatic cause:

82. The undisputed medical opinion is that avascular necrosis is generally divided into the traumatic and the non-traumatic categories. A very significant traumatic incident, such as one involving dislocation of the hip joint, is required to bring about the on set of avascular necrosis. While not impossible, it is unusual that both hips would develop avascular necrosis as a result of the same traumatic incident.

83. Mr Coleman suggested that the plaintiff was more prone to injury because of her epileptic fits. He referred to the scanty references in the plaintiff's medical record from Prince of Wales Hospital to pain over the right hip and knee. In all fairness, Dr Kumana opined that this may be construed as consistent with avascular necrosis of the hip pre-existing the treatment by the 1st defendant, or may equally be consistent with minor muscular injury due to a seizure or fall. According to Dr Kumana and Dr Woo, injury caused during epileptic fits would most likely result in injury to the long bones rather than the to the hip joints. There is no evidence that the plaintiff had seriously injured herself during any of her epileptic seizures as to produce a traumatic incident. The two X-ray films of the plaintiff's right hip taken in November and December 1992, which showed no abnormalities, also exclude the possibility of any traumatic cause.

84. More conclusively, according to Dr Lau's report, there was no radiological evidence of any fracture or dislocation in the plaintiff's hip regions when she was examined on the day of her accident on 24 April 1994. This medical finding is of significance in two respects. Firstly, the plaintiff never had a trauma to her hip joints before April 1994 so that the avascular necrosis that Dr Woo diagnosed in March 1993 could not have originated from a traumatic cause as suggested by Mr Coleman. Secondly, the accident in April 1994 itself was not a traumatic incident which directly or immediately resulted in avascular necrosis of the hip. But as Dr Woo pointed out, it is conceivable that the accident reactivated the pathological changes in the damaged hip through a disturbance in the micro-circulation, leading to a gradual recrudescence of her symptoms. This is supported by Dr Poon's report that the plaintiff's symptoms progressed between May and October 1994, which eventually culminated in the replacement of her left hip joint. I therefore exclude the possibility that her avascular necrosis was a pre-existing condition before the plaintiff consulted the 1st defendant and the possibility that it originated from a traumatic cause.

Idiopathic or dexamethasone cause:

85. Dr Poon, the orthopaedic specialist, agreed with counsel that 30% of the cases of avascular necrosis are idiopathic (i.e. of an unknown cause). Mr Coleman therefore argued that the plaintiff's avascular necrosis may not necessarily be steroid induced.

86. Dr Kumana, is the Professor of Clinical Pharmacology and Therapeutics of the Department of Medicine of the University of Hong Kong. He is the only medical expert called as an expert witness in this trial. Dr Kumana said that some of the cases of idiopathic avascular necrosis may eventually be traceable to a steroidal cause. According to Dr Kumana, there is a strong association between prior corticosteroid therapy and development of avascular necrosis. Even short course, from 7 to 37 days, of high dose therapy may induce avascular necrosis. The condition may develop many months to three years after the steroid exposure. Early symptoms may not be associated with any abnormality in the plain X-ray of the affected area. Dr Kumana also said it is exceedingly rare for avascular necrosis to ensue de novo particularly in a young person in the absence of any provocation. A provocation could either be systemic steroid treatment and/or some form of joint trauma. I have already excluded the possibility of a traumatic cause. Thus, if a person developed avascular necrosis after having been subjected to steroid therapy, it is more likely than not that the condition is steroid induced than idiopathic.

87. Dexamethasone is a very potent corticosteroid. The plaintiff had been subjected to a high dosage of 6 mg per day for about 3 months. In view of the high dosage of and long exposure to dexamethasone, the strong association between corticosteroid therapy and avascular necrosis, and the complaint of hip pain following the dexamethasone treatment, I find that the three month dexamethasone treatment prescribed by the 1st defendant must be the cause of the plaintiff's avascular necrosis.

88. Mr Coleman attacked Dr Kumana's evidence on the basis that in forming his expert opinion Dr Kumana has assumed that the plaintiff had been prescribed and taken corticosteroid. However, in view of my finding of fact that the plaintiff had at the material time taken an extrinsic source of corticosteroid prescribed by the 1st defendant, Dr Kumana's assumption is correct. In any event, I have not delegated my fact finding duty to Dr Kumana. While the conclusion I reached above is assisted by Dr Kumana's expert opinion, it is based on the evidence of witnesses and the inference to be drawn from primary finding of fact. I have not allowed Dr Kumana's conclusion to substitute that of my own, though we both reached the same conclusion.

Breach of duty:

89. According to Dr Kumana's opinion, if corticosteroids were being prescribed in the medium or long term, patients need to receive certain relevant information and warnings. In particular, patients need to know (i) that steroids were being prescribed and why; (ii) what complications of treatment to be aware of/look out for, and (iii) that in the event of any other medical illness or emergency, they make known their steroid therapy to corresponding medical staff and avoid abrupt cessation of such treatment. On my finding, the 1st defendant has never provided the plaintiff with the any of the above information or warning.

CONCLUSION:

90. I am satisfied that the plaintiff had been prescribed a course of dexamethasone from 10 August to early November 1992 by the 1st defendant. I am satisfied that at no time had the 1st defendant explained to her the reason for the dexamethasone treatment, its nature and side effect, so that she may make an informed choice as to whether the risk was worth taking. That was in breach of his contractual duty as well as duty of care. That breach resulted in injury to the plaintiff, namely she suffered steroid induced avascular necrosis of her hip resulting in both of her hip joints having to be replaced. Accordingly, I enter judgment on liability against the 1st defendant with costs. The plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.