HO CHI CHUNG v. HOSPITAL AUTHORITY

HCPI 694/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 694 OF 2014

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D E C I S I O N

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1.  This is the plaintiff’s application to instruct an expert in paediatric intensive care to adduce an expert report on the diagnosis and causation of the plaintiff’s neuropathic illness.

Background

2.  There is no need to go into too much details regarding the medical history.  The plaintiff, aged 12 at the relevant time, alleged that the defendant had delayed the diagnosis and surgical treatment of an abdominal condition. This led to various post-operative complications and admission to Paediatric Intensive Care Unit (“PICU”).

3.  During the care under the PICU, the plaintiff developed a disabling nerve disease which was diagnosed to be Guillain-Barre Syndrome (“GBS”) or Critical Illness Neuropathy (“CIN”).

4.  Importantly, although the plaintiff has largely recovered from his abdominal condition, this nerve disease has left him with long term weakness of various degrees in all 4 limbs requiring wheelchair for mobility, as well as some loss of sensation etc.

5.  The crux of this case, as far as damages are concerned, is whether the plaintiff suffered from GBS or CIN.  If he had GBS, this might be a coincidental disease unrelated to his abdominal condition, thus he would not likely be entitled to any claim of damages relevant to his nerve condition.  On the other hand, if he had CIN, there would be a direct causal link between his abdominal condition, the post-operative complications, and to his nerve disease, thus, the plaintiff would likely be entitled to such damages.

6.  The dispute in the current application arose out of the circumstances when the parties instructed their experts on damages, who were neurologists.  Mr. John Clancey, the solicitor for the plaintiff, was informed by his expert Dr. Yu Yuk Ling, that they should “obtain a report from an intensivist in regards to the Guillain-Barre Syndrome” before instructing him.  Mr. Clancey therefore wrote to the defendant on 13 September 2016 stating that they were seeking instructions to engage a paediatric intensivist.

7.  The defendant’s solicitors replied on 3 October 2016 stating that they did not agree: there was no allegation against the management of the plaintiff in the PICU thus an expert in paediatric intensive care on liability is irrelevant.

8.  As a passing comment, it seems to me that there were some misunderstandings between the parties as to what this “paediatric intensivist” was to be instructed to comment upon.  From what Mr. Clancey claimed Dr. Yu had told him, I think that Dr. Yu must be aware of the crux of this case (as stated in paragraph 5 above), and he was seeking the plaintiff to obtain an expert opinion on the diagnosis (i.e. was it GBS or CIN?) to address the issue of causation.  Clearly, from Dr. Yu’s point of view, instructing him to assess the neurological damages might be unnecessary if this was a case of GBS because there would be no causal link between the surgery and the neurological damages.  The defendant’s solicitors might be confused that the “paediatric intensivist” would be instructed to comment on the standard of care in the PICU, which was, of course, not the case.

9.  There was no agreement between the parties and in any case, a joint letter of instruction was sent to Dr. Yu and Dr. Edmund Woo on 6 January 2017.  Page 4 of the letter of instruction specifically stated:

“You are not instructed to address any issues of liability and causation.”

10.  Despite this very clear instruction, both Dr. Yu and Dr. Woo, in their Joint Medical Report dated 6 April 2017 (“the JMR”), went on to comment on the diagnoses of GBS versus CIN, and the issue of causation.

11.  Furthermore, despite what might appear to be his reservations regarding his own expertise, Dr. Yu was able to opine that “the available clinical and laboratory evidence indicated the diagnosis of the acute axonal form of Guillain-Barre Syndrome, and the same diagnosis was also made by the attending paediatric neurologist.”  Dr. Yu went on to state various features of the case which “favours strongly Guillain-Barre Syndrome as the diagnosis”.

12.  On the other hand, Dr. Woo, the expert instructed by the defendant, was not so sure. He discussed features like the clinical setting, the electrophysiological studies, the antibodies test etc. which favours the diagnosis of CIN, and he also discussed the Cerebrospinal Fluid profile which favour the diagnosis of GBS.  He stated that “taking all the above into consideration, the clinical and investigative features available do not permit a clear distinction” between GBS and CIN and that “it is not possible to ascertain the exact cause of his diffuse axonal neuropathy”.

13.  It should also be noted that the plaintiff took out the current application on 24 February 2017 which was before the JMR became available.

Issues in dispute

14.  It is well established that expert evidence is only admissible if it is relevant, necessary and of probative to particular issues or questions in dispute in the proceedings (per HHJ Marlene Ng in Lo King Fung v China Overseas Property Services & Ors., unrep., DCPI 380/2008).

15.  Mr. Sakhrani, counsel for the defendant, suggested that this was a blatant case of “expert-shopping”.

16.  I do not accept that.  It was clear right from the beginning that Dr. Yu has reservations on his own expertise on the issue of causation.  Mr. Clancey has raised the need for an expert on causation with the defendant some 7 months before the JMR was available.  Clearly, this was also the reason why both Dr. Yu and Dr. Woo were specifically instructed not to address any issue on causation.

17.  What came as a surprise was that both experts, contrary to the instructions, decided to proceed to address the issue of causation anyway.

18.  What is further problematic about such opinion is that I can envisage Dr. Yu’s opinion being challenged and he will most likely say what he has stated in his letter dated 13 October 2017, “…I could only assess the quantum aspect of this case.  As for the nature of the neuropathy and whether or not the neuropathy was related to the abdominal problem and its management, I suggest he (Mr. Clancey) should instruct an expert in peripheral neuropathy.”  This appears to be a gesture to retract his opinion on causation.

19.  Incidentally, Mr. Sakhrani has objected to the production of Dr. Yu’s letter mentioned above on the basis that this was produced late.  However, since Mr. Sakhrani was able to make submissions on its content, I would allow its production.

20.  It is perhaps ironic that the expert (Dr. Yu) who appeared firm on his opinion on causation in the JMR actually have expressed reservations and might be retracting his opinion.  The other expert, Dr. Woo, who has not expressed any reservations, opined that he could not ascertain the exact causation.  On top of that, both experts were never instructed to give an opinion on causation in the first place.

21.  The only other expert who has touched on the issue of causation was Assistant Professor Dr. Christoph H. Houben, an expert on liability instructed by the plaintiff.

22.  However, Dr. Houben is a surgeon and almost the entirety of his report was concerned with the surgical management of the plaintiff’s abdominal condition.  Only in his penultimate paragraph that Dr. Houben mentioned that the plaintiff “was diagnosed with Guillain-Barre Syndrome or possibly Critical Illness Neuropathy”.

23.  There was no discussion on the pathologies of each diagnosis and more importantly, the crucial issue of causation for each diagnosis.  Yet Dr. Houben went on in the last paragraph, without giving any specifics, to state that “the failures in the standard of care given…contributed in a significant way to his condition on or after 11 November 2005.”

24.  It is clear to me that Dr. Houben was not aware of the crucial issue on the diagnosis of the neuropathy otherwise he would have spent much more time addressing it, and he would not have mentioned that the plaintiff was “diagnosed with GBS or possibly CIN” and then simply stated that the failure in the standard of care contributed “in a significant way” to the plaintiff’s condition.

25.  This is not surprising given that Dr. Houben is a surgeon and not an expert in neuropathy.  I therefore think that he would not be an appropriate expert to assist the court in this important question.

26.  As such, I can envisage substantial difficulties, with the expert evidence as it now stands, for the trial judge to come to any conclusion on the issue of causation.  This is a crucial question because the vast majority of the damages hinges upon the diagnosis of the neuropathy.  Furthermore, from a case management point of view, early determination of this issue, if possible, would save much time and costs.

27.  I would therefore agree with Dr. Jones, counsel for the plaintiff, that proper experts should be instructed to give an opinion on causation in this case.  As Dr. Jones reassured, such experts should not deal with any other matters like the standard of care in PICU.

28.  There is also some dispute as to who would be the appropriate expert in this matter. Mr. Sakhrani submitted that there were 3 versions of what Dr. Yu suggested was the appropriate expert: “an intensivist” (as stated in Mr. Clancey’s letter dated 13 September 2016), “an expert in paediatric intensive care” (as stated in Mr. Clancey’s Affidavit filed on 24 February 2017), or “an expert in peripheral neuropathy” (as stated in Dr. Yu’s letter dated 13 October 2017).

29.  I think this is understandable.  From various expert and medical reports, I understand that GBS and CIN are rare diseases and, being rare diseases, doctors treating such may come a number of specialities or sub-specialities and the expertise in such cases might be more down to the doctor’s own personal experience.  Nevertheless, I also understand that both GBS and CIN in children would be managed in PICU.

30.  Thus, when Dr. Yu mentioned “expert in peripheral neuropathy”, he did not mean that there was a recognised medical specialty called “Specialist in Peripheral Neuropathy”.  He must mean “any expert who have the experience in treating such cases in PICU”.  Therefore, a Specialist in PICU (or a “Paediatric Intensivist”) may have the appropriate experience in such cases and, as such, be “an expert in peripheral neuropathy” in this case.

31.  Looking at the CV of Dr. Alan William Duncan, I am satisfied that he has the expertise and experience in the diagnosis and treatment of GBS and CIN and is therefore an appropriate expert on causation.

32.  For reasons stated above, I would also direct that all opinion regarding causation in the JMR should be redacted.

33.  I would therefore give the following orders:

i) Paragraph 1 under “Comments” in the JMR be redacted in its entirety.

ii) Leave be to the parties to instruct their respective expert in the speciality of Paediatric Intensive Care to prepare a joint expert report on the issue of causation, that is:

a) based on available medical evidence, whether, on balance of probability, the plaintiff’s neurological injuries were due to GBS or CIN (or any other possible diagnoses); and

b) to explain the pathologies of such diseases and thus whether, on balance of probability, there was a causal link between the plaintiff’s abdominal condition, surgery, post-surgical complications and the neurological injuries.

The experts shall state their areas of agreement and disagreements and if the latter, the reasons of the disagreements with support of any medical literature if needed.

iii) The expert nominated by the plaintiff is Dr. Alan William Duncan.

iv) Parties shall jointly write to the PI Master within 28 days of this order to propose the date that this joint report will be ready, and any further agreed case management directions including fixing of Check List review hearing date.

v) A direction hearing be fixed at 9:30 am on 18 January 2018 which the parties can vacate on compliance with paragraph 33(iv) above.

vi) Costs of and occasioned by this application be to the plaintiff and the plaintiff’s own costs be taxed in accordance with Legal Aid Regulations with certificate to counsel. If there is no agreement as to costs, the plaintiff shall within 28 days of the order lodge and serve a summary bill of costs and the defendant shall lodge and serve a list of objections 28 days thereafter. The costs will be summarily assessed on paper.