MARTIN JACQUES the husband and executor of HARINDER KAUR VERIAH, deceased AND ANOTHER v. HOSPITAL AUTHORITY

HCPI 1162/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1162 OF 2002

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RU L I N G

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1. This is an application by summons dated 12 June 2008 taken out by the defendant seeking for an order that the interrogatories requested by the plaintiff dated 10 June 2008 be dismissed.

Background

2. This is a medical negligence claim brought by the plaintiff in respect of the death of his wife, Harinder Kaur Veriah (hereinafter referred to as “the deceased”), who died on 2 January 2000 while a patient in the Ruttonjee Hospital.

3. In 1995, the deceased had suffered an epileptic fit when she was in London.  In the last few days of 1999, while the deceased was in Hong Kong with her husband, the deceased was not feeling well and had diarrhoea.  In the early hours of 1 January 2000, while outside the Excelsior Hotel in Causeway Bay, the deceased suffered an epileptic fit.  An ambulance was called for and the deceased was taken first to the Tang Shiu Kin Hospital, then later transferred to the Ruttonjee Hospital at about 2:40 a.m. the same day.

4. At about 8:40 a.m. on the following day, namely 2 January 2000, the deceased suffered a second epileptic fit while in hospital.  Following that, at about 9:05 a.m. the deceased suffered a respiratory and then a cardiac arrest.  Resuscitation was attempted by the nurses and doctors at the hospital but without success.  All attempts at resuscitation was abandoned at 10:30 a.m. and the deceased was certified dead at 12:13 p.m. the same day.

5. At the coroner’s inquest held in relation to the death of the deceased, the coroner returned a verdict of death by natural causes due to Sudden Unexplained Death in Epilepsy (SUDEP).

6. The claim is brought on the basis of negligence of the medical and nursing staff of Ruttonjee Hospital for failing to revive or resuscitate the deceased.

7. The particulars of negligence is pleaded in paragraph 20 of the Statement of Claim.  It is compartmentalised into three categories.  The first category deals with the management of the deceased following her admission into Ruttonjee Hospital.  The second category relates to the management of the deceased following her second epileptic fit during the time between 8:40 a.m. and 9:05 a.m.  The third category deals with the management of the deceased from 9:05 a.m. onwards.

8. For present purposes, it is the third category, i.e. the negligence alleged from 9:05 a.m. onwards which is relevant.  In this third category, it is alleged by the plaintiff that :

(a)  the resuscitation given to the deceased was ineffective;

(b)     by 9:11 a.m. there was ventricular fibrillation and the deceased should have been immediately defibrillated but no attempt at electrical defibrillation was made until 9:23 a.m.;

(c)     there was a gap of some 12 minutes between the first shock and the third shock given at 9:35 a.m. when all three shocks should have been administered within one minute;

(d)     the blood gas analyses at 9:46 a.m. and 9:50 a.m. indicated that cardiopulmonary resuscitation, and the ventilation of the deceased, were ineffective and inadequate; and

(e)  if the deceased had been competently defibrillated as soon as her cardiac rhythm became one of ventricular fibrillation, and if the deceased had received competent and effective CPR and adequate ventilation the deceased would have survived the arrest without neurological damage, and would have made a full recovery.

9. While it would appear that it is common ground that the cardiac arrest was due to hypoxia, there are differences in opinion from the experts involved as to what caused the hypoxia.

10. The plaintiff’s expert, Dr Andrew Cohen takes the view that the most likely causes of the hypoxia would be respiratory obstruction or respiratory depression.

11. On the other hand, Professor Timothy Rainer, the expert instructed by the defendant states, on the assumption that Dr Chan (the treating doctor) was familiar and experienced with airway management, that if hypoxia was the primary problem, it should have been easily reversed when Dr Chan arrived.  He goes on to say that however, the administration of oxygen and adequate ventilation may not be effective treatment if there were further underlying problems such as neurological activity related to epilepsy, cardiac arrhythmias resulting from neurological over-activity or underlying electrolyte disturbance associated with diarrhoeal illness.

12. Professor Rainer goes on to say that the arterial blood gas measurements showed severe acidosis and elevated carbon dioxide levels.  Such a picture is frequently seen in patients with prolonged cardiorespiratory arrest.  These measurements illustrate that the resuscitation procedures were not effective but do not prove mismanagement.  Often, whatever the resuscitation team does, the patient will not respond well to resuscitation, will have poor blood gas measurements, and will still succumb.

The Interrogatories sought

13. The interrogatories sought by the plaintiff relates to the two blood gas test result printouts.  Both printouts were dated 2 January 2000, one at 9:47 a.m. and one at 9:58 a.m. as stated thereon.

14. The same interrogatories are sought for each of the two printouts of the test result, namely :

(a) at what time and on what date the blood was taken for this test;

(b) the location of the machine that analysed the blood taken, i.e. was it brought to the ward in which the deceased was being treated, or where was it;

(c) how long did it take to do the test;

(d) what time was the test result completed; and

(e) what time was the test result brought back to the ward and shown to the doctors treating the deceased.

15. In so far as interrogatory (a) is concerned, counsel for the plaintiff accepts that the date must be 2 January 2000, but submits that what is really sought by that interrogatory is the time at which the blood was taken for the test.

16. It was also explained by the plaintiff that these interrogatories were only asked for at this stage of the proceedings because these were questions posed by Professor Oh, a second expert in Intensive Care, who had been approached by the plaintiff earlier this year for his expert opinion in this matter, and that the answers to the interrogatories are necessary for him to complete his report since Professor Oh believes that the oxygen level in the deceased’s blood was too low and the failure to correct this may be a large contributing factor to the death of the deceased.

17. It is therefore contended by the plaintiff that the answers to the interrogatories sought are highly relevant and necessary to the case relating to the timing as to when the two blood specimens were taken for testing.  If they were taken within the time frame when the oxygenation was expected to improve by resuscitation, and if the same had been effective and adequate, then the poor oxygenation shown in both the Arterial Blood Gas result is indicative of :

(a)  the resuscitation was ineffective and inadequate; and

(b)     the technique was faulty.

18. In short the plaintiff seeks, by the interrogatories, to establish that the intubation was not properly done so that air was not (or not properly) entering the airway of the deceased during resuscitation.

The defendant’s objection

19. The first objection by the defendant is that the plaintiff now seeks to establish a specific faulty technique which has not been pleaded nor raised in any of the plaintiff’s expert reports, nor for that matter brought up in the coroner’s court where the plaintiff was legally represented.

20. Secondly, the defendant objects to the interrogatories as being wholly irrelevant to the matters pleaded and in issue.  It is further submitted that it is no more than fishing for facts in order to establish a new line of attack not pleaded.

21. The defendant also objects to the interrogatories as being oppressive in that the defendant would, some eight years down the road, need to seek out and identify such persons involved with the taking and testing of the blood at the time in question and for them to recall from memory such events which occurred during the period of resuscitation due to the fact that such interrogatories are only raised now.  In this respect counsel for the defendant informed me during the hearing that all documentary records relating to the resuscitation of the deceased, including the two blood test printouts, have already been discovered and made available to the plaintiff.  Therefore in the absence of any other records, these matters can only come from the memory of those persons who were involved in the matter at the time it happened, over eight years ago.

Decision

22. In so far as the issue of relevance and necessity is concerned, the starting point must be the two blood tests printouts dated 2 January 2000 and timed at 9:47 a.m. and 9:58 a.m.

23. There can be no doubt those two documents related to the resuscitation of the deceased as indeed they form part of the medical record relating to the resuscitation of the deceased on that fateful morning.  Both those documents have been discovered by the defendant as being relevant to the case.

24. These interrogatories are directly linked to those two printouts since the interrogatories ask for the timing relating to the testing of the deceased blood culminating in those two printouts.

25. Generally speaking, the pleaded case of the plaintiff in this respect was that the resuscitation done to the deceased was ineffective or inadequate, which is the basis of the negligence claim.

26. Given that it is common ground that the deceased died from hypoxia, what is not known and therefore in dispute is the cause of the hypoxia.

27. In the way that the case has been pleaded on behalf of the deceased, and given the unknown causes of the hypoxia, I am of the view that the plaintiff is entitled to the answers sought in the interrogatories.  Nor do I view this exercise as a fishing for facts or even evidence, but rather a specific matter which the plaintiff is entitled to explore given all the unknown in this case.

28. In my view, the interrogatories administered fall squarely within the words of Lord Esher MR in Marriott v. Chamberlain (1886) 17 QBD 154 at 163 where he said :

“… The right to interrogate is not confined to the facts directly in issue, but extends to any facts the existence or non-existence of which is relevant to the existence or non-existence of the facts directly in issue.”

29. What is directly in issue in the present case is the effectiveness and/or the adequacy of the resuscitation administered to the deceased.  If that was due to faulty technique in the administration of it, surely on the case as already pleaded, the plaintiff ought to be allowed the opportunity to investigate that aspect of it, even though no specific faulty technique has, as yet, been pleaded.

30. As for oppressiveness, even accepting that the specific matters asked for in the interrogatories have not been recorded down in writing in any of the hospital records, the two printouts give the time not only of the printouts, but also the time of the analyses of the blood.  In both cases, the time of the analyses were only one minute earlier than the time of the printout.  That ought to go a long way in assisting those at the defendant to formulate the answers sought.

31. Moreover, the team of nurses and doctors who were involved in resuscitating the deceased must, by now, be well known to the defendant.  Even if laboratory staff may have been involved in conducting the tests, again I cannot rule out that there will be some records as to who were the staff on duty at the laboratory on 2 January 2000.

32. For the above reasons, I do not see that requiring the defendant to answer the interrogatories is as oppressive as the defendant makes out.

33. Accordingly, the defendant’s summons seeking to dismiss the interrogatories of the plaintiff is itself dismissed.

34. There will be a costs order nisi that the defendant pays to the plaintiff costs of the application and the hearing of it in any event.  Since the hearing of the summons was listed to be heard at the same time as the PTR, and for the avoidance of doubt, there will be a certificate for counsel in respect of the hearing.

35. The 1^st plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.