WONG CHING HANG v. HOSPITAL AUTHORITY

HCPI 587/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 587 OF 2006

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REASONS  FOR  DECISION

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1.  The Defendant took out a summons returnable at the Pre-trial Review to strike out part of the supplemental report of the Plaintiff’s liability expert commenting on the preferred alternative treatment in lieu of the impugned surgical operation.

2.  The Deceased was a diabetic with history of cerebellar degeneration and right hemiplegia.  He had a fall at home on 15 July 2003 and was sent to Princess Margaret Hospital.  Emergency operation was performed to manage traumatic internal bleeding in the brain (subarachnoid haemorrhage).

3.  On about 29 July, the Deceased was snoring heavily, apparently due to bilateral vocal cord palsy.  On 31 July, the doctor suggested tracheostomy (direct airway incision through neck), which was performed on 1 August.  The Deceased was semiconscious and unable to give consent.  He died from cardiac arrest during the operation.  He was 59 at the time.

4.  The cause of action is trespass to the person (battery) in lack of consent for tracheostomy, and that the operation was not done in the best interest of the patient.

5.  The Defence is: (1) oral consent; (2) principle of necessity (in the context of prevailing hospital practice in accordance with the accepted body of medical opinion). 

6.  Dr Robert Ho, the Plaintiff’s neurological expert, queried the lack of signed consent and lack of urgency given the time lapse between the discussion and operation of treacheostomy.  In the supplemental report, Dr Ho suggested initial treatment of endotracheal intubation (placement of plastic ventilation tube into the windpipe) was safer and preferable.

7.  Mr Lam, for the Defendant, sought to strike out Dr Ho’s comment on alternative treatment on the ground that:

(1) Alternative treatment was not pleaded in the Statement of Claim and there was no application to amend;

(2) Dr Ho’s comment was in breach of the previous direction of the Master that the Plaintiff shall instruct his expert not to introduce any further or new issue in his supplemental report;

(3) If, which is denied, that the point is relevant, the Defendant had no opportunity to deal with the new issue.

8.  The question of alternative treatment is relevant to the issue of necessity as pleaded in the Defence, and the Plaintiff should be entitled to reply to it.  Relevant issues should be allowed unless a party has previously adopted a particular tactical course which later retraction or change of tack is unfair to the other side.  There is no such instance here except for delay.  In any case, the opinion on intubation is a matter of evidence ostensibly covered by the pleading that tracheostomy was not in the best interest of the patient.

9.  Hence, I refused to strike out the relevant part of the supplemental report, and granted leave to the Defendant to file witness statement(s) and expert evidence on intubation within 56 days.

10.  I fixed another PTR on 2 February 2010, subject to vacation upon acceptable agreed direction as to setting down.

Costs

11.  This summons was taken out returnable on the PTR fixed by the Master to deal with delay in trial preparation on the part of the Plaintiff.  Apart from written submissions, there is no substantial oral argument by Mr Lam at the hearing upon indication of views by the Court. 

12.  Hence, I ordered costs of the PTR be in the cause.