Chan Chun Chau, The Personal Representative Of The Estate Of Fa Ching Chee, Deceased v Hospital Authority

DCPI1424/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1424 OF 2011

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JUDGMENT

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INTRODUCTION

1. This case involves a medical negligence claim. The original plaintiff, Madam Fa Ching Chee (“Madam Fa”), passed away on 22 April 2013. By the order herein dated 18 October 2013 made pursuant to Order 15, rule 7(2) of the Rules of the District Court, Madam Fa’s husband, Mr Chan Chun Chau (“Mr Chan”) was made a plaintiff to the cause and it was further ordered that this action be carried on as if Mr Chan had been substituted for Madam Fa.

2. Mr Chan’s allegation of medical negligence against the defendant only focused on the cervical spine laminoplasty operation performed by Dr Mak Kan Hing (“Dr Mak”), who was working at the Orthopaedics and Traumatology Department (“O&T”) of the Kwong Wah Hospital (“KWH”) at the material time, on Madam Fa on 2 September 2008 (“the 2^nd Operation”).

3. The plaintiff’s allegations can be found in the Indorsement of Claim dated 18 July 2011. It was clearly stated that the plaintiff’s claim was in relation to the “negligent medical treatment and/or advice given to the Plaintiff on or about 2^nd September 2008”.

4. The same position was also clearly set out in the plaintiff’s Statement of Claim dated 26 March 2012. The particulars of the alleged negligence, which were all in relation to the 2^nd Operation, were set out at paragraphs 16 and 25 of the Statement of Claim.

5. The above is needed to be emphasized in order to avoid this action being distracted by numerous accusations made by Mr Chan in various places, including his Opening and Closing Submissions, his Witness Statement and his oral testimony at trial. Many of such accusations are unrelated to the plaintiff’s pleaded case against the defendant and are therefore irrelevant for the purpose of this trial.

FACTUAL BACKGROUND

6. Madam Fa was born on 6 September 1944. She passed away on 22 April 2013 at the age of 68.

From 1998 to 2007

7. On 8 October 1998, Madam Fa was referred to the O&T of the KWH due to, inter alia, complaint of neck pain for over one year. Madam Fa was diagnosed of degenerative cervical spine and was given conservative treatment with physiotherapy and a course of anti-inflammation drugs.

8. Between 1998 and 2001, Madam Fa attended the O&T of KWH for back pain radiating down to both lower limbs and was given conservative treatment.

9. On 10 April 2003, Madam Fa attended a follow-up at the O&T for pain in both knees and numbness on the lateral side of both legs. Physical examination showed weakness of the right L5 innervated muscles and absence of ankle jerk on the right side which were suggestive of spinal stenotic lesions secondary to degenerative lumbar spine. Madam Fa was advised to take an x-ray of the lumbar spine region and to attend a follow-up on 27 June 2003.

10. Madam Fa attended the follow-up on 27 June 2003. The x-ray report suggested mild slipping of the L4/5 disc accounting for spinal stenotic symptoms. Madam Fa was given conservative treatment and her condition improved.

11. Madam Fa continued to attend follow-ups between 2003 and 2004.

12. Madam returned for a follow-up on 27 May 2005 and was seen by Dr Mak. Physical examination showed, inter alia, weakness of Madam Fa’s right foot and right leg with numbness of the right sole and absence of right ankle reflex for more than 2 years. She could manage to walk for about 10 minutes.

13. Dr Mak therefore arranged for a magnetic resonance imaging (“MRI”) scan of the lumbar spine which was performed on 9 June 2005. The MRI scan revealed, inter alia, prolapsed intervertebral disc on multiple levels with lateral canal stenosis, but with adequate space for the dural sac.

14. In view of Madam Fa’s deteriorating condition, Dr Mak advised Madam Fa to undergo laminectomy of L3/4 to decompress the nerve roots (“the 1^st Operation”). Madam Fa gave an informed consent to the 1^st Operation. Dr Mak told Madam Fa there was no guarantee that the muscle power would return and she expressed that she understood that. The 1^st Operation was performed on 26 July 2005 uneventfully.

15. On 5 September 2005, around 6 weeks after the 1^st Operation, Madam Fa attended a post-operation follow-up at the O&T with Dr Mak. Her condition had improved with reduction in back pain and some improvement in walking distance. In another follow-up with Dr Mak on 20 February 2006, Madam Fa no longer suffered from any back pain but there was not much improvement regarding the weakness of her right foot.

16. In September 2006, a repeat MRI scan of Madam Fa’s lumbar spine region was performed and no evidence of nerve root compression was found. Madam Fa was further followed-up by the O&T in respectively April and June 2007.

17. On 24 October 2007, a MRI scan examination of Madam Fa’s lumbar spine showed no significant spinal stenosis.

18. However, in a follow-up on 12 November 2007, Madam Fa presented with involvement of the upper limb suggestive of a cervical lesion. Dr Mak ordered a MRI scan of Madam Fa’s cervical spine and referred Madam Fa to the Neuro-medical Clinic, Department of Medicine and Geriatrics of KWH (“Neuro-medical Clinic”) to investigate the possibility of Motor Neurone Disease (“MND”).

19. Madam Fa was followed up on 24 December 2007 by Dr Mak pending consultation with the Neuro-medical Clinic of the KWH. Dr Mak found that Madam Fa had progressive weakness of both lower limbs. X-ray of the cervical spine indicated features of narrowing of the spinal canal.

From 2008 to 2009

20. On 4 August 2008, a MRI scan of Madam Fa’s cervical spine region was performed which showed thickening of the posterior longitudinal ligament with cervical cord compression at multiple levels. Dr Mak noted that this showed definite evidence of a diagnosis of cervical myelopathy.

21. The MRI report revealed that at C4/5, mild disc bulge with osteophytes was noted and the sagittal spinal canal was down to 6.7 mm. In his oral testimony, Dr Mak explained that for a normal person, the minimum distance for the sagittal spinal canal should be 12 mm to 13 mm. In this respect, there was serious nerve compression and the MRI evidence could completely explain Madam Fa’s condition. The investigations did not suggest that Madam Fa had MND and in the circumstances, Dr Mak considered that the chance of presence of MND was only very slim.

22. In view of the above, on 18 August 2008, Dr Mak advised Madam Fa to consider a cervical spine laminoplasty operation (ie the 2^nd Operation). Dr Mak is of the firm view that the 2^nd Operation was appropriate and should be done.

23. Dr Mak gave evidence that prior to the 2^nd Operation, he had explained the situation to Madam Fa and Mr Chan, including the following:-

(1) The report of the MRI scan performed on 4 August 2008 which showed cervical cord compression. The compression on the nerves would cause loss of motor neuron cell function.

(2) The compression would first affect the lower limbs and then the upper limbs.

(3) If nothing was done, the compression would affect Madam Fa’s breathing and might even lead to faecal or urinary incontinence. This could lead to the death of motor neuron cells.

(4) Dr Mak hoped that the 2^nd Operation could prevent Madam Fa’s condition from further deterioration.

(5) The 2^nd Operation could alleviate the compression on the motor neuron and help decrease the numbness and weakness of the lower limbs.

(6) Some of the undamaged motor neurons might recover. However, if the motor neurons had already been damaged, they would not recover.

(7) There was a chance, but a small one, that Madam Fa could recover. The recovery, if any, would require time.

(8) This was a major operation. The operation would be a rather lengthy one and there would be much blood loss.

(9) The risks would be high because the area to be operated on was close to the central nerves. The risks of the operation included blood loss, damage to nerves, numbness of nerves, loss of nerve function, numbness of the limbs and even paralysis.

(10) As an orthopaedic surgeon, he would try his best to do the operation. That was all that an orthopaedic surgeon could do.

(11) Dr Mak could not guarantee that the operation would be successful. He told Madam Fa that after the operation, it was possible that there would be no improvement. Further, there would be wasting of the upper limbs for a few years after the operation and Madam Fa might not recover from that.

(12) Dr Mak said that he did not need to make any promise to Madam Fa as he only wanted to help Madam Fa with the alleviation of the compression.

(13) If conservative treatment was adopted, there was a chance that Madam Fa’s condition would deteriorate and there would be further compression on the nerves.

(14) The other usual risks of an operation, including chest infection, urinary tract infection, numbness and paralysis were advised to Madam Fa.

(15) The risks of general anaesthesia, including wound infection, blood loss, urinary tract infection and respiratory infection were also advised to Madam Fa.

24. Madam Fa signed a Consent Form dated 18 August 2008 (the “Consent Form”) for the 2^nd Operation (pages 859 to 863 of the Trial Bundle). In the fourth section of the Consent Form, which stated in Chinese...