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FRANK YU YU KAI v. CHAN CHI KEUNG

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date24 October 2007
Citation[2007] 4 HKLRD 837
Judgement NumberCACV433/2006
CourtCourt of Appeal (Hong Kong)
Subject MatterCivil Appeal
CACV000433/2006 FRANK YU YU KAI v. CHAN CHI KEUNG

cacv 433/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 433 of 2006

(on appeal from HCPI NO. 230 of 2004)

______________________

BETWEEN

FRANK YU YU KAI Plaintiff
and
CHAN CHI KEUNG Defendant

______________________

Before : Hon Rogers VP, Le Pichon JA and Lunn J in Court

Date of Hearing : 27 September 2007

Date of Handing Down Judgment : 24 October 2007

______________________

J U D G M E N T

______________________

Hon Rogers VP:

1. I have had the advantage of reading the judgment in draft of Le Pichon JA. I agree that this appeal should be allowed with the order proposed. However, the decision has caused me no little anxiety. This was primarily due to the fact that the maxim res ipsa loquitur had been relied upon. I found difficulty with that because two causes of the plaintiff’s condition had been put forward and both had been rejected by the judge. In those circumstances, on the face of the matter, it appeared to me that there was a basis for the judge to come to the conclusion in the light of the medical literature that he did in paragraph 94 where he said:

“ 94. Having regard to the medical literature put before me, in particular those medical literature indicating that while it was previously thought that all perioperative nerve injuries were preventable, but that is no longer the general view today, I am unable to infer negligence, given the facts of this case, on the part of the defendant, even though I was able to come to the finding that the external compression causing the left radial nerve palsy likely took place at the time when the plaintiff was having the operation under anaesthetic.”

2. Indeed, having considered the articles that were before the court I consider that absent the findings of fact in paragraphs 82 and 83 of the judgment, to which I refer below, that conclusion was one to which the judge was entitled to come. Although it is clear that injuries to the ulnar nerve are far more common than injuries to the radial nerve, essentially a nerve injury is a nerve injury. In, for example, an article written in 1990 by Dr D A Kroll and others in the journal Anesthesiology entitled “Clinical Investigations: Nerve Injury Associated with Anesthesia” the conclusion is arrived at that:

“ It may be that some of the nerve injuries for which claims were filed occurred spontaneously without any causal relationship to anaesthesia or surgery.”

3. The article then goes on to talk specifically about ulnar nerve injuries but I do not see that the statement is other than related to nerve injuries generally. Furthermore in the article in Robert C Morell’s article in Current Reviews in Clinical Anesthesia which is referred to in Le Pichon JA’s judgment the statement that “Evidence is rapidly mounting that indicates that mechanisms of perioperative nerve injury are complex, multifactorial, and incompletely understood. This evidence is often contrary to these prior medicolegal perceptions.” is a general statement. Again it is not confined to specific nerves.

4. In short given the complexities of the human body and the comparatively little that is known about its workings, if 2 grounds of complaint are rejected and there is responsible research which concludes that a condition may arise from unknown, and seemingly non-negligent causes, it would seem an inappropriate case to rely on the maxim res ipsa loquitur which is founded on the basis that the condition could not have arisen without negligence.

5. On analysis, however, I do not consider that this is a case of res ipsa loquitur, certainly not in its full sense. The findings in paragraph 82 and 83 of the judgment that the injury came about due to external compression at the spiral groove at the posterior aspect of the plaintiff’s left upper arm and that that had taken place during the time when the plaintiff was under anaesthetic when in the operating theatre are crucial findings.

6. When they are taken in conjunction with the evidence of Kan Wai-han, an enrolled nurse who was on duty in the operating theatre, it would seem that it was the defendant’s responsibility to ensure that the position of the plaintiff was correct during the operation. Nurse Kan was called as a witness on behalf of the defendant. In her witness statement, she described how the plaintiff had been brought into the operating theatre and that it was after that, and after the blood pressure cuff had been put on his arm, that the plaintiff was turned on his left side so that an epidural catheter could be inserted. Her evidence then went on in paragraph 8:

“ Nurse Wong and I then assisted Dr Chan in positioning the patient on the operating table. It was Dr. Chan’s responsibility to ensure that the body positioning, including the position of both arms, was correct and that the patient was in a comfortable position.”

7. Hence it must have been the defendant’s responsibility to see that there was no external compression at the spiral groove at the posterior aspect of the plaintiff’s left upper arm. That, on the finding of the judge, did not happen. Hence, it was for the defendant to explain how that compression happened without his fault.

8. I consider it is right to reach the further finding concerning the overall responsibility of the anaesthetist for the patients correct positioning and comfort, in the light of the fact that it was the defendant’s case as presented in his evidence. I place less reliance on Professor Holland’s evidence. Although he may be a distinguished doctor, parts of his evidence bear some of the hallmarks of partisan advocacy, and some expressions used would be inappropriate for an expert witness. His evidence as to the different responsibilities of those inside the operating theatre can only have been given on a general basis and could not be as to who was present and took responsibility on this particular occasion.

Hon Le Pichon JA:

9. This is an appeal from a judgment of Suffiad J dated 8 November 2006 dismissing the plaintiff’s claim for damages for personal injuries sustained during an operation. At the conclusion of the appeal hearing judgment was reserved which we now give.

Background

10. The plaintiff who is himself a surgeon had to undergo a total prostatectomy, a bilateral herniorrhaphy and bladder diverticulectomy operation on 26 May 2001. He was 68 years old at the time. The defendant was the anaesthetist in attendance. For the operation, both the plaintiff’s upper limbs were placed in a supine position at about 90° to the plaintiff’s body on two armboards, with the palms facing upwards, secured by adhesive strapping at the wrist. The operation began at 1 p.m. and lasted some 6 hours or so. Within 12 hours after coming out of the operating theatre, the plaintiff was unable to move his left hand or fingers. It is common ground that he suffered from left radial nerve palsy.

11. The radial nerve which contains mixed sensory and motor fibres descends from the brachial plexus along the inner side of the humerus, to about its midpoint and then curves obliquely around and behind that bone, occupying a shallow depression known as the muscular-spiral groove. At or shortly below this level the nerve gives off major branches. When those fibres are injured, the result is “wrist drop”, that is to say an inability to “cock” the wrist back. This condition is characteristic of radial nerve palsy, the specific lesion being in that part of the nerve which occupies the musculo-spiral groove.

The judge’s findings

12. In the court below, the plaintiff’s case in negligence was based on two scenarios namely, first, that his left arm was allowed to fall off the armboard during the operation and alternatively, that the defendant was negligent using a Non-invasive Blood Pressure (“NIBP”) cuff on the plaintiff’s upper left arm in the operating theatre to monitor the plaintiff’s blood pressure. The suggestion was that an arterial cannula should have been used instead or, alternatively, that the cuff had not been properly administered, there being some wrinkle or pleat or kink which might have caused or contributed to compression causing an injury to the spiral groove of the humerus. Alternatively to the 2 positive cases, the plaintiff relied on res ipsa loquitur to show negligence.

13. The judge found that at no time did the plaintiff’s left arm fall off the arm board during the operation and, further, that the use of the NIBP cuff per se was not itself negligent and that the defendant had done all that was reasonably required of them to ensure a proper application of the cuff on the plaintiff. Against those findings there is no appeal.

14. The main dispute below related to the issue of res ipsa loquitur. It is common ground that when the plaintiff entered the operating theatre, he had a perfectly normal and functioning left arm and wrist. The judge found that by about 5:30 a.m. the following morning, it was discovered that the plaintiff could not move his left hand or fingers. Dr Vincent Ma who examined the plaintiff two days later, reported that there was

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