Mok Lai Fong v 吳寶穗 And Others

HCPI 549/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 549 OF 2010

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DECISION

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I. BACKGROUND

1. The 1^st Defendant was/is a Chinese medicine practitioner pursuant to section 90 of the Chinese Medicine Ordinance Cap. 549. According to the Plaintiff, the 1^st Defendant was/is a bonesetter trading as 吳寶穗跌打醫館 (ie the 3^rd Defendant but erroneously named as “吳寶穗醫館 (a firm)” in the Writ of Summons, “Clinic”). There is no dispute that the 2^nd Defendant was/is a registered Chinese medicine practitioner.

2. The Plaintiff claims to have suffered personal injuries as a patient under the care of and as a result of medical mismanagement by the 1^st, 2^nd and/or 3^rd Defendants and/or their servants, agents and/or employees during the period from 31 March to 12 April 2007 (“Incident”).

3. On 20 October 2010, the Plaintiff commenced the present proceedings against the Defendants for damages for personal injuries and for other loss and damages. On 10 November 2010, the Plaintiff filed her Statement of Claim, Statement of Damages and her medical reports pursuant to Order 18 rule 12(1A)(a) of the Rules of the High Court (“Medical Reports”). On 13 December 2010, the Plaintiff filed Notice of Discontinuance against the 3^rd Defendant.

4. But on 6 December 2010, the Defendants issued a summons seeking inter alia the following reliefs (“Summons”):

(a) the Writ of Summons and the Statement of Claim be struck out as being frivolous or vexatious or an abuse of process of the court and the action be dismissed with costs on the ground that they set up a cause of action that has been time-barred under section 27 of the Limitation Ordinance (“Ordinance”) at the time of the issuance of the Writ of Summons;

(b) the time for filing/serving the Defence be “abridged” (which I believe should be “extended” but no issue arises from such error).

5. In support of the Summons, the Defendants filed the affirmation of their solicitor Lee Ka Kui on 6 December 2010 and the affirmation of the 2^nd Defendant on 1 February 2011. The Plaintiff filed her own affirmation in opposition on 10 January 2011.

6. Mr Cheng, counsel for the Plaintiff, frankly accepts that the Plaintiff’s cause of action against the Defendants has started to accrue on/about 12 April 2007 when she became aware of her right shoulder dislocation which she claims was caused by treatment given by the Defendants, and that the three-year limitation period has expired by 11 April 2009 and the present proceedings are therefore about 6 months out of time. Mr Cheng further accepts that unless the Plaintiff has leave to proceed under section 30 of the Ordinance, her claim against the 1^st and 2^nd Defendants in the present proceedings is liable to be struck out.

II. PLAINTIFF’S CHRONOLOGY OF EVENTS

7. The following chronology of events is extracted from the Plaintiff’s affirmation, the undisputed inter partes correspondence, the Medical Reports, and the expert report of the Plaintiff’s orthopaedic expert Dr Wong See Hoi (“Dr Wong”) dated 24 July 2009 (“Ortho Report”).

8. According to the medical report of Dr Wun Yiu-chung of the department of orthopaedics and traumatology (“DOT”) of Tuen Mun Hospital (“TMH”) dated 23 January 2008 (“DOT Report”), which the Plaintiff has disclosed as one of the Medical Reports, she had carcinoma of the right breast with surgical excision and axillary lymph node dissection done in May 2006. She also received post-operative radiotherapy and hormonal treatment. According to the Ortho Report, she still had follow-up at TMH at quarterly intervals, but had returned to work one month after the surgery.

9. The Ortho Report further notes that the Plaintiff had no history of right shoulder problem, but after radiotherapy treatment she noticed there was loss of about 50-60% range of movement of the right shoulder. There was progressive painful stiffness of her right shoulder, and she was advised by her oncologist to perform self-mobolisation exercise. TMH’s department of clinical oncology referred her to the physiotherapy department (“PD”) for physiotherapy for right frozen shoulder.

10. Dr Wong opines that the Plaintiff suffered from adhesive capsulitis (frozen shoulder) that not uncommonly develops after axillary lymph node radiotherapy or surgery, but most of such cases are self-limiting and respond well to conservative treatment.

11. The Plaintiff claims that on 31 March 2007 she attended the Clinic for bonesetter treatment because of right shoulder stiffness. She was examined by the 1^st Defendant and was diagnosed to be suffering from severe shoulder impingement syndrome (嚴重肩周炎). Initially, the Plaintiff was treated with herbal medication application, but the 1^st Defendant suggested to her to have stretching treatment (垃筋治療) and told her that without such treatment she would have frozen shoulder and severe restriction of her right shoulder mobility.

12. On 1 April 2007, the Plaintiff attended the Clinic for follow-up treatment. The 2^nd Defendant advised she had severe shoulder impingement syndrome and it was necessary for her to have stretching treatment, but it would be very painful after the stretching treatment, so she should bring along a relative when she attended the Clinic for such treatment.

13. On 2 April 2007, the Plaintiff’s eldest son accompanied her to the Clinic. The 2^nd Defendant administered stretching treatment, ie aggressive manipulation of her right shoulder, which caused severe pain. The Plaintiff felt the muscles around her right shoulder were torn, and she heard a “pop” sound. She was unable to move and felt severe pain and numbness in her right shoulder/arm after such manipulation, but the 2^nd Defendant assured her the symptoms were normal and told her to attend further follow-up treatment.

14. During the period from 3 to 11 April 2007, the Plaintiff attended the Clinic for follow-up treatment of her right shoulder. She was treated with herbal medication application and manipulation as before, but her condition did not improve. On 11 April 2007, in view of her continuous pain and discomfort, the 2^nd Defendant told her to have further stretching treatment for her right shoulder. The Plaintiff was reluctant and unwilling, and asked the 2^nd Defendant to arrange x-ray of her right shoulder to ascertain her actual condition.

15. On 12 April 2007, the 2^nd Defendant arranged to have x-ray taken of the Plaintiff’s right shoulder. The radiographer/radiologist informed the Plaintiff that dislocation of her right shoulder was detected. This was the first time she was aware of such fact. She believed it was caused by the treatment given by the 2^nd Defendant on various dates between 2 and 11 April 2011.

16. Dr Wong opines it is likely that the Plaintiff’s shoulder dislocation was caused by forceful manipulation by the bonesetter. Although radiotherapy can cause stiffness to the areas being treated, he is of the view that it is highly unlikely that radiation therapy to the shoulder will result in shoulder dislocation.

17. On 13 April 2007, the Plaintiff attended TMH’s accident and emergency department for exacerbation of right shoulder pain for more than a week after receiving bonesetter treatment. Medical examination revealed tenderness over right shoulder region, dislocation of the right humeral head, impairment of right shoulder active range of movement in all directions, and restriction of passive movement as a result of pain. X-ray of the right shoulder confirmed locked anterior dislocation of the right shoulder joint. Closed reduction under sedation failed, and the Plaintiff was admitted to TMH’s orthopaedic ward on the same day.

18. CT scan of the right shoulder confirmed locked anterior dislocation of the right shoulder joint. Nerve conduction study of the right upper limb on 23 April 2007 demonstrated no evidence of right axillary nerve or suprascapular nerve palsy. On 30 April 2007, surgical open reduction with Bankart repair and inferior capsular shift was performed under general anaesthesia. Post-operative progress was uneventful, and the Plaintiff’s right upper limb was protected by shoulder immoboliser for 4 weeks post-operatively.

19. The Plaintiff was discharged on 4 May 2007 with referral for regular physiotherapy 2-3 times a week for several months. Gentle mobolisation exercise of the right upper limb was started at the outpatient clinic after 4 weeks of immobolisation. The shoulder joint was well reduced and normally located, but progress for restoration of active motion of the right shoulder was slow. According to the physiotherapy report of Mr Chung King Man of TMH’s PD dated 21 November 2008 (“PD Report”), the Plaintiff received 25 sessions of physiotherapy treatment between 29 May and 28 August 2007.

20. On 5 September 2007, the Plaintiff was admitted to TMH’s DOT. Surgery for arthroscopic release of right shoulder joint stiffness was performed on 6 September 2007.

21. Post-operatively, the Plaintiff stayed in hospital for aggressive right shoulder physiotherapy by manual exercise and continuous passive motion machine exercise. She was discharged home on 25 September 2007. Continuous physiotherapy on outpatient basis was provided. According to the PD Report, the Plaintiff received 31 sessions of physiotherapy...