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Momin Lok v Hospital Authority

Judgment Cited authorities 20 Cited in 1 Precedent Map Related
Vincent
Judgment Date26 July 2021
Neutral Citation[2021] HKCA 1075
Year2021
Judgement NumberCACV236/2020
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV236/2020 MOMIN LOK v. HOSPITAL AUTHORITY

CACV 236/2020

[2021] HKCA 1075

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 236 OF 2020

(ON APPEAL FROM HCPI NO 981 OF 2014)

____________

BETWEEN
MOMIN LOK Plaintiff
(Respondent)

and
HOSPITAL AUTHORITY Defendant
(Appellant)

____________

Before: Hon Barma, Au and G Lam JJA in Court

Date of Hearing: 15 April 2021

Date of Judgment: 26 July 2021

_________________

J U D G M E N T

_________________

Hon G Lam JA (giving the Judgment of the Court):

A. Introduction

1. The plaintiff suffered a stroke on 5 December 2008. She brought the action below against the defendant on 26 September 2014 for damages for that injury which she alleges was the result of negligence of the doctors employed by the defendant in their treatment of her between 16 July and 5 December 2008. On a trial of preliminary issues, in his judgment of 4 June 2020 (“Judgment”), Bharwaney J found that the plaintiff did not have the requisite knowledge to start time running under section 27 of the Limitation Ordinance (Cap 347) (“Ordinance”) until within 3 years prior to the issue of the writ, and the action had therefore been brought within time. He further stated that if the action were time‑barred, he would have exercised the court’s power under section 30 of the Ordinance to override the time limit and allow the action to proceed. The defendant now appeals to this court challenging both of those conclusions.

B. Background facts

2. We set out the facts as follows, adopting the judge’s account with modifications.

Right Brachial Artery Occlusion

3. The plaintiff is a lady of Indian ethnicity born in South Africa in 1973. In 1992, at the age of 19, she married Mr Lok in South Africa. As he was a Hong Kong resident, they moved to Hong Kong at the end of 1992. After moving here, she worked as a kindergarten teacher and a yoga teacher. She gave birth to 3 daughters. Afterwards, she began taking a combined oral contraceptive pill called Nordette on a regular basis. By July 2008, she had been on Nordette for 9 years. A side effect of Nordette is that it increases the risk of thromboembolism in the arterial and venous system. Venous thromboembolism is a condition in which blood clots are formed in the deep veins, travel in the blood stream, and cause blood vessel obstruction in other parts of the body.

4. In May 2008, the plaintiff experienced a feeling of coldness in her right arm and hand. She consulted a general practitioner who diagnosed carpel tunnel syndrome. She then departed for India, as planned, for an advanced yoga course. Shortly after arriving in India, she had pain, numbness, and coldness in her right arm and hand. She attended a local hospital and, after various tests, the doctor found bilateral cervical ribs, causing compression of the right subclavian artery and damped distal flow, and a large echogenic thrombus (a blood clot in a blood vessel) in the chief artery of the right upper arm (brachial artery). She was advised to return to Hong Kong immediately for an operation to remove the thrombus. Following that advice, she returned to Hong Kong on 16 July 2008. She was taken to Princess Margaret Hospital (“PMH”) by ambulance from the airport.

5. At PMH, she presented with right hand acute pain, numbness and coldness, with absence of pulse in her right brachial artery and right radial artery (the chief artery in the forearm). CT angiogram of her right upper limb showed right brachial artery occlusion (blockage). Emergency right brachial artery embolectomy (surgical removal of the blood clot) was performed on the same day.

Anticoagulant Therapy & Discovery of Forearm Artery Occlusion

6. Her treating doctors at PMH had started anticoagulation therapy before the operation, with a continuous intravenous infusion of a blood thinning drug, heparin, which was continued after the operation. On the next day, 17 July 2008, the plaintiff was started on an oral anticoagulant, warfarin, with a view to long term anticoagulation. On 18 July 2008, a routine ultrasound scan of the plaintiff’s right arm showed reduced flow in her forearm arteries, and an angiogram revealed occlusion of her forearm arteries (the radial and ulna arteries). Warfarin was then stopped and she was put back on heparin. Her surgeon, Dr Chan, decided to manage her conservatively for a few days. He found that collateral arteries had developed around her right elbow to feed her right hand, and that she appeared to be asymptomatic with a warm hand. As her right arm had remained stable and pulses were detectable, Dr Chan decided on 21 July 2008 not to operate on her forearm and warfarin was resumed.

Discovery of PFO and Long Term Warfarin Anticoagulation

7. Various tests were conducted on 21 and 22 July 2008 to investigate the cause of the thrombosis in her right arm, including 2 echocardiograms. A trans‑thoracic echocardiogram (“TTE”) was conducted on 21 July 2008, which showed rapid appearance of bubbles in the left atrium after an injection of agitated saline into an arm vein. A trans‑oesophageal echocardiogram (“TEE”) the following day showed the same result. Based on these results a diagnosis of patent foramen ovale (“PFO”) was made. A PFO is a hole in the heart that does not close the way it should after birth. During fetal development, a small flap‑like opening (the foramen ovale) is present in the wall between the right and left upper chambers of the heart (the atria). It normally closes during infancy, but when it does not, it becomes a patent foramen ovale.

8. On 25 July 2008, the plaintiff was transferred to the care of Dr Choy, a cardiologist in the Department of Medicine and Geriatrics at PMH. The purpose of the transfer was for diagnosis of the possible cause of thromboembolism and for supervision of the anticoagulation treatment. Various tests were conducted including duplex ultrasound of bilateral lower limb but it revealed no deep vein thrombosis. She continued to take warfarin as prescribed by Dr Choy except for the period from 4 to 12 August 2008 when warfarin was suspended to facilitate control of a haematoma at the right elbow surgical wound. The plaintiff was discharged home on 6 August 2008, but received outpatient care at PMH for maintenance of anticoagulation, up until the time she suffered a stroke on 5 December 2008.

Another Right Brachial Artery Occlusion

9. The symptoms of pain, numbness, and coldness in the plaintiff’s right arm and hand recurred and were reported to Dr Chan at a surgical follow‑up on 3 October 2008. An angiogram taken on 13 October 2008 revealed obstruction of her right brachial artery, and she was immediately re‑admitted to PMH. Warfarin was suspended from 8 October pending a proposed open exploration. However, the surgery was not carried out because the symptoms resolved spontaneously, and warfarin was resumed on 31 October 2008.

10. The plaintiff reported intermittent coldness in her right hand to Dr Chan at a follow‑up on 14 November 2008. They discussed the possibility of surgery, including an arterial reconstruction. Surgery was planned for 17 December 2008.

The Stroke

11. On 5 December 2008, whilst walking from home to work, the plaintiff suddenly felt very sick. Two passers‑by helped her reach a nearby MTR station, from where she was taken to Tuen Mun Hospital (“TMH”) by ambulance.

12. She was diagnosed to have suffered an ischaemic stroke (a stroke caused by blockage or obstruction of arteries in the brain), leading to permanent brain damage in her right cerebral hemisphere, resulting in left hemiplegia, with left side motor limb weakness, left facial weakness and slurred speech. An MRI on 6 December 2008 revealed thrombosis of right internal carotid artery (“ICA”), and middle cerebral artery (“MCA”) with acute infarct (permanent tissue damage due to interruption of blood supply) over the right basal ganglia, the right corona radiata, and the medial right temporal lobe. A cerebral angiogram on 9 December 2009 showed complete occlusion of a number of arteries in her right cerebral hemisphere, namely, the ICA, the MCA, and the anterior cerebral artery. After hospitalization for over a month at TMH, the plaintiff was discharged home on 14 January 2009.

13. After the stroke she became dependent on her husband. She could walk with a stick, with difficulty, and required help. She had to be looked after by Mr Lok, who assisted her in her activities of daily living. The family lived on social welfare as the plaintiff could no longer work and her husband also had to give up his job as a construction inspector in order to look after her and the children.

The plaintiff’s belief

14. At that time and for some years afterwards the plaintiff believed that her stroke was caused by the prescription of warfarin rather than heparin. She and Mr Lok consulted a firm of solicitors, Messrs Lee & So, in about August 2010, who submitted an application for legal aid on her behalf on 13 August 2010 to pursue a claim for damages for medical negligence. The plaintiff also gave a written statement, perhaps with the help of Lee & So, which, among other things, set out her complaints against the doctors. That statement was not before us but the allegations contained in it can be seen from the expert reports (especially that of Dr Elaine Chau, which quoted and responded to them in turn) subsequently obtained by the Director of Legal Aid (“DLA”).

15. The plaintiff’s allegations at that time were:

“ (a) Negligently diagnosing me to have suffered from PFO

(b) Negligently prescribing Warfarin to me on the basis that I had been suffering from PFO

(c) Failing to diagnose that my thrombosis might be a side effect of my taking of Nordette, and therefore, the course of treatment...

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1 cases
  • Momin Lok v Hospital Authority
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 13 September 2021
    ...COSTS ________________________ Hon G Lam JA (giving the Judgment on Costs of the Court): 1. By our Judgment handed down on 26 July 2021: [2021] HKCA 1075, we set aside the judge’s judgment on preliminary issue whereby it was adjudged that the writ was issued within 3 years from the date of ......

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