Interlocutory application in a medical negligence case Cheung Shui Han v. Dr. Luk Ka Ling (HCMP 1113/2011 & HCPI 653/2010) By Sandy Cho Solicitor

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1 19 January 2012 Hong Kong Medical Law Brief Welcome to the first edition of the Hong Kong Medical Law Brief. The Year of the Dragon sees the launch of our regular bulletins designed to keep you up to date with the latest topical issues influencing healthcare disputes in Hong Kong. This first issue highlights two recent cases. The first case indicates the court's current attitude to wasteful and unnecessary applications. The second case examines quantum in heart injury cases. Kung Hei Fat Choi! Julian Wallace Case reviews Interlocutory application in a medical negligence case Cheung Shui Han v. Dr. Luk Ka Ling (HCMP 1113/2011 & HCPI 653/2010) By Sandy Cho Solicitor In a recent interlocutory application, the High Court Judge made a wasted costs order against the Plaintiff s solicitors in their appeal against the Master s decision on the costs orders of two summonses relating to the filing of the expert report. The Plaintiff, a legally aided person, claimed against the Defendant for damages by reason of medical negligence. The Defendant did not file an expert report with the Defence and this caused the Plaintiff s solicitors to take out the application against the Defendant. Initially through correspondence, the Plaintiff s solicitors demanded the Defendant serve their expert report within unreasonable time limits. The Defendant had on several occasions informed the Plaintiff s solicitors that they were in the process of finalising the expert report and would deliver the report once it was ready. However, within six weeks of the filing of the Defence, the Plaintiff s solicitors took out a summons against the Defendant requesting the delivery of the expert report. The Defendant then issued a summons to protect their position which was eventually consolidated with the Plaintiff s summons. 1

2 The Plaintiff s solicitors relied on paragraph 67(10) of the Practice Directions 18.1 to support their position on the filing of the Defendant s expert report. The relevant part of the Practice Direction says a copy of the expert report in medical negligence cases should be served together with the Defence if it is available, and in so far as this is practicable. The High Court Judge pointed out that the Plaintiff s solicitors either ignored or overlooked the wording of the Practice Direction. It does not prescribe an expert report be served together with the Defence, but only requires it be served as soon as practicable. In any event, the spirit and purpose of the Practice Direction are to facilitate an amicable resolution of the dispute, and to discourage parties from engaging in unnecessary interlocutory applications which only result in wastage of costs. The Defendant s expert report was in fact served before the hearing of the summonses and within two months of the filing of the Defence, a shorter period than that needed for the Plaintiff to file their own expert report. At the hearing of the two summonses, the Master criticised the taking out of the application as premature and that it was wasteful on the Plaintiff s part. The Plaintiff s solicitors were not awarded costs on their summons and that there was to be no legal aid taxation of costs. The Plaintiff s solicitors sought to argue that the Master was wrong in law to order no legal aid taxation of costs. The High Court Judge, however, agreed entirely with the Master s decision and criticised the Plaintiff s solicitors as not acting in the interests of their client. It was found that all along the Plaintiff s solicitors demonstrated a hostile manner towards the Defendant and the summons taken out by them was a complete waste of effort and costs. The appeal application to the High Court Judge was dismissed accordingly and was again criticised as without merits. Having considered the attitude of the Plaintiff s solicitors, the Judge made a wasted costs order against the Plaintiff s solicitors in respect of the appeal application. He further made an order that there be no legal aid taxation of the costs of the appeal, which means the Plaintiff s solicitors would bear their own costs and that no costs would be paid out of the public funds. Further to this decision, the Plaintiff s solicitors took out another application to seek leave to appeal to the Court of Appeal against the wasted costs order and the orders denying legal aid taxation (HCMP 1113/2011). The Plaintiff s solicitors argued the relevant statue mandates legal aid taxation in all instances and thus, neither the Master nor the Judge had jurisdiction to make orders denying the same. The Court of Appeal considered there is good reason in the general 2

3 interests of justice to have the matter heard and leave to appeal to the Court of Appeal was granted. This case serves as a warning that the court is quite ready to penalise parties and/or their lawyers in engaging in wasteful interlocutory litigation. The orders made are now under appeal and it will be interesting to see whether the courts are vested with power to make orders of no Legal Aid taxation when the Plaintiff s solicitors conduct is called into question. Guidelines for the level of damages awarded for heart injuries Fung Chun Man v. Hospital Authority and Secretary for Justice for and on behalf of Secretary for Food and Health (HCPI 1113/2006) By Sandy Cho Solicitor This case sets out the extent of damages awarded to a young man aged 21, who suffered heart and other related injuries as a result of a surgery performed on him a few days after birth. The Plaintiff was born on 23 July 1990 and was misdiagnosed as suffering from Transposition of Great Arteries (TGA), which led to an unnecessary operation of Balloon Septostomy performed on the third day after his birth. The surgery created an Atrial Septal Defect (ASD), commonly known as a hole in the heart. Upon the advice of a medical expert, a corrective surgery was performed on him to close the hole, which was carried out some 12.5 years later on 5 February 2003, when the Plaintiff was almost 13 years of age. Interlocutory judgment was entered against the Secretary for Justice at the commencement of trial and the claim against Hospital Authority was discontinued, leaving the assessment of damages to proceed in September The disabilities The court found, on the balance of probabilities that the misdiagnosis of TGA caused the Plaintiff to have suffered: 1. Necrosis of the skin of his left heel shortly after his birth, which led to a prolonged stay in hospital for approximately 55 days, and 2. Persistent shortness of breath, which prejudiced his physical activities and social development prior to the ASD surgery. The symptoms improved as he grew older, and overall, the Plaintiff had a fairly normal childhood with normal growth in height and weight. 3

4 The corrective surgery left a scar on the Plaintiff s chest which he found unsightly, and as a result he gave up swimming. He also had to endure pain from the scar in the first week after the surgery. In the first two years after the successful closure of ASD, the Plaintiff appeared to be energetic, active and vivacious with minimal absences in school. He participated in competitive sports and obtained good results. The medical evidence suggested there would be minimal impact on life expectancy after the successful ASD repair. However, from around mid-2005 onwards he started to limit his physical activities and stopped participating in sports, which resulted in him suffering from a very deconditioned heart. This is the most serious condition he had at the time of assessment of damages. The question arose as to whether it was the Plaintiff s psychological problems which caused him to curtail his physical activities. In the absence of a psychological expert report, the Judge could not make such findings. Based on the available evidence, the court held that the Plaintiff was affected by the surgery, the scar, follow-ups, concerns of his parents and the litigation. All of these factors had caused him to reinforce his own belief that he had a serious heart problem, which required him to limit his physical activity. It was then agreed by both parties experts that the Plaintiff should undertake an active course of psychological counselling and cardiac rehabilitation for 5 years. Damages The Judge awarded a total of around HK$1.37 million to the Plaintiff, which represented less than 20% of the initial amount claimed. The award comprised of the following heads of damages: 1. PSLA There are no comparables for the type of injuries suffered by the Plaintiff and with reference to the section on chest injuries contained in the UK Judicial Studies Board Guidelines for the Assessment of General Damages in Personal Injuries Cases, the court awarded HK$500, Future loss of earning/loss of earning capacity The Plaintiff is a second year university student pursuing a Bachelor of Chemical and Environmental Engineering programme. Given the Plaintiff s deconditioned heart, his job opportunities would be limited by sedentary employment. 4

5 The Plaintiff has now commenced cardiac rehabilitation and the outcome appears to be successful. It was held that 5 years is a reasonable period of time for him to recover his full earning capacity. The court applied a multiplier of 3.5 years, after taking into account that the Plaintiff needs another 2 years to complete his degree and to commence employment. A monthly loss of HK$10,000 was adopted and a global sum of HK$400,000 was allowed under this head. 3. Pre-trial loss and expenses Apart from medical, travelling and tonic expenses, the court also awarded a sum of HK$92,500 as the value of services gratuitously provided by the Plaintiff s father, which was calculated by reference to the father s daily wages from the Plaintiff s birth up to his retirement in March 2000 intermittently. Total award under this head is HK$125, Future medical and related expenses Given the experience the Plaintiff had with the public hospital, it is reasonable for him to seek future treatments in the private sector. Costs of future medical expenses were thus assessed on the private sector scale. The court adopted a lifetime multiplier of 18 for future medical care, and assessed the awards based on bi-annual visits during the first 5 years and annual visits in the remaining 13 years. In addition, an award of HK$10,000 was granted for travelling expenses to attend all medical treatments and counselling. Together with the costs of cardiac rehabilitation and psychological counselling, a total of HK$345,800 was awarded under this head of damages. Comment This case sets out guidelines for the level of damages awarded for heart injuries. We consider the multiplier of 18 adopted for future medical care is high, probably due to the expert evidence that the Plaintiff s deconditioned heart should have a minimal impact on life expectancy after the successful ASD repair and his participation in cardiac rehabilitation. During the assessment of damages, it was argued that the deconditioning of the Plaintiff s heart and the limitation in his exercise capacity was self-induced, hence did not flow from any fault of the tortfeasor. The Judge however criticised the Secretary for Justice for not admitting responsibility at the first opportunity, thereby permitting the Plaintiff s loss to continue or to be aggravated. As such, the Judge said they should be responsible for the entirety of the loss suffered by the Plaintiff. 5

6 Parties should be reminded not to prolong an unmeritorious defence otherwise there may be consequences on the grant of an award as well as legal costs. It is also noted that the court disallowed the Plaintiff s application to adduce evidence from a clinical psychologist, as it was made at a very late stage. The Plaintiff might have been able to obtain a higher award if they had put forward evidence to support the psychological impact on him. This serves as a reminder to practitioners to adduce relevant expert evidence well in advance of any assessment of damages. For more information on the Hong Kong healthcare practice, please contact: Julian Wallace Partner j.wallace@kennedys.com.hk Christine Tsang Partner c.tsang@kennedys.com.hk Kennedys 11/F Hong Kong Club Building 3A Chater Road, Central Hong Kong T F