OL箍牙排牙散晒
多次手術折磨10年 控牙醫索償20萬
12/09/2008 the Sun
會計女文員欲藉箍牙矯正哨牙,但效果不佳,聽從牙醫譚啟泰建議,脫掉四顆門牙及削去部分門牙骨;惟後來她想鑲回門牙時,卻因牙骨受損無法鑲妥,過去十年更需經歷多次牙骨及植牙手術,至今仍未根治。女文員指牙醫無向她解釋脫牙風險,令她承受皮肉之苦;又因脫牙後外觀不佳,令她不敢與外界接觸,出現抑鬱及失眠,更要辭掉工作。女文員指牙醫疏忽及處理不當,興訟向對方索償逾二百萬元,案件昨於高院開審。
外貌娟好的女原告鄭曼姿,四十歲;被告譚啟泰,八二年在英國的大學取得科學學士學位,九一年在香港大學取得牙科學士學位。
剝掉六齒 須抽盆骨填補
原告開案詞透露,原告有哨牙,九八年見朋友箍牙後哨牙改善,經介紹向被告求醫。被告指原告上下牙咬合不整,若要作頜骨矯型手術需十萬元,被告反建議她可脫掉兩顆前臼齒及箍牙矯型,費用只需九千元。原告答應,但被告替她安裝矯型器時,指她上下牙齒均要矯型,全費要一萬九千元。
原告箍牙近兩年後,發現上排兩顆犬齒向外生並似快要掉下,向被告求診,他指箍牙無效,唯一補救方法是脫掉上排四顆門牙。原告在○一年六月花一千二百元,脫掉上排四顆門牙,被告並切去她部分門牙骨。原告初時在門牙位戴上假牙,但假牙經常鬆脫,遂再以一萬一千六百元安裝牙套,但效果不佳。
原告後來另找牙醫,花五萬七千元植牙,○三年至○四年內做了五次鑲牙手術,惟仍經常移位,原告遂到菲臘牙科學院檢查,被診斷因門牙骨問題無法鑲穩,必須把植牙移除,並抽取盆骨填補到門牙骨破損部分,才能植牙。
原告○六年起在瑪麗醫院進行多次頜骨手術,至今牙齒仍未鑲好,其中一顆門牙的位置,仍有流膿及紅腫的情況。原告至今已失掉六顆牙,過去十年令她身心受損。
原告的律師引述牙科專家意見指出,被告不應該把原告四顆完好門牙脫掉,但被告辯稱一直有向她解釋各項手術風險,並在她同意下才作各項牙科手術。
OL箍牙未安排照X光
13/09/2008
【本報訊】會計女文員聲稱牙醫譚啟泰無解釋清楚後果,便脫去她四顆門牙,令她多年來飽受身心折磨,遂興訟向對方索償二百萬元,原告鄭曼姿昨出庭供稱,九九年八月決定箍牙時,被告譚啟泰並無為她照過X光片,她箍牙近兩年後,發現兩隻犬齒突然移位,向譚查問,對方卻說唯一辦法是脫掉門牙,當時她覺得好驚及好徬徨。鄭作供時仍有點口齒不清,她否認曾自行調校用來固定箍牙位置的頭套。
2009-02-13
【本報訊WenWeiPo】前會計女文員嫌自己長得一口「哨牙」影響儀容,11年前到新蒲崗一牙醫診所接受箍牙。但在不知情下,遭牙醫削去牙骨及脫掉4隻門牙,女文員自此身心受創,難以重裝假牙之餘,亦因終日躲在家中而失去工作。高院法官石輝昨日判女文員勝訴,可獲牙醫賠償210多萬元,更斥涉案牙醫故意誤導女病人,以使自己得益。
曾任會計文員的原訴人鄭曼姿(40歲),未婚,早前入稟控告牙醫譚啟泰,在她箍牙中錯誤地處理其上排的4隻門牙,以及未經她同意下削去部分牙骨,令她需另尋治療,多年來心理及精神輔導的費用,以及辭去工作後的經濟損失,合共逾200萬元,昨日獲法庭判勝訴。
身心受創 躲家中失工作
石官在判詞中狠斥答辯人譚啟泰,指他從醫16年,理應知道原訴人的4隻門牙根本不需拔除,惟他深明若原訴人清楚自己的情況,肯定不會接受他的建議,為了令原訴人答應拔除門牙及裝置「牙橋」的手術,而令自己有所進賬,遂誤導原訴人,進行這個毫不需要的矯形治療。
石官續指,他相信答辯人在1998年11月第一次接見原訴人時,已沒有向她解釋應該尋找專業的矯形治療,原訴人誤信之下乖乖依從其指示進行治療,但情況未有好轉,事後更被答辯人拔去門牙,也並非自願而被削去牙骨。石官更體諒原訴人在她這個年紀仍然未婚,性格十分單純,向答辯人尋求協助並不為奇,事後卻身心受創。
需臀部取骨填補缺陷
案情指,原訴人為了儀容美觀,在朋友介紹下於1998年11月到答辯人位於新蒲崗的診所就診,她箍牙至01年中,突發覺上排犬齒傾斜,答辯人建議她不要停止療程,數天後,原訴人在不知情的情況下,遭答辯人削去部分牙骨及脫去4隻門牙,裝上假牙代替,但假牙並不穩固,須多次重裝。
答辯人在事件中共收取了近2萬元費用,但原訴人放棄治療後,答辯人只退回3千元了事。
其後原訴人輾轉求醫,至少進行6次手術,但因牙骨被削,難以成功裝上假牙,其間原訴人需在臀部開刀取出部分骨骼,填補被削的牙骨以種牙。因此她終日躲在家中,也失去工作,事後又需接受精神及心理醫生輔導。
2009年02月13日箍牙亂拔文員4門牙 牙醫判賠217萬
【明報專訊】會計女文員10年前光顧牙醫譚啟泰箍牙,結果在譚誤導下被拔去上顎4只門牙,更在不知情下被譚移除部分牙骨,以致門牙骨骼嚴重損?,需動手術植入臀骨,文員為此患上抑鬱症。經高院審訊後,譚昨被裁定故意侵害他人及疏忽,須向女文員賠償217萬元。
女文員煎熬10年患抑鬱症
判辭指出,現年42歲的原訴人鄭曼姿乃在被告譚啟泰誤導下,認為拔去上顎4只門牙是解決上排犬齒外傾的唯一決方法,才同意譚的建議;譚亦未得原訴同意下,將原訴上顎部分牙骨移除。
判辭續指,根據專家及醫學期刊的資料顯示,被告行醫16年,應完全明白原訴人的4只門牙完好並健康,根本毋須拔去,被告的行徑純粹為了個人利益,令原訴人同意在拔牙後安裝牙橋,法官更批評被告的行動並非一個合理並有能力的牙醫所為。
據原訴人的專家証人、修復齒科醫生容清華在庭上透露,由于原訴人的哨牙問題在于上顎的顎骨突出,但被告並沒有矯齒、鑲牙及顎骨手術的專業訓練,根本不應處理原訴人的個案,應轉介專家跟進,但被告卻繼續對原訴施行治療。
經歷了10年矯齒煎熬的原訴人,至2004年向菲臘牙科醫院求診,証實其門牙骨骼嚴重損毀,2006年初接受臀骨移植手術,至去年9月,其上顎4門牙均只是暫時性牙套,內?僅是4口螺絲釘,要待門牙骨骼癒合,才可種陶制假牙。
由于矯齒期間原訴人認為自己樣子難看,認為同事避開她,終日以淚洗臉,于2004年辭去會計文員的工作後一直無業,她表示甚至曾聽到叫她尋死的聲音,至2006年她被証實患上抑鬱症,至今仍需接受矯齒及精神治療。
【案件編號﹕HCPI1094/06】
2009-2-13
【 蘋果報】
脫四門牙矯形 控告牙醫疏忽
箍牙失敗女子獲償217萬
【本報訊】有「假哨牙」的女會計文員,為令儀容更標致而光顧牙醫譚(啟)泰箍牙,惟噩夢開始,飽受10年煎熬。她指脫去兩隻臼齒箍牙後,犬齒仍凸出,卻誤信譚所講,唯一方法是剝去上顎四隻門牙,再嵌上牙橋矯形。詎料,上顎部份牙骨遭削走,致牙套無力支撐,經常脫落,要用臀骨移植上顎,重新整固牙齒,令她患上抑鬱症。她早前興訟高等法院控告譚疏忽,昨獲判勝訴,賠償逾217萬元。
記者:梁瑞珮
現年40歲原告鄭曼姿,天生下顎骨較短有「假哨牙」,為了貪靚,自98年11月起箍牙,現仍需接受植牙及牙齒矯形治療,估計仍有兩年的漫長路,不能工作。
法官石輝在判詞指出,鄭為人單純及簡單,甚至有點天真及幼稚,不諱言為令自己的儀容更加標致,故向被告譚(啟)泰求診。而原告當時33歲仍是單身,故對其行為不感驚訝。
法官續稱,被告沒有建議過鄭徵詢矯形齒科專科醫生,當鄭箍牙後犬齒仍傾斜向外,明知有其他選擇,竟向鄭聲稱脫掉四隻門牙及嵌裝連假牙的牙橋是唯一方法,更在剝門牙時未有知會鄭,削走她部份上顎牙骨。
被告作為普通牙醫,執業16年,明知脫掉門牙是不必要,卻為個人利益而刻意誤導鄭,剝去全部四隻完好健康的門牙,整個治療程序並不合理及不符合醫學文獻。不敢見人患上抑鬱
原告於98年11月光顧被告,99年8月接受上下顎箍牙,但犬齒仍有傾斜向外,至01年6月脫掉四隻門牙,再嵌上牙橋,但假牙不時脫落,亦覺得牙橋不美觀,此時,被告告訴她可改用另一方法整牙,她才意識到遭被告所騙,於是轉向另一牙醫求助,接受過五次手術仍未能成功植牙,遂向菲臘牙科醫院求助。
原告曾稱,脫去門牙令她變得醜陋,覺得同事避開她,常戴口罩,不敢以真面目示人,於04年辭職,在家中以淚洗面,出街又覺得遭人手指指,及後證實患上抑鬱症,需接受精神治療。
牙醫學會會長梁世民不評論個別個案,但指凡註冊牙醫均可進行箍牙,若遇上複雜個案,牙醫會轉介專科。牙齒矯正科醫生梁訓成稱,不少牙醫低估箍牙難度,他估計涉案醫生箍牙失敗後,便嘗試削牙骨補救,導致假牙易鬆脫。他建議市民若要箍牙,應找專科醫生。
案件編號: HCPI1094/06
女會計申索及獲償金額
申索項目:承受痛苦及喪失生活樂趣
獲償金額: $700,000
申索項目:審前收入及強積金損失
獲償金額: $685,190
申索項目:未來收入損失
獲償金額: $243,810
申索項目:未來醫療開支
獲償金額: $137,320
申索項目:其他開支
獲償金額: $12,800
申索項目:特別賠償
獲償金額: $98,115
申索項目:利息
獲償金額: $295,848
總額: $2,173,083
註:金額以整數計算
資料來源:法庭判詞
HCPI
1094/2006
IN THE
HIGH COURT OF THE
HONG
KONG SPECIAL ADMINISTRATIVE REGION
COURT OF
FIRST INSTANCE
PERSONAL
INJURIES ACTION NO. 1094 OF 2006
-------------------------
BETWEEN
CHENG
MAN CHI
|
Plaintiff
|
|
and
|
||
DR TAM
KAI TAI CARL
|
Defendant
|
----------------------
Before :
Hon Suffiad J in court
Dates of
Hearing : 11-12, 16-17 September, 2 and 10 October 2008
Date of
Judgment : 12 February 2009
----------------------
J U DG M
E N T
--------------------
Introduction
1. The
defendant in this case was at all material times a registered dentist and
practicing general dentistry at his clinic in San Po Kong. There is no
dispute that apart from his practice in general dentistry, the defendant did
not have any specialist training in orthodontics, prosthodontics or
maxillofacial surgery.
2. The
plaintiff’s claim against the defendant is for wrongful extraction of her
four upper incisors and wrongful removal of a substantial portion of the
bone above her upper incisors in the dental treatment given to her by the
defendant. The extractions and bone removal complained of by the
plaintiff took place in or around 14 June 2001.
3. The
plaintiff’s primary cause of action is in trespass. Her alternative claim
is based in negligence.
4. It
is the plaintiff’s case that the removal of the bone above her upper incisors
was carried out by the defendant without her knowledge and consent. As
for the extractions of the four upper incisors complained of by the
plaintiff, her case is that such extractions were done by the defendant without
her real and informed consent due to the misrepresentation by the defendant to
her that the extractions of the four upper incisors was the only way in
which the plaintiff’s problem could be remedied and it was due to such
misrepresentation that the plaintiff agreed to the extraction of her
four upper incisors.
Plaintiff’s
evidence on issue of liability
5. The
evidence from the plaintiff can be summarized as follows.
6. The
plaintiff was born in November 1967 and was 33 years old when the
matters complained of by her happened. At the time when she consulted the
defendant, she was working as an accounts clerk in a construction
company. Her education level was up to Form V.
7. In
early 1998, the plaintiff had noticed that her front upper teeth were
protruding giving an appearance of a bulging mouth. Through a friend she
was recommended to consult the defendant, a dentist.
8. She
paid her first visit to the defendant’s clinic on 30 November 1998 and
sought his advice as to whether her protruding teeth could be corrected.
The defendant told her that he could provide dental treatment which would make
the teeth in her upper jaw less protruding. The defendant quoted his fees
to be $9,000.
9. Her
second visit to the defendant was not until some eight months later, on
2 August 1999 when she told the defendant that she had decided to go ahead
with the treatment suggested by him. However, the defendant on this
occasion indicated that orthodontic appliances had to be placed on both the
upper and lower teeth. But as she found nothing the matter with her lower
teeth, she requested to have such appliance placed only on her upper teeth and
paid a deposit of $500.
10. As
a result, extraction of the plaintiff’s upper left and right pre-molars were
carried out under local anaesthetic.
11. On
her third visit to the defendant’s clinic on 6 August, the defendant
insisted that orthodontic appliances had to be placed on the lower teeth as
well and explained to her that it was to ensure that the upper and lower teeth
would match. After hearing that explanation, she felt that she had no
choice but to accept his suggestion. As a result the fees were increased
to $19,000 totally.
12. On
her fourth visit on 13 August she paid an initial fee of $5,000 and it was
agreed between them that the balance by instalment of $500 every two weeks
when she would attend for follow up until the entire fee agreed was paid off.
13. Thereafter
she attended the defendant’s clinic for follow up on the orthodontic
treatment. The plaintiff continued wearing the braces installed on both
her upper and lower teeth. Up to May 2001 the progress of the
orthodontic treatment was good and the defendant also provided a headgear with
instructions for the plaintiff to wear it each night when she went to bed.
14. Towards
the end of May or early June, the plaintiff noticed that both her upper
canines were tilting slightly forward. She told the defendant about this
and the defendant explained that it was caused by the gaps left when her
pre-molars were removed at the outset of the treatment. The defendant
also told the plaintiff not to stop wearing the orthodontic appliances.
15. On
6 June, the plaintiff noticed the canines had protruded even more and
again told the defendant about it. After examining her teeth, the
defendant told her that the orthodontic treatment could no longer work and the
only way out was to remove the four upper incisors and to wear a dental
bridge. The defendant explained to her the process saying that her gums
would shrink slightly after removing the incisors but would return to normal in
about two months when the dental bridge could be put on.
16. Since
the defendant had told her that was the only way, the plaintiff believed there
was no other alternative and feeling that she had no choice, agreed to have the
four incisors removed as suggested by the defendant and for a dental
bridge to be put on.
17. The
defendant charged a further $1,200 for the extraction which the plaintiff paid
on 11 June.
18. The
four incisors were extracted on 14 June, after which a temporary
denture was fitted in their place.
19. On
13 August 2001, the plaintiff went to collect her dental bridge for which
the defendant charged her $11,600. When she tried it on, it did not look
good and she requested the defendant to have a second dental bridge made.
The second bridge was still unsatisfactory and unacceptable to the plaintiff
and which she had to complain to the defendant several times about.
20. Finally
the defendant agreed to have another bridge fabricated for her from another
manufacturer saying that he would give her a 10% discount.
21. On
18 September 2001 she went to pay a deposit of $3,000 for the new bridge
but found it to be even worse than the previous ones. When she asked the
defendant if there was any other way to fix her protruding upper canines, the
defendant advised her to have a transparent plastic crown placed over her upper
row of teeth and then to press it down with force to see if the canines could
be pressed downwards adding that the plastic crown was to be worn after the
orthodontic appliance was removed.
22. It
was then that the plaintiff realized that the defendant had been deceiving her
when he previously told her that the removal of the four incisors was the
only way to deal with her protruding canines.
23. She
then left the defendant’s clinic but suppressing her misgivings for what she
had come to realize.
24. The
plaintiff then consulted another dentist Dr Cheng Chi Yin who
recommended another course of dental treatment for her. She then stopped
consulting the defendant and turned to Dr Cheng for treatment.
25. At
the end of November 2001, she returned to the defendant’s clinic to inform
him that she no longer wished to have treatment from him and to request the
refund of the $3,000 deposit which the defendant returned to her.
26. At
the time she was consulting the defendant she did not know that it was
unnecessary and unjustifiable to extract and remove her four incisors in
her case. If she had known that to be the case, she would not have agreed
to the extraction of her upper incisors.
Defendant’s
evidence
27. The
defendant has been practicing as a general dental practitioner for
16 years.
28. The
plaintiff first consulted him on 30 November 1998 complaining that she was
unhappy with the protrusion of her upper front teeth and gums. After
examination he found her to have an overjet of some 8 mm of the upper jaw
which brings the plaintiff within the classification of “Malocclusion Class II”
whereupon he advised the plaintiff as follows :
(a)
that the protrusion complained of by the plaintiff was caused by the bone above
her upper incisors and therefore heavy cosmetic treatment was required and she
should seek help form a specialist orthodontist or orthognathic surgeon;
(b)
the approximate fees of a specialist would be around $100,000;
(c)
he, as a general practitioner, could provide dental treatment on her upper arch
to make her teeth less protruding by extracting the two upper pre-molars
and putting on braces to retract the canines and the four upper incisors.
His fees for doing so would be $9,000; and
(d)
the plaintiff should consider her options carefully.
29. Because
he was a general practitioner it was his standard practice to advise patients
to consider specialist treatment before deciding to undergo orthodontic
treatment with him.
30. The
plaintiff came back on 2 August 1999 and informed him that she would go
ahead with the treatment to her upper arch as suggested by him. He then
prepared study models and took four radiographs of the plaintiff’s upper
arch. Having satisfied himself that the plaintiff was suitable for
orthodontic treatment he proceeded to extract the plaintiff’s right upper
pre-molar under local anaesthetic.
31. On
6 August, the plaintiff’s left upper pre-molar was also extracted under
local anaesthetic. The plaintiff then asked him if he could close the gap
on her lower arch left behind due to her missing lower pre-molars. He
agreed to provide additional dental braces on her lower arch but that his fees
would have to be increased from $9,000 to $19,000 to which the plaintiff
agreed. The plaintiff then paid a deposit leaving $18,000 balance
outstanding.
32. The
plaintiff attended again on 13 August 1999 when dental braces were
installed on her upper and lower arches. It was also agreed between them
that the outstanding balance of the fees would be paid by instalments of $500
fortnightly when the plaintiff attended for follow up.
33. On
14 January 2000 a face bow was provided to the plaintiff to be worn by her
for orthodontic purpose when she went to be each night. It was to provide
extra oral traction and anchorage to prevent forward drifting of the
molars. He had instructed the plaintiff to follow his instructions when
applying the face bow and not to adjust it by herself.
34. On
20 October he found that the plaintiff was adjusting the face bow by
herself without his prior approval. He believed that it was due to the
plaintiff’s impatience and wanted to speed up the progress of the treatment by
increasing the traction force of the face bow. He told the plaintiff this
was dangerous and could cause irreversible damage.
35. In
January or February 2001, the plaintiff told him that she was impatient
with the progress of the treatment and was concerned about the gaps to the left
and right of her upper canines. He then took steps to close those gaps.
36. Between
February and May 2001 the plaintiff was still unhappy with her appearance
and that her upper gums and teeth were still protruding. He therefore
advised the plaintiff to be patient and to finish the brace treatment which
could further retract her front teeth, but the plaintiff was impatient and
wanted to know if there was any other method to reduce the protrusion of her
upper front teeth and gums.
37. He
also advised her to see a specialist orthodontist or orthognathic surgeon since
her problem was due to her oversized upper jaw which was a skeletal
problem. As a general practitioner he could provide treatment which was
to extract the four upper incisors and trim the bone of the sockets left behind
in order to smooth out any irregularities which would remedy the protrusion she
complained of as it would reduce the size of the upper front bone. He
could also provide model surgery to simulate her appearance after the
extraction and bone removal. He would then install a temporary set of
dentures for her to allow her upper front gums to stabilize before a permanent
dental bridge would be installed.
38. The
suggested treatment would cost her $9,000 and the temporary denture a further
$1,200.
39. He
told her to consider her options before making her decision since that
procedure would be irreversible.
40. Between
23 May and 6 June 2001, he performed model surgery on the plaintiff
to simulate her appearance before and after the extractions of her
four upper incisors and bone removal and to explain to the plaintiff with
the aid of the models how the dental bridge would be installed.
41. On
6 June the plaintiff agreed to the course suggested and paid $1,200 for
the temporary dentures. He then took an impression of the plaintiff’s
upper arch for the set of temporary dentures to be made.
42. On
14 June 2001 the extraction of the four upper incisors and the bone
removal was performed. One to two mm of bone was trimmed off.
The temporary denture was installed on the plaintiff’s upper arch.
43. On
7 July the plaintiff complained to him that the bone around her upper
canines was prominent therefore he filed off some bone under local anaesthetic
to smooth the prominence.
44. On
13 August, a dental bridge was provided to the plaintiff and temporarily
cemented on. Because he had been told by the lab technicians that the
plaintiff’s canines were too weak to support the dental bridge, he explained
this to the plaintiff who then agreed to have her pre-molars cut to increase
the retention of the bridge. The plaintiff also agreed to pay an extra
$2,600 in addition to the $9,000 agreed for the dental bridge.
45. After
a trial period of some 10 days, the plaintiff returned on 23 August
saying that she was happy with the appearance of the dental bridge. It
was then permanently cemented into place.
46. On
28 August, he performed a routine check on the bridge and the plaintiff
had no complaint about the bridge.
47. However,
on 18 September 2001 the plaintiff returned to complain that she was
unhappy with the bridge because her colleagues were laughing at her. The
plaintiff also said that her canines looked obvious and prominent because they
were bulging out. The plaintiff asked him if he could trim the crown and
the bones above her canines. In reply, he suggested to remove the bridge
and only trim the crown of her canines and to install a second bridge as any
attempt to trim the bone above the canines would result in root exposure.
The plaintiff agreed with his suggestion and that was done. He gave a
discount of $2,600 to the plaintiff at her suggestion such that the cost of the
second bridge and trimming of the crown would cost $9,000. The plaintiff
then paid him a deposit of $3,000 and another model was made for the second
bridge.
48. On
3 October 2001 he temporarily cemented the second dental bridge but
two days later, the plaintiff expressed dissatisfaction with it. On
18 October, a third dental bridge was made free of charge for the
plaintiff.
49. Between
18 October and 7 December 2001 the plaintiff informed him that she
had consulted another dentist being unhappy with his work on her. The
plaintiff asked for her money back and he told her that he was only willing to
return the $3,000 deposit paid for the second dental bridge.
50. In
September 2002, the plaintiff made a disturbance at his clinic and he had
to call the police to stop her.
51. The
plaintiff came again to his clinic on 6 May 2003 and requested for her
treatment record kept by him. He told her to come back the next day when
he will give her a copy of the record. Before the plaintiff returned on 7 May,
he added several paragraphs to the treatment record to describe what had
happened.
Assessment
of the evidence
52. The
important factual events in dispute between the parties in this case took place
between 1998 and 2001, therefore well over eight years ago from
the trial in this case.
53. I note
that the plaintiff would suffer from a natural handicap in giving her evidence
from memory alone since, as a patient, she would not have taken a
contemporaneous note of what happened at each consultation as and when it
happened.
54. However,
the same does not apply to the defendant, for as a dental medical practitioner,
he was under a duty to make a contemporaneous notes for the medical record
which he kept in relation to each patient and would have such record to assist
him in recollecting what actually transpired on each occasion.
55. In
this case, the credibility of the plaintiff and the defendant are of prime
importance in resolving the conflict between their evidence in so far as the
disputed facts are concerned.
56. Dealing
first with the plaintiff, having heard and seen her in the witness box giving
her evidence, I found her to be very simplistic and uncomplicated person,
at times even to the point of being naive. However, she came across as a
truthful and credible witness. She was quite prepared to admit that in
consulting the defendant as a dentist, her initial purpose was to make her
appearance better looking. That is hardly surprising for a single
unmarried female at the age she was when she consulted him.
57. There
were, however, some less important parts of her evidence which her memory did
not serve her well and she had forgotten but not much turn on those
matters. These deal mainly with timing and I shall come to deal with
them in due course.
58. Of
the more important and crucial matters in dispute between the parties,
I accept the submission by counsel for the plaintiff that the credibility
of the plaintiff in respect of the evidence given by her can be gleaned from
the complaint letter which she made to the Dental Council. Admittedly the
letter to the Dental Council is a self-serving piece of evidence. However,
it was written by the plaintiff before she had the benefit of legal advice, but
more importantly, at a time when she had not been examined by experts and
therefore before she came to know of the bone removal by the defendant.
The complaint by the plaintiff at that time to the Dental Council was only in
respect of the misrepresentation made to her by the defendant.
59. It
is clear from her first letter to the Dental Council dated 10 January 2002
that at the time, the plaintiff did not even know that the defendant had
performed bone surgery on her, rather, she thought that the alveolar bone had
shrunk after the extraction of the four upper incisors. This point was
elaborated upon by the plaintiff in her letter dated 17 October 2005 to the
Dental Council and from which can be seen that she had no knowledge at the time
that the defendant had removed some parts of her alveolar bone, still thinking
at that time that the alveolar bone had shrunk after the extraction of the four
upper incisors.
60. This
lends credibility to her evidence that the defendant had not told her about the
bone removal carried out by him which was in addition to the extractions of her
four upper incisors.
61. A
number of points have been made by counsel for the defendant in relation to the
credibility of the plaintiff.
62. Firstly,
it was said that the plaintiff’s evidence that the defendant never mentioned to
her when she first consulted him that her problem was skeletal and related to
her bone was at variance with the statement in paragraph 3 of the
plaintiff’s witness statement when the plaintiff said that the defendant “told
me that the orthodontic treatment also allowed my jawbone to get slightly
inwards to avoid protrusion”.
63. However,
it was explained by the plaintiff that when the defendant told her about the
orthodontic treatment, he did not use the word “jawbone” but merely pointed at
the upper lip. The word “jawbone” was a terminology used by her in her
witness statement to describe what was conveyed to her by the defendant since
after seeing so many dentists within the seven years, she came to know such
terminology herself.
64. Secondly
it was said that the words stated in the plaintiff’s letter to the Dental
Council dated 10 January 2002 to the effect that the defendant “failed to
fulfil his duty of explaining clearly to me that my gums would keep on
shrinking after the removal surgery …” was inconsistent with the plaintiff’s
evidence in paragraph 9 of her witness statement where it states “he also
told me that my gums would shrink slightly after the extraction but would get
back to normal in about 2 months and by then I could have the dental
bridge put on”.
65. However,
given what is now known, that at the time the plaintiff wrote that letter to
the Dental Council, she was still in the dark as to the bone removal having
been carried out by the defendant and believed it to be the gums shrinking
caused by the effect of the extractions, it is not difficult to see how she
would have made such a mistake when writing that letter to the Dental Council.
66. Thirdly,
it was submitted that the plaintiff’s complaint as to the tilting of her
canines was not supported by the study models prepared by the defendant, none
of which showed her canines to be tilting or drifting forward.
67. The
difficulty however is that the study models which were produced into evidence
did not have any dates on them to show when they were made. The lack of
dates on the study models was such that even when they were viewed by the
experts, the experts had difficulty as to ascertaining the sequence and the
time frame when each of them were made.
68. On
the other hand, there is some evidence from Dr Ricky Wong that it was
possible, due to the upper jaw of the plaintiff being wider than her lower jaw,
that when the canines were being moved along the upper arch (from wearing the
braces) that they may look to be coming out and protruding.
69. There
was also some evidence from Dr Cheng Chi Yin (in the form of a note)
to the effect that when he examined the plaintiff in October 2001, he
found her canines to be tilting forward.
70. Given
that evidence and the lack of dates on the study models, I do not see that
this point assist the defendant in impeaching the credibility of the plaintiff.
71. Counsel
for the defendant also relied on a number of somewhat obscure points in his
attempt to discredit the plaintiff, such as her forgetting that the defendant
had at some time after she first consulted him moved his clinic from Yan Oi
Street to Tseuk Luk Street, both being in the San Po Kong area, and also on the
fact that the plaintiff had obviously made a mistake when referring to the
Prince Philip Dental Hospital (“PPDH”) as being the Madam Thatcher Dental
Hospital.
72. These
can only show the frailty of memory which afflicts almost everyone at the best
of times when it comes to the less important or even insignificant details.
In my view they do not cast the slightest doubt as to the credibility of the
plaintiff as a witness.
73. Turning
now to deal with the defendant’s evidence. His credibility is affected by
a number of matters in his evidence as follows.
74. Firstly,
the advice which he says he gave to the plaintiff as stated in his witness
statement dated August 2007, almost 9 years after the event, was from
his memory since no record of same was contained either in his treatment record
of the plaintiff or even in his letter to the Director of Legal Aid (“DLA”)
dated 1 December 2005.
75. As
for his advice to the plaintiff to consult a specialist orthodontist or
orthognathic surgeon, although there appears an entry against the date of
30 November 1998 in the treatment record card relating to the plaintiff
with the words “Ortho consult”, the defendant admits in cross-examination that
these words were not written in on the treatment record on 30 November
1998 but at a much later time in August or September 2001, yet nothing on
the record card shows that those words were added in at that later time.
The purpose for adding those words onto the record card against the date of
30 November 1998 was, according to the defendant, to remind himself in
case questions would be asked of him by the plaintiff.
76. In
cross-examination, the defendant agreed that in his letter to the DLA dated
1 December 2005, there is no mention in that letter of the advice which
the defendant now says he had given to the plaintiff to consult specialist
orthodontist or orthognathic surgeon. The reason for that, according to
the defendant, was that he was advised by his lawyers that there was no need to
include such in the letter in reply to the Director of Legal Aid, although he
had put that down in an earlier draft.
77. It
was also the defendant’s evidence that apart from advising her to consult
specialists, he had also informed her that the fees charged by the specialists
would be $100,000. The plaintiff on the other hand denies that the
defendant had ever advised her to consult specialists or made mention of the
fees the specialists would charge. Under cross-examination, the defendant
said he told the plaintiff that the treatment he could provide would be
different from what the specialist could provide, but at the same time admitted
that he had never told the plaintiff what sort of treatment would be provided
by the specialists, although he could quote what fees the specialists would
charge her. He only told her what dental treatment he could provide.
78. The
defendant agreed under cross-examination that the only way the plaintiff could
know what treatment the specialist would give to her was to find that out from
the specialist herself, yet because the plaintiff did not ask him for any
referral letter to consult a specialist, he did not provide her with a referral
letter.
79. Under
cross-examination, the defendant admitted that the entry “pt. Discussed
extraction of upper anteriors Warnings were given” against the date 23 May
2001 was written into the treatment record by him in or about
September 2001 and not on the date against which that entry
appeared. Again nothing on the treatment record shows when that entry was
added in except that the ink of the added entry was different from the ink on
the original entry against the date of 23 May 2001.
80. The
defendant also admitted to adding a supplement to the treatment record which
was written by him on 7 May 2003 in anticipation of the plaintiff coming
to collect a copy of it. In cross-examination he agreed that he had asked
the plaintiff to sign the treatment record when she came to collect it on
7 May 2003 but denied that in so doing his purpose was to get the
plaintiff to acknowledge that supplemental narrative which he had added.
Rather he said that his purpose in asking the plaintiff to sign was for her to
acknowledge receiving a copy of it.
81. The
defendant further agreed that in the supplemental narrative written by him on
7 May 2003, there was still no mention of his having advised the plaintiff
to consult specialists for her problem.
82. In
the letter written by the defendant to the Director of Legal Aid dated
1 December 2005, it was stated that it was the plaintiff who had requested
the extraction of the anterior teeth (i.e. the four upper incisors) and
indeed, it was put to the plaintiff by counsel for the defendant that she had
requested the extraction because she wanted her front teeth to look less
protruding. The plaintiff disagreed with that suggestion. However,
when the defendant gave evidence from the witness box, he conceded that it was
he (and not the plaintiff) who had suggested the extraction of the four upper
incisors.
83. Given
the above matters, I found the evidence of the plaintiff to be far more
reliable than that of the defendant albeit that her timing in respect of some
of the less relevant events (such as when her upper pre-molars were extracted
before the braces were put on, or when X-rays were taken of her teeth) were
off, due, no doubt, to memory lapses. However, nothing of any great
significance turn on the timing of those events.
84. On
the other hand, the defendant’s evidence was at great variance to the treatment
record kept by him even concerning important matters such as the relevant and
important advice to consult specialists which he had given the plaintiff during
the time when he treated her.
85. It
is mind-boggling when the defendant’s evidence is to the effect that from the
outset, he had realized that the plaintiff’s problem was a problem with her jawbone
which is beyond his competence to correct and that was the main reason why he
had advised her to consult specialists, and yet this very important advice
which he saw fit to give to the plaintiff never found its way into the
treatment record. Even when the defendant at some later date decided to
make additions to various dated entries of the treatment record and also to add
a supplemental narrative at the end of the treatment record before the
plaintiff came to collect a copy of it, such important advice he had given to
the plaintiff was never recorded by him.
86. When
he responded to the letter of the DLA, that again afforded him a further chance
to put down such advice which he says he had given to the plaintiff yet no
mention of that was contained in his letter to the DLA.
87. Another
important piece of evidence which seriously undermined his credibility was his
attempt to blame the plaintiff for having requested the extraction of her four
incisors, a matter which he finally conceded was suggested by him and not by
the plaintiff.
88. The
absence of any written record of such advice which the defendant says had been
given to the plaintiff cause me considerable doubt as to the veracity of his
evidence, not only in relation to the advice he said he gave to the plaintiff
but to the rest of his evidence which is at variance with that of the plaintiff
upon the major issues in this case.
89. In
the circumstances, I have no hesitation in accepting as true the evidence
given by the plaintiff as to what transpired between herself and the defendant
during the course of her treatment by him where the defendant’s evidence is at
variance with that of the plaintiff on the major factual issues in this case.
Findings
of Fact
90. On
the major and important issues in this case, I find the following
facts :
(1)
on the first visit of the plaintiff to the defendant in November 1998, the
defendant only informed the plaintiff that he could provide dental treatment to
make the teeth of her upper jaw less protruding but did not advise her that her
problem was a skeletal one and she should consult specialist orthodontist or
orthognathic surgeon for correction;
(2)
on her second visit to the defendant in August 1999, the defendant informed
her that she had to apply orthodontic appliances (braces) to both her upper and
lower arches although the plaintiff found nothing wrong with her lower teeth;
(3)
on her third visit to the defendant, the defendant repeated the suggestion of
applying braces to both the upper and lower arches explaining that it was to
align the teeth of both arches. As a result of that explanation the
plaintiff accepted that suggestion of the defendant and the fees was agreed at
$19,000;
(4)
thereafter the plaintiff attended fortnightly at the defendant’s clinic for
follow up of the orthodontic treatment;
(5)
in January 2000, the defendant provided a face bow (or headgear) to the
plaintiff to apply at night when she went to bed with instructions as to its application.
I am satisfied that the plaintiff had followed and complied with the
instructions given to her by the defendant when using the face bow and at no
time adjusted the force of the face bow on her without he defendant’s prior
approval;
(6)
some time in May of 2001, the plaintiff complained to the defendant that her
upper canines appeared to be tilting outwards and asked if he could remedy that
problem. Initially the defendant told her not to stop the orthodontic
appliances, but when the plaintiff repeated that complaint to him on
6 June 2001, the defendant informed her that the orthodontic treatment
could no longer work and the only way out was to extract her four upper
incisors and to replace them with a dental bridge;
(7)
believing what she was told by the defendant that the removal of her four upper
incisors was the only remedy to correct the tilting canines, the plaintiff
agreed to such a course of treatment;
(8)
the plaintiff’s four upper canines were extracted on 14 June 2001.
Quite apart from extracting the four upper incisors, the defendant had also
filed off and removed some of her alveolar bone above the extracted incisors
but without informing the plaintiff of his doing so;
(9)
a temporary denture was fitted on for the plaintiff after removal of her four
upper incisors;
(10)
between mid August and September 2001 three dental bridges were made for
her but she was not satisfied with any of them;
(11)
on 18 September when she chanced to ask the defendant whether there was
any other way to deal with the protruding canines, and when the defendant
suggested a transparent plastic crown to be placed where her incisors used to
be, she realized that the defendant had misled her into extracting her four
upper incisors when he told her that was the only way of dealing with her
complaint of the protruding canines in June; and
(12)
thereafter she lost confidence in the defendant and instead went to consult
another dentist to remedy her problem.
The
Law relating to trespass to the person in medical treatment context
91. The
law is quite clear that if a patient’s consent to medical
treatment has been obtained by misrepresentation (or fraud) then
it is not a valid consent. The misrepresentation (or fraud) has to be
such that it goes to the nature of the act or the treatment given as opposed to
the quality of it.
92. This
is clearly borne out in the words of Lord Donaldson in the case of Sidaway v
Bethlem Royal Hospital Governors [1984] 1 All E.R. 1018 at
page 1026 :
“I am
wholly satisfied that as a matter of English law a consent is not vitiated by a
failure on the part of the doctor to give the patient sufficient information
before the consent is given. It is only if the consent is obtained by
fraud or by misrepresentation of the nature of what is to be done that it can
be said that an apparent consent is not a true consent.”
And also
by the words of Bristow J in the case of Chatterton v Gerson [1981] 1
All.E.R. 257 at 265 where he said :
“In my
judgment once the patient is informed in broad terms of the nature of the
procedure which is intended, and gives her consent, that consent is real, and
the cause of the action on which to base a claim for failure to go into risks
and implications is negligence, not trespass. Of course, if information
is withheld in bad faith, the consent will be vitiated by fraud.”
A
further difference between a claim based on negligence and a claim based on
trespass can be seen from the following words of Bristow J in the case of
Chatterton v Gerson at page 265 of that judgment where he said :
“In my
judgment what a court has to do in each case is to look at all the circumstances
and say, ‘Was there a real consent?’ I think justice requires that
in order to vitiate the reality of consent there must be a greater failure of
communication between doctor and patient than that involved in a breach of duty
if the claim is based on negligence. When the claim is based on
negligence the plaintiff must prove not only the breach of duty to inform but
that had the duty not been broken she would not have chosen to have the
operation. Where the claim is based on trespass to the person, once it is
shown that the consent is unreal, then what the plaintiff would have decided if
she had been given the information which would have prevented vitiation of the
reality of her consent is irrelevant.”
93. There
is no dispute between the parties as to the applicable law in the present case.
94. Indeed
it is conceded by counsel for the defendant that if the evidence of the
plaintiff in this case is accepted by the court, that evidence will be
sufficient to found a case of trespass to the person as claimed by the
plaintiff.
95. The
dispute between the parties here is therefore purely factual.
Expert
Evidence relating to issue of liability
96. The
plaintiff called two experts, Dr William Yung, a specialist in
prosthodontics and Dr Ricky Wong, a specialist in orthodontics.
97. Dr William Yung,
in his first report dated 16 February 2006 gave his opinion which can be
summarized as follows :
(a)
the defendant, without a full set of study models before his diagnosis and
treatment plan of the plaintiff, failed to fully appreciate the complexity of
the plaintiff’s case;
(b)
the defendant failed to advise the plaintiff of other treatment options;
(c)
the plaintiff should have been referred to a specialist before orthodontic
treatment started for her;
(d)
the model surgery used by the defendant misled the plaintiff into making a
decision to have her four incisors extracted to be replaced by a dental bridge;
and
(e)
the defendant should have consulted a specialist before deciding to extract the
plaintiff’s four incisors which was irreversible, especially when the incisors
were sound and nothing wrong with them. This treatment option of the
defendant was wholly inappropriate.
98. In
his second report dated 12 January 2008, Dr Yung his further opinion
as follows :
(a)
the defendant, being a GP without specialist training in orthodontics, should
not have taken on the plaintiff’s case (which was a Class II overjet with
8 mm on a skeletal Class II base) which might involve orthognathic
surgery;
(b)
a GP taking up the plaintiff’s case should provide the same standard of care as
a specialist in orthodontics. Here the defendant failed to meet up to
that standard in that the study models were (according to the defendant’s own
statement) taken just before the extraction. Therefore the defendant
failed to properly study them in preparing the treatment plan which ought to
have been done with the assistance of a lateral cephalic radiograph but which the
defendant never took;
(c)
the remedial plan of extracting four sound incisors to be replaced by a fixed
prosthesis was wrong and inappropriate and go against all known medical
literature;
(d)
the osteotomy and bone trimming of upper anterior was totally unnecessary and
would produce further bone loss making pontic look long and ugly; and
(e)
The prosthodontic work done by the defendant was far below standard of a
reasonable competent prosthodontist.
99. Dr Ricky Wong
gave one expert report dated 10 April 2006. The opinion expressed by
Dr Wong can be summarized as follows.
100. The
orthodontic treatment provided by the defendant fell far below the standard of
a reasonably competent practitioner in that :
(a)
there was lack of adequate record for planning the orthodontic treatment;
(b)
there was inadequate planning for the orthodontic treatment;
(c)
the treatment provided was not consistent with standard practice;
(d)
the extraction of the four incisors was unacceptable as it would cause
irreversible and irreparable damage to the patient. Extraction of all the
four incisors (all of which are sound) is never advised and goes against all
medical literature; it was also destructive to the plaintiff; and
(e)
the defendant, without specialist training, performed complicated orthodontic
practice and without consulting any specialist in orthodontics is unacceptable
practice.
101. The
defendant also called two experts, Dr Kei Lee Hoi, a specialist
in prosthodontics and Dr Alexander Tang, a specialist in
orthodontics.
102. Dr Kei,
in his expert report which was undated but came about as a result of his
examination of the plaintiff on 26 June 2007, the opinion given by him
from paragraphs 16 to 21 inclusive, and which was under the heading
“Conclusion” were all of them fact findings and therefore outside the province
of an expert witness. When this was pointed out, counsel for the
defendant indicated that he would only rely on paragraphs 11, 12, 14
and 15 of that report the contents of which were matters falling within
the realms of an expert.
103. Those
four paragraphs relied on by counsel for the defendant can be summarized as
follows.
104. Dr Kei
agreed with Dr Ricky Wong that there was no medical literature to
suggest the extraction of all four incisors of the plaintiff when the incisors
are not subjected to occlusal load or periodontal attacks. However he
says that there can be exceptions such as supernumeraries, mal-formed incisor
or impacted incisor being the more normal exceptions.
105. Secondly,
he says that the defendant’s treatment plan changed from an orthodontic
approach to a surgical-restorative approach and the extraction of the incisors
became a prosthetic need rather than an orthodontic option. The changing
of a treatment plan is not uncommon in daily dental practice.
106. Thirdly,
the model prepared by the defendant will show to the patient some bone loss
through bone resorption.
107. Lastly,
the extraction of the four incisors, while not something commonly done, should
only be used as a last resort when all other options were exhausted.
108. In
cross-examination, Dr Kei agreed that the four incisors of the plaintiff
which were extracted were healthy and normal. As part of the philosophy
in dentistry healthy teeth should be preserved and healthy teeth should not be
removed unless there is a good reason for it.
109. Dr Alexander Tang
gave an expert report dated 2 October 2007. Being a specialist in
orthodontics, he confined his opinion to only the orthodontic treatment given
by the defendant to the plaintiff.
110. In
that respect, his opinion was that very often, patients with Class II
occlusion are commonly treated by tooth movement alone to reduce the gap
between the upper and lower front teeth. In the present case, it did not
surprise him that the plaintiff was treated in a conservative way
(i.e. with braces) in so far as the orthodontic treatment went.
111. Dr Tang
further commented that from the study models, the tooth movement of the
plaintiff seemed to be in an orderly manner.
112. Dr Tang
also stated that although the treatment record kept by the defendant was “an
over-simplified daily record”, he would not conclude from it that the defendant
lacked understanding of orthodontic principles or deviated from standard
practice.
113. As
for the extraction of the four upper incisors, Dr Tang took the view that
although the extraction of the four incisors were said to be part of the
orthodontic treatment plan by Dr Wong in his report, he was of the view
that the extractions of the four incisors were unlikely related to any
orthodontic treatment plan as orthodontic treatment had finished before the
extracations and no tooth movement had been induced thereafter. He
considered the extractions to be part of the prosthetic treatment plan which
followed the orthodontic treatment and since his expertise was only in
orthodontics, he declined to give any comment or express any opinion on the extractions
due to his not having any expertise on prosthodontics.
114. Under
cross-examination Dr Tang agreed that the treatment record kept by the
defendant was “over-simplified” if those records were the only records kept by
the defendant. However, he had not seen any other records relating to the
plaintiff. He further agreed that the treatment records kept by the
defendant did not contain any orthodontic treatment plan and that was
unacceptable. Nor did it note down any change in the treatment plan.
Dental students were taught to keep a detailed record of all these matters.
115. Dr Tang
was also asked about the study models made by the defendant. He agreed
that he was dissatisfied with the study models because they were undated nor
did they have the patient’s name on them. That is the normal practice
taught to all dental students. Because of the absence of any date on the
models, he cannot tell which model related to the condition of the plaintiff’s
teeth in June 2001. That had to be done by a rough guess
inferring from whether bracket marks can or cannot be seen from those
models. Even then it cannot be an exact inference.
116. He
was also asked about paragraph 9.3.7 of his expert report in
cross-examination. Dr Tang said that he was of the view that if the
orthodontic treatment had been continued by the defendant, it would be likely
that the plaintiff’s occlusion problem could have been cured. From that
point of view, it was not reasonable to say that the malocclusion could only be
cured by the removal of the incisors. Speaking only from the orthodontic
point of view, it would be sufficient only to retract the incisors without
removing them. He described the removal of the incisors as “aggressive”.
Decision
on liability
117. On
the facts as found above by me, there can be no question but that the initial
consent given by the plaintiff to have her four upper incisors extracted
was not a real consent given the misrepresentation to her by the defendant that
the extraction of the four upper incisors was the only way to remedy the dental
problem of the plaintiff.
118. That
misrepresentation of the defendant went to the nature of the act complained of
and not merely to its quality.
119. Moreover,
coupled with the plaintiff’s evidence, and the court’s finding, that she was
never told by the defendant of the osteotomy of the bone above her incisors,
these acts of the defendant constitute trespass upon the person of the plaintiff
by the defendant.
120. In
so far as the expert evidence in this case is concerned, it is quite apparent
that all the experts are at least agreed on one aspect of the case, namely,
that the extraction of all four of the plaintiff’s upper incisors all of which
were sound and healthy at the time of the extraction, is a procedure which went
against all the known medical literature.
121. Although
Dr Kei did try to alleviate the defendant’s position by saying that there
are exceptions to the general rule, however, none of those exceptions are
applicable to the present case.
122. Indeed
there can be no proper justification for the defendant to embark on this course
of treatment as indeed it was the defendant’s own evidence that he was aware of
other options available other than the extraction of the four incisors.
123. In
coming to this conclusion, I can only infer from all the facts of this
case, that the defendant, being a general dental practitioner for some
16 years, must have known that the extraction of the four incisors were
unnecessary but had deliberately misrepresented the position to the plaintiff
because he knew she would not have consented to the suggested treatment had she
known the true position. Going one step further, it would also appear
that his purpose in misrepresenting the position to the plaintiff was for
personal gain in getting the plaintiff to agree to accepting the extractions
and the installation of dental bridge on the pretext of remedying the
plaintiff’s problem for her.
124. On
the alternative claim for negligence, this case being a medical negligence
case, and given the expert evidence in this case relating to the extraction of
the four incisors being a wholly unnecessary treatment procedure, I can
safely come to the conclusion that what was done by the defendant was something
which no reasonably competent dental practitioner in the position of the
defendant would have done in the circumstances. To that end the Bolam
test is satisfied.
125. I therefore
find both the plaintiff’s primary case in trespass as well as her alternative
case in negligence proved against the defendant.
Limitation
126. The
Writ in this case was issued on 24 October 2005.
127. In
so far as the claim of trespass is concerned, there is no difficulty with the
limitation period since the plaintiff has 6 years from the date on which
the cause of action accrued to bring the action. Therefore even counting
from the date of the act complained of being 14 June 2001, the
plaintiff was well within the period of limitation when the Writ was issued.
128. In
so far as the claim for negligence goes, the limitation period is 3 years
from the date on which the cause of action accrued or the date (if later) of
the plaintiff’s knowledge as provided for in section 27(1) of the
Limitation Ordinance (“the Ordinance”).
129. Section 27(6)
of the Ordinance provides that the date of the plaintiff’s knowledge is the
date on which the plaintiff first knew, inter alia, that the injury in question
was significant and that the injury was attributable in whole or in part to the
defendant’s negligent act or omission.
130. Section 27(8)
of the Ordinance provides that the plaintiff shall not be fixed with knowledge
of a fact ascertainable only with the help of expert advice.
131. It
is the plaintiff’s case that an integral part of her injury was the loss of a
substantial portion of the bone above her upper incisors which was removed by
the defendant in the osteotomy.
132. It
is also the plaintiff’s case that neither the plaintiff nor her legal advisers
was aware that the defendant had performed the osteotomy on her until so
informed by Dr William Yung in a conference held on 20 October
2006.
133. This
matter has not been disputed by the defendant.
134. Therefore
in so far as the claim in negligence goes, time did not start to run until the
plaintiff’s knowledge of the osteotomy carried out by the defendant which was
on 20 October 2006.
135. In
the premises, the plaintiff’s claim in negligence is not time-barred.
Quantum
Remedial
treatment
136. After
discontinuing her treatment with the defendant, the plaintiff consulted
Dr Cheng Chi Yin for remedial treatment commencing 26 October
2001.
137. Between
December 2001 and August 2004 Dr Cheng treated her with
orthodontic treatment and the plaintiff also received a total of
5 operations for the installation of four implants in her upper
incisor area. However, the treatment given by Dr Cheng was not
successful and the implants turned out to be either mobile or mal-positioned.
That was due to the bone loss in the upper incisor area being too severe.
Dr Cheng then informed the plaintiff that there was no other way to remedy
her condition except by way of removable prosthesis.
138. In
October 2004, the plaintiff then sought treatment at PPDH. That
treatment started in November 2004.
139. After
examination of the plaintiff, her canines and pre-molars on both sides were
restored with temporary crowns with the plaintiff still wearing fixed
orthodontic appliances in both her upper and lower arches.
140. However,
on 25 February 2005 she was diagnosed at the Joint Implant Consultation
Clinic to have a failing implant and improper positioned implants. All
implants were recommended to be removed and to reconstruct the bony defect with
a titanium mesh and bone harvest from right anterior hip.
141. The
plaintiff received her first surgical operation at Queen Mary Hospital (“QMH”)
for the removal of the implants under general anaesthetic on 18 April
2005.
142. After
her convalescence from the operation, the plaintiff agreed to receive
mandibular advancement surgery to correct her malocclusion. This took place
on 10 January 2006.
143. On
1 August 2006, she had another surgery for the removal of titanium mesh
tray and for the placement of four implants in the anterior alveolar ridge
under general anaesthetic at QMH.
144. On
11 August 2006, the temporary bridge in her anterior maxilla was
re-cemented, occlusal filling of lower right first molar done and relining of
the temporary acrylic denture performed.
145. The
plaintiff received endodontics for her upper left second pre-molar on
11 October and for her upper right canine on 22 November 2006.
146. On
27 March 2007 the plaintiff underwent vestibuloplasty by palatal graft at
QMH being the second stage implant surgery, but due to the unsatisfactory
healing of the wound, a second vestibuloplasty was performed on 29 June
2007.
147. On
7 May 2008, the plaintiff returned to hospital as an emergency case due to
pus discharge from the left maxillary quadrant. Pus was found extruding
from the implant.
148. The
plaintiff received another endotontics in her upper left canine on 8 July
2008.
149. On
the last review on 21 July 2008, there was still swelling in the distal
region.
150. Up
to the time of trial, the plaintiff’s treatment at PPDH continues. As and
when the surgery wounds have healed and all infections brought under control,
an appointment will have to be made with the prosthodontist to restore the
implants and replace her temporary crowns with ceramic crowns.
Plaintiff’s
psychiatric condition
151. When
the matters complained of by the plaintiff occurred in the second half of 2001,
the plaintiff had a job as an accounts clerk with the Union Construction
(Group) Limited.
152. Before
the extraction of her incisors, the plaintiff was happy and carefree with good
inter-personal relationship. But after the event, she felt that people
turned away from her and was afraid to look at her.
153. In
time, her condition worsened and she wore a face mask to hide her face from
others. She felt that her colleagues were looking away from her.
154. Her
stress and tension got the better of her and quite abruptly on 4 May 2004
the plaintiff resigned from her job in the middle of a working day unable to
tolerate what she perceived to be rejection by her colleagues because of the
way she looked.
155. Thereafter
she spent most of her time at home preoccupied with her dental problem.
By October 2004 she became depressed and weepy with difficulty
sleeping. By the end of that year she began hearing voices asking her to
die. She felt people passing her in the streets were grimacing at her and
gesturing about how she looked. She knew she had a psychiatric problem.
156. In 2005
her depression slightly improved when some progress was made in the treatment
she received from PPDH and QMH.
157. The
plaintiff was examined by Dr Chan Chee Hung, a
psychiatrist, on 3 October 2006. He diagnosed the plaintiff to
suffer from a major depressive disorder with mood congruous psychotic
symptoms. The symptoms included weepiness, moodiness, insomnia, irritability,
loss of interest, concentration and motivation for daily activities, poor
appetite and weight loss.
158. Dr Chan
was of the view that she will benefit from a course of psychiatric treatment
and psychotherapy. Dr Chan recommended one year’s intensive
treatment. Total costs for such treatment comes to $39,600 for the one
year.
Pain
suffering and loss of amenities
159. This
head of damage has been agreed by the parties at $700,000 and the same will be
awarded.
Pre-trial
loss of earnings
160. The
parties have agreed the amount of Pre-trial loss of earnings and MPF to be at
$685,190 and that agreed amount will be awarded under this head of damage.
Special
damages
161. The
plaintiff claim special damages in the amount of $98,115.30.
162. The
defendant is agreeable to $41,115.30 of the amount claimed by the plaintiff.
163. The
remaining $57,000 in dispute between them represents the fees paid to
Dr Cheng Chi Yin by the plaintiff for the
remedial treatment which Dr Cheng attempted to carry out for her.
164. The
defendant does not dispute that amount as having been paid to
Dr Cheng. The defendant’s objection to the plaintiff being able to
claim back those fees paid to Dr Cheng is that the defendant says from the
evidence given by Dr Yung it is clear that the implants installed by
Dr Cheng should not have been attempted by him as it should have been
obvious to Dr Cheng, if he had done the appropriate preparatory work, that
there was not enough bone in the area to support the implants which resulted in
excessive and uneven bone resorption. Therefore it would be wrong in
principle to allow the plaintiff to claim for the fees paid to Dr Cheng.
165. I do
not accept that submission by the defendant.
166. Firstly,
that there was insufficient bone to support the implants was a direct result of
the wrongful acts of the defendant in this case.
167. Secondly,
it has to be borne in mind that the plaintiff consulted Dr Cheng to carry
out remedial treatment caused by what was done by the defendant. While it
is easy for Dr Yung to speak with the wisdom of hindsight when he
commented that it should have been obvious to Dr Cheng at the outset that
there was insufficient bone to support the implants, it may well be a different
story from Dr Cheng’s perspective when he first attempted the remedial
treatment. It is only reasonable to expect Dr Cheng to have
attempted the remedial treatment when he thought there was a possibility that
it could be successful.
168. In
any event that was a judgment of Dr Cheng, a matter which the plaintiff
had to leave to the professional.
169. Here
the wrong was done to the plaintiff by the defendant and the plaintiff had paid
Dr Cheng for the attempted remedial treatment which ultimately proved
unsuccessful.
170. In
those circumstances, I do not see why the plaintiff should not be allowed
to recover such fees paid with a view to remedying the wrong of the defendant.
171. For
the above reasons, I will assess the special damages to be $98,115.30 as
claimed by the plaintiff.
Other
expenses
172. The
parties are agreed that $12,800 be the amount to be awarded under this head.
Future
loss of earnings
173. The
plaintiff claims future loss of earnings on the basis that she will not be able
to work for the next two years by reason of the fact that she will have to
continue her treatment with PPDH and also to receive psychiatric treatment and
psychotherapy and thereafter it will take time for her to find a job.
174. It
is therefore estimated that it will be at least for two more years before
she could resume gainful employment.
175. There
is no dispute that the plaintiff’s earnings when she resigned from working as
an accounts clerk in May 2004 was $11,725 per month. It is also
agreed between the parties that if she had continued working she would be
earning $12,900 today.
176. The
defendant dispute that the plaintiff will not be able to resume work for
another two years on the basis that firstly, her performance in court as a
witness showed her no longer to be suffering from Major Depressive
Disorder.
177. Secondly,
it is said that the in the report of Cheung Lim Kwong, Chair
Professor of Oral and Maxillofacial Surgeon, dated 22 January 2008 where
it is stated that “there is no justifiable permanent disability if the dental
implant bridge can enable [the plaintiff] to restore her oral functions” this
shows that there is no physical handicap to stop her working.
178. Thirdly,
the defendant submits that Dr Chan Chee Hung, the plaintiff’s expert
psychiatrist, recommended treatment for a further 12 months only.
179. That
statement in the report of Cheung Lim Kwong relied on by the
defendant admittedly states that there is no permanent disability.
However, that is qualified by the following words “if the dental implant bridge
can enable Madam Cheng to restore her oral functions”. It is also
apparent in this case that the plaintiff is still continuing her remedial
treatment at PPDH and her oral functions have not yet been fully restored.
180. In
coming to an assessment for this head of damage, I have regard firstly to
the length of time which had already been spent for the remedial treatment to
the plaintiff. Even if one were to ignore the remedial treatment from
Dr Cheng, the treatment given to the plaintiff from PPDH and QMH has
already taken over four years (from November 2004) and it is still
continuing. Given the length of time the remedial treatment has taken,
perhaps the estimate of another two years is not altogether out of place
since complications (of the kind which has already happened) cannot entirely be
ruled out.
181. However,
also taking into account the accelerated receipt by the plaintiff in respect of
future loss of earnings and given all the circumstances in this case,
I will use a multiplier of 1½ years rather than two as suggested by
the plaintiff.
182. Future
loss of earnings and loss of MPF is therefore assessed as follows :
$12,900 x 18 x 1.05 = $243,810.
Future
expenses
183. The
plaintiff claims totally $197,320 under this head of claim broken down into
seven separate items.
184. The
defendant does not dispute the claim in respect of the first five items
amounting to $127,320.
185. In
dispute between the parties are only the last two items being the cost of
further surgical treatment, hospitalization and dental treatment in respect of
PPDH and QMH ($20,000) and also the cost of follow-up consultation and
treatment ($50,000).
186. In
respect of these two items in dispute, I am told that there is no direct
evidence from any of the experts to support them. The basis upon the
claim in respect of these two items were made was that they were estimated
by counsel.
187. However,
it should be noted that within the first five items not disputed by the
defendant, three of those items amounting to $87,720 was for costs of cosmetic
or laser treatment ($50,000), cost of ceramic crowns from PPDH ($1,720) and
cost of four ceramic upper incisors and accessories ($36,000).
188. I further
note that the amount of fees already incurred by the plaintiff for the
pre-trial period paid to PPDH is only $12,564 for treatment since
November 2004 and her fees paid to QMH to date is only $1,750.
189. Quite
obviously since her treatment is still continuing at PPDH, there will be some
future fees which need be paid by her, but a claim for $70,000 as being fees
for her future treatment from PPDH and QMH must be excessive and therefore
unreasonable given all the circumstances.
190. Using
the fees already incurred by the plaintiff vis-a-vis PPDH and QMH as a rough
guide, I would assess future expenses for the further surgical and dental
treatment as well as the hospitalization at PPDH and QMH to be $10,000.
191. Accordingly,
the total claim for future expenses is assessed at $137,320.
Interest
192. Interest
on general damages for PSLA will be at 2% p.a. from the date of the Writ.
193. Interest
for all pre-trial and special damages will be at half judgment rate from
14 June 2001.
Summary
of Assessment
PSLA
|
$700,000.00
|
||
Pre-trial
loss of earnings and MPF
|
685,190.00
|
||
Special
damages
|
98,115.30
|
||
Other
expenses
|
12,800.00
|
||
Future
Loss of earnings
|
243,810.00
|
||
Future
expenses
|
137,320.00
|
||
Interest
on PSLA
|
45,850.00
|
||
Interest
on special and pre-trial damages
|
249,998.00
|
||
Total :
|
$2,173,083.30
|
Conclusion
195. There
will accordingly be judgment for the plaintiff for the judgment sum of
$2,173,083.30 which is already inclusive of interest up to the date of
judgment. Thereafter interest will run at judgment rate until payment.
Costs
196. There
will be an order nisi that the defendant do pay the plaintiff’s costs of this
action to be taxed if not agreed.
(A.R.
Suffiad)
Judge of the Court of First Instance High Court |
Mr Ronald
Tang, instructed by Director of Legal aid, for the Plaintiff
Mr Andrew
Leung, instructed by Messrs C.O. Chan &Co., for the Defendant
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