女文員在牙醫鍾志強診所箍牙至牙齦收縮令門牙鬆弛成功索償逾廿萬元
2007-3-6
一女文員向牙醫索償70萬
【大公報訊】一名女文員原意做手術及箍牙令牙齒變得美觀，但進行手術的醫生涉嫌疏忽，令女文員要做第二次手術補救，及後更出現前排牙齒鬆弛，隨時有脫落的危機。文員認為，第一次手術根本沒有需要，循民事向涉案的醫生追討七十萬元。
李姓申索人指三名牙醫鍾志強、周炯昌、鄭子豐及衛生署在治療過程中疏忽，向他們申索七十萬元，包括二十萬的種牙費用。
手術失敗恐致脫齒
根據任職文員的申索人稱，她的牙齒在左邊位置有一空隙，加上她嫌自己的牙齒排列不整齊，於是到鍾的診所求診。鍾檢視後建議李進行手術，並把個案轉介至東區醫院。療程共分兩部分，先由周炯昌進行外科手術，把上、下顎部分的骨削去，令下顎的牙向後移，第二部分則花一萬八千元箍牙。然而，事主在箍牙一年後發現上、下顎的大部分牙齒未能接合，進食有困難，手術原意是要把下顎的空隙透過把牙齒向後移填補，但手術後空隙仍然存在。
李感到問題嚴重，於是在覆診時向鍾提出，李指鍾和周卻沒有理會，而箍牙時間一般由十八個月至兩年不等，但李卻最終箍牙三年，最終周在二○○○年提議再進行手術或繼續箍牙，李無可奈何下選擇做第二次手術，把原本向後移的牙齒向前移回後原位，並再花二萬六千元箍牙。經過兩次箍牙後，申索人的牙根收縮，下顎的前排牙齒出現鬆弛，有機會脫落，吃東西時亦要把食物切開，上顎的門牙亦有類似情況，但情況較輕微，現時仍需用牙托。
質疑首次手術需要
控方的代表律師指出，對第二次手術的成效沒有質疑，但指出，原意是填補下顎空隙的第一次手術根本沒有需要，因此才要第二次手術補救。
控方傳召來自英國的皇家外科院士、University College
Hospital的顧問Tim Lloyd作專家證人，Lloyd指出，外科手術和箍牙需要良好溝通，然而李的病歷表中卻未有詳細列明情況。
而辯方則傳召港大牙科學院口腔頜面科講座教授張念光作證人。張說，該手術在香港和外國進行或會有所差異，但承認事件中第一次手術後的確出現「未能預料」的結果。
DCPI 1594 /2006
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
PERSONAL INJURIES ACTION NO. 1594 OF 2006
--------------------
BETWEEN
|
LEE HAU CHI MARIAM TERESA
|
Plaintiff
|
|
and
|
|
|
CHUNG CHEE KEUNG PETER
|
1st Defendant
|
|
PETER CHEE-KEUNG CHUNG
MANAGEMENT CONSULTANTS LIMITED
|
2nd Defendant
|
|
THE METHODIST CHURCH HONG
KONG
on behalf of YANG DENTAL CLINIC (Discontinued pursuant
to Notice by Plaintiff of withdrawal of Claim against the 3rd
Defendant dated 4th March 2004)
|
3rd Defendant
|
|
CHOW KIANG CHEONG
|
4th Defendant
|
|
CHENG CHI FUNG
|
5th Defendant
|
|
SECRETARY FOR JUSTICE
|
6th Defendant
|
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Coram: Deputy
District Judge S. T. Poon in Chambers
Dates of Hearing: 5 - 9, 12 - 15 March
2007 and 29 May 2007
Date of Handing Down Judgment: 29 October 2007
JUDGMENT
Introduction
1. This is
a case concerning medical negligence.
2. In 1996,
the Plaintiff received a combined orthognathic treatment by the 1st
Defendant (an orthodontist) and the 4th Defendant (a maxillofacial
surgeon) with a view to improving her dental and facial appearance. The “treatment plan” was, in simple terms,
that the 4th Defendant would first perform an operation on the
Plaintiff’s upper and lower jaw-bones with the extractions of 4 first premolars
(teeth 14, 24, 34 and 44) (“the 1st surgery”), and the 1st
Defendant would then provide a period of orthodontic treatment to the Plaintiff
afterwards.
3. The 1st
surgery was successfully performed.
However, in the course of receiving the orthodontic treatment from the 1st
Defendant, it was noticed that there was a shift of midline of the Plaintiff’s
lower front teeth with also anterior open bite.
Consequently, the Plaintiff received another maxillofacial surgery (“the
2nd surgery”) followed by another period of orthodontic
treatment.
4. The
Plaintiff alleges that due to the prolonged and underperformed orthodontic
treatment by the 1st Defendant, the lower front teeth of the
Plaintiff suffered root resorption that caused them to become mobile and less
durable which would not have happened but for the negligence of the
Defendants. A tooth (25) was abscessed
already and might need to be extracted in 10 years’ time. Moreover, she has
suffered unnecessary pain and sufferings in having to undergo the 2nd
surgery.
5. The 2nd
Defendant is a service company owned by the 1st Defendant. The 5th
Defendant is a consultant of the Pamela Youde Nethersole Eastern Hospital (“the
hospital”) who was the superior of the 4th Defendant at the material
times. The 6th Defendant was sued on the hospital behalf.
6. Contribution
notices had been served by the 4th, 5th and 6th
Defendants against the 1st and 2nd Defendants and vice
versa. At the start of this trial Miss
Wong, counsel for the 1st and 2nd Defendants, indicated
that they withdraw their contribution proceedings against the other defendants.
7. The
experts’ evidence on liability was substantially conflicting.
8. The
Plaintiff relied on the evidence of 2 expert witnesses from the United Kingdom,
namely Mr. Stephen Powell, the Postgraduate Orthodontic Director at King’s
College, London University, and Mr. Timothy William Lloyd, a consultant in
maxillofacial surgery in the Eastman Hospital and University College Hospital
in London.
9. The 1st and 2nd
Defendants also called 2 expert witnesses to give opinion in court, including
Professor Cheung Lim-Kwong, the Personal Chair Professor of the Oral and
Maxillofacial Surgery Department of the Faculty of Dentistry in the University
of Hong Kong, and Professor Erik Urban Oskar Hagg, Chair of Orthodontics of the
Faculty of Dentistry in the University of Hong Kong.
10.
The 4th, 5th and 6th
Defendants called Professor Henk Tideman, the Emeritus Professor of the
University of Hong Kong and Professor in Oral and Maxillofacial Surgery of
University of Sonklar in Thailand.
11.
Apart from their expert reports, the above named
experts have also put together their credentials for my reference. They are all without doubt the cream of their
respective fields and their expertise is in no way challengeable. Suffice it to say is that, although their
opinions are in some respect very different to each others, I am satisfied that
all of them had given their opinions impartially.
12.
Professor Cheung and Professor Hagg had examined the
Plaintiff before preparing their reports whereas Mr. Powell and Mr. Lloyd had
only the opportunity to observe a dental surgeon in Hong Kong to do an
examination on the Plaintiff shortly before this trial.
Factual
Background
13.
The Plaintiff was 26 years old when she sought
orthodontic treatment from the 1st Defendant in 1996 at the Yang
Dental Clinic which was managed by the 3rd Defendant (all claims
against the 3rd Defendant had been withdrawn in 2004). The 3rd Defendant was an approved
charitable institution in Hong Kong.
14.
The Plaintiff sought orthodontic treatment in order
to improve the appearance of her front teeth as she thought they were oversized
and the upper and lower teeth only touched at the edges (instead of the upper
teeth being in front of the lowers). She
complained that her upper and lower lips were bulging, having a problem of
excessive showing of gingivae, and her face was long. She learnt from her friend that the Yang
Dental Clinic offered orthodontic treatment at a reasonable charge.
15.
On 17th September 1996, the Plaintiff was
diagnosed by the 1st Defendant to have suffered upper and lower
dentoalveolar hyperplasia (abnormal increase).
There were deformities between her upper and lower jaw bones and
orthodontic treatment alone could not correct her problem. In order to correct the malalignment of the
Plaintiff’s teeth, elective maxillofacial surgical interventions to her upper
and lower jaws were necessary prior to the commencement of orthodontic treatment.
16.
The 1st Defendant referred the Plaintiff
to the Oral and Maxillofacial Surgery & Dental Unit at the hospital for
consultation.
17.
On 25th October 1996, the 4th
Defendant, at the time a Senior Dental Officer of the Oral and Maxillofacial
Surgery & Dental Unit at the hospital, diagnosed that the Plaintiff had
maxillary (upper jaw) and mandibular (lower jaw) dentoalveolar
hyperplasia. He advised the Plaintiff
that the 1st surgery would include “Wunderer and Hofer” osteotomies
(surgical operation whereby the dimension of the bone is modified by cutting),
extractions of four first premolars and genioplasty (chin augmentation
operation) reduction and advancement.
18.
A joint orthognathic consultation was held at the
hospital on 30th January 1997 in which the 1st, 4th,
and 5th Defendants were all present.
Several treatment options were offered and explained to the Plaintiff
for consideration at the joint consultation.
It was the consensus of the 1st and 4th Defendants
that the treatment plan was the best option.
Details of the 1st surgery had been explained to the
Plaintiff.
19.
On 13th February 1997, the 4th
Defendant explained the treatment plan to the Plaintiff again and in more
detail. He explained to her, amongst
other things, that the whole treatment process would take about 2 to 3 years
and the Plaintiff was warned of many adverse physical effects on her during the
early post-operative phase. According to
the 4th Defendant, the Plaintiff expressed that she fully understood
the treatment plan and agreed to accept the same.
20.
On 17th February 1997, the Plaintiff was
admitted to the hospital. She signed a
document titled “Consent for Operation” on the same day.
21.
The 1st operation was performed on 19th
February 1997. It was uneventful and the
Plaintiff was discharged from the hospital on 21st February
1997. Thereafter, the Plaintiff attended
several follow-up appointments with the 4th Defendant and her
recovery was normal. In the beginning of
April 1997, the 4th Defendant referred the Plaintiff back to the 1st
Defendant for post-surgical orthodontic alignment.
22.
From 10th April 1997 onwards until at
least March 2000, the Plaintiff had been undergoing orthodontic treatment with
the 1st Defendant. What had
happened during this period of time is very significant and is under
dispute.
23.
However, it
is not in dispute that at least as at March 2000, it was noticeable that there
had been some adverse changes occurred to the Plaintiff’s occlusion. The lower dental mid-line was deviated more
to the right, there was anterior open bite with increased overjet, the
edentulous gap at the lower right posterior region between teeth 45 and 47 (“the
Space”) was almost closed and the lower teeth were lingually tilted.
24.
According to the Plaintiff, she noticed that her
front teeth began to tilt inwards and shift aside as early as in the end of
1997. She also noticed a gap began to
appear between her left top and bottom front teeth. She mentioned these observations to the 1st
Defendant every time when she attended his clinic but he just ignored
them. She also mentioned her concern of
the changes in position of her front teeth to the 4th Defendant in
February 1998 but the 4th Defendant made no response to her. She repeated her concerns to the 1st
and 4th Defendants in subsequent appointments but they just simply
ignored her.
25.
According to the 1st Defendant in his
first statement made in July 2006, at the beginning of the post-surgical
orthodontic treatment, he used 022” x 028” multibanded straight wire appliances
on the Plaintiff’s teeth and advised her that the treatment would usually take
about 2 years. By July 1997, initial
leveling and alignment with 015” multiflex, 014” 016” 018” round wires were
completed. In about August 1997, both
upper and lower 017” x 025” rectangular wires were placed in order to close the
spaces in all segments except the Space.
At a later stage when more root control was required, the regular wires
were changed to 018” x 025”.
26.
It is convenient to explain more about the Space at this
stage as the attempt to close or narrow the same became a very, if not the
most, important part of the Plaintiff’s complaints against the 1st
Defendant. The Space is the gap left by
the early loss of the Plaintiff’s right lower first molar (tooth 46). The Plaintiff’s right upper molar (tooth 16)
above the Space is “over-erupted” and
the tip of which extends to the level of the lower teeth when the Plaintiff
bites which, according to the Plaintiff’s expert, would block any movement of
the Plaintiff’s tooth 47 towards the Space.
27.
It is also the Plaintiff’s case that the attempt by
the 1st Defendant to close the Space by orthodontic means (i.e.,
moving the adjacent tooth 47 to fill the gap) was impossible. There was simply insufficient alveolar bone at
the Space to allow tooth 47 to move onto it.
28.
According to the 1st Defendant, he noted
the Space at his first appointment with the Plaintiff on 17th
September 1996. At that time, he advised
the Plaintiff that the Space had to be replaced by a bridge/denture in future
after completion of the surgery and the construction of the bridge/denture
would be carried out by another dental practitioner. At the early stage of the post-surgical
treatment when multibanded appliances were placed, he proposed to the Plaintiff
that the Space might be reduced by intra-elastics in order to allow a shorter
span for future prosthetic replacement.
He did not suggest nor attempt to close the Space. The Plaintiff consented to the proposed
treatment and intra-elastics were then placed from the molar teeth to the
hooks.
29.
It is the 1st Defendant’s evidence that
he noted subsequently that the lower labial segment of the Plaintiff moved much
faster in a posterior manner to the right.
He then advised the Plaintiff to wear intermaxillary elastics in order
to counteract the posterior movement of the lower anterior segments. The Plaintiff accepted his advice and he
taught her how to put the elastics on the teeth and provided her with elastics
for her own use.
30.
The 1st Defendant said in his statement
that in subsequent appointments the Plaintiff confessed to him that she did not
wear the elastics as taught. He said as
a result there was an increased overjet as well as a lower centerline shift of
the Plaintiff’s teeth.
31.
According to
the 1st Defendant, at the end of the year 1999, the 4th
Defendant had a telephone conversation with him about the progress of the
Plaintiff’s treatment. The 4th
Defendant told him that he noted the slow progress of the orthodontic treatment
and there was a shift of the centre line to the right. He told the 4th Defendant that it
took a long time to level the over-erupted tooth 16 and the lower front teeth
of the Plaintiff were moving too fast lingually inward to the right and the
Plaintiff was not wearing the elastics as instructed.
32.
In view of the fact that the Plaintiff’s problems of
overjet and midline shift became more significant, the 1st Defendant
increased the number of intermaxillary elastics on 29th October 1999
from 1 piece to 2 pieces and on 25th January 2000 from 2 pieces to 3
pieces in order to increase the orthodontic force to counteract the inward
movement of the lower anterior segments.
33.
The 1st Defendant alleged that the
Plaintiff still did not wear the elastics sufficiently and confessed to him
that she did not wear the elastics at work during the daytime but only wear
them at night.
34.
The 1st
Defendant has in his supplemental witness statement given details as to the
orthodontic treatments he performed on the Plaintiff at the material times. This supplemental witness statement was to
explain the 1st Defendant’s very brief notes of the treatment
history of the Plaintiff. I should say,
without the 1st Defendant’s explanation it would be very difficult,
if not impossible, for anyone to comprehend in a meaningful way the contents of
them.
35.
Another main area of complaint of the Plaintiff is
that the 1st Defendant failed to maintain the medical notes of the
Plaintiff properly. However, as I have
indicated times and again to Mr. Fan, counsel for the Plaintiff, it seemed to
me that the Plaintiff had not sufficiently identified to the court the causal
link between this alleged insufficient keeping of medical notes and the damages
that the Plaintiff suffered.
36.
On 28th March 2000, the Plaintiff informed
the 1st Defendant that the hospital suggested her to receive a
second surgery. On 31st March
2000, in a joint consultation held at the hospital with the attendances of the
1st, 4th, and 5th Defendants, the Plaintiff
was advised of 2 options to cure her problems by either a further orthodontic
adjustment or surgical intervention.
37.
The Plaintiff attended Yang Dental Clinic 2 more
times to see the 1st Defendant in May 2000. Thereafter, the 1st Defendant did
not see the Plaintiff until after commencement of the present proceedings. The Plaintiff was receiving treatment from
another orthodontist named Dr. Tommy Chan. (“Dr. Chan”)
38.
According to the 1st Defendant, the
Plaintiff was passive and silent during the appointments with him and did not
complain to him about her occlusions as alleged.
39.
The 4th Defendant confirmed in his
statement that the 1st Defendant had mentioned to him in a telephone
conversation in August 1999 about the Plaintiff not wearing the elastics as
instructed. He also confirmed that the 1st
Defendant mentioned that it took a long time to level the over-erupted tooth
16.
40.
According to the 4th Defendant, the
Plaintiff complained to him about the changes of her occlusion and lower front
teeth for the first time on 10th March 2000. On that occasion he also noticed the other
problems of the Plaintiff and he had the view that it is in the best interest
of the Plaintiff to have another joint orthognathic consultation with the 1st
Defendant.
41.
There had been some cross-examinations by Mr. Fan against
the 4th Defendant on his medical notes of the Plaintiff for the
post-surgery consultations. Mr. Fan
suggested that according to what was recorded in the medical notes (e.g. a
shift of lower dental midline), the 4th Defendant should have
noticed the Plaintiff’s problem on her occlusion as early as in August
1999.
42.
The further joint orthognathic consultation was held
on 31st March 2000. The 4th
Defendant said the 1st Defendant had told him that the change of the
Plaintiff’s occlusion was the result of an attempt to close the Space
orthodontically, which had not been discussed as part of the treatment
objective during the first joint consultation on 30th January 1997.
43.
The 4th Defendant explained the 2 options
at length to the Plaintiff in the joint consultation. The surgical option included a Hofer
Osteotomy to match the lower anterior segment with the upper arch. It was a repositioning of the lower anterior
dentoalveolar segment to facilitate the orthodontist to improve the Plaintiff’s
occlusion with minimal orthodontic adjustment.
44.
The Plaintiff opted for the surgical option and
changed her orthodontist to Dr. Chan.
She was admitted to the hospital on 4th July 2000 to prepare
for the surgery and had signed a copy of “Consent for Operation” on the same
day.
45.
The 4th Defendant performed the 2nd
surgery on 5th July 2000 with the assistance of 2 other
practitioners under the supervision of the 5th Defendant. The surgery was uneventful and the result was
satisfactory. The Plaintiff was
discharged on 8th July 2000.
46.
Six weeks after the operation, the 4th
Defendant referred the Plaintiff back to Dr. Chan for further orthodontic
alignment. In the 2 follow-up
consultations by the 4th Defendant held on 2nd December
2000 and 7th July 2001 respectively, the occlusion of the Plaintiff
was found to be stable with normal overjet and overbite. On the second follow-up consultation, it was
noted that the missing tooth 46 was replaced with a Maryland bridge from tooth
45 to tooth 47.
47.
The 4th
Defendant was later on posted to another government hospital (North District
Hospital) and the Plaintiff requested to have her case followed up by the 4th
Defendant there. The 4th
Defendant continued to attend to the Plaintiff until 8th April 2004.
Particulars
of negligence
48.
It would be convenient to first deal with the
Plaintiff’s allegations against the 1st and 4th
Defendants.
49.
The particulars of the 1st Defendant’s
negligence are set out under paragraph 27 of the Amended Statement of Claim as
follows:-
(a) Failing
to obtain the informed consent of the Plaintiff by failing to explain fully to
the Plaintiff regarding the nature and the limitations of the proposed surgical
and orthodontic treatment, the risks of the treatment, and the options of any
other treatment opened to the Plaintiff;
(b) Failing
to observe the Code of Professional Discipline laid down by the Dental Council
of Hong Kong, in particular, to render dental treatment to the Plaintiff which
no dental practitioner of reasonable skill exercising reasonable care would
carry out;
(c) Failing
to carry out proper assessment and analysis of the orthodontic problems of the
Plaintiff;
(d) Failing
to keep proper treatment records of the Plaintiff;
(e) Failing
to complete the post surgical orthodontic treatment within a reasonable period of
time;
(f) Failing
to exercise reasonable skill and care as expected of a competent dental
practitioner in carrying out the orthodontic diagnosis and treatment on the
Plaintiff;
(g) Failing
to observe the retroclining of the lower labial segment which was causing an
undesirable effect on the occlusion of the Plaintiff;
(h) Attempting
to close the space of the missing lower right 1st permanent molar
orthodontically when he knew and ought to have known that it was impossible to
achieve;
(i) To carry
out unjustified prolonged orthodontic treatment on the Plaintiff when he knew
and ought to have known that the prolonged orthodontic treatment would cause
excessive external root resorption of the teeth;
(j) Failing
to monitor the root length of the teeth and to prevent the excessive external
root resorption of the teeth;
(k) Failing
to take any notice and to investigate the constant complaints of the Plaintiff
regarding her deteriorating occlusion and the discolouration and discomfort of
her upper left 2nd premolar;
(l) Failing
to observe and realize the failure of the orthodontic treatment rendered to the
Plaintiff and to remedy the problems created by the failure of the said
orthodontic treatment at the first possible opportunity;
(m) Failing to prevent foreseeable injuries to the
teeth, jaw and the psychological state of the Plaintiff by rendering the
prolonged and unnecessary orthodontic treatment.
50.
The particulars of the 4th Defendant’s
negligence are pleaded as follows:-
(a) Failing
to obtain the informed consent of the Plaintiff by failing to explain fully to
the Plaintiff regarding the nature and the limitations of the proposed surgical
and orthodontic treatment, the risks of the treatment, and the options of any
other treatment opened to the Plaintiff;
(b) Failing
to exercise reasonable skill and care as expected of a competent dental
practitioner in carrying out the treatment planning on the Plaintiff;
(c) Failing
to carry out complete pre-surgical assessment including a cephalometric
analysis;
(d) Failing
to keep proper record of the Plaintiff;
(e) Failing
to note and investigate the complaints of the Plaintiff regarding the
deterioration of the occlusion, the discolouration and discomfort of her upper
left 2nd premolar, and the prolonged post-surgical orthodontic
treatment at the first available opportunity;
(f) Failing
to monitor the root length of the teeth when he knew that the active phase of
post-surgical orthodontic treatment had been excessively prolonged;
(g) Failing
to notice the severe external root resorption of the teeth;
(h) At the
regular review appointments of the Plaintiff, failing to notice the
retroclining of the lower labial segment which was causing an undesirable
effect on the occlusion;
(i) Failing
to monitor the progress of the post-surgical orthodontic treatment and to
liaise with the 1st Defendant regarding the same;
(j) Failing
to discuss with the 1st Defendant and to take steps to rectify the
deterioration of the occlusion of the Plaintiff;
(k) Failing
to give proper consideration to the rectification of the occlusal problem of
the Plaintiff by offering her a second osteotomy which was unnecessary;
(l) Failing
to take reasonable steps to prevent foreseeable physical and psychological
injuries to the Plaintiff;
(m)
Failing to seek guidance, advice and/or assistance
from the 5th Defendant, who was his superior, to resolve the
complaints and orthodontic problems encountered by the Plaintiff.
51.
For both
defendants, the first pleaded particular of negligence is the lack of informed
consent. However, in his final
submission Mr. Fan mentioned only briefly on this issue. On the other hand, he put a lot of emphasis
on the Defendants’ failure to keep proper medical records which he did not
mention at all in his opening submission.
52.
As regard the
issue of informed consent, Mr. Fan said only this in his written final
submission:
“52. In
the Plaintiff’s clinical notes, it is unknown if the Plaintiff has been given
all the relevant information, including options of the proposed treatment, and
that the Plaintiff did understand fully before giving her informed consent to
the treatment.
53. Prior to the 2nd surgery,
there is no evidence that the Plaintiff was offered the option to seek a second
opinion especially from another oral and maxillofacial surgeon.”
53.
In his
opening submission, Mr. Fan said: “Taking
the matter at a glance, the blame appears to rest solely on D1 as he failed to
obtain the informed consent of the Plaintiff before attempting to close the gap
at the back of the Plaintiff’s lower right jaw.
Moreover, D1 was attempting the impossible which should have never taken
place.”
54.
There is an obvious shift of the Plaintiff’s case in
this regard.
55.
Mr. Fan also submitted that the 1st and 4th
Defendants did not monitor the progress of the post-surgical teeth alignment of
the Plaintiff properly. He said “the
Defendants are jointly and severally liable for the final outcome of the
treatment, which depends on the satisfactory outcome of the treatments rendered
by them”. He stressed that the
treatment was a “joint treatment” but there was insufficient “team work”
demonstrated by the Defendants.
56.
In relation to the issue of attempting to close the
Space, apparently Mr. Fan has also changed his case. In his written final submission he did not
say anymore, as he did in his opening, that “D1 was attempting the impossible
which should have never taken place” but to intermingle the issue with the
alleged inadequacy of medical records and failure to monitor the reduction of
the Space by the Defendants. He even
speculated that “There is a good chance that due to the absence of a written
treatment plan and the grossly inadequate entries of clinical records, D1 had
confused the treatment of the Plaintiff with another patient and he therefore
proceeded to close the Gap without even realizing that he should not have
attempted to do so.” With respect,
there is simply no evidence before the court to support this wild guess.
57.
As I have mentioned previously in this judgment, the
medical notes kept by the 1st Defendant are clearly inadequate and
difficult to understand. This might
account for the fact that Mr. Fan relied heavily on this and made it the trump
card of the Plaintiff’s case in his final submission. However, in going through the Amended
Statement of Claim, there was nothing pleaded as to the relationship between the
inadequacy of records and the injuries the Plaintiff suffered. In other words, nothing was said about how
the failure to keep proper medical records caused the alleged injuries. Even worse is that, there is nothing in the
evidence to demonstrate how the improperly kept medical records contributed to
the Plaintiff’s alleged injuries.
58.
For the purpose of further discussions, I would categorize
the Plaintiff’s complaints against the 1st and 4th
Defendants as follows:-
(a) Failing
to keep adequate records
(b) Failing
to obtain informed consent;
(c) Prolonged
treatment;
(d) Closing
or narrowing the Space; and
(e) Insufficient
teamwork.
Discussions
Causation
59.
It is trite law that “the onus of proving
causation lies on the pursuer or plaintiff”. Wilsher v. Essex Area Health Authority
[1988] A.C. 1074.
60.
Before we move on to consider whether the Defendants
are liable to negligence, it is necessary to investigate first about the cause
of the Plaintiff’s injuries. That is to
find out, first of all, the cause of the collapse of the Plaintiff’s lower
front teeth that led to the 2nd surgery and secondly, the reason why
the Plaintiff’s teeth became mobile.
(a) Cause of the collapse of lower front teeth
61.
As regard the
collapse of the lower front teeth (teeth 45, 43, 42 and 41), Mr. Powell, expert
for the Plaintiff, explained that as tooth 47 could not be pulled forward to
the Space, it became a “perfect anchorage” that pulled the lower front teeth
backward. The centerline was therefore
pulled to the right and as the lower front teeth had moved backward, anterior
open bite was resulted.
62.
Mr. Powell opined that there was insufficient bone
at the Space to allow tooth 47 to move onto it and the over-erupted upper molar
16 also blocked the way. He described
the shape of the Space as a “col” which is in his words “like the top of a
mountain whereby there is a peak but as you come away from the peak the
mountain falls rapidly away and there is no material save at the peak.” This is called “necking” or an “atrophic
alveolar” and “the bone does not exist laterally in the area of the missing
tooth”.
63.
Mr. Powell relied on a textbook by William Proffit
which stated that “when teeth are extracted and the space is not closed the
bone which contain the teeth gets eaten away.
It atrophies.” He said one can
feel by touching the space in clinical examination to tell whether there is
sufficient bone but he can also tell from the study cast of the Plaintiff that
there was insufficient bone for movement.
64.
Mr. Powell stressed that the 1st
Defendant did not start to intrude tooth 16 only until after 22 months of the
orthodontic treatment. In his view,
during this period of time the 1st Defendant had been using forces
to try to bring forward tooth 47 whereas it was blocked by tooth 16 whenever
the Plaintiff bites.
65.
As to whether there was sufficient bone to move
tooth 47, Professor Hagg, expert of the 1st Defendant, took a
different view from Mr. Powell. In
giving his evidence, he referred to a case from the book by Vincent Kokich that
involved the movement of tooth 47 to space 46 with necking condition similar to
the present case. He also demonstrated
to the court some cases of himself and his students involving movement of the
molar to a necking space. It is
Professor Hagg’s evidence that this kind of orthodontic treatment can be done
nowadays.
66.
In this part of his evidence Professor Hagg was
asked to explain about the “ridge augmentation technique” to add extra bone to
accommodate implants and he answered that an oral surgeon or maxillofacial surgeon
would be more qualified to do so.
67.
On the other hand, Professor Tideman, expert of the
4th Defendant who is a renowned surgeon, testified that the clinical
photos and x-rays showed that the height of the bone between teeth 45 and 47
have been lowered and the bone at the buccolingual region is thin. This means that there is not enough bone to
push the tooth in and he believed that any surgeon or orthodontist would agree
that it is not possible to close or to bring teeth to the Space or to close it.
68.
The 1st Defendant gave evidence that
although there was some necking of the Space, it was not impossible to move 47
forward. By looking at the
Orthopantomopgraph radiograph (“OPG”) of the Plaintiff, he determined that
there was sufficient alveolar bone to enable movement of tooth 47. It is his evidence that tooth 47 had actually
moved and the Space was reduced as early as in September 1998.
69.
There was a dispute between the experts’ evidence as
to whether tooth 47 had actually moved or only “tipped” towards the Space. Mr. Powell gave evidence that after the
intrusion of tooth 16, that is when the gate is open, the crown of tooth 47
tipped forward by 3 mm whereas tooth 45 (followed by 43, 42 and 41) retracted
by 5 to 7 mm.
70.
On the other hand, Professor Hagg said tooth 47 was
not more tilted than it was before treatment.
He arrived at the conclusion by looking at the OPG and the study casts
and comparing the position of tooth 47 as against the upper teeth 17 and 16.
71.
It is common ground that tooth 16 has to be leveled
in order to move tooth 47.
72.
In approaching expert evidence, the court cannot
speculate upon medical matters or come to conclusions or diagnoses which are
not supported by at least one of the experts.
On the other hand, where there is dispute upon an issue of the medical
fact, the court may prefer the evidence of one party’s experts over that of the
other’s. Jackson & Powell on
Professional Liability, 6th Edition at 13-037.
73.
As agreed by Mr. Powell, the best person to tell
whether there was sufficient bone would be the 1st Defendant as he
was the one who performed clinical examination on the Plaintiff at that
time. However, in his evidence he said
only that he found that there was sufficient bone by looking at the OPG of the
Plaintiff. He could have arrived at a
conclusion by touching and feeling the Space as suggested by Mr. Powell but he
mentioned nothing about this.
Furthermore, he did not go on to explain or demonstrate to the court in
more detail how he formed his view by looking at the OPG alone. It is in my view not safe to just rely on his
evidence to conclude that there was sufficient bone to move the tooth 47.
74.
Having said that, however, the evidence of Professor
Hagg is not without force. Not only that
he showed this court examples of similar cases allowing the movement of teeth
with necking conditions, he also demonstrated that the tooth has actually moved
in spite of the necking condition of the Space.
75.
In saying that the tooth 47 has actually moved I
have accepted the evidence of Professor Hagg that it has not just tipped for 3
mm as suggested by Mr. Powell. By
comparing the OPGs taken at different time, even bearing in mind that there
would be discrepancies on settings when taking the same, it is obvious that
tooth 47 has moved if we make reference to the relative positions of its roots
at different stages to the position of teeth 17 and 16.
76.
With this
conclusion in mind I should move on to consider the issue of the intrusion of
tooth 16 before I come back to determine the relevance of the sufficiency of
bone.
77.
In his supplemental witness statement the 1st
Defendant stated that as early as in April 1997 when the Plaintiff was first referring
back to him by the 4th Defendant after the 1st surgery,
he decided that tooth 47 should be moved forward to minimize the Space in order
to allow a shorter prosthesis to be made and he realized that “it was
necessary to level the over-erupted 16 because it was in the way of the
movement of tooth 47.” He also
explained the same to the Plaintiff.
78.
In paragraph 13 of the statement (quite contrary to
what he has stated in his first statement as mentioned in Paragraph 25 herein)
the 1st Defendant said, “At the next appointment on 12 August
1997, I considered that it was the appropriate moment to apply traction force
to close the Extraction Spaces to minimize the space left by the loss of tooth
46. This course of treatment continued
smoothly and without change till early February 1998.”
79.
In the same statement the 1st
Defendant stated that in September 1998, he “observed that tooth 47
had moved slightly forward mesially and that the width of the gap between the
teeth 45 and 47 had been reduced. This
was a good indication that the gap left by the loss of the tooth 46 could be
minimized, and that the tooth 47 was capable of bodily movement without
demonstrating undue side effects. I
decided to continue with this course of treatment and to continue to monitor
the movements of the tooth 47.”
80.
However, it was not until February 1999 that action
was taken to level tooth 16 with tooth 17 bonded in order to achieve the
same.
81.
According to
the 1st Defendant, in or about October 1998, unexpectedly he noticed
that the Plaintiff’s lower anterior segment was moving in a posterior manner to
the right and in turn led to an increased overjet. He said in his statement that “[he]
suspected that slow bone healing in the surgical site following the 1st
surgery may have been the cause.” He was forced to and indeed retracted this statement
in cross-examination.
82.
It is the 1st
Defendant’s evidence that inter-maxillary class II elastics had been applied to
improve the Plaintiff’s overjet. He
explained that“…the use of CL II elastics will enable the lower teeth to
move forward anteriorly. The elastics
are placed from the anterior hook on the upper arch wire and posteriorly to the
lower molar band hook. This force vector
will be translated into a horizontal force component. Because all the lower teeth are linked with
an arch wire, this horizontal force component will move the lower teeth in
particular the lower anterior forward.”
83.
The 1st Defendant stated that by the end
of 1998, it became apparent to him that the Plaintiff did not wear the
inter-maxillary elastics sufficiently because the undesirable movements of the
lower anterior segment had not stabilized as expected. He had the impression that the Plaintiff was
growing reluctant to wear them. And he
said “[t]his situation caused me some concern because I had long intended to
embark on the orthodontic procedures required to intrude and level the
over-erupted tooth 16, which would in turn facilitate further progress in
minimizing the spaces in the mandibular arch.
This course of treatment should have begun months ago but for the delays
caused, amongst other things, by the loosened, and the need to allow some time
for the inter-maxillary elastics to take effect. Despite the delays, I had
adopted a conservative approach to treatment and preferred not to begin the
next phase of treatment until the lower anterior segment of her teeth exhibited
a certain degree of stability. One
reason for this is that the use of inter-maxillary elastics had to be halted
for a few months in the interim. This in
turn meant that the movements of the lower anterior segment had to go unchecked
during this time, the outcome of which could not be predicted.” This is how
the 1st Defendant sought to explain why the intrusion of tooth 16
was done at such a late stage.
84.
However, this explanation does not sit well with
what was described to have occurred.
85.
First of all, the 1st Defendant did not
actually explain why the leveling of tooth 16 could not have started before he
decided to apply inter-maxillary elastics to the Plaintiff. According to him, it was apparent at the
outset that tooth 16 had to be leveled.
There is no reason why it could not be done before his attempt to move
tooth 47.
86.
Secondly, the 1st Defendant embarked on
the intrusion of tooth 16 after, according to him, the Plaintiff’s agreement to
cooperate and he observed some improvement in the condition of her lower
anterior segment. Nothing was mentioned
about the stability of the lower anterior segment.
87.
I have a serious doubt about the reason given by the
1st Defendant as to why he only started to level tooth 16 at such a
late stage.
88.
The 1st Defendant also accused the
Plaintiff of not wearing the inter-maxillary class II elastics sufficiently
after it was applied again on 20 April 1999.
According to him, later on he noticed that the centerline shift in the
lower arch and the overjet became more significant than before and the
Plaintiff confessed to him that she did not wear the elastics as instructed
because of inconvenience at work.
Double elastics were therefore prescribed on 21 October 1999. However, the Plaintiff’s lower anterior
segment continued to retrocline and symptoms appeared to aggravate rapidly from
the beginning of 2000. He stated that in
light of the Plaintiff’s failure to wear the inter-maxillary elastics
sufficiently as instructed, triple inter-maxillary elastics were prescribed on
25 January 2000.
89.
It is difficult to understand the logic behind the
evidence of the 1st Defendant given above. If the cause of the aggravation of the
Plaintiff’s problem were her failure to apply the elastics properly, what would
be the purpose of keep on increasing the force of the elastics? Obviously it was the 1st Defendant’s
view that the force then applying was insufficient when he decided to double or
triple the elastics to be applied.
90.
Although as some stage the Plaintiff might have
manifested her unwillingness to wear the inter-maxillary elastics that caused
the 1st Defendant to complain to the 4th Defendant about
it, I do not accept that this was the cause of the problem of the Plaintiff’s
occlusion. I agree to Mr. Powell’s view
that without the Plaintiff’s cooperation to wear the elastics, the teeth of the
Plaintiff would not have moved in such a way.
91.
The 1st Defendant did not impress me as a
reliable witness as I observed him giving evidence. He even retracted what he said in his witness
statement. The supplemental witness
statement seeking to explain his medical notes was filed shortly before the
trial started, and the contents of which is, as I have set out above, hardly
convincing and in part inconsistent with his previous statement. I do not accept the 1st Defendant’s
evidence as an accurate reflection of what actually happened and his state of
mind at the material times.
92.
I accept the evidence of Mr. Powell that the cause
of the collapse of the Plaintiff’s lower front teeth was the 1st
Defendant’s failure to intrude or level tooth 16 before he applied forces to
move tooth 47 forward. Although the 1st
Defendant did later on make effort to intrude tooth 16 and indeed it was,
damage had already been done to the Plaintiff’s lower teeth.
93.
I note that after the intrusion of tooth 16 the
midline shift and overjet of the Plaintiff’s occlusion did not stop. It was in fact aggravated. Although I have found that there was
sufficient bone for tooth 47 to move a bit forward, I take also the view that
there was insufficient bone for the tooth to move further. Due to the lack of bone for tooth 47 to
travel, the lower front segment was forced to further retrocline and no matter what
force applied by the 1st Defendant by way of elastics, the problem
could not be improved.
(b) Cause of the mobility of teeth
94.
Professor Cheung, expert of the 1st and 2nd
Defendants, recorded in his report his findings of the degree of mobility of
the Plaintiff’s teeth as at August 2005 and January 2007 respectively. The figures can be represented as below:
|
Teeth
|
43
|
42
|
41
|
31
|
32
|
33
|
|
Mobility
(grade)
16/8/2005
|
1
|
1
|
1
|
1
|
1
|
0
|
|
Mobility
(grade)
11/1/2007
|
0
|
2
|
2
|
2
|
2
|
1
|
Grade
0 = no mobility, Grade 1 = 0-1mm, Grade 2 = 1-2 mm, Grade 3 = 2-3 mm or more.
95.
Mr. Powell, relied on the findings of Dr. Thomas Li
(who has not been called to give evidence by any party) that the Plaintiff
suffered 50% root resorption in August 2003, gave opinion that the mobility of
the Plaintiff’s teeth was a result of the severe root resorption and the
Plaintiff will lose the mobile teeth in 5 years’ time.
96.
The Plaintiff’s case is that, the severe root
resorption was caused by the prolonged orthodontic treatment, or as suggested
by Mr. Powell in his oral evidence, by the excessive force of the elastics
applied.
97.
On the other hand, Professor Cheung and Professor
Hagg opined that the mobility was not caused by root resorption. Professor Cheung said the mobility was
probably caused by periodontal disease and Professor Hagg added that the
self-administration by the Plaintiff of movable retainers might be a cause.
98.
Professor Cheung explained the relationship between
orthodontic treatment and root resorption in this way – “…the basis of
orthodontics is to apply a force to the teeth using devices that attach to the
teeth…to move the teeth across the bone in order to align the teeth into
desired position. So by moving the teeth
in bone a force is being generated in the tooth and on the directions where it
is moving, on the front end of where it is moving there will be bone resorption…the
cells in the bone will eat away the bone in order to allow the teeth to move
across in the jaw whereas on the other hand the bone-forming cells will then
generate bone in replacing the space that is created from the tooth being moved
away.”
99.
It is generally accepted that orthodontic treatment
causes a certain degree of root resorption.
As submitted by Miss Wong, there are many factors that could cause
variations in the degree of root resorption experienced, and this could range
from the classic differences of age, gender and morphology of the teeth to the
more subtle and even almost impossible to quantify factors of individual
tissue/tooth response to different orthodontic forces and techniques, as well as
genetics. Professor Hagg described root
resorption as an unavoidable biological price of orthodontics.
100.
However, as agreed by Mr. Powell, the likelihood of
severe root resorption materializing is very low or in his own words, severe
and generalized root resorption (resulted from orthodontic treatment) is very
rare.
101.
On the other hand, there are studies showing that
the length of orthodontic treatment has a positive correlation with the degree
of root resorption.
102.
Root resorption manifests no clinical symptoms
unless hypermobility results and the only way to diagnose it is by taking of
radiographs or specifically, periapicals.
103.
The tooth roots exposed to external root resorption
due to orthodontic treatment would heal once treatment stops. It is noted that this factor turned out to be
crucial in determining the causation of the mobility of the Plaintiff’s teeth.
104.
As can be
seen from the table under paragraph 97 hereinabove, the mobility of the teeth
had generally increased from 2005 to 2007.
It is noteworthy that orthodontic treatment on the Plaintiff had already
ceased before 2005. Since root
resorption would be healed or at least stabilized after cessation of
orthodontic treatment, the increase in mobility could not be caused by increase
of root resorption. This proposition is
consistent with the scientific findings of Professor Cheung by measuring the
ratio of changes in the crown length. It
follows that there should be other factor(s) that have contributed to the
increase in mobility.
105.
The support of the dentition is a balance between
the periodontium, the length of the roots and a range of other factors. The loss of periodontal bone can contribute
mobility to teeth and is a result of periodontal disease. In order to find out the reason behind the
increase in mobility, Professor Cheung compared the radiographs between 2003
and 2007 of the Plaintiff and measured the root-crown ratio of the Plaintiff’s
lower anterior teeth. The result was
that it indicated an increase of crown length but there was no change in the
total tooth length which meant that there was likely a loss of periodontal bone
around the lower anterior teeth.
Together with the clinical finding of deteriorating gingival recession
and root dentine exposure, it is consistent with the diagnosis of periodontal
disease.
106.
It is noted that in his latest observation of
clinical examination of the Plaintiff performed by the local practitioner this
year, Mr. Powell could not see any inflammation or pocketing which one would
normally expect to see for periodontal disease.
However, he agreed that there was an occurrence of descending bone loss
which is normally ascribed to inflammatory changes. He could not explain the phenomenon
but only say that there was an “anomaly” in it.
107.
Professor Hagg gave evidence that, when it comes to
the support of teeth, the effect of a 3 mm resorption of the root corresponds
only to 1 mm loss at the “marginal crest” (the most superior part of the bone
near the crown). That is to say, bone
loss has a much more significant effect on mobility of teeth than root
resorption. He mentioned a study by “Levander
and Malmgren” that even for a tooth with severe root resorption of over
50%, it can still maintain its vitality and is still functioning.
108.
Furthermore,
Professor Hagg said that at the time when he examined the Plaintiff in 2005,
the Plaintiff had been self-administrating a removable retainer to her lower
front teeth. She told him that when she
used it there was a gap between the teeth but when she did not use it the teeth
closed. The teeth were therefore going
back and forth (jiggling) depending on whether she was using the retainer. According to Professor Hagg, this jiggling
effect together with poor oral hygiene created an unfavourable environment
which then contributed to the breakdown of marginal bone.
109.
On balancing
the evidence of the experts, I tend to accept the propositions put forward by
Professor Cheung and Professor Hagg.
Professor Cheung’s evidence was founded by scientific measurements and
there was nothing in the circumstances that their theories could not
explain. On the other hand, there was a
so-called “anomaly” in Mr. Powell’s theory and it could not explain why there
was an increase of mobility whilst the degree of root resorption remained the
same. Besides, Mr. Powell did not
actually perform the examination on the Plaintiff himself and his “observations”
might not be wholly accurate.
110.
I conclude as a fact that the mobility of the
Plaintiff’s teeth was caused mainly by the loss of periodontal bone as a result
of periodontal disease and the Plaintiff’s administration of movable retainers.
111.
Having said that, however, it is against commonsense
to suggest that severe root resorption can play no part in mobility of
teeth. Nonetheless, it is the Plaintiff’s
burden to prove that root resorption had materially contributed to the mobility
of the Plaintiff’s teeth and my view is that the Plaintiff has failed to do so
in view of my previous findings.
112.
In any event, I have also the view that the Plaintiff
also failed to prove that the alleged prolonged treatment has caused the severe
root resorption. I will allude to this
point later on below.
113.
As regard the issue of excessive force being
applied, I agree to Miss Wong that there was simply insufficient evidence to
prove what scale of force the 1st Defendant had used and therefore
nothing to prove that an excessive force had been applied.
Negligence
The standard of care in medical negligence
114.
In Law Wing Cheung v. Yap Chau Chung HCPI 43/2005
, Mr. Justice Suffiad had this to say at paragraphs 33 and 34 of his judgment:
“33. There is no dispute that the test applied by
these courts in cases of medical negligence is that expounded by MacNair J in
the case of Bolam v. Friern Hospital Management Committee [1957] 2 All ER 118 and
later amplified in Bolitho v. City and Hackney Health Authority [1998] AC 232
contained in the following words :
“(a medical practitioner) is not guilty of
negligence if he has acted in accordance with practice accepted as proper by a
reasonable body of medical men skilled in that particular art … merely because
there was a body of opinion who would take a contrary view.”
34. Applying that test laid down in Bolam’s case, a
plaintiff, in order to establish medical negligence, must prove (i) there is a
normal practice which is applicable to the case; (ii) the defendant has not
adopted it; and (iii) the course taken by the defendant was one which no
professional man of ordinary skill would have taken, had he been taking ordinary
care.”
115.
In Ng Yuk Ha v. Yip Siu Keung HCPI 1167/2002, his Lordship said:
“Perhaps
this would be as good a time as any for me to remind legal practitioners
particularly those handling medical negligence cases that the proper criteria
and applicable standard of care for medical negligence is as set out in the
words of McNair J in the case of Bolam v. Friern Hospital Management
Committee. In order to satisfy the duty
in tort, the standard of care and skill to be attained is that of the ordinary
competent medical practitioner, exercising an ordinary degree of professional
skill. Although the standard is a high
one, a medical practitioner charged with negligence can clear himself if he
shows that he acted in accordance with general and approved practice.”
Failing to keep adequate records
116.
There should not be any dispute that a dentist or
medical doctor should keep proper medical notes or records of every patient in
order to allow either himself or other practitioners to make reference to which
when rendering treatment to the patient.
Needless to say, adequacy and accuracy of the medical notes or records
are very important as the lack of which may cause a practitioner making
incorrect judgment in treating his patients.
117.
The medical notes of the 1st Defendant on
his treatment to the Plaintiff was clearly inadequate, whoever it is to take
over the Plaintiff’s case could not have known sufficiently what treatment had
been rendered to the Plaintiff by the 1st Defendant. The 1st Defendant had obviously in
breach of his duty to keep a proper record.
118.
On the other hand, I do not agree with Mr. Fan that
the records of the Plaintiff kept by the hospital were inadequate.
119.
However, as I have explained hereinabove, the
Plaintiff has failed to prove the causal link between the inadequacy of records
and her injuries. This is particularly
so in view of my previous findings on causations.
120.
I do not find any of the defendants liable to
negligence under this head. Here I
shall borrow the sentence cited by Mr. Fan himself of Smith J. in Rhodes v
Spokes and Farbridge [1996] 7 Med LR, at p.139, that “The failure to take a
proper note is not [in itself] evidence of a doctor’s negligence or of the
inadequacy of treatment.”
Informed Consent
121.
The Bolam test also applies to determine
what risks need to be disclosed in the issue of informed consent. Sidaway v.
Government of Bethlem Royal Hospital [1985] 1 AC 871.
“…what
degree of disclosure of risks is best calculated to assist a particular patient
to make a rational choice as to whether or not to undergo a particular
treatment must primarily be a matter of clinical judgment. It would follow that the issue whether
nondisclosure in a particular case should be condemned as a breach of the doctor’s
duty of care is an issue to be decided primarily on the basis of expert medical
evidence, apply the Bolam test.”
Per Lord Bridge at p.900.
122.
In cross-examination, the Plaintiff admitted that
the 1st Defendant did tell her that he intended to minimize the
Space and she had no objection to this course of treatment. This could be the reason why Mr. Fan had put
a different emphasis on this issue in his final submission. In view of the Plaintiff’s latest version of
evidence, there was nothing from her expert that suggested what else the 1st
Defendant should have explained to her in this regard.
123.
The only relevant point worth mentioning, even it
had not been mentioned in Mr. Fan’s final submission, is the advice of the risk
of root resorption.
124.
On this issue I have in mind Professor Hagg’s evidence
that “we know that every patient will have some degree of root resorption
but it is very small and a kind of cost benefit which, so to say, which is
accepted by the profession as such”.
I accept that the general and approved practice of Hong Kong at that
time did not require an orthodontist to advise a patient about the risk of root
resorption.
125.
In relation to the 2nd surgery, the
Plaintiff had in fact obtained advice from another orthodontist, i.e. Dr. Chan,
before she agreed to receive it and a standardized consent form was
signed. Given that the Plaintiff had
received a similar operation before and obtained a second opinion, I do not
think the time for deliberation was insufficient and again, I am not satisfied
that any of the defendants was in breach of the duty of obtaining informed
consent.
126.
As regard
whether it is necessary to perform the 2nd surgery, I quote the
evidence of Mr. Lloyd, expert for the Plaintiff, as follows:
“The
second surgery was only necessary because of the initial post-surgical
orthodontic treatment ‘closing the lower right first molar space’ resulted in a
malocclusion. The patient was given the
option of further orthodontic treatment or surgery and she opted for surgery…certainly
the malocclusion problems were a result of the orthodontic treatment and the
position of the teeth rather than relapse of the surgery, in my view, and
therefore one would consider that it would be possible to correct that
orthodontically with braces alone. The
problem is that the on-going orthodontic treatment had caused problems itself
with regards to root resorption and damage to the teeth and … further prolonged
orthodontic treatment was likely to cause further damage. But there is also risk associated with
further surgery. I have to say if I was
in this situation, one would have to explain the risks of either the surgical
option or the orthodontic option to the patient, and ultimately, they would
need to make the decision, and I believe that this decision would not be easy…”
127.
There were pros and cons for a further orthodontic
treatment as against a second surgery.
In view of the result of the 2nd surgery, which was
successful, it could not be said that the 2nd surgery was not a
reasonable option that the Plaintiff could take.
Prolonged treatment
128.
It is the Plaintiff’s case that the orthodontic
treatment was unnecessarily prolonged resulting in a severe root resorption on
the Plaintiff’s teeth that affected their longevity.
129.
Mr. Powell’s view was that an orthodontic treatment
should last not more than 3 years and the treatment rendered to the Plaintiff
had been too long in the present case.
130.
Professor Hagg gave a different opinion that
orthodontic treatment can last for 3 years or even longer, depending on
circumstances. He mentioned about a
study published in America that the average treatment time was 27 months. There was also a case in a Norwegian study
that had lasted for 7 years. However,
those studies involved pure orthodontic treatment only with no surgical
treatment beforehand.
131.
According to Professor Tideman, for post-operative
treatment the maximum treatment time would be around 2 years.
132.
The 1st Defendant first applied
orthodontic treatment to the Plaintiff on 10th April 1997. 3 years had passed when the 1st
Defendant decided to receive the 2nd surgery to remedy the problem
of her occlusion. In my view, such length
of treatment is definitely on the high side of its kind but it can hardly be
described as significantly prolonged. I
do not think that the length of the treatment in itself suggested any
impropriety of the treatment.
133.
As I have mentioned hereinabove, the degree of root
resorption due to orthodontic treatment varies depending on a range of factors
(paragraph 99). The length of treatment
is just one of the factors and severe root resorption materializing is
rare.
134.
While I appreciated that the evidence of Dr. Li had
not been tested in any manner, it had not been challenged either as there had
been no application taken out by the defendants to call him for cross-examination. Although there was nothing before the court
to make reference to for the basis of Dr. Li to conclude that there existed a
50% root resorption, in consideration of the evidence of the experts testified
before the court, I have no doubt that root resorption did occur and in my view
the resorption occurred was severe. Here
I refer to the evidence of Professor Hagg that a root resorption of over 25%
can be regarded as a severe one.
135.
Besides, it is probable that but for the decision of
the 1st Defendant to narrow the Space and turned out to be
unsuccessful that led to the collapse of the lower front teeth of the
Plaintiff, the treatment time would have been shorter.
136.
Nevertheless, I was given no clue as to what degree
of extra root resorption, if any, could be attributable to the said “prolonged
orthodontic treatment”. Would a 3-year
treatment, as against a 2-year one, long enough to render the root resorption
deteriorate from an acceptable degree to a “severe” one? I can have no idea.
137.
As such, the Plaintiff has failed to prove that the
prolonged treatment itself caused or contributed materially to the severe root
resorption of her teeth. In any event,
as I have found already that the Plaintiff has also failed to prove that her
injuries were caused by root resorption, this issue is already academic.
Closing or narrowing the Space
138.
The 1st Defendant had taken a wrong move
in attempting to move tooth 47 in such a way that caused the Plaintiff’s lower
front teeth to collapse and hence the need to undergo the 2nd
surgery.
139.
According to
the 1st Defendant, the purpose of his narrowing the Space was to
allow a shorter prosthesis to be made and in addition, the cost of bridging
could be reduced too. It was the
contemplation at that time of the 1st Defendant and the Plaintiff
that the Space was to be dealt with by another dental practitioner (presumably
a restorative dentist) in future.
140.
Obviously, the 1st Defendant was well
aware that there were several options open to the restorative dentist to fill
up the Space, for instances, conventional bridge, Maryland bridge, cantilever
bridge or even an implant. In my view,
in seeking to reduce the Space the 1st Defendant was in fact to a
certain extent making a decision for the restorative dentist which was, with
respect, unnecessary.
141.
Although it
was Professor Hagg’s view that it was an advantage for the restorative dentist
to carry out his work by reducing the Space, I agree with Mr. Powell that there
could have little benefit in partially closing the Space which means that at
the end of the day, say for example, a prosthesis is still necessary.
142.
I take the view that narrowing the Space at that
stage was totally unnecessary in achieving the purpose of treatment to the
Plaintiff.
143.
It is common ground that tooth 16 has to be intruded
or even extracted in order to move tooth 47 into the Space. An ordinary competent orthodontist,
exercising an ordinary degree of professional skill would not have chosen to
move tooth 47 in a way the 1st Defendant had taken.
144.
Furthermore, it would be obvious to the 1st
Defendant that sufficiency of bone was an issue for consideration given the
necking condition of the Space. Although
tooth 47 did move a bit in the end, an ordinary competent orthodontist,
exercising an ordinary degree of professional skill, would have appreciated the
insufficiency of bone for moving the tooth any more and would not have
continued to apply further force trying to bring it forward.
145.
Although the mode of treatment adopted by the 1st
Defendant was approved by Professor Hagg in his evidence, I see it illogical or
unreasonable for the 1st Defendant choosing to move tooth 47 in such
a way given the circumstances that I have outlined hereinabove.
146.
The judgment of Lord Browne-Wilkinson in Bolitho
v City and Hackney Health Authority [1998] AC 232, which had been cited in
Miss Wong’s final submission, is of assistance.
.
“My
Lords, I agree with these submissions to the extent that, in my view, the court
is not bound to hold that a defendant doctor escapes liability for negligent
treatment or diagnosis just because he leads evidence from a number of medical
experts who are genuinely of opinion that the defendant’s treatment or
diagnosis accorded with sound medical practice.
In the Bolam case itself, McNair J. stated at [1957] 1 W. L. R.
583 at 587, that the defendant had to have acted in accordance with the
practice accepted as proper by a “responsible body of medical men”. Later, at page 588, he referred to “a
standard of practice recognized as proper by a competent reasonable body of
opinion”. Again, in the passage which I
have cited from Marynard’s case, Lord Scarman refers to a “respectable” body of
professional opinion. The use of these
adjectives—responsible, reasonable and respectable—all show that the court has
to be satisfied that the exponents of the body of opinion relied upon can demonstrate
that such opinion has a logical basis.
In particular in cases involving, as they so often do, the weighing of
risks against benefits, the judge before accepting a body of opinion as being
responsible, reasonable or respectable, will need to be satisfied that, in
forming their views, the experts have directed their minds to the question of
comparative risks and benefits and have reached a defensible conclusion on the
matter.” (at 587)
147.
In the circumstances,
I conclude that the 1st Defendant had been negligent in choosing to
move and moving tooth 47 the way he did.
Insufficient teamwork
148.
There is no question that in the present case it was
a joint treatment that had been given to the Plaintiff by the 1st
and 4th Defendants. They ought to be cooperative but it does not
mean that the defendants, who possessed separate specialties, should trespass
to the other’s discipline and scrutinize the other’s work in rendering the
treatment.
149.
As explained by Professor Tideman, the present case
was a referral from a private practitioner to the hospital for treatment. It was not practicable in this case for the 1st
and 4th Defendants to work as a “team” in the manner Mr. Lloyd had
suggested, as it is totally different from the situation in London where both
areas of treatment were provided by the same hospital.
150.
Moving tooth 47 was never a part of the treatment
plan agreed by the 4th Defendant.
Seeing the Plaintiff by the 4th Defendant in intervals of
6-month after the 1st surgery was not criticized at all by the
experts. By looking at the records of
the hospital, I could not find any necessity for the 4th Defendant
to intervene the orthodontic treatment of the Plaintiff before March 2000.
151.
The 4th Defendant impressed me as a
credible witness. He gave consistent
evidence all along and I accept his evidence in full. On the other hand, the evidence of the
Plaintiff is less reliable in that she had changed some of her positions (e.g.
what had been explained to him before treatment) in giving her evidence. As regard whether the Plaintiff had all along
been complaining to him about the problems of her occlusion and the 4th
Defendant had ignored her, I prefer the evidence of the 4th
Defendant to that of the Plaintiff.
152.
I do not see any deviation from the usual practice
in Hong Kong for similar kind of joint orthognathic treatment as regard the
cooperation between the orthodontist and the maxillofacial surgeon in the present
case.
Liabilities
153.
I find the 1st Defendant liable to the
Plaintiff for negligence in relation to the damages suffered by her for having
to undergo the 2nd surgery.
154.
In relation to the 2nd Defendant, I
accept that it was only a service company used by the 1st Defendant
at the material times and I rule that there was no basis to make it liable to
the 1st Defendant’s negligence.
155.
As regard the 4th Defendant, in view of
my findings hereinabove, I find that there was no negligence on his part. It follows that the 5th and 6th
Defendants are equally not liable.
156.
As between the 1st Defendant and the 4th,
5th, and 6th Defendants, since there was no liability
established as against the latter, there could be nothing for the 1st
Defendant to contribute or indemnify.
Quantum
157.
In view of my above findings, the Plaintiff would
only be entitled to damages for the Pain, Suffering and Loss of Amenity (PSLA)
in having to undergo the 2nd surgery and the special damages in
relation thereto.
158.
For PSLA, parties referred to me only a few
authorities relating to injury on jaw bone or teeth and I find the case Hau
Kwok Fong v. The Kowloon Motor Bus Co. (1933) Ltd. & Ors HCPI 101/97,
dated 4 March 1999 most applicable to the present case. I find also that the sum of HK$180,000
awarded under that case a suitable sum also for the present case.
159.
For special damages, the Plaintiff is entitled to
items 1(a), 1(b), 1(c), 2(a), 2(b), 2(c), 2(d) and 2(e) under this head in her
Amended Revised Statement of Damages and I find that the amount stated therein
reasonable.
160.
In the event that I am incorrect in ruling that the
Plaintiff is not entitled to the damages in respect of her root resorption and
mobility of teeth, notionally I would find that the PSLA to be awarded should
be HK$300,000 and the amount of special damages stated under the Amended
Statement of Damages would be awarded in full, given that the 1st
Defendant’s expert on quantum, Professor Cheung, was in my view not qualified
to give such opinions.
Order
161.
Judgment be entered against the 1st
Defendant in the sum of HK$209,976 (HK$29,976+ HK$180,000) together with
interest thereon at 2% for special damages from the date of writ and 5% for
general damages from 12 August 1997 until the date of handing down of this
judgment and thereafter at Judgment Rate until payment.
162.
The Plaintiff’s claims against the 2nd, 4th,
5th and 6th Defendants be dismissed.
163.
The claim of contribution of the 4th, 5th
and 6th Defendants against the 1st Defendant be
dismissed.
164.
And I make the following cost order nisi, to be made
absolute upon the expiry of 14 days from today, that:-
(a) As
between the Plaintiff and the 1st Defendant, costs to the Plaintiff
to be taxed if not agreed;
(b) As
between the Plaintiff and the 2nd Defendant, costs to the 2nd
Defendant to be taxed if not agreed;
(c) As
between the Plaintiff and the 4th, 5th and 6th
Defendants, costs to the 4th, 5th and 6th
Defendants to be taxed if not agreed; and
(d) As
between the 1st Defendant and the 4th, 5th and
6th Defendants, no order as to costs.
(e) The
Plaintiff’s own costs be taxed in accordance with legal aid regulations.
164. I
understand that this matter had dragged on for a long period of time and
parties are anxious to have it concluded as soon as possible. It is unfortunate that I have got very little
assistance on the issue of causation from the Plaintiff’s perspective that I
have to go through the vast amount of transcripts of evidence unaided in
preparing this Judgment. I hope that the
time for deliberation of this Judgment would not cause extra anxiety to
parties.
(Signed )
( S. T. Poon )
Deputy District Judge
Representation:
Mr. Edward Fan, inst’d by M/s Johnnie Yam, Jackie
Lee & Co. for the Plaintiff
Miss Abigail Wong, inst’d by M/s S. K. Lam, Alfred
Chan & Co. for the 1st and 2nd Defendants
Mr. Daniel K. K. Chan, inst’d by the Department of
Justice for the 4th, 5th and 6th Defendants
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