Armstrong, Carol Ann (executrix of the estate of Peter Traynor, deceased and on behalf of the dependents of Peter Traynor, deceased) v Quest Laboratories Pte Ltd and another

• Jurisdiction: Singapore
• Judge: Choo Han Teck J
• Judgment Date: 21 March 2018
• Neutral Citation: [2018] SGHC 66
• Plaintiff Counsel: Edmund Kronenburg (instructed), Benavon Lee (instructed) and Christopher Goh Seng Leong (Goh Phai Cheng LLC)
• Date: 21 March 2018
• Docket Number: Suit No 82 of 2015
• Hearing Date: 16 January 2018,23 January 2018,24 January 2018,19 January 2018,25 January 2018,18 January 2018,08 March 2018,17 January 2018
• Subject Matter: Negligence,Tort,Breach of duty,Damages,Causation
• Year: 2018
• Citation: [2018] SGHC 66
• Defendant Counsel: Kang Yixian, Emily Su Xianhui and Sarah Nair (Donaldson & Burkinshaw LLP),Lek Siang Pheng, Mar Seow Hwei and Priscilla Wee Jia Ling (Dentons Rodyk & Davidson LLP)
• Court: High Court (Singapore)
• Published date: 12 December 2019

Choo Han Teck J:

On 14 September 2009, Dr Christopher Huang removed a piece of skin from a mole on the back of his patient Peter Traynor, then aged 47. The specimen was sent to Quest Laboratories Pte Ltd, the first defendant in this action. A pathology report was signed by Dr Tan Hong Wui (“Dr Tan”), the second defendant two days later and the specimen was diagnosed as ‘Ulcerated intradermal naevus’. The relevant portion of the report stated that the “naevus cells exhibit benign polarity and are devoid of junctional activity, atypia or mitotic activity” and concluded that, “There is no malignancy”.

Two years later, Peter Traynor found his right armpit to be swollen. He saw an oncologist, Dr Ang Peng Tiam (“Dr Ang”) on 13 January 2012. Dr Ang asked that the specimen taken from Peter Traynor’s mole in 2009 be reviewed by another pathologist. The report dated 30 January 2012 carried the diagnosis ‘Malignant melanoma with ulceration’. Peter Traynor died on 6 December 2013 because the cells from that mole were not benign. They were cancerous and had spread throughout his body, resulting in his death. He died aged 49, leaving his widow Carol Ann Armstrong, aged 48, and two daughters aged 12 and 10, respectively, when their father died. This action was brought by Peter Traynor’s widow on behalf of his dependants.

The defendants concede that a fresh examination of a deeper cut of the specimen confirmed that the cells were malignant. That raises the obvious question, why then did Dr Tan report that “there was no malignancy” in the specimen? This is an obvious and important question because, in the absence of a credible explanation, reporting a cell specimen as non-malignant when it was, must be negligence at law.

Quest Laboratories’ counsel, Mr Lek Siang Pheng, left the explanation to be led through Dr Tan’s counsel Miss Kang Yixian. Dr Tan’s explanation, and his defence, was that the initial examination showed no definitive signs of malignancy, and that some features which suggested malignancy could be attributed to the ulceration on the surface. He testified that there was no significant signs of atypia or mitotic activity which would have indicated the cancerous nature of the specimen.

Two expert dermatologists gave evidence before me. Dr Nigel Kirkham testified on behalf of the plaintiff and Dr Joyce Lee testified on behalf of the defendants as did two expert oncologists, Prof William McCarthy and Prof John Chia for the respective parties. They take opposite positions as to whether the specimen examined by Dr Tan in September 2009 indicated malignancy. There is no dispute as to what features a malignant melanoma, (the proper description of the cells on Peter Traynor’s mole) would exhibit, but there are some disagreement between the experts as to the extent of the specimen exhibited those features. It turns out that what they did agree was just as important. Their joint statement shows the following to be clear from the slide that Dr Tan examined in September 2009: Ulceration was clearly present. Ulceration was extensive with only a small amount of residual epidermis present at the edge of the extensive ulcer. Some of the cells appeared to be maturing towards the base of the lesion. Some mild atypia was present. It was difficult to assess whether there were expansile nests of cells present. The lesion showed increased cellularity. Spindle cells were present. Epithelioid cells were present. Naevoid cells of the kind to be expected to be seen in a benign banal melanocytic naevus were not present. The tumour extended into the recticular dermis, Clark’s level 4. Pagetoid spread could not be found in the small amount of residual epidermis at the edge of the specimen. No mitoses were seen. The 2 Arperio digital scans prepared were of good quality and adequate to be used in evidence.

It is not disputed that Dr Tan examined a deeper section of the same specimen and he reported on 13 February 2012 that the specimen was “ulcerated atypical melanocytic lesion, suggestive of a melanoma”. Was Dr Tan’s first report that there was no malignancy wrong? We must not judge a doctor more harshly for an error in interpretation, for it is in the nature of interpretations to invite company and diversity; some may agree with the same interpretation that others will vehemently reject. From the expert evidence of both sides, it seems that the features on the slide examined in September 2009 indicate that Peter Traynor’s mole was either a “benign naevi” or a cancerous lesion. Benign naevi are known as “Spitz naevus” and are usually seen in children. Peter Traynor was 47 years old at the time. The possibility of a benign naevi must therefore be excluded. The problem here is not just one of interpretation. It occurred just a step behind. The examining pathologist would have been expected to see, and Dr Tan did see, the ulceration. That must surely have prompted him to ask, “What happened to all the epidermis?” Had he asked that question, he would have seen that the portion of the specimen he examined was not sufficiently deep. There were deeper, clearer portions with him at the time and had he then checked, his first report would have stated as his second report did — “suggestive of a melanoma”, instead of the opposite, “no malignancy”.

The defendants rely on Dr Joyce Lee’s evidence in support of the argument that what Dr Tan saw on the slide in 2009 was not sufficient to conclude that it was a malignant melanoma, and that not everyone who saw the features that Dr Tan did in 2009 would have interpreted the lesion as a malignant melanoma. Dr Kirkham, on the other hand, was firmly of the view that the features on the first slide were sufficient to indicate malignancy. Their extreme views may be professionally debated, but what I find to be clear, is that the first specimen did not appear to be a normal healthy cell. A pathologist would be alerted to something amiss and thus investigate further using other slices taken at that time. When that was eventually done in 2012, melanoma was reported. This was recorded in the second report by Dr Tan (see [6]). Furthermore, just a month previously, on 30 January 2012, a pathologist from another laboratory, Dr Fong Chee Meng, diagnosed that same slide as “malignant melanoma with ulceration”.

Had Peter Traynor’s physician received the second report dated 13 February 2012 instead of the first report dated 16 September 2009, he would have explained to Peter Traynor that “suggestive of melanoma” meant that his mole might be cancerous. That would have resulted in a completely different course of action for both physician and patient. At the very least, there was a loss of an early opportunity for treatment. Although the law has intricate ways of determining whether a defendant was negligent, and in spite of the myriad shades of negligence that adorn legal literature, there is no way one can exculpate Dr Tan here; no clever twisting and turning around Bolam and Bolitho is of any use. The circumstances in this case are straightforward and obvious. One need only bite on the undisputed facts, and if he finds a taste of sourness, then that would be it. If a name must be given to that judicial exercise, one can, perhaps, call it the balsamic test, but we should wean ourselves of the obsession to name everything that appears new, especially when it is just plain, old, common sense. I am of the opinion that Dr Tan was negligent in law in sending a report indicating a clean bill of health when the circumstances required, at the very least, further examination on his part. The questions that follow from this are more difficult.

Did Dr Tan’s negligence cause Peter Traynor’s death, and even if not, what damages are the dependants entitled to? Miss Kang submitted that even if Dr Tan had been negligent, his report did not cause Peter Traynor’s death. She presented a strong argument that by the time Dr Tan examined the specimen in September 2009 the cancer had metastasised, that is, it had already spread throughout Peter Traynor’s body, and Dr Tan should not be held accountable for the inevitable consequence of a rampaging cancer that could not, by that time, be stopped. She relied on Prof Chia’s evidence in support. The plaintiff called Prof McCarthy in response. Prof McCarthy says that the cancer had not spread beyond the armpits until after 2009. Therefore, he says, surgical removal (known as sentinel node biopsy) of the affected lymph nodes would have arrested the spread of the cancer.

Prof McCarthy refers to the undisputed fact that in 2012 when the doctors realised that Peter Traynor’s mole was cancerous, they examined the surrounding area where the mole had been (it was removed entirely when they took the specimen for Dr Tan’s examination) and found no cancerous cells. His point is that if the primary site was clear after the biopsy in 2009, the cancer had only spread to Peter Traynor’s lymph nodes at the right and left armpits and thereafter, rapidly and fatally to the rest of his body.

In Prof Chia’s opinion, by 2009 the cancer cells had already spread elsewhere and not just to the lymphatic nodes in Peter Traynor’s armpits. He thinks that the cancer could have spread microscopically and not just through the lymphatic system. He explains that the cancer cells can enter the blood system as well, and although most cells get eliminated, the few that are not eliminated, and do not grow, will lie dormant. That was what happened to Peter Traynor. In Prof Chia’s opinion, by 2009, Peter Traynor’s body was already harbouring dormant melanoma cells in many places, and not just the lymph nodes. In other words, Prof Chia is of the view that by 2009, the prognosis was already bad.

Those opposing views led the experts to clash over what is known as ‘cancer staging’. That is the classification by oncologists as to how far a cancer has progressed, and...