Biomedical Law and Ethics

• Citation: (2020) 21 SAL Ann Rev 161
• Published date: 01 December 2020
• Publication year: 2020
• Date: 01 December 2020
• Author: Tracey Evans CHAN LLB (Hons) (National University of Singapore), LLM (Harvard); Associate Professor, Faculty of Law, National University of Singapore. Benny TAN Zhi Peng LLB (Hons) (National University of Singapore), MPhil in Criminological Research (Cambridge); Advocate and Solicitor (Singapore); Assistant Professor, Faculty of Law, National University of Singapore.

I. Introduction

6.1 There was a modest number of decisions in this field in the year under review, presumably, in part, as a result of the disruptions caused by the COVID-19 global pandemic. These decisions considered issues of informed consent in medical negligence and disciplinary proceedings, as well as detailed consideration of sentencing principles, particularly in relation to the power to strike a registered medical practitioner off the statutory register. We also review a case that interpreted the power to extend time for disciplinary inquiries under s 42 of the Medical Registration Act (“MRA”).1

II. Medical negligence

6.2 In Seto Wei Meng v Foo Chee Boon Edward,2 (“Seto Wei Meng”) the deceased's husband acting as the administrator of her estate brought a negligence action against the first defendant, a general surgeon, for a botched liposuction and fat transfer procedure (“the aesthetic procedures”). After the completion of the procedure, the patient's blood oxygen level had dropped to 72%. The first defendant tried unsuccessfully to restore blood oxygen levels for about 40 minutes before the patient suffered a cardiovascular collapse. An ambulance was called eight minutes later and arrived seven and a half minutes thereafter. Unfortunately, despite the efforts of emergency responders and physicians at the hospital where she was subsequently brought, the patient died that same day. The cause of death was a pulmonary fat embolism.

6.3 The deceased's administrators brought a negligence claim against the first defendant, and the corporate managers and owners of the TCS

Central Aesthetics Clinic where the procedure was performed. The latter claims were stayed as the second and third defendants went into liquidation. The claim alleged negligence in performing the aesthetic procedures, postoperative management of the patient, and a failure to properly advise the patient of the risks of the aesthetic procedures, in particular, the risk of a fat embolism.

6.4 The judge found on the facts and expert evidence that, during the fat transfer procedure, the first defendant had negligently punctured a blood vessel in the patient's thigh with a blunt-tip cannula and injected fat molecules into her bloodstream. This finding seems to be based on the rapid rate of decline in the patient's blood oxygen saturation levels and more pronounced respiratory and haemodynamic deterioration.3 This was not an accepted risk of the procedure, although fat embolism syndrome can occur in 2–22% of such procedures properly performed. Given the large volume of fat that had entered the patient's bloodstream, this resulted in fat embolism syndrome that caused her death.

6.5 The court also found that the first defendant was negligent in his postoperative care because of his unfamiliarity with the risks of the procedures, inability to identify the possible causes of the patient's drop in blood oxygen saturation level in a timely fashion and consequent delay in calling for an ambulance. The first defendant, however, submitted that as the deceased suffered a fulminant form of fat embolism which was invariably fatal, any shortcomings in postoperative care would not have changed the course of events. The court rejected this argument, observing that fulminant fat embolism was a retrospective diagnosis based on the outcome of the condition, and patients with fulminant fat embolism could still recover with prompt expert resuscitation. More pertinently, the court thought that “a tortfeasor should not be excused on the ground that the chances of a person's survival are slim when the very chance of survival was snatched from her by the tortfeasor's act of negligence”.4

6.6 This looks very much like loss of chance reasoning, which harks back to the same judge's preference in an earlier decision for the minority judgments in Gregg v Scott5 that supported loss of chance claims in medical negligence even when plaintiffs are unable to show on a balance of probabilities that the breach of professional duty caused them actual loss.6 In this case, there was no definitive finding by the court that the failure to call for emergency medical support in a timely fashion would

have, on balance, prevented the patient's death. So this ground of liability in respect of negligent postoperative care appears to rest on the lost chance of survival. However, liability also independently rested on negligent performance of the aesthetic procedures themselves, and damages were ultimately assessed in the dependency and inheritance claims on the basis of the whole loss, and not loss of chance.7 It therefore remains to be seen if loss of chance will be recognised as an independent head of loss if and when the Court of Appeal is called to decide the matter. Although this issue was argued before the Court of Appeal in Armstrong, Carol Ann v Quest Laboratories Pte Ltd,8 it was left open as it did not ultimately arise on the facts.9

6.7 Finally, the plaintiff also argued that the first defendant failed to take reasonable care in advising the patient about the risks of fat embolism in the aesthetic procedures. The first defendant claimed that he had discussed the aesthetic procedures with his patient a month earlier, and had disclosed the risks, including fat embolism, to her. His consultation notes however made no reference to that advice. The patient also signed a set of standard consent forms on the day the procedures were performed. The first defendant claimed that he had discussed the content of those forms with the patient, but the forms were only signed by the patient and there was no other documentary evidence to corroborate his account.

6.8 While the court was satisfied that the content of the forms provided adequate disclosure of the risks in discharge of the first defendant's duty to advise, it was not persuaded that the contents of the form were properly brought to her attention. Although the court thought that the patient was certainly capable of understanding the contents of the forms, it found that the forms were only given to the patient on the day of the procedure. She was thus unlikely to have had sufficient time to read and understand their contents in detail. It would have been acceptable if the first defendant had given the patient an opportunity to read the consent forms, asked if she had read and understood the contents, and if she had any questions about them. As there was no other witness or contemporaneous consultation notes to corroborate the first defendant's account of the process of obtaining the patient's consent, the court found that the risk of fat embolism was not adequately brought to the patient's attention and the duty to advise was therefore breached.

6.9 Nonetheless, on the point of causation, the court found that the patient would have gone ahead with the aesthetic procedures even if she had been properly advised. There was no direct evidence that she would not have...