Biomedical Law and Ethics

• Publication year: 2019
• Date: 01 December 2019
• Published date: 01 December 2019
• 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); Sheridan Fellow, Faculty of Law, National University of Singapore.

I. Introduction

6.1 The year under review involved, relatively speaking, a bumper crop of interesting decisions in medical negligence and professional disciplinary cases. Proof of causation of loss or injury featured prominently in medical negligence before the Court of Appeal, while the High Court has for the first time addressed the issue of medical futility in the context of medical negligence. The healthcare institution's primary duty to provide a safe system of care was also an important issue. In professional disciplinary cases, the Court of Three Judges handled a broad range of cases involving various aspects of clinical practice such as obtaining informed consent, upholding medical confidentiality and medical certification of sick leave or light duties. There were also several cases examining points of sentencing and costs in professional disciplinary proceedings.

II. Medical negligence

A. Individual and organisational duties of care

6.2 In Noor Azlin bte Abdul Rahman v Changi General Hospital Pte Ltd,1 the Court of Appeal allowed the plaintiff's appeal against the High Court's dismissal of her claim of medical negligence against Changi General Hospital (“CGH”) and several of its doctors. To recap, the plaintiff was diagnosed with Stage I lung cancer after a biopsy on 16 February 2012. Pursuant to standard treatment involving the removal of the relevant lobe of the lung and adjuvant chemotherapy, this cancer was reclassified as Stage IIA non-small cell lung cancer. She alleged

that there were negligent delays in detecting her cancer by the series of doctors — a respiratory specialist and two accident and emergency (“A&E”) physicians — whom she had seen at CGH between 2007 and 2011, before the advice to undergo a biopsy in February 2012. In addition, she alleged that CGH failed to provide a reasonably safe system of care in the way it handled follow-up for abnormal radiological findings within its X-ray reporting system. This was a process in which an X-ray was sent for analysis and interpretation by a radiologist, who then prepared a report of the results and sent it to the attending physician for follow-up action. As a result, she claimed that her cancer was allowed to go undetected and untreated. This allowed the cancer to worsen, aggravating and prolonging her suffering, and resulting in her losing a better medical outcome.

6.3 The Court of Appeal essentially affirmed the various trial findings of negligence and reasonable care on the part of the respiratory specialist and A&E physicians respectively. In doing so, the court reaffirmed the application of the Bolam/Bolitho standard in matters of clinical diagnosis, even if there were underlying questions of pure fact that did not require recourse to Bolam/Bolitho. This is because clinical diagnosis goes beyond pure factual inquiry and into matters of interpretation and opinion that must be measured by the Bolam/Bolitho standard.2 This is also a reaffirmation of the Court of Appeal's decision on the same issue in James Khoo v Gunapathy.3

6.4 In respect of the diagnosis and recommendations of the two A&E physicians, the Court of Appeal offered general observations on the contextual features of the speciality that ought to inform the standards expected of such physicians. First, the high case volume, and serious and urgent nature of the conditions encountered justified a “targeted approach” that focussed on prioritising the diagnosis and treatment of the patient's presenting symptoms, while giving less priority to incidental findings. While the latter cannot simply be ignored, their incidental nature may merely require that appropriate follow-up be taken by other specialities in the hospital in question, rather that in-depth follow-up by the A&E physician themselves. Interestingly, the court also noted that patient care here is team based, which meant that reliance was placed on the system and department as a whole, rather than the individual

physician, for follow-up on incidental findings discovered during the A&E consultation.4

6.5 On this basis, the court agreed with the trial judge that the two A&E physicians, Drs Yap and Soh, acted reasonably in not immediately diagnosing and treating the incidental finding of an opacity seen on the right mid-zone of the appellant's lungs. Neither was it negligent to order an X-ray instead of a CT scan as this was an incidental finding not directly related to the appellant's presenting symptoms. It was therefore appropriate for Dr Yap to defer diagnosis and treatment for the opacity until after the X-ray taken had been reported on by a radiologist and that the appellant be called back if necessary thereafter. Dr Soh on the other hand could not be faulted for missing the opacity on the right lung as he adopted a targeted approach to resolve the appellant's presenting symptoms emanating from the left side of her chest.

6.6 However, the court agreed with the trial judge that the respiratory physician, Dr Imran, was remiss in not scheduling a follow-up appointment for the appellant even though he was uncertain whether the said opacity in her chest X-ray had completely resolved. He instead discharged her. In this respect, the duty of a respiratory specialist differed from an A&E physician in that he was the “last in line” in the hospital system to diagnose the opacity seen on the appellant's X-ray and there was unlikely to be any other physician to follow-up on the matter.5 Nevertheless, Dr Imran was not liable as the court found that the nodule in the appellant's lung was more likely to have been benign rather than cancerous based on all the factual circumstances. Accordingly, she suffered no loss by reason of this failure to properly follow up.

6.7 The appellant ultimately succeeded on the claim of primary, systems negligence in relation to CGH's X-ray reporting system, pursuant to which it failed to properly follow-up on the management of the appellant's X-ray opacity. The radiological reports on her X-rays taken in April 2010 and July 2011 noted abnormalities and recommended follow—up action by the A&E department. However, there was a significant evidentiary gap as no evidence was proffered by CGH to explain what follow-up action was taken by CGH A&E staff on the radiological reports. The trial judge was prepared to infer that follow-up was in fact done, but the Court of Appeal thought that an evidentiary burden arose that

CGH failed to discharge. On the balance, they thought that the complete absence of evidence of any follow-up action meant that the stipulated procedure was not adhered to and no proper follow-up action was in fact taken.

6.8 More significantly, the court found that CGH had not put in place a proper system of care in relation to radiological reporting. First, the system was defective in routing radiological reports back to the A&E department instead of a relevant specialist, notwithstanding the patient load and time pressures faced by the former. It was unreasonable for all incidental radiological findings to be routed back to the A&E department when a specialist outpatient clinic would be more suited to the task of proper follow-up. Second, the system was also inadequate because it did not allow for sufficiently comprehensive patient management. There were three separate information systems used for recording clinical notes, test results and X-ray images, but none of them integrated comprehensive information to allow a reviewing A&E physician to make an informed decision regarding a patient's appropriate follow-up on a X-ray report. Finally, there was also no proper system of accountability in place to record the decision made by such a reviewing A&E physician, even though in the present case, two A&E physicians had apparently decided against the recommendations of the radiologist to follow-up on the appellant's incidental finding. The cumulative upshot of such deficiencies was the failure of the system to highlight to no less than six doctors that a single respiratory physician had erroneously judged a chest X-ray opacity as resolving or resolved when the nodule was clearly persistent. The court therefore found that CGH had failed to put a reasonably safe system of care in place and was in breach of its primary institutional duty to the appellant.

(1) Causation of loss

6.9 Crucially for the appellant, the Court of Appeal also overturned the trial judge's findings on causation of loss. Notwithstanding any professional or institutional negligence on the part of the defendants, the High Court found that the appellant's nodule was not, on the balance, cancerous between 2007 and July 2011. The Court of Appeal, however, took a different view of the evidence of the nodule growth particularly between the period July 2011 and March 2012, when the appellant was diagnosed with Stage IIA non-small cell lung cancer. Taking into account the fact that the appellant exhibited relevant respiratory symptoms in November 2011, the more significant rate of growth of the nodule between 2010 and 2011, the necessity of ALK positive tumour progression from stage IA through stage IB to stage IIA by March 2012, and the relatively short time period of eight months between July 2011 and March 2012, the court inferred that it was more likely that the tumour was cancerous by July 2011.

6.10 Consequently, a referral to a respiratory physician would have been made if a proper system of care was in place at CGH at the relevant times, and a CT scan and biopsy would have been done by July 2011. There was, accordingly, a negligent delay in the appellant's cancer diagnosis which resulted in the progression of the cancer from stage IA to IIA, growth of the cancer nodule and nodal metastasis. However, as the trial judge did not address the appellant's consequential loss and damage suffered as a result of the foregoing findings, the case was remitted to resolve these remaining issues, which included a claim for...