Biomedical Law and Ethics

• 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 (Criminological Research) (Cambridge); Advocate and Solicitor (Singapore); Assistant Professor, Faculty of Law, National University of Singapore.
• Publication year: 2021
• Date: 01 December 2021

I. Introduction

6.1 The year under review was another modest one for the field of biomedical law and ethics. There were three decisions in medical negligence, which turned largely on causal and evidential issues. The sole medical disciplinary judgment addressed improper conduct bringing disrepute to the profession, which also raised an interesting constitutional issue of whether professional freedom of speech or expression was protected in the context of professional regulation and disciplinary proceedings.

II. Medical negligence

6.2 The appeal in Noor Azlin v Changi General Hospital1 ended the deceased plaintiff's negligence claim against the defendants with the resolution of issues relating to the quantification of loss and damage. The judgment in respect of Changi General Hospital's liability for institutional negligence in failing to emplace a reasonable system of follow up on X-ray reporting was reviewed in the 2019 Annual Review.2 In the hearing for the assessment of damages,3 the High Court held that the Court of Appeal's finding that the respondent's negligence allowed the appellant's lung cancer to develop from Stage IB to Stage IIA logically implied that the delay in diagnosis and surgical resection of the tumour allowed the cancer cells to spread into the lymphatic system. Based on the respondent's own expert testimony, this, on a balance of probabilities, caused a relapse

of her cancer on 2014 after her belated lung cancer diagnosis and surgical lobectomy in March 2012.4 In addition, the appellant's ALK-positive lung cancer was unlikely to have developed prior to July 2011 based on the growth characteristics of the appellant's tumour after that period.5 Had she been diagnosed in a timely fashion, the appellant would have availed herself of the recommended surgical removal of the tumour and undergone adjuvant chemotherapy. Consequently, this delay in diagnosis and treatment caused a relapse of the cancer, and the appellant a diminution in her full life expectancy.

6.3 The High Court went on to award damages for pain and suffering, incorporating an element for awareness of loss of life expectancy, and an award for loss of dependency on the part of the appellant's mother. A claim for punitive or aggravated damages was dismissed for want of pleading and evidence.6 In respect of the former, punitive damages were precluded under s 10(3)(a)(i) of the Civil Law Act7 once the claimant's estate took over the proceedings. In any case, there was no evidence of a pattern of incompetence in the discharge of organisational duties or deceitful conduct to justify an award of punitive damages. In respect of the latter, an award of aggravated damages required evidence of exceptional conduct or motive on the part of the defendant when inflicting the injury in question. The mere fact of a breach of systems duty to follow up on X-ray reports was not by itself suggestive of aggravation. Finally, an award was also made for special damages comprising medical expenses and transport costs. The former was recoverable notwithstanding that they were borne by insurance or Medifund subsidy as a recognised exception to the rule against double recovery,8 although the estate was responsible for accounting for the receipt of this compensation.9

6.4 On an appeal to the Court of Appeal, which was brought only in respect of the quantification of damages, the court dismissed most of the grounds of appeal save that it allowed a modest award of $6,000 for loss of marriage prospects and an additional sum for transport expenses.

6.5 In Foo Chee Boon Edward v Seto Wei Meng,10 the Court of Appeal heard an appeal from a decision of the trial judge finding the appellant liable for medical negligence during a liposuction procedure which

resulted in the patient's death from fulminating fat embolism syndrome (“FFES”). The decision at first instance was reviewed in the 2020 Annual Review.11 On appeal, the appellant doctor revisited all grounds of liability established against him at trial, namely professional negligence in advising the patient of the risks of the liposuction procedure, performance of the liposuction and post-operative care. The Court of Appeal, however, was satisfied that the appellant's professional negligence in failing to recognise the symptoms of FFES and call for an ambulance until some 48 minutes after the patient's oxygen saturation levels dropped significantly was sufficient to establish a breach of professional duty. This breach was, on the facts, clearly causative of the patient's death as the expert evidence and medical literature adduced was consistent in establishing that FFES was not necessarily fatal but rather a retrospective diagnosis based on that very outcome. The sooner emergency resuscitation procedures are instituted, the better the patient's prospects for a full recovery. The appellant's clinic equipment was also nowhere close to replicating the emergency medical facilities available at a tertiary hospital.

6.6 The Court of Appeal went further to revise damages awarded under the dependency and inheritance claims brought by the deceased's estate. In relation to the former, the award of damages for mortgage instalment payments that would have been paid by the deceased would amount to double recovery, since at the end of the day, the residential property in question would devolve to the deceased. The court also revised downwards loss of inheritance awards on the basis that projected loss of income should be assessed net of income tax, and that there was no reliable evidence of a clear pattern of stock option issuance on which to base an award for loss of inheritance.

6.7 Finally, in Soh Keng Cheang Philip v National University Hospital (S) Pte Ltd,12 the plaintiff alleged that the defendant's Accident & Emergency (“A&E”) doctors were negligent in failing to diagnose cervical myelopathy in a timely fashion and refer him for further investigations by a specialist. The court found that the contemporaneous evidence did not support his claim as his neurological symptoms present during three visits to the A&E department and one consultation at the Department of Neurology were not sufficiently serious to warrant immediate further investigation. The court accepted the defence experts' opinions that treatment received by the plaintiff was appropriate until his admission to the neurology department and neck surgery soon after, and there was no undue delay in this. In the context of this allegation, the plaintiff alleged that the medical note taking by some of the A&E doctors in respect

of his neurological symptoms was not sufficiently contemporaneous and therefore incomplete. However, the court considered that it was reasonable for doctors to record their notes only after the examination was over. It was good bedside manners to engage the patient during the examination rather than make notes simultaneously.

6.8 In addition, there was no evidence to indicate what difference any delay would have made to the surgical outcome. The plaintiff's spinal cord oedema (swelling) was a known complication of this type of surgery, and there was no evidence to indicate that this outcome would have been different if the surgery had taken place two months earlier. Finally, the court, citing Noor Azlin bte Abdul Rahman v Changi General Hospital,13 affirmed that the duty of A&E doctors was to focus on the patient's presenting symptoms and complaints, rather than conduct a general health screening. On the evidence, the defendant's A&E doctors had made reasonable inquires and found no life-threatening or acute conditions that called for immediate specialist attention. The court accordingly dismissed the claim with costs.

III. Professional misconduct

A. Improper conduct bringing disrepute to the profession

6.9 In Pang Ah San v Singapore Medical Council14 (“Pang Ah San v SMC”), the appellant was convicted on three charges for improper conduct that brought disrepute to his profession under s 53(1)(c) of the Medical Registration Act15 (“MRA”). The appellant had previously been disciplined twice before the disciplinary tribunal (“DT”) for the use of an experimental loop percutaneous endoscopic gastrostomy (“loop-PEG”) on four patients. This loop-PEG was not generally accepted by the medical profession outside clinical trial use, and the appellant was found guilty of...