Denis Matthew Harte v Dr Tan Hun Hoe and Another

• Jurisdiction: Singapore
• Judge: Chan Seng Onn JC
• Judgment Date: 24 November 2000
• Neutral Citation: [2000] SGHC 248
• Court: High Court (Singapore)
• Published date: 14 March 2013
• Year: 2000
• Plaintiff Counsel: Raj Singam, Edmund Kronenburg, Adrian Tan and Wendell Wong (Drew & Napier)
• Defendant Counsel: Myint Soe and Daniel Xu (Myint Soe Mohamed Yang & Selvaraj),Lek Siang Pheng, Vivienne Lim and Jamie Yip (Helen Yeo & Partners)
• Citation: [2000] SGHC 248

JUDGMENT:

Cur Adv Vult

The facts

1. The plaintiff, Mr Denis Matthew Harte (‘Mr Harte’), is from New York. He came to Singapore in August 1996 to work as a trading manager with E D & F Man Asia Pte Ltd. It was a promotion for him. His wife, Mrs Michelle Lynn Harte (‘Mrs Harte’), later joined him in Singapore.

2. Mr Harte is 36 years of age and his wife is 38. They were married in November 1989. When they were in New York, they started trying for a child in the spring of 1994. Having met with no success after 2 years, they sought medical advice. In April 1996, Mrs Harte saw a gynaecologist, Dr James Jones. On Dr Jones’ advice, Mr Harte consulted Dr Lawrence Dubin, a New York urologist. Tests conducted established that:

(a) Mr Harte produced a normal quantity of sperm and ejaculate. Seminal test on 22 April 1996 revealed that the total sperm count was 98 million as opposed to 60 to 80 million for a normal sperm count.

(b) His testicles were of normal size, the right measuring 25 cc and the left measuring 15 cc.

(c) He had normal testosterone levels.

(d) The quality of his sperm was in a subfertile range. Some 40% of his sperm were motile with poor forward progression, when the normal level should be about 60% with good forward progression. Only 11 % reached full maturity when the normal level should be over 60%.

(e) Clinical examination showed that he had a large left varicocele with reflux, palpable with Mr Harte standing in an upright position while performing a valsalva manoeuvre (i.e. forceful attempt at exhalation with nostrils and mouth closed).

3. Dr Dubin then advised Mr Harte to undergo a surgical procedure known as a left varicocelectomy. According to Dr R.G. Notley, a consultant urological surgeon in the United Kingdom testifying on behalf of the plaintiff, the objective of a varicocele operation is to reduce the pool of warm blood in the varicose veins surrounding the testes, which increases the temperature in the spermatogonia and decreases the efficiency with which they turn into spermatids. By ligating the appropriate number of varicose veins in the scrotum, the pool of warm blood is removed due to the mechanism of thrombosis. The temperature in the testicular area is correspondingly lowered and fertility is enhanced.

4. On 15 May 1996, Dr Dubin wrote to Dr Jones and copied his letter to the plaintiff. After 3 semen samples from Mr Harte were analysed, Dr Dubin concluded that they were highly sub-fertile specimens due to poor sperm morphology. He suggested a left varicocelectomy to improve the semen quality. All expectations, ramifications and complications were fully explained to the couple. Some concepts of intrauterine insemination together with stimulation of ovulation were discussed. But they were told that the high degree of immaturity in the sperm would perhaps negate this approach. In vitro fertilization was also mentioned briefly to them. The plaintiff did not dispute these discussions as stated by Dr Dubin in his letter.

5. Dr Dubin eventually performed the left varicocelectomy surgery in June 1996. It involved ligation and excision of two markedly dilated internal spermatic veins at the groin area, where a left inguinal incision was made and carried down to the area of the external ring. Subsequently, Dr Dubin checked under 6 power loupes magnification to ensure that the artery and vas were intact. After the surgery, Mr Harte had minor pain and swelling, and some discomfort for about two days. At worst, his scrotum increased about 50% in size. By the third day, the pain and swelling subsided. The pathologist found that the tubular dilated spermatic vein removed by Dr Dubin measured 0.1 cm in diameter.

6. From August 1996 (when the couple arrived in Singapore) to early 1997, they tried again to start a family but there was no success despite that left varicocele operation by Dr Dubin.

7 April 1997 – 1^st Consultation

7. On 7 April 1997, Mr Harte decided to consult the 1^st defendant, Dr Tan Hun Hoe (‘Dr Tan’), who is a specialist urologist and a renal transplant surgeon in Singapore. Dr Tan’s private clinic is known as H H Tan Urology Centre Pte Ltd., which was then located at unit #04-03 on the 4^th storey of the Gleneagles Medical Centre. Gleneagles Medical Centre is located next to Gleneagles Hospital (‘hospital’), which is owned and managed by the 2^nd defendants. Dr Tan is an accredited surgeon with the hospital and has an arrangement, whereby he may perform his surgical operations on his private patients using the hospital’s facilities. At all material times, Mr Harte was a private patient of Dr Tan.

8. At the first consultation in Dr Tan’s clinic, Mr Harte informed Dr Tan of his left varicocelectomy by Dr Dubin. He told Dr Tan that no seminal analysis was done since to determine how effective that surgery was. Dr Tan therefore requested for a seminal analysis. On clinical examination, Dr Tan found that:

(a) there was no abnormality in his genitalia;

(b) his testes were of normal size and consistency;

(c) there was no varicocele or hydrocele.

9. The seminal test results dated 8 April 1997 from Sheng Yu Laboratory revealed that Mr Harte had a sperm count of 29.5 million per ml (the normal level being about 20 million per ml) and a good volume of ejaculate of 4 mls after abstinence of 5 days (the normal level being between 1 to 6 mls). However, the sperm motility was 35 % (the normal level being equal or above 40%). Normal forms were only 3 % (the normal level being equal or greater than 30%). The laboratory classified his sperm quality as "Asthenozoospermia (reduction in the vitality of spermatozoa) with severe teratozoospermia (the presence of deformed spermatozoa)." The laboratory’s comment was "Adequate volume of semen showed low % sperm motility and low % normal forms with high % tail defects."

10. Instead of improving, the normal forms had in fact dropped from 15% to some 3% after Dr Dubin’s operation. Based on this seminal analysis, Dr Dubin agreed that there was no improvement after the operation. In his opinion, about 15% of cases would not show improvement after a varicocelectomy.

14 April 1997 - Dr Tan’s letter to Dr Wun

11. On 14 April 1997, Dr Tan wrote to Dr Winnie Wun, the gynaecologist whom Mrs Harte was consulting for her own fertility problems. Dr Wun had recommended Dr Tan to them. As this letter indicates the then state of mind of Dr Tan and reveals his contemporaneous medical conclusions, it featured in my assessment of whether Dr Tan was negligent in recommending a bilateral varicocelectomy operation for Mr Harte. I therefore set it out in full.

Dear Dr. Wun,

Re: Denis M. Harte M/32

Thank you for referring Denis, husband of your patient Michelle.

He gave a history of left variocelectomy in New York in June ’96 and a thermal scan subsequently showed improvement.

Clinically no abnormality was detectable in his genitalia. Both testicles were of normal size and consistency. There was no evidence of varicocele.

A 3 D [Three Dimensional] TransRectal Ultrasound Scan revealed a normal prostate and ejaculatory ducts. Both seminal vesicles were distended but he had abstained for 5 days.

A S.A. [Seminal Analysis] revealed Asthensozoospermia with severe Teratozoospermia. Volume and density was adequate.

A Colour Doppler Ultrasound Scan could be useful in view of the above findings.

Will keep you informed.

Warmest regards,

(Signed Dr Tan Hun Hoe)

12. It appears that Dr Tan was hoping to find the cause or source of the infertility using the Colour Doppler Ultrasound Scan (‘CDUS’) after he failed to detect any varicocele clinically. Having checked that the prostate and ejaculatory ducts were normal, what then was the cause of his poor sperm quality? I do not find that Dr Tan’s further investigations using the CDUS can be regarded as exceptional, wrong or negligent. I do not expect a doctor to stop his inquiries simply because the clinical investigation has failed to locate the source of the problem. I expect him to continue with other tests, aids and investigating techniques in a systematic manner, whether with or without special instruments, to find the cause and resolve the patient’s medical problem if he can.

13. I thus reject the opinion of the plaintiff’s experts that it was wrong for Dr Tan to use a CDUS to detect varicoceles simply because no varicocele was detected clinically or that the CDUS was too sensitive an equipment for detection of varicoceles. The following medical literature supports the use of ultrasound equipment to detect clinical and subclinical varicoceles:

(a) Evaluation and Management of the Infertile Male: What’s New and What’s Important (Interactive) by Goldstein, Pryor and Schlegel.

(b) Clinical versus Subclinical Varicocele: Improvement in Fertility after Varicocelectomy by Dhabuwala, Hamid and Moghissi.

(c) Correlation of Testicular Color Doppler Ultrasonography, Physical Examination and Venography in the Detection of Left Varicoceles in Men with Infertility by Petros, Middleton and Picus.

14. The caveat I have is that instruments must always be correctly used and the results obtained must be properly interpreted in the light of the peculiar limitations and characteristics of the instruments. Full regard must also be given to clinical observations and other investigations performed. After that, a carefully considered medical judgment is called for whether to recommend proceeding with the operation or not, taking into account the risks involved in that particular type of operation and weighing them against other alternative courses of therapy (i.e. without the operation). Depending on the condition of the patient and the amount of information sought by the patient, the doctor must use his clinical judgment to decide what and how much he should tell the patient of the various risks, the pros and cons of each viable option and then, he has to objectively present and explain them to his patient,...