Dr Khoo James and Another v Gunapathy d/o Muniandy and another appeal

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 13 May 2002
• Neutral Citation: [2002] SGCA 25
• Docket Number: Civil Appeals Nos 600094 and
• Date: 13 May 2002
• Published date: 19 September 2003
• Year: 2002
• Plaintiff Counsel: K Shanmugam SC and Mak Wei Munn (Allen & Gledhill),Anne Magdeline Netto and Tan Beng Swee (Netto Tan & S Magin)
• Citation: [2002] SGCA 25
• Defendant Counsel: Michael Khoo SC, Josephine Low and Andy Chiok (Michael Khoo & Partners)
• Court: Court of Appeal (Singapore)
• Subject Matter: Whether Bolam test applicable to advice,Recommendation and performance of radiosurgery,Whether court should adjudicate between divided medical opinion,Whether expert opinion satisfies threshold test of logic,Medical profession and practice,Whether doctors negligent in diagnosis, treatment and advice,Whether new defence should be allowed at trial,Divided medical opinion over appropriateness of doctors' diagnosis, treatment and advice,Negligence,Breach of duty,Civil Procedure,Pleadings,Tort,Whether respectable body of medical opinion supports doctors' actions,Professions,Whether new defence affects credibility of defendants and their experts,Liability,Doctors diagnosing brain tumour,Failure to plead 'residual tumour' theory,Application of Bolam test,Defence,Patient suffering severe side-effects from treatment

Judgment

GROUNDS OF DECISION

Introduction

These were factually formidable appeals arising from the ordeal of the plaintiff and respondent, Madam Gunapathy (Gunapathy), in her battle against cancer of the brain. The appellants and defendants in this case were her doctors, Dr James Khoo and Dr Khor Tong Hong, as well as Dr Khoos clinic, Neurological Surgery Pte Ltd (the Clinic). Gunapathy sued the doctors and the clinic, alleging negligence in the process of diagnosis, treatment and advice. She claimed that the doctors had unnecessarily advised her to undergo radiosurgery treatment for a suspected tumour, which unfortunately resulted in radionecrosis and led to serious disabilities in its aftermath.

2 The learned judge found in favour of Gunapathy in the High Court and awarded her damages of $2,555,158.96. He also found it fit to levy severe criticism on the defendants as well as some of the distinguished experts who testified in their favour. As a result, the appeals before us were unrelentingly complex and unremittingly acrimonious; perhaps, if we might add, unnecessarily so.

3 We state at the outset that this court would politely decline the invitations of both counsel to enter the fray that is the arena of divided medical opinion. While we were ably aided by counsel from both sides in their painstaking exposition of the medical issues at hand, we note that a lawyer-judge undertakes such an enterprise at his own peril. As the appeals have aptly demonstrated, medical arguments often take on a life of their own. Riposte follows rebuttal, as no two doctors seem to agree on the thorny issues that inhabit the frontiers of medical science. The lawyer-judge, while eminently equipped to follow such arguments, finds himself quite out of his depth when called upon to adjudicate over them. This is why the legal principle in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 restrains the judiciary from treating medical experts as they would any other. In determining whether a doctor has breached the duty of care owed to his patient, a judge will not find him negligent as long as there is a respectable body of medical opinion, logically held, that supports his actions. Beyond this time-honoured test of liability, neither this court nor any other should have any business vindicating or vilifying the acts of medical practitioners. It would be pure humbug for a judge, in the rarified atmosphere of the courtroom and with the benefit of hindsight, to substitute his opinion for that of the doctor in the consultation room or operating chamber. We often enough tell doctors not to play god; it seems only fair that, similarly, judges and lawyers should not play at being doctors.

4 We have set out the applicable law at the outset in order to keep a tight rein on arguments that would have us adjudicate on the reasonableness of the doctors actions. At times, the cart must be put before the horse to prevent it from galloping off on an erroneous tangent.

5 Upon careful consideration, we allowed the appeals and found that the doctors were not negligent in their diagnosis, treatment and advice relating to Gunapathys case. We now give our reasons.

The facts

6 The first appellant/defendant, Dr James Khoo, was at the material time a neurosurgeon in private practice. He co-owned and had his neurosurgical practice at the defendant Clinic. He also held various appointments, as the Senior Consultant Neurosurgeon at the Mount Elizabeth, Gleneagles and Mount Alvernia Hospitals, as well as Senior Visiting Consultant at the National University Hospital.

7 The second appellant/defendant, Dr Khor Tong Hong, was the Medical Director of the Mount Elizabeth Oncology Centre. He had had some 30 years of practical radiotherapy experience.

8 Gunapathy was about 42 years of age at the time of the appeal. In 1995, she was 36 years old. Much was looking up for her at that point in her life. She had recently married in March that year, and was hoping to start a family. She was also at the height of her career, as the managing director of a family company trading in construction equipment and materials.

9 Misfortune however struck later that year. Gunapathy was to find that she was afflicted with a brain tumour, which panned out into a protracted battle against cancer from 1995 to 1997.

10 In October 1995, Gunapathy started experiencing headaches and weakness in her right arm. She went to see Dr Devathasan, a neurologist, who diagnosed that she had a tumour in the left lateral ventricle of her brain. The left lateral ventricle is one of two large cavities located side by side in the centre of the brain. These cavities contain a substance known as cerebrospinal fluid, which is formed in the ventricles and passes through channels in the centre of the brain to its surface. The tumour in the left ventricle was so large that it pushed against the transparent wall separating the two ventricles (the septum pellucidum), with a third of the tumour even trespassing into the space of the right lateral ventricle. This growth led to the blockage and build-up of cerebrospinal fluid, a condition known as obstructive hydrocephalus. The left ventricle had dilated as a result of this blockage, and was exerting pressure on the brain and causing much pain to Gunapathy, resulting in the symptoms she was experiencing.

11 Dr Devathasan referred Gunapathy to Dr James Khoo, who on 15 November 1995, performed a craniotomy, or open brain surgery, on her. An incision was made through her skull and the tumour was surgically resected and removed. It was common ground that this operation was competently performed. The resected tissue was then analysed by Dr Carol Kwan. Dr Kwan was a histopathologist, a specialist in the study of dead cells. The tissue was found to contain neurocytoma, a low-grade (i.e. benign) tumour of the nerve cells which was extremely rare in occurrence.

12 From 6 December 1995 to 13 January 1996, Gunapathy was referred to Dr Khor Tong Hong for post-operative radiotherapy treatment. Radiotherapy served a dual purpose. It would prevent a relapse of the original neurocytoma, as well as mop up any remnant tumour that could have been left behind after the craniotomy. To this effect, during the six-week period, she underwent 27 radiotherapy treatments, with a total dosage of 5400 cGy (or 54 Gy) administered to the 90% isodose over 39 days. Following this treatment, Gunapathy was able to go about her ordinary life.

13 Gunapathys respite was however short-lived. On 26 February 1996, a MRI scan was done by Dr Esther Tan, a diagnostic radiologist. The scan revealed a lesion, that is, a small nodule, akin to an inverted carrot or cauliflower, which appeared to be hanging from the roof of the left ventricle, in around the same region where the neurocytoma had been surgically removed. Dr Tan noted in her report that it appeared to "enhance slightly" but thought that it may have represented scar tissue from the previous surgery, as opposed to a possible tumour. Accordingly, she recommended that the matter be followed up.

14 Dr Khoo in his next consultation was unsure whether the nodule was simply scar tissue, or a tumour. He accordingly advised her to wait and see, and to conduct another MRI scan later. Gunapathy had her next scan done on 27 December 1996, again by Dr Esther Tan. Dr Tan explained in court that this time she thought it was more likely a scar than a tumour. Her scan report read:

There is still an enhancing nodular opacity protruding from the roof of the left lateral ventricle. This measures approximately 11 x 12 x 6 mm in size. It does not appear to have enlarged significantly when compared with the previous study of February 1996. There is also some patchy enhancement in the brain parenchyma along the margin of the left lateral ventricle, adjacent to this lesion. These abnormalities are probably due to scarring from previous surgery.

Accordingly, Dr Tan did not recommend follow-up action.

15 Dr Khoo however took a different view. He saw Gunapathy on 14 January 1997 and explained to her that the result of the scan was likely to be a remnant tumour, which had survived the excision and the radiotherapy. He did not think it was a scar at that point, because, as he later explained, a scar would have faded in the intervening ten months, and certainly would not have grown slightly and demonstrated further enhancement. Accordingly, Dr Khoo recommended that Gunapathy undergo radiosurgery, a day treatment procedure involving the application of a high dose of radiation to the specific area of the suspected tumour.

16 Gunapathy faced a difficult decision. She felt well and had no clinical symptoms. Yet she wanted to resolve the issue of cancer with finality, as she was desirous of starting a family. After Dr Khoos diagnosis, she went back to consult with her family doctor, Dr Devathasan. She wanted a second opinion.

17 Dr Devathasan referred her onwards to Dr Ho Kee Pang, another neurosurgeon in private practice, for a second opinion. When Gunapathy saw him on 21 January 1997, he reviewed the MRI scan films and likewise came to the conclusion that the nodule was a tumour. He wrote in his clinical record the diagnosis of "(L) lat. Ventricle neurocytoma". Dr Hos evidence was that he discussed with Gunapathy the merits of further observation as opposed to immediate radiosurgery. He claimed to have told her that although radiosurgery could control the tumour, there was a risk that her right limbs might become weak or paralysed as a result.

18 Gunapathy then returned to Dr Devathasan for a further consultation. On 22 January 1997, Dr Devathasan referred her back to Dr Khoo with a letter stating that:

Patient after careful deliberation and discussion prefers to have radiosurgery to the residual lesion.

19 She next met up on 23 January 1997 with Dr Khor, who discussed with her the implications of pregnancy if the issue of cancer was not resolved,...