Foo Chee Boon Edward v Seto Wei Meng (suing as the administrator of the estate and on behalf of the dependants of Yeong Soek Mun, deceased) and another

JurisdictionSingapore
JudgeSundaresh Menon CJ
Judgment Date28 September 2021
Neutral Citation[2021] SGCA 92
Published date02 October 2021
Docket NumberCivil Appeal No 208 of 2020
Year2021
Hearing Date02 July 2021,29 June 2021
Plaintiff CounselNarayanan Sreenivasan SC, Palaniappan Sundararaj and Lim Min (K&L Gates Straits Law LLC)
Citation[2021] SGCA 92
Defendant CounselKuah Boon Theng SC, Yong Shuk Lin Vanessa, Chain Xiao Jing Felicia and Valerie Thio Shu Jun (Legal Clinic LLC)
CourtCourt of Appeal (Singapore)
Subject MatterQuantum,Assessment,Breach of duty,Tort,Damages,Causation,Negligence
Quentin Loh JAD (delivering the judgment of the court): Introduction

The appellant, a doctor (“Dr Foo”), appeals against the decision of the judge below (the “Judge”), who found him liable in negligence in relation to the liposuction and fat transfer surgical procedure (“surgical procedures”) carried out by him on 28 June 2013 on his patient, Ms Mandy Yeong (“the Deceased”) and her death about 3 hours 46 minutes after the surgical procedures ended. Dr Foo also appeals against the consequent award of damages in the sum of $5,599,557.48 (plus coroner’s inquiry (“CI”) fees to be taxed if not agreed) together with interest and costs. The Judge’s decision is reported in Seto Wei Meng (suing as the administrator of the estate and on behalf of the dependants of Yeong Soek Mun, deceased) and another v Foo Chee Boon Edward and others (Singapore General Hospital Pte Ltd, third party) [2020] SGHC 260 (the “Judgment”).

The first respondent is the Deceased’s husband, Mr Seto Wei Meng (“Mr Seto”), while the second respondent is Mr Seto’s father. Mr Seto and the second respondent are the administrator and co-administrator of the Deceased’s estate respectively. The action was brought by the respondents on behalf of the estate of the Deceased as well as the Deceased’s dependants. The dependants included the Deceased’s parents (her father having died some three years four months after the Deceased’s death); the two sons of the marriage (named Marcus and Melvin); and Mr Seto, who claimed for loss of support for household expenses, expenses related to the “Hilloft” condominium property which was jointly owned by the Deceased and Mr Seto (“Hilloft property”), and the loss of car expenses. Mr Seto also brought a loss of inheritance claim under s 22(1A) of the Civil Law Act (Cap 43, 1999 Rev Ed) (“CLA”).

The Deceased was 44 years of age when she died. At the time of her death, she was the Head of Regional Market Development at Roche Diagnostics Asia Pacific Pte Ltd (“Roche”), where she had worked for the past 20 years. Her performance appraisals show that she was a valued officer of the company.

Dr Foo is a general and vascular surgeon in private practice. The surgical procedures were carried out at TCS Aesthetics Central Clinic (“the Clinic”), located at The Central, Eu Tong Sen Street. The second defendant was a company that held the licence to operate the Clinic and the third defendant was its collection agent. As both companies subsequently went into liquidation, the action against them has been stayed. Dr Foo had brought in the Singapore General Hospital (“SGH”) as a third party but he discontinued this third party claim on the last day of the evidentiary hearings before the Judge.

In their statement of claim, the respondents allege that Dr Foo was negligent in three respects. First, Dr Foo failed to obtain the Deceased’s informed consent and did not properly advise her on the risks and complications associated with the surgical procedures; furthermore, Dr Foo failed to explain that the surgical procedures would entail a higher risk of fat embolism, particularly as it involved a repeat procedure. Secondly, Dr Foo was negligent in carrying out the surgical procedures. Thirdly, Dr Foo was negligent in his post-operative management and care of the Deceased by, inter alia, failing to call for an ambulance in time. Dr Foo denied all three allegations.

It should be noted that, in relation to the first allegation of negligence, the Deceased had two previous cosmetic procedures (this is not in dispute). The first was liposuction performed by Dr Richard Teo on 29 July 2010. Dr Richard Teo was one of the two shareholders of the second defendant. Dr Richard Teo subsequently passed away. The second involved liposuction and fat transfer and was performed by Dr Foo on 18 July 2011. These procedures were carried out because the Deceased had “hollows” on both her medial and lateral thighs with surface irregularities which she hoped could be remedied by these procedures. However, the 2011 procedure was not entirely successful and there were resulting “dents” in the Deceased’s inner medial thigh. The Deceased thus consulted Dr Foo again on 28 May 2013 and complained of residual hollows on both inner thighs. The suggestion was then to remove the bulge of fat on the front anterior abdomen and transfer that onto the dents of her upper medial thighs. We mention this because this repeat procedure on the thighs could be considered more difficult due to scar tissue caused by the earlier procedure on the thighs.

The following facts are not in dispute, save where indicated. Dr Foo carried out the surgical procedures from 12.00pm to 2.00pm on 28 June 2013 at the Clinic. While the Judge found as a fact that the Deceased’s oxygen saturation level was 100% at 2.00pm (see Judgment at [19]), the objective evidence based on the photograph of the vital signs monitor screen shows that the Deceased’s oxygen saturation level was 96% at 2.00pm.1 Very shortly after the surgical procedures were completed, the Deceased was in difficulty, variously described as coughing and making a gurgling sound and experiencing a shortness of breath.2 It is common ground that, at 2.05pm, the Deceased’s oxygen saturation level plunged to 72% (from 96% at 2.00pm when the surgical procedures ended). At 2.10pm, Dr Chow Yuen Ho (“Dr Chow”) was called in to assist as the Deceased’s oxygen saturation was not improving. Dr Chow came into the operating theatre at 2.10pm and the Deceased’s oxygen saturation was still at 72%. Dr Chow deposes that he noticed the Deceased was already wearing a venti-mask attached to an oxygen tank; he changed that to an air-viva (bag and mask) as he felt it would be more beneficial as it had a better seal.3 The photograph of the vital signs monitor screen shows that the Deceased’s oxygen level was still at 72% at 2.20pm but Dr Foo’s post mortem meeting notes said it was 86% at 2.20pm.4 The photograph of the vital signs monitor screen also shows that the Deceased’s oxygen saturation was at 76% at 2.30pm.5 There is no recording or documentation of the Deceased’s oxygen saturation after 2.30pm. Slightly after 2.30pm, Dr Shenthilkumar s/o Sritharan Naidu (“Dr Shenthilkumar”) was called into the operating theatre for assistance by Dr Chow. Dr Shenthilkumar saw that the Deceased’s oxygen saturation level was at 92%. Dr Shenthilkumar noted the Deceased was blabbering, ie, she could not be understood. The Judge noted that Dr Shenthilkumar alleged that he had advised Dr Foo to call an ambulance (see Judgment at [20]), but the evidence indicates instead that Dr Shenthilkumar told Dr Chow to call for the ambulance while Dr Foo was in listening range; in addition, Dr Chow himself also told Dr Foo to call an ambulance.6 Either way, the Judge rightly noted that unfortunately this sensible advice was either not heard or disregarded by Dr Foo.

The Judge found that the Deceased suffered a collapse in the cardiovascular sense at 2.45pm (see Judgment at [23]), though the respondents’ case and the State Coroner’s finding is that the Deceased “collapsed” earlier at 2.30pm. We see no reason to disturb the Judge’s finding. Dr Foo called for the ambulance at 2.53pm. The ambulance arrived at the Clinic in just four minutes and its crew were attending to the Deceased by 3.10pm. The Deceased was conveyed to the Accident and Emergency (“A&E”) Department at SGH; the ambulance arrived there at 3.23pm. The Deceased passed away at about 5.46pm.

The Deceased’s cause of death was pulmonary fat embolism (“PFE”), a condition where fat globules have entered a patient’s blood vessels and obstruct or block the continuous blood flow within the blood vessels and/or cause inflammation of the blood vessels. The net result is an interruption to the blood bringing oxygen to the lungs thereby causing oxygen starvation to the body. The medical evidence shows that the blockage of the blood flow in the pulmonary vessels affects the heart which can lead to right-sided heart failure (see [33(e)] below). This happened to the Deceased, as found by the Judge, at 2.45pm.

Liability

The trial before the Judge took some 15 days. The doctors mentioned above gave evidence, as did Dr Lim Jia Hao (“Dr Lim”) from the A&E department of SGH. There was expert medical evidence presented to the Judge and there were a number of issues that were hotly contested before the Judge.

One of the contested issues was the incidence of PFE in the surgical procedures carried out in this case. Whilst it is undisputed that PFE is a known risk in these surgical procedures, it is uncommon for it to cause symptomatic problems. According to the medical evidence, there are two forms of fat embolism syndrome (“FES”): a less serious form, known as non-fulminant FES, and a far more serious form known as fulminant FES (“FFES”), which “presents as acute cor pulmonale, respiratory failure and/or embolic phenomena leading to death within a few hours of injury”.7 The Deceased died from the latter, FFES. The survival rate from FFES was also hotly contested. Another hotly contested issue and finding by the Judge was the cause of the Deceased’s FFES and whether Dr Foo had inadvertently introduced the fat globules directly into the Deceased’s blood stream.

There were other contested issues. This included whether the Deceased was properly advised of the risks of the surgical procedures she was going to undergo and whether the Deceased signed the consent forms, which warned of the risks of the surgical procedures, before Dr Foo. Dr Foo alleges that he had advised the Deceased of these risks at the time she signed the consent forms in his presence. The Judge noted, inter alia, and we agree with him, that Dr Foo’s notes of that consultation made no reference to any such advice, they barely covered half a page and they concerned the surgical and medical fees.8 As for Dr Foo’s claim that he personally...

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    ...4 SLR 559. 9 [2016] 4 SLR 1124. 10 Tan Woo Thian v PricewaterhouseCoopers Advisory Services Pte Ltd [2021] 1 SLR 1166 at [18(c)]. 11 [2021] 2 SLR 1239. 12 [2020] SGHC 260. 13 (2020) 21 SAL Ann Rev 824 at 828–832, paras 28.11–28.17. 14 Cf Barnett v Chelsea and Kensington Hospital Management ......
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