Gunapathy Muniandy v James Khoo and Others

• Jurisdiction: Singapore
• Judge: G P Selvam J
• Judgment Date: 04 July 2001
• Neutral Citation: [2001] SGHC 165
• Court: High Court (Singapore)
• Published date: 28 March 2013
• Year: 2001
• Plaintiff Counsel: Michael Khoo SC with Andy Chiok Beng Piow (Michael Khoo & Partners)
• Defendant Counsel: Michael Hwang SC (Counsel) with Christopher Daniels and Renuka Chettiar (Karuppan Chettiar & Partners),Tan Beng Swee (Netto Tan & S Margin)
• Citation: [2001] SGHC 165

JUDGMENT:

Chapter 1 : An Overview

1.1. This is a medical negligence case of some importance. It is a case with a difference. It concerned the use of a relatively new medical procedure involving the delivery of single-high-dose irradiation, by X-ray photons, to the dominant hemisphere of the brain of the plaintiff, a lady by the name of Gunapathy Muniandy ("Gunapathy"). The procedure is called radiosurgery. It was planned and performed by using a computer and a high-tech physics-based machine known by its proprietary trade-name "XKnife". One year before the radiosurgery, the plaintiff had undergone another procedure called "radiotherapy". The plaintiff contended that in consequence of the two treatment procedures, she suffered a constellation of neurological complications and symptoms. They were, she alleged, as follows :

headaches, numbness, weakness, hemiparesis, ataxia, radionecrosis, cranial nerve damage, Parinaud’s syndrome, hemianopia, apraxia, obtundation, dysthesia, aphasia, tremor and decreased gait.

Hence this suit. The events that brought the defendants to the Court occurred at Mount Elizabeth Hospital ("Mt E Hospital").

1.2. There were three significant events involving three different treatments over a period of 15 months. The first event was a trans-callosal tumourectomy, by which a tumour in Gunapathy’s brain was removed. It was done on 15 November 1995 by Dr James Khoo (the first defendant), a neurosurgeon. The second event was irradiation of the brain substance surrounding the bed of the tumour (conventional radiotherapy). This was done from 6 December 1995 to 13 January 1996 by Dr Khor Tong Hong (the third defendant) on Dr James Khoo’s advice and suggestion. Dr Khor is a radiation oncologist. The final event was radiosurgery of a small nodule in the roof of Gunapathy’s left brain ventricle. This was performed by Dr James Khoo, Dr Khor and Mr Toh Hang Jin, a radiation physicist , on 31 January 1997. As a result of those three major events, and by the end of 1997, the plaintiff developed severe disorders and disabilities.

The pathology

1.3. A broad outline of the first two significant events is as follows. Gunapathy married a little late in life, in March 1995, when she was 36 years old. In October that year she showed symptoms of an illness. She experienced headaches and weakness in her right arm. These related to a complication in her brain. Her pathological problems led her to the doors of a neurologist, Dr Devathasan. A magnetic resonance image (MRI) of her head was done on 7 November 1995. The MRI confirmed that her complaints were due to obstructive hydrocephalus (accumulation of water in her head), which was, in turn, caused by a tumour in her left lateral ventricle. It measured 24 x 19 x 16mm. The mass was later characterized and categorized as a "neurocytoma" (a tumour of nerve cells).

The first surgery

1.4. Dr Devathasan referred the plaintiff to Dr James Khoo, a well-experienced neurosurgeon. On 15 November 1995, Dr James Khoo surgically resected and removed the tumour. He wrote in his records that he had performed : "Anterior transcallosal craniotomy and total excision of tumour". After the tumour’s removal, Dr Carol Kwan, attached to Mt E Hospital described the tumour as a neurocytoma. Dr Carol Kwan is a histopathologist, that is, a doctor specialising in the diagnosis of diseases relating to cells and tissues of the human body.

The radiotherapy

1.5. Shortly after that, Gunapathy underwent conventional radiotherapy in December 1995 and January 1996. The purpose of the radiotherapy was, in the words of Dr James Khoo, "to prevent a relapse". The radiotherapy was performed by Dr Khor, an employee of Mt E Hospital. The high-tech equipment which was used to administer radiotherapy to Gunapathy was owned by Mt E Hospital. After this, she resumed her normal self, although Dr James Khoo and Dr Khor continued to monitor her condition.

The radiosurgery

1.6. Now the third event. On 26 February 1996, an MRI was done. It was done by Dr Esther Tan, a diagnostic radiologist attached to one of the Mt E Hospital stable of companies. It showed a lesion. It was a small nodule, hanging from the roof of the left ventricle of Gunapathy’s brain in the region where Dr James Khoo had surgically removed the neurocytoma. It did not cause much concern but a follow-up was advised to determine whether the nodule was a residual tumour. On 27 December 1996, another MRI was done. After this the doctors decided to do something to the nodule. Dr James Khoo, Dr Khor and Dr Toh Hang Jin performed stereotactic radiosurgery (or "XKnife procedure"), a form of high-tech medicine, on the lesion. The term "Knife" in the label "XKnife procedure" is an inappropriate and misleading description of what the procedure involves, for the instrument is not a metal scalpel but comprises of invisible high-energy photon beams artificially generated and directed to penetrate the brain of the patient through a collimator. The collimator collimates. It concentrates and guides the x-ray beams into parallel lines.

The side effects

1.7. Not long after undergoing the stereotactic radiosurgery, Gunapathy developed a collection of adverse symptoms which proved to be the serious side-effects of the radiosurgery. Her brain began to balloon because of the radiation effect. At the same time, millions of brain cells began to die. Doctors call this radionecrosis (death by radiation). The reactions in her brain can be likened to an explosion of a minute invisible atom bomb in the dominant (left) hemisphere. Functionally, she became disabled disastrously. This drove her to the doors of the clinic of Dr Prem Pillay, a neurosurgeon who knew a good deal about stereotactic radiosurgery, for he had established the Gamma Knife Centre at the Singapore General Hospital. The Gamma Knife Centre provides another form of radiosurgery called "Gamma Knife" procedure, which is broadly similar to the XKnife procedure. In the result, she brought this medical negligence suit against Dr James Khoo and Dr Khor (together "the doctor defendants") and Dr James Khoo’s company, Neurological Surgery Pte Ltd (the second defendant).

(See The Chronology – Appendix I)

The plaintiff’s allegations

1.8. The basic allegations Gunapathy made in the pleadings were as follows :

(i) The doctors failed to give competent advice or conduct the diagnostic procedures available to determine the nature of the nodule in her left ventricle.

(ii) They incompetently and wrongly advised and performed radiosurgery on her when there was no reason for it.

(iii) They failed to warn her of the serious side-effects of radiosurgery, particularly when it overlapped the previously irradiated volume of brain tissue.

(iv) They were incompetent in the execution of the radiosurgery and in not using Gamma Knife radiosurgery, another form of radiosurgery available at the Gamma Knife Centre.

(v) They used too large a collimator and used too large a dosage of irradiation in a single fraction.

1.9. The sole legal basis of her claim against the doctors was in the tort of negligence. She could have brought an action against Dr James Khoo on the basis of contract but she did not do that. However, that does not make any difference because a contractual claim would not have given her any legal or procedural advantage over the claim based on tort. She could also have added Mt E Hospital as a defendant because Dr Khor was in its employment, and the XKnife equipment was owned by the hospital. If she had done that she would have been in a more advantageous position with regard to discovery of documents. Also, she did not found her claim on the tort of trespass to person or battery on the basis that she did not give consent to radiosurgery. Even on the point of inadequate and inappropriate information, she confined her claim to the tort of negligence.

1.10. In terms of damages, she asked for general damages for pain and suffering. Additionally she asked for special damages in the region of $2.5 million. The claim was based on the allegations that she has lost her earning capacity totally and that she has to pay for supervised care for the rest of her life.

1.11. In her pleadings she relied on the legal doctrine of res ipsa loquitur. I will comment on this in Chapter 9.

Judicial attitude and latitude

1.12. It would be appropriate now to say something about the judicial attitude and latitude towards cases of this kind. In Hatcher v Black and Others (1954 - unreported) Denning LJ sat as a Judge of first instance. It was a medical negligence case. He tried the case with a jury. The plaintiff, Mrs Hatcher, was a lady who occasionally broadcast for the BBC. She went into St Bartholomew’s Hospital suffering from a toxic thyroid gland. An operation was advised. She asked if there was any risk to her voice. She was reassured by her doctors that there was no cause for worry. The operation was performed. In the course of it, the nerve was so badly damaged that she could not speak properly. She could not broadcast again. So she brought an action asking for damages. The jury found in favour of the doctors. In his summing-up to the jury, Denning LJ said :

Mr Marven Everett sought to liken the case against a hospital to a motor-car accident or to an accident in a factory. That is the wrong approach. In the case of an accident on the road, there ought not to be any accident if everyone used proper care; and the same applies in a factory; but in a hospital, when a person who is ill goes in for treatment, there is always some risk, no matter which care is used. Every surgical operation involves risks. It would be wrong, and, indeed, bad law, to say that simply because a misadventure or mishap occurred, the hospital and the doctors are thereby liable. It would be disastrous to the community if it were so. It would mean that a doctor examining a patient, or a surgeon operating at a table, instead of...