Hii Chii Kok v Ooi Peng Jin London Lucien and another

• Jurisdiction: Singapore
• Judge: Chan Seng Onn J
• Judgment Date: 22 February 2016
• Neutral Citation: [2016] SGHC 21
• Plaintiff Counsel: Palaniappan Sundararaj and Lim Min (Straits Law Practice LLC)
• Docket Number: Suit No 806 of 2012
• Date: 22 February 2016
• Hearing Date: 08 September 2015,02 September 2015,30 April 2014,31 October 2014,06 May 2014,03 September 2015,29 April 2014,16 September 2015,27 November 2015,02 October 2014,04 September 2015,01 October 2014,03 October 2014,26 August 2015,14 September 2015,09 September 2015,15 September 2015,30 October 2014,25 August 2015,23 April 2014,09 May 2014,07 May 2014,27 August 2015,30 September 2014,29 October 2014,28 October 2014,08 May 2014
• Subject Matter: Tort -Negligence -Breach of duty,Tort -Negligence -Causation
• Year: 2016
• Citation: [2016] SGHC 21
• Defendant Counsel: Edwin Tong SC, Mak Wei Munn, Tham Hsu Hsien, Christine Tee and Hoh Jian Yong (Allen & Gledhill LLP),Kuah Boon Theng, Felicia Chain, Gerald Soo and Karen Yong (Legal Clinic LLC)
• Court: High Court (Singapore)
• Published date: 24 June 2017

Chan Seng Onn J: Introduction

A number of factors collectively suggested to a multi-disciplinary team of physicians with sub-specialty skills at the medical centre of the 2nd defendant, the National Cancer Centre of Singapore Pte Ltd (“NCCS”), that the plaintiff, Dato’ Seri Hii Chii Kok, might have neuroendocrine tumours (“NETs”) in his pancreas at two locations, viz, the body of his pancreas (“the PB lesion”) and the uncinate process of his pancreas (“the PU lesion”). They diagnosed him with pancreatic NETs (“PNETs”). This diagnosis shall be referred to as “the clinical diagnosis”. They were, at the same time, alive to the possibility that the plaintiff might be suffering from a very rare but less serious condition known as pancreatic polypeptide hyperplasia (“hyperplasia”), particularly in relation to the PU lesion. This diagnosis shall be referred to as “the differential diagnosis”. The consensus opinion of all the experts who testified at the trial was that the most definitive way to tell PNETs apart from hyperplasia is through post-operative histopathology. Having analysed the consensus opinion of the experts, I have no reason to believe that there is a diagnostic tool or investigative procedure that is able to differentiate between these two conditions pre-operatively.

The plaintiff was informed of both the clinical diagnosis and differential diagnosis (“the diagnoses”), as well as his options flowing therefrom. The NCCS highlighted that the plaintiff had the option of waiting for six months or surgically resecting the PB lesion and the PU lesion (collectively, “the pancreatic lesions”). He consulted the 1st defendant, Professor Ooi Peng Jin London Lucien (“Prof Ooi”), to ascertain if the pancreatic lesions could be surgically resected. Prof Ooi found that the lesions could be removed via a Whipple procedure for the PU lesion and a surgical resection for the PB lesion (“the Whipple Surgery”).

Having considered his options and the risks they each carried, the plaintiff decided that he wanted “aggressive treatment” and decided to proceed with the Whipple Surgery. Alas, it was found through post-operative histopathology that the plaintiff suffered from the rare condition of hyperplasia in the pancreatic lesions and did not have PNETs.

Notwithstanding his desire for “aggressive treatment”, the plaintiff now turns around and sues Prof Ooi and the NCCS (“the defendants”) for negligence in relation to the diagnoses of his condition and the advice rendered to and their post-operative management of him.

The law on medical negligence is set out in the decision of the Court of Appeal in Khoo James and another v Gunapathy d/o Muniandy and another appeal [2002] 1 SLR(R) 1024 (“Khoo James v Gunapathy”). Singapore law currently follows the position set out in the English decision of Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 (“Bolam” or “Bolam test”) as supplemented by Bolitho v City and Hackney Health Authority [1998] AC 232 (“Bolitho” or “Bolitho test”) (together, “the Bolam – Bolitho test”). The Bolam – Bolitho test applies clearly to the question of diagnosis and treatment. It has been argued before the High Court on at least three occasions in Surender Singh s/o Jagdish Singh and another (administrators of the estate of Narindar Kaur d/o Sarwan Singh, deceased) v Li Man Kay and others [2010] 1 SLR 428; D’Conceicao Jeanie Doris (administratrix of the estate of Milakov Steven, deceased) v Tong Ming Chuan [2011] SGHC 193; and Tong Seok May Joanne v Yau Hok Man Gordon [2013] 2 SLR 18 that the doctrine of informed consent should apply instead of the Bolam – Bolitho test to the question of whether a doctor has been negligent in his advice to the patient as regards material risks and alternative treatment options. It was noted in all these decisions that the High Court is bound by Khoo James v Gunapathy to apply the Bolam – Bolitho test in relation to the question of medical advice. I am of a similar view.

English law has moved away from the Bolam – Bolitho test and now applies the doctrine of informed consent in assessing whether a doctor has been negligent as regards the disclosure of material risks and alternative treatment options to the patient. The law as it stands in England is set out in the landmark decision of Montgomery v Lanarkshire Health Board (General Medical Council intervening) [2015] AC 1430 (“Montgomery”). The UK Supreme Court (“UKSC”) in Montgomery was of the view that the law has to move away from medical paternalism and adopt a more patient-centric approach to the issues of medical advice and informed consent. Such an approach is also found in Australian, Canadian and Malaysian law. The two different approaches set out in Montgomery and the Bolam – Bolitho test respectively are each backed by philosophers par excellence. Plato advocates (as a tool of persuasion) that a physician has a dialogue with the patient, “imparts instructions to them, so far as possible” and “gives no prescription until he has gained the patient’s consent” (see Plato, Laws IV, section 720(d)). Hippocrates, on the other hand, expressly injuncts the physician against revealing every risk to the patient (see Hippocrates, Decorum XVI, 296 – 299). It remains to be decided if Singapore law should follow the approach in Montgomery.

Applying the Bolam – Bolitho test in the present case, as I must, I find that the defendants were not negligent in reaching the diagnoses and in their advice rendered to the plaintiff, and that Prof Ooi was also not negligent in the post-operative management of the plaintiff. Even if I were to apply the approach in Montgomery to analyse whether the defendants took reasonable care to ensure that the plaintiff was aware of any material risks involved in the Whipple Surgery and of any reasonable alternative or variant treatments, I would still find that the defendants had not been negligent.

The facts

That plaintiff is a Malaysian businessman. He is the founder and Executive Chairman of a conglomerate involved in several diversified business areas and the controlling shareholder of a private education provider in Malaysia. The plaintiff holds a law degree and was an English language journalist at some point during his career.

Prof Ooi is a surgeon specialising in hepatobiliary and pancreatic (“HPB”) surgery as well as surgical oncology. He is the Chairman of the Division of Surgery and a Senior Consultant Surgeon at the Singapore General Hospital (“SGH”). He holds a concurrent appointment as Senior Consultant at the NCCS. Prof Ooi has performed over 250 pancreatic operations to date.

The NCCS manages a specialist oncology centre that provides outpatient specialist care for cancer patients. Of the cases that are managed by the NCCS, those which raise complex and novel medical issues are referred to a tumour board comprising a multi-disciplinary team of doctors with the relevant sub-specialty skills (“the Tumour Board”). The members of the Tumour Board discuss and consider the factors relevant to a case to, inter alia, reach a diagnosis and determine the treatment options.

The plaintiff’s medical history

Between 2002 and 2010, the plaintiff consulted various doctors in Malaysia relating to medical problems concerning his lungs, thyroid and prostate. He underwent surgery for hyperthyroidism in 2000. In 2003, it was discovered that there were nodules in his lungs. Sometime on or around 23 November 2006, the plaintiff experienced pain in his left shoulder and underwent a chest x-ray at the Sime Darby Medical Centre (“SDMC”) at Selangor, Malaysia. The x-ray showed an oval-shaped solid 12mm nodule in the lateral segment of the right middle lobe of the lung (“the lung nodule”). The lung nodule grew to 18mm by 17 June 2010. Histopathological analysis of the tissue obtained from the right lung nodule via a computed tomography-guided biopsy, performed in Malaysia on 8 July 2010, identified the lung nodule to be a NET of low grade malignancy (“the lung NET”).

On 13 July 2010, the plaintiff consulted Dr Foo Yoke Ching (“Dr Foo YC”), a medical oncologist at SDMC, regarding the treatment of the lung NET. She diagnosed the plaintiff as suffering from neuroendocrine carcinoma of the right lung. Dr Foo YC took the view that it was advisable for the plaintiff to undergo a “radioisotope Gallium scan” in Singapore to further investigate his condition. To this end, Dr Foo YC referred the plaintiff to Dr Koo Wen Hsin (“Dr Koo”), a medical oncologist at the NCCS, for investigation of the lung NET. In her email to Dr Koo, Dr Foo YC stated, inter alia, that “[the plaintiff] is keen to have surgery in Singapore. I would be grateful if you can advise him”.¹

On 19 July 2010, a positron emission tomography (“PET”) scan using a radioisotope Gallium68 tagged with DOTATATE (“Gallium scan”) combined with an x-ray computed tomography (“CT”) scan was performed on the plaintiff by Dr Andrew Tan (“Dr Tan”), a nuclear medicine physician at the SGH. The Gallium scan performed on the plaintiff will be referred to singly as “the plaintiff’s Gallium scan”. The two combined scans will be referred to as the “the plaintiff’s Gallium PET/CT” scan. The results of the plaintiff’s Gallium PET/CT scan may be summarised as follows:² very minimal tracer avidity (“tracer uptake”) in the right lung nodule (Standardised Uptake Values (“SUV”) max 0.8); other visualised sub-centimetre lung nodules bilaterally but without any significant tracer uptake; focal areas of increased tracer uptake in the pancreatic uncinate process (SUVmax 23.0) and in the pancreatic body (SUVmax 13.2), with no definite corresponding mass or soft tissue thickening seen; mildly increased tracer uptake in the thyroid parenchyma, which may be secondary to hyperplasia; and physiological type uptake in the pituitary, liver, spleen, kidneys and adrenals.

The plaintiff requested for advice from Dr Tan on...