Hii Chii Kok v Ooi Peng Jin London Lucien and another

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 12 May 2017
• Neutral Citation: [2017] SGCA 38
• Plaintiff Counsel: N. Sreenivasan SC, Palaniappan Sundararaj and Lim Min (Straits Law Practice LLC)
• Date: 12 May 2017
• Docket Number: Civil Appeal No 33 of 2016
• Hearing Date: 03 October 2016
• Subject Matter: Negligence,Breach of duty This judgment is subject to final editorial corrections approved by the court and/or redaction pursuant to the publisher's duty in compliance with the law, for publication in LawNet and/or the Singapore Law Reports.,Tort
• Published date: 16 May 2017
• Defendant Counsel: Kuah Boon Theng, Felicia Chain, Karen Yong, Gerald Soo and Samantha Oei (Legal Clinic LLC),Edwin Tong SC, Mak Wei Munn, Tham Hsu Hsien, Christine Tee and Hoh Jian Yong (Allen & Gledhill LLP)
• Court: Court of Appeal (Singapore)
• Citation: [2017] SGCA 38
• Year: 2017

Sundaresh Menon CJ (delivering the judgment of the court):

This appeal concerns a patient whose central complaint is that he underwent a major pancreatic surgery that turned out to be unnecessary. As a result, he suffered life-threatening complications and to overcome these, he had to undergo further operations. He brought proceedings against his surgeon and the National Cancer Centre of Singapore Pte Ltd (“NCCS”) for, among other things, negligent diagnosis and negligent advice. He also alleged that the post-operative care he was given was negligent, although this was not strenuously pursued on appeal. The High Court judge (“the Judge”) who heard the matter dismissed the claim in its entirety. His judgment is reported as Hii Chii Kok v Ooi Peng Jin London Lucien and another [2016] SGHC 21 (“the Judgment”). Having considered the various issues, we largely agree with the Judge and dismiss the appeal in its entirety. Additionally, we note that with regard to the negligent advice claim, the Judge, who was bound by a previous decision of this court, did not opine on whether the existing law should be departed from, and if so, to what extent; instead, the Judge applied both competing standards in the alternative and found on the facts that negligence had not been made out on either standard. In the interest of providing a degree of certainty and clarity to the law, this judgment shall consider and resolve that uncertainty.

The appeal throws into sharp relief an important question in the law of medical negligence: how should the court assess whether a doctor has fallen short of the standard of care that is expected of him, especially in relation to the provision of medical advice? More than a decade ago, our position on this issue was laid down in Khoo James and another v Gunapathy d/o Muniandy and another appeal [2002] 1 SLR(R) 1024 (“Gunapathy”). In Gunapathy, we accepted that the assessment of whether a doctor has met the requisite standard of care in all aspects of his interaction with the patient should be made with reference to the practices and opinions of a responsible body of medical practitioners, although such practices and opinions must be logically defensible. In other words, we adopted, as applying to the entirety of the doctor-patient relationship, the principles set out in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 (“Bolam”) and Bolitho v City and Hackney Health Authority [1998] AC 232 (“Bolitho”). These principles are commonly referred to as “the Bolam test” with “the Bolitho addendum”. This has been described as laying down a physician-centric approach because it places emphasis on peer review to determine whether a doctor’s conduct was lacking. On account of this, it has faced much criticism over the years. In several key jurisdictions, it has been abandoned in favour of an approach that can be described as more patient-centric, at least in relation to the aspect of medical advice. This shift was reflected recently in the United Kingdom (“UK”) in the decision of the Supreme Court in Montgomery v Lanarkshire Health Board [2015] UKSC 11 (“Montgomery”). The question before us in this appeal is whether we too should gravitate towards a more patient-centric approach. If so, should such an approach apply to all aspects of the doctor’s interaction with the patient? And insofar as we do apply a patient-centric approach, how should the court prescribe the test for determining whether the standard of care has been satisfied?

The Attorney-General deemed the issue of such public interest that his chambers (“the AGC”) applied for leave to file submissions (which were prepared in consultation with the Ministry of Health and the Ministry of Law). As this is a dispute between private parties, we sought their consent, which was forthcoming, to consider these submissions. The Attorney-General felt constrained to intervene having regard to the possible consequences that our decision might have on the cost of healthcare. His submissions were therefore confined to matters of policy and did not engage with the facts. The AGC filed its submissions at the end of November 2016. The appellant’s counsel filed a substantive response on 21 December 2016. On 23 December 2016, the AGC filed a further letter (with certain enclosures). We declined to give leave to admit this letter (and its enclosures) on 27 December 2016.

Having considered all the submissions, we are satisfied that it is appropriate to move towards a somewhat more patient-centric approach when prescribing the standard of care in relation to the doctor’s duty to advise the patient and to provide the patient with the requisite information to enable him to participate meaningfully in decisions affecting the medical treatment he will receive. This is a function of the central principle that the patient has autonomy over such matters. However, this will not mean that the doctor’s views will cease to be significant. In our judgment, the appropriate standard of care is one that strikes a balance between the interests of the doctor and the patient. We elaborate on this below. But first, we set out the facts and issues relevant to the case.

Background Facts

The appellant is Dato’ Seri Clement Hii Chii Kok (“the Patient”). He is a prominent Malaysian businessman who happens to hold a law degree. He used to be a journalist.

The first respondent is Professor Ooi Peng Jin London Lucien (“Dr Ooi”). Dr Ooi, is a surgeon specialising in hepatobiliary and pancreatic (“HPB”) surgery as well as surgical oncology. He chaired the Division of Surgery and was a senior consultant surgeon at the Singapore General Hospital (“SGH”). He held a concurrent appointment as senior consultant at the second respondent, the NCCS. By the time of the patient’s surgery, Dr Ooi had performed more than 250 pancreatic operations. The NCCS manages an oncology centre providing outpatient specialist care for cancer patients.

As the facts have been extensively canvassed in the Judgment, we do not propose to reproduce all the facts here and will highlight only the salient matters.

In 2003, the Patient, who was based in Malaysia, learnt that he had a nodule in his right lung. By the middle of 2010, this was found to have grown from about 12mm in 2006 to about 18mm. It was established after testing that this was a neuroendocrine tumour (“NET”) of low-grade malignancy. The Patient’s attending physician in Malaysia, Dr Foo Yoke Ching, then referred him to the NCCS to undergo a particular procedure to ascertain whether some other nodules seen in his lungs were also NETs. The procedure in question is a positron emission tomography (“PET”) scan using a radioisotope Gallium-68 tagged with DOTATATE (“the Gallium scan”) combined with an x-ray computed tomography (“CT”) scan (“the Gallium PET/CT scan”). Each component provides different types of imaging using different techniques. The Gallium component works by detecting certain receptors, known as somatostatin receptors (“SSTRs”), that are present in abundance in NET cells. As these receptors bind well to a substance known as DOTATATE, its combination with the radioisotope Gallium-68 allows areas with concentrations of SSTRs to light up on the PET scan. The uptake of the radioisotope tracer by the somatostatin, or “tracer avidity”, is measured using a semi-quantitative measure known as standardised uptake value, or the SUVmax value (see also the Judgment at [104]). The second component is the CT component. This provides morphological imaging that helps to identify the tumour mass and location.

Events leading to the Tumour Board meeting on 29 July 2010

On 19 July 2010, the Patient underwent the Gallium PET/CT scan, which was performed by Dr Andrew Tan, a nuclear medical physician with the SGH. It will be recalled that the primary purpose of doing this was to assess the position in relation to some other nodules that were in the Patient’s lungs. However, this led to incidental findings of what might be two additional NETs in the head and body of the Patient’s pancreas (“the PNETs”). The scan report stated: 2. Incidentally noted foci of increased tracer avidity in the uncinate process and body of the pancreas, with no definite corresponding mass or soft tissue thickening seen. Pancreatic islet cell tumors [ie, PNETs] are a consideration, and further evaluation with dual phase CT or MR is suggested.

…

There are focal areas of increased tracer uptake seen in the pancreatic uncinate process (SUVmax 23.0, image 177) and in the pancreatic body (SUVmax 13.2, image 165). No definite corresponding mass is evident.

…

According to the Patient, who was given a copy of the report, Dr Andrew Tan advised him to undergo a further scan to ascertain whether masses could be located that would correspond to the light-ups on the Gallium scan. In this judgment, unless otherwise specified, we refer to the two light-ups that were detected by the Gallium scan on the head (also referred to as the pancreatic uncinate process) and body of the Patient’s pancreas generally as “lesions”.

On 20 July 2010, the Patient underwent a magnetic resonance imaging (“MRI”) scan in Malaysia. However, his pancreas appeared normal and no masses were detected by this scan.

The Patient made arrangements for multiple consultations on 22 July 2010 at the NCCS. He met Dr Darren Lim (“Dr Lim”), who was a senior consultant oncologist at the NCCS. He also met Dr Koo Wen Hsin (“Dr Koo WH”), who, like Dr Lim, was an oncologist at the NCCS. Both doctors took the view that the Patient had PNETs (the Judgment at [17]–[19]). Dr Koo WH referred the patient to Dr Ooi, who did not disagree with what he calls the “working” or provisional diagnosis arrived at by Dr Lim and Dr Koo WH. The record of the Patient’s consultation with Dr Ooi reflects that the following points were among those noted or canvassed (see also the Judgment at [20]–[21]): the...