JU and Another v See Tho Kai Yin

• Jurisdiction: Singapore
• Judge: Lai Siu Chiu J
• Judgment Date: 08 August 2005
• Neutral Citation: [2005] SGHC 140
• Docket Number: Suit No 406 of 2003
• Date: 08 August 2005
• Year: 2005
• Published date: 12 August 2005
• Plaintiff Counsel: V K Rai (V K Rai and Partners)
• Citation: [2005] SGHC 140
• Defendant Counsel: Lek Siang Pheng and Terence Tan (Rodyk and Davidson)
• Court: High Court (Singapore)
• Subject Matter: Doctor not advising patient of risk of having baby with Down's syndrome,Whether amounting to wrongful life claim contrary to public policy,Whether doctor under duty to schedule appointment for patient as soon as possible,Doctor speaking to patient via telephone prior to actual physical consultation,Appropriate standard of care,When doctor-patient relationship giving rise to duty of care established,Negligence,Standard of care,Breach of duty,Whether contract breached by doctor's failure to fulfil various alleged obligations under contract,Whether contract existing between doctor and patient that doctor would deliver patient's baby,Whether doctor meeting standard of care expected of him,Contract,Claim by disabled child for damages for pain and hardship suffered by him as result of doctor's negligence resulting in his birth,Doctor managing pregnancy of patient,Patient's baby born with Down's syndrome,Breach,Tort,Duty of care

8 August 2005 Judgment reserved.

Lai Siu Chiu J:

Introduction

1 The first plaintiff is a Singaporean and a businesswoman by occupation. She had worked in Japan since the 1980s, travelled frequently (to Singapore, Malaysia, Japan, Taiwan and China) and spent most of her time outside Singapore.

2 The second plaintiff is the first plaintiff’s son by the first plaintiff’s husband (“the husband”) who is a Chinese national from Shanghai. The first plaintiff married the husband in a customary ceremony in China in October 2000. The first plaintiff was then 43 years of age, her birth date being 27 June 1957. The husband was ten years younger than her, a fact which prompted opposition to the marriage from the husband’s family. The parties’ marriage was registered in Singapore on 28 November 2001.

3 The second plaintiff was born by Caesarean delivery on 23 January 2002 in Singapore and suffers from Down’s syndrome. As at the date of the trial, he was about two and a half years of age.

4 See Tho Kai Yin (the first defendant) is a medical doctor who practises as an obstetrician and gynaecologist under the name and style of The See Tho Clinic for Women (“the Clinic”) at 6 Napier Road, #07-11/12, Gleneagles Medical Centre, Singapore 258499. He is a visiting consultant attached to the Department of Obstetrics and Gynaecology, National University of Singapore, with teaching responsibilities. The Family Clinic shares premises with the Clinic. However, it is a separate medical practice run by family physician Saleha Johari, who is the wife of the first defendant. When the first defendant took the stand, counsel for the plaintiffs sensibly informed the court that his clients withdrew their claim against The Family Clinic.

The facts

5 According to the first plaintiff, she went to Shanghai from Japan to meet the husband between 14 and 16 May 2001. Unbeknownst to her, she conceived the second plaintiff during that period. This was quite surprising in view of her age and the fact that in 1997, she had undergone surgery in Japan for cancer of the cervix. In May 1999, the first plaintiff had also discovered that she had an ovarian cyst which, fortunately, turned out to be benign.

6 The first plaintiff left China for Japan on or about 19 June 2001. On 4 July 2001, she flew to West Malaysia for business. On or about 11 July 2001, the first plaintiff left Malaysia for Shanghai to meet the husband. She consulted a gynaecologist on or about 31 July 2001 at the Bo Ai Humanity Hospital of Shanghai (“the Chinese hospital”) and discovered she was pregnant. She was attended by one Dr Zhu Ying (“Dr Zhu”) and underwent an ultrasound diagnosis which showed that the foetus was about ten to 12 weeks old. The first plaintiff did not undergo any tests but was advised to consult her former gynaecologist when she returned to Japan, in view of her previous history of cancer.

7 The first plaintiff decided she wanted to deliver her child in Singapore. Consequently, she telephoned her brother’s wife, Jane, informed Jane of her pregnancy and inquired who had delivered Jane’s baby in 1987. Jane recommended the first defendant and/or the Clinic.

8 On or about 9 August 2001, the first plaintiff consulted her Japanese physician who referred her in turn to one Dr Tohru Morisada (“Dr Morisada”). The first plaintiff was told by Dr Morisada that her foetus was about 14 weeks in gestation and was a male. She underwent an ultrasonic examination on 23 August 2001 at the Saisekai Utsunomia Hospital in Japan (“the Japanese hospital”) and was advised to undergo surgery (which she did on 5 September 2001), to stitch up her cervix so as to prevent a miscarriage. The procedure is better known in the medical field as a “McDonald stitch” and will henceforth be referred to as such. At the time of the surgery, the first plaintiff was told she was at about the 16th week of gestation and that her baby was due on or about 15 February 2002. She was hospitalised for five days after her cervical surgery.

9 According to the first plaintiff, she telephoned the first defendant from Japan and spoke to him twice, once, on or about 24 August 2001, and later, on or about 28 August 2001. There is a dispute on the content of those conversations. The first plaintiff claimed that the first defendant only advised her to undergo cervical surgery in Japan. The first defendant, on the other hand, asserted that he had asked about her age and when he was told of it, had advised the first plaintiff that she should request her Japanese doctor to carry out all the necessary antenatal tests on her foetus. It is common ground that the first plaintiff asked the first defendant for an appointment date but he declined, stating she should return to Singapore first before fixing an appointment with him. The first defendant advised the first plaintiff to obtain a report from her Japanese doctor on her condition.

10 When she left Japan on or about 15 October 2001 for West Malaysia, the first plaintiff carried a report from Dr Morisada dated 3 October 2001 (“Dr Morisada’s report”) as well as eight prints of the ultrasound scan he had done on the foetus.

11 According to the first plaintiff, she telephoned the Clinic on or about 16 October 2001 to make an appointment with the first defendant. She spoke to one of his two staff (either Winifred Khoo (“Winnie) or Alice Chng (“Alice”)). She gave the following information in that call:

(a) her full name and telephone number;

(b) that she had been recommended to the first defendant by her sister-in-law, Jane, and had consulted the first defendant previously over the telephone, and that the first defendant was aware of her case;

(c) that she had undergone a McDonald stitch procedure in Japan;

(d) that she was about 22 weeks pregnant with her first child and the estimated delivery date was 15 February 2002; and

(e) that she wanted as early an appointment as was possible with the first defendant.

12 The first plaintiff claimed she was given an appointment date of 23 October 2001 and that on or about 19 October 2001, she received a telephone call from the Clinic to say her appointment would be postponed to 30 October 2001. She returned to Singapore on 25 October 2001 to keep the appointment.

13 The first defendant and his staff, on the other hand, testified that the first plaintiff’s first consultation was all along scheduled for 30 October 2001. There was no earlier appointment fixed for 23 October 2001.

14 In any event, the first defendant attended to the first plaintiff on 30 October 2001. During that first consultation (which lasted about half an hour) he carried out an ultrasound scan on her to check on the condition of the foetus and detected no abnormalities. He informed the first plaintiff that the scan showed the foetus was a male. She replied she was aware of the fact.

15 The first defendant recorded in his clinical notes[1] that the first plaintiff had had antenatal diagnosis with follow-up in Japan (she denied telling him this) and that she had undergone a McDonald stitch procedure on 5 September 2001. The first defendant did not recall being shown an ultrasound report from the Chinese hospital, Dr Morisada’s report or ultrasound scans from the Japanese hospital by the first plaintiff, as she claimed. Neither could he remember being told that she had undergone scanning in China.

16 What the first defendant remembered was being told by the first plaintiff (which she denied) that she had been informed by Dr Morisada that her estimated delivery date was 15 February 2002, according to an ultrasound dating. The first defendant confirmed this estimated date by taking biometric measurements (head diameter, head and abdominal circumference, and femur length) when he did the ultrasound scan. According to him, she was by then 24 to 25 weeks into her pregnancy. Consequently, he did not carry out any amniocentesis test nor advise the first plaintiff to undergo further tests that day as she was past the threshold of legal abortions in Singapore under the Termination of Pregnancy Act (Cap 324, 1985 Rev Ed) (“the Act”).

17 Had the first plaintiff presented herself at the Clinic at 20 weeks’ gestation or earlier, the first defendant would have conducted an amniocentesis test on her to check whether there were chromosomal abnormalities. The test results would have been available about two to three weeks after the test. Even if he had seen the first plaintiff on 23 October 2001, it would have been too late to carry out an amniocentesis test in time for abortion to be an option.

18 The first plaintiff’s second appointment with the first defendant was on 24 November 2001. By then, she was 28 weeks pregnant. Again the first defendant carried out an ultrasound scan on her that day to assess foetal growth and to ascertain that it had no abnormalities. The first plaintiff was given copies of the printed scans. The first plaintiff was thereafter given a third appointment on 15 December 2001.

19 Sometime before 15 December 2001, the first plaintiff telephoned the Clinic and requested to speak to the first defendant who was not available. The first plaintiff then informed Winnie that she wanted the first defendant to deliver her baby by Caesarean section in the early hours of 12 February 2002, which was the first day of the Chinese New Year. When Winnie conveyed the first plaintiff’s message to the first defendant, he asked Winnie to inform the first plaintiff that he could not accede to her request and that the first plaintiff should choose a more reasonable time for the elective procedure. This was because generally in all hospitals, there was only sufficient operating theatre staff to handle emergency situations during the late hours of the night or the early hours of the morning. In the first defendant’s view, that was not an optimal situation and it was therefore not in the first plaintiff’s interest to have an elective procedure carried out during those times....