Rathanamalah d/o Shunmugam v Chia Kok Hoong

• Jurisdiction: Singapore
• Judge: Aedit Abdullah JC
• Judgment Date: 04 July 2017
• Neutral Citation: [2017] SGHC 153
• Plaintiff Counsel: Palaniappan Sundararaj and Ow Yan Rong Derek (Straits Law Practice LLC)
• Docket Number: Suit No 854 of 2013
• Year: 2017
• Hearing Date: 06 August 2015,19 August 2015,20 August 2015,30 June 2016,05 August 2015,28 June 2016,14 August 2015,11 August 2015,13 August 2015,19 September 2016,29 June 2016,18 August 2015,12 August 2015
• Subject Matter: Breach of duty,Negligence,Res ipsa loquitur,Tort,Damages
• Date: 20 August 2015
• Defendant Counsel: Christopher Chong and Ong Yee Ching Yvonne (Dentons Rodyk & Davidson LLP)
• Court: High Court (Singapore)
• Citation: [2017] SGHC 153
• Published date: 10 March 2018

Aedit Abdullah JC: Introduction

The Plaintiff here suffered injuries after undergoing an operation conducted by the Defendant on both her legs. Having considered the evidence and submissions, I concluded that she had failed to show on the balance of probabilities that the Defendant had acted in breach of the standard of care expected of him as a medical practitioner. Furthermore, while the evidence showed that the Plaintiff did suffer some injuries, these were not to the extent that she had claimed. Thus, even if causative breach had been shown, I would have awarded less than what she claimed as damages.

Background

The Plaintiff was in the insurance business and was at the time of the trial a Financial Services Director with the Prudential Assurance Company (“Prudential”).

The Defendant is a Senior Consultant in vascular surgery practising at Chia KH Surgery, Vein Vascular & General Surgery Centre at Mount Elizabeth Medical Centre.

In March 2010, after being referred onwards by another surgeon, Dr Ravintharan s/o Tharmalingam (“Dr Ravintharan”), a senior consultant surgeon practising at Ravi Surgery Pte Ltd at Mount Elizabeth Medical Centre, the Plaintiff consulted the Defendant at his clinic. The scope of the consultation was in dispute. The Plaintiff claimed it was for hyperpigmentation on both her shins. The Defendant said it was for treatment of her lower limb varicose veins. What the Plaintiff agreed to at this consultation, if anything, was disputed.

Two further visits were made by the Plaintiff to the Defendant’s clinic on 11 June 2010 and 1 July 2010 respectively. There was a dispute as to what had transpired at these visits. In particular, as regards the visit on 1 July 2010, the Plaintiff denied meeting the Defendant in person and claimed to have met only the clinic’s staff. Further, the Plaintiff also denied signing a consent form acknowledging that she had been explained, and understood, the risks involved in the operation (“the Consent Form”).

On 3 July 2010, the Plaintiff attended at Mount Elizabeth Hospital and the Defendant carried out certain medical procedures on her. It was disputed whether the Plaintiff had confirmed her signature on the Consent Form just before the operation.

It was not disputed that three distinct procedures were carried out on each of the Plaintiff’s legs (collectively, “the Procedures”). They include: Endovenous Laser Therapy (“EVLT”), which involves: (i) the insertion of a laser fibre, guided by a sheath, into the patient’s long saphenous vein, (ii) the concurrent injection of tumescent anaesthesia into the surrounding tissue to protect the saphenous nerve, and (iii) the firing of laser at calibrated energy levels, while the laser fibre is slowly withdrawn, to treat the vein; Foam Sclerotherapy (“FS”), which involves the injection of FS to close the vein, after the entire laser fibre from the EVLT procedure is withdrawn but before the sheath is removed; and Phlebectomy (also known as Multiple Stab Avulsions), which involves the physical removal of veins.

General anaesthesia was administered by an anaesthetist. A number of other procedures were involved in the operation, including ligations, but those were not in issue.

In November 2010, the Plaintiff was told that she suffered injuries to both of her saphenous nerves, which are the longest nerves in a human body and which run from the groin to the foot. The Plaintiff’s nerve injuries were said to be permanent. The Plaintiff claimed that these nerve injuries and various other disabilities were causally related to the operation carried out negligently by the Defendant.

The Plaintiff’s case

The Plaintiff’s factual account of what had transpired at the consultations leading up to the Procedures varied significantly from that of the Defendant’s.

The Plaintiff first consulted the Defendant on 4 March 2010 on the advice of Dr Ravintharan. The Plaintiff’s version of the material facts that transpired that day was as follows: She had consulted the Defendant for small patches of pigmentation on both her shins. She denied the Defendant’s claim that she had sought treatment for varicose veins, heaviness of legs, and unsightly veins. The Defendant advised her that she would require EVLT on both her legs, and assured her that her pigmentation would resolve itself after the surgery. She raised concerns about the appropriateness of performing the treatment on both her legs at the same time, and her desire to return to work as soon as possible. The Defendant assured her that the operation would be simple and safe, and that she would be able to return to work the following day. She asked him if there were alternatives to EVLT, to which he replied in the negative. Contrary to the Defendant’s assertions, she did not immediately agree to EVLT but rather said that she would consider whether to undergo the operation. She was not informed that she would be undergoing the additional procedures of FS and phlebectomy. The Defendant had neither discussed the type of anaesthesia that would be used nor informed her that EVLT could be carried out under local anaesthesia. She also did not express a desire to be admitted for an overnight stay at the hospital instead of undergoing the operation as a day surgery; that would have been unlikely because, inter alia, she wanted to get back to work as soon as possible.

Evidentially, the Plaintiff submitted that her factual accounts were corroborated by the testimony of her son, Kumaran s/o Ramachandra (“Kumaran”). Kumaran testified that the Defendant had not discussed the risks and complications of EVLT with the Plaintiff on 4 March 2010. Nor did the Defendant mention the other aspects of the Procedures or the use of general anaesthesia at any time. He further testified that the Plaintiff did not agree to proceed with EVLT on the first consultation.

In contrast, the Defendant’s evidence as to the events on 4 March 2010 was said to be lacking, inconsistent, and/or untruthful. In this regard, there was an unusual lack of documentation by the Defendant on the details of the Plaintiff’s visits, which was not explained. This was contrary to the note-taking practice recommended by the Singapore Medical Council (“SMC”). Where medical notes were in fact adduced by the Defendant, the Plaintiff submitted that these were unreliable. The medical notes adduced also did not mention any discussion of the risks and complications of the treatment or of tumescent anaesthesia, thus suggesting that there had in fact been no such discussion. It was clear that the Defendant had no personal recollection of the events on 4 March 2010 and could only give testimony as to his usual practice: this was said to be insufficient. In particular, the Plaintiff submitted based on the testimony at trial that the Defendant had a tendency to exaggerate. The Defendant also did not call any clinic staff to refute the Plaintiff’s claim even though he could easily have done so. All these suggested that the Defendant’s version of events on 4 March 2010 could not be believed. Further, the Plaintiff pointed to a report authored by the Defendant on 13 May 2011 which suggested that the Plaintiff was undecided during the first consultation as to whether to undergo the operation as she was concerned that her venous reflex may result in poor circulation in lower limbs if not addressed. The Plaintiff submitted that this was consistent with her version of events, and gave the lie to the Defendant’s claim that she had agreed to the operation on 4 March 2010.

Subsequently, the Plaintiff made further visits to the Defendant’s clinic on 11 June and 1 July 2010 respectively.

For the visit on 11 June 2010, she met the Defendant in person for a brief consultation because she thought that her pigmentation patch had grown slightly larger in size and had become itchy. The Defendant reiterated that she should undergo EVLT to resolve the pigmentation and that, if left untreated, the condition may develop into ulcers. She raised concerns with the operation interfering with her ability to return to work and to go on an annual pilgrimage in early August. The Defendant reassured her that this was a simple and safe surgery and that she would be able to return to work the very next day. At no point did the Defendant explain to her the risk and complications associated with EVLT. Nor were other aspects of the operation and anaesthesia discussed. The second consultation ended with the Defendant asking the Plaintiff to inform his staff if she would like to undergo treatment.

A few days after 11 June 2010, the Plaintiff called the Defendant’s clinic and suggested 3 July 2010 for the EVLT treatment. The date was confirmed and a pre-operation visit was scheduled for 1 July 2010. The Plaintiff stated that she agreed to undergo the operation on the Defendant’s assurance that this was a simple surgery and that she would be able to resume work the following day.

For the visit on 1 July 2010, the Plaintiff denied meeting the Defendant in person and claimed that she had met only with the clinic’s staff. She had her blood drawn for testing, underwent some scans, and was given certain registration documents to be filled and brought back to the clinic on 3 July 2010. She left without meeting the Defendant. Thus, until the day of the operation, she had only met the Defendant in person twice. The Plaintiff alternatively submitted that even if she had met the Defendant personally on 1 July 2010, their meeting would just have been for a few minutes and the Defendant could not have sufficiently explained the risks of the Procedures.

The Plaintiff also denied signing the Consent Form in the Defendant’s presence on 1 July 2010. Although the Consent Form stated that the nature, purpose, risks, and alternatives to EVLT had been explained by the Defendant to the Plaintiff, the Plaintiff vehemently denied that...