Seto Wei Meng (suing as the administrator of the estate and on behalf of the dependants of Yeong Soek Mun, deceased) and another v Foo Chee Boon Edward and others (Singapore General Hospital Pte Ltd, third party)

• Jurisdiction: Singapore
• Judge: Choo Han Teck J
• Judgment Date: 26 November 2020
• Neutral Citation: [2020] SGHC 260
• Court: High Court (Singapore)
• Docket Number: Suit No 553 of 2016
• Year: 2020
• Published date: 02 December 2020
• Hearing Date: 05 August 2020,21 July 2020,23 July 2020,30 July 2020,22 July 2020,15 July 2020,14 July 2020,16 July 2020,29 July 2020,07 August 2020,28 July 2020,06 August 2020,24 July 2020,17 July 2020,18 September 2020,04 August 2020
• Plaintiff Counsel: Kuah Boon Theng SC, Yong Shuk Lin Vanessa and Chain Xiao Jing Felicia (Legal Clinic LLC)
• Defendant Counsel: Narayanan Sreenivasan SC, Sundararaj Palaniaapan, Lim Min (K&L Gates Straits Law LLC) (instructed) and Gan Guo Wei (Charles Lin LLC),Mak Wei Munn, Teh Shi Ying and Ong Hui Fen Rachel (Allen & Gledhill LLP)
• Subject Matter: Tort,Negligence
• Citation: [2020] SGHC 260

Choo Han Teck J: Introduction

Yeong Soek Mun (“Mandy Yeong”), a 44-year-old woman, underwent a liposuction as well as a fat transfer surgical procedure on 28 June 2013 at TCS at Central Clinic, also known as TCS Aesthetics Central Clinic (“the Clinic”). The surgery was performed by the first defendant, Dr Foo Chee Boon Edward (“Dr Foo”). The surgery began at 12pm and ended about 2pm. The Clinic was located at The Central, Eu Tong Sen Street.

At 2.05pm, Mandy Yeong’s blood oxygen level had, according to the Clinic’s anaesthetic record, dropped to 72%. The medical evidence that seems undisputed is that should the blood oxygen level fall below 95%, action would be required to raise it back above the 95% level. Dr Foo attempted to do that without success, and by 2.45pm, Mandy Yeong had suffered a cardiovascular collapse and an ambulance was called at 2.53pm. An ambulance team reached the Clinic within seven and a half minutes.

Mandy Yeong was taken to the nearest hospital, the Singapore General Hospital (“SGH”). After she arrived at the SGH’s Accident and Emergency (“A&E”) Ward at 3.23pm, the doctors and staff there continued with resuscitation efforts but were unsuccessful and Mandy Yeong died at 5.46pm on the same day. The parties accept that the cause of Mandy Yeong’s death was pulmonary fat embolism, which refers to a condition whereby fat globules are trapped in a patient’s blood vessels and obstruct his or her pulmonary circulation.

The plaintiffs, who were the administrators of Mandy Yeong’s estate, brought this action against Dr Foo and the second and third defendants for negligently causing the death of Mandy Yeong. The second and third defendants manage and own the Clinic. The previous shareholders of both companies were one Dr Richard Teo (“Dr Teo”) and one Dr Chow Yuen Ho (“Dr Chow”). Subsequently, Dr Teo died and his widow took over his shares. Both the second and third defendants have since gone into liquidation and the actions against them have been automatically stayed as a result. Dr Foo, who had initially brought in the SGH as a third party, claiming that its doctors were responsible for or had contributed to Mandy Yeong’s death, discontinued his case against it midway through the trial.

In this action, the plaintiffs allege that Dr Foo was negligent in three respects. First, that he was negligent in not obtaining informed consent from Mandy Yeong because he did not personally advise her on the risks and complications associated with her procedure. Moreover, he did not explain to Mandy Yeong that a liposuction involving a fat transfer would entail a higher risk of fat embolism, particularly if it involved a repeat procedure. Second, that Dr Foo was negligent in performing the liposuction and fat transfer procedure. Third, that he was negligent in his attempt to manage Mandy Yeong’s postoperative condition by, inter alia, failing to call for an ambulance in time. Dr Foo denies all three allegations.

The fatal liposuction and fat transfer procedure

Mandy Yeong had two liposuction procedures prior to the third and fatal one. The first was performed by one Dr Teo in 29 July 2010 and the second by Dr Foo on 18 July 2011. The procedure in 2010, which was just for liposuction, resulted in hollows and surface irregularities in Mandy Yeong’s thigh regions. Unhappy with the outcome of the first procedure, Mandy Yeong underwent the second procedure in 2011. This included both a liposuction as well as a fat transfer, which involved taking the fat from Mandy Yeong’s ‘flanks’ to fill in her thigh region.

Mandy Yeong was still dissatisfied with the result of the second procedure and so she consulted Dr Foo on 28 May 2013. During the consultation, they discussed the liposuction and fat transfer procedure performed by Dr Foo on Mandy Yeong in 2011, and Mandy Yeong’s unhappiness with the uneven appearance of her thighs. Dr Foo recommended a further liposuction and fat transfer procedure to correct that. As with the 2011 procedure, this would involve a liposuction (Mandy Yeong’s third since 2013) and a fat transfer procedure (Mandy Yeong’s second since 2013) whereby the fat from Mandy Yeong’s abdomen region would be transferred into her thighs to correct the unevenness. The procedure was initially scheduled for 14 June 2013 but was postponed, by mutual agreement, to 28 June 2013.

As recounted at [3] above, Mandy Yeong died on 28 June 2013 after the fatal procedure. The cause of death, which is not disputed by the parties, was found by the State Coroner to be “pulmonary fat embolism due to liposuction”. When fat embolism manifests in clinical symptoms such as inflammation, multi-organ dysfunction and neurological changes, it is known as fat embolism syndrome. Here, the parties and experts are in agreement that Mandy Yeong suffered from the fulminant form of fat embolism syndrome, which they say is rarer and has an earlier onset and a poorer prognosis that ordinary fat embolism syndrome. Fat embolism syndrome may not be fatal if appropriate medical attention is given, but fulminant fat embolism is almost always fatal. The causes and consequences of this will be addressed shortly.

I first address the question of Dr Foo’s liability for negligence. This comprises several issues, which I shall now consider in turn.

Informed consent

Dr Foo claims that he discussed the 28 June 2013 procedure with Mandy Yeong on 28 May 2013. He says that the risks of the procedure, including fat embolism, had been told to her on that day. Despite his claim, his notes of that consultation made no reference to any such advice. They barely covered half a page and half of that concerned the surgical and medical fees. That, together with a set of standard consent forms that Mandy Yeong signed on 28 June 2018, formed the documentary evidence relating to Mandy Yeong’s consent to the procedure. The plaintiffs allege that those forms were handed to Mandy Yeong by the Clinic’s staff. Although Dr Foo maintains that he personally discussed the content of the forms with Mandy Yeong, there is no documentary evidence supporting his claim. The forms were signed by Mandy Yeong, but no signature appears where Dr Foo’s signature ought to be.

When a patient does not give her consent, the procedure for which consent was lacking would result in the tort of trespass by the doctor, and that is actionable even without proof of damage. Where consent is given but without adequate advice, the wrong would be that of negligence, and the patient has to prove the absent advice and convince the court that had she known of such advice, she would not have consented to the procedure. The difference between liability in trespass and liability in negligence lies mainly in the damages to be awarded, but as we shall see, this is not an issue that I need to deal with.

In this case, there is a passage in the consent forms signed by Mandy Yeong that refers to “serious complications”. The passage reads as follows:

… Although serious complications have been reported to be associated with fat transfer procedures, these are very rare. Such conditions include, but are not limited to: Fat embolism (a piece of fat may find its way into the blood stream and result in a serious life-threatening condition), stroke, meningitis (inflammation of the brain), serious infection, blindness or loss of vision, or death.

The form goes on with a passage on ‘pulmonary complications’ in which the patient is told:

… Pulmonary (lung and breathing) complications may occur from both blood clots (pulmonary emboli) and a partial collapse of the lungs after general anaesthesia. Should either of these complications occur, you may require hospitalization and additional treatment. Pulmonary emboli can be life threatening or fatal in some circumstances. Fat embolism syndrome occurs when fat droplets are trapped in the lungs. This is a very rare and possibly fatal complication of fat transfer procedure.

I am of the view that the passages above would have sufficiently discharged a surgeon’s duty to obtain informed consent for the procedure that Mandy Yeong went through, had the patient’s attention been drawn to them.

In some cases, the patient may be able to understand the above passages herself if they were given to her to read just before entering into consultation with the doctor. In such cases, it may be enough for the doctor to ask if she had read and understood the passages, and if she had questions to ask of them. But this was not the situation in this case. Although Mandy Yeong would certainly have understood those passages, given her education and profession, there is some dispute as to whether she had been given sufficient time to read them. Dr Foo’s position is that he had given Mandy Yeong the consent forms when he met her on 28 May 2013 and that she had kept them for a month and returned them, duly signed, on the date of the procedure. Conversely, the plaintiffs contend that the consent forms were only provided to Mandy Yeong on the day of the procedure. Aside from Dr Foo, no other witness was able to provide a first-hand account of this matter. The signature of the person who signed as a witness did not have a name to match.

The evidence is not all that clear, but I incline to accept that the forms were not given in circumstances in which Mandy Yeong was likely to have read and understood them in detail. It is unlikely that Mandy Yeong would only have signed the consent forms on 28 June 2013 if she had managed to read them beforehand. Dr Foo’s way of informing Mandy Yeong about the dangers of her procedure was therefore not sufficient. The absence of any notes by Dr Foo fortifies my belief that the danger of fat embolism was not adequately brought to Mandy Yeong’s attention before the procedure on 28 June 2013. There is also nothing to indicate that Mandy Yeong had been apprised of such risks at any time prior to 28 June 2013, eg...