Tan Hun Hoe v Harte Denis Mathew

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 13 October 2001
• Neutral Citation: [2001] SGCA 68
• Citation: [2001] SGCA 68
• Date: 13 October 2001
• Published date: 19 September 2003
• Plaintiff Counsel: Raj Singam, Edmund Kronenburg and Tan Siu-Lin (Drew & Napier),Dr Myint Soe and Mohamed Abdullah (MyintSoe Mohamed Yang & Selvaraj)
• Docket Number: Civil Appeals Nos 170 and
• Court: Court of Appeal (Singapore)
• Subject Matter: Loss of future earnings,Future medical expenses,Personal injuries cases,Hormone replacement therapy,Consultation fees payable,Number of cycles of treatment to be awarded,Measure of damages,Negligence,Whether damages should be enhanced,Awarding costs to respondent despite failure to establish appellant's negligence in operation,Whether appellate court should interfere with order,Whether claim made out,Respondent on secondment to Singapore office,Civil Procedure,Damages,Whether court should discount assessed damages by 40% due to respondent's own negligence,Proof required of plaintiff,Claim involving personal injuries,Costs,Appeals,Negligent post-operative care by doctor,Atrophy of both testes,Drug tests,Tort,Fertility treatment plus medication,Age up to which hormone therapy should be allowed -Reduction of rate of discount

(delivering the judgment of the court): These are two related appeals arising from a decision of the High Court which found a urologist and renal transplant surgeon, Dr Tan Hun Hoe (`Dr Tan`), wanting in post-operative care of the patient, Mr Harte, following an operation procedure known as `bilateral varicocelectomy` carried out by Dr Tan at Gleneagles Hospital. Dr Tan was found 60% liable for the atrophy of both the testes of Mr Harte due to his post-operation negligence.

Mr Harte is dissatisfied with the quantum of damages awarded by the High Court and appeals to have the quantum enhanced. Dr Tan`s appeal relates to the order on costs. The basis for Dr Tan`s appeal hinges on an offer he made to settle and which far exceeded the sum which the court below eventually awarded to Mr Harte. Although chronologically Dr Tan`s notice of appeal was filed earlier, it is, however, expedient that we deal with Mr Harte`s appeal first.

At the trial below, Mr Harte had also sued the Gleneagles Hospital for being vicariously liable for the negligent acts of Dr Tan. It was clear on the evidence that Dr Tan was never an employee or agent of the hospital. Dr Tan ran his own private clinic. What he had was an arrangement with the hospital which allowed him to use its facilities for operating on his private patients. So there could be no question of the hospital being vicariously liable for the acts of Dr Tan. In any event, Mr Harte`s claim against the hospital failed because, as will be seen later, the operation carried out by Dr Tan in the hospital was held to be without fault. The atrophy of the testes of Mr Harte was brought about by post-operation causes which will be described later. The court below thus dismissed his claim against the hospital with costs. There is no appeal by Mr Harte against this dismissal.

The background

Mr Harte, now aged 37, is a citizen of the United States. In 1989 he married his wife, Mrs Michelle Lynn Harte. She is now 38. They were living in New York. About five years after their marriage, they decided to start a family. After trying for some two years, their wish could not be realised. So in April 1996, Mrs Harte consulted a gynaecologist, Dr James Jones, who in turn advised Mr Harte to see a urologist, Dr Lawrence Dubin.

The tests done by Dr Dubin showed that the quality of Mr Harte`s sperms was in a sub-fertile range. This was due to poor morphology. Dr Dubin suggested that Mr Harte undergo a surgical procedure known as a left varicocelectomy to improve the sperm quality. The object of this procedure was to reduce the pool of warm blood in the varicose veins surrounding the testes, which increased the temperature in the spermatogonia and decreased the efficiency with which they turned into spermatids. By ligating the appropriate number of varicose veins in the scrotum, the pool of warm blood would be removed due to the mechanism of thrombosis. The temperature in the testicular area thereby would be correspondingly lowered and fertility would be enhanced. In June 1996 Dr Dubin carried out the surgery.

At the relevant time, Mr Harte was working with a New York company, ED & F Inc. In August, he was seconded by his company to work in Singapore as a trading manager with ED & F Man Asia Pte Ltd. This move was a step upwards for him. Soon Mrs Harte joined him here. They continued to try to have a family but without success in spite of the procedure carried out by Dr Dubin.

In April 1997 Mr Harte consulted Dr Tan at the recommendation of Mrs Harte`s Singapore gynaecologist, Dr Winnie Wun. Dr Tan`s clinic was located at the Gleneagles Medical Centre, a building adjacent to Gleneagles Hospital. Dr Tan had an arrangement with Gleneagles Hospital whereby he could use the facilities of the hospital to carry out surgical operations on his private patients. As Mr Harte had informed Dr Tan that subsequent to Dr Dubin`s procedure no seminal analysis was carried out, Dr Tan suggested that that be done. The result of the analysis showed adequate volume of semen but `low percentage sperm mobility and low percentage normal forms, with high percentage tail defects`. This showed that Dr Dubin`s operation did not improve Mr Harte`s condition but in fact worsened it. The percentage of the normal form of his sperms had dropped from 15% to about 3%.

Dr Tan`s clinical examination of Mr Harte showed that there was no abnormality in his genitalia and there was no varicocele. He then used the Colour Doppler Ultrasound Scan (CPUS) to try to detect the cause or source of the infertility. The scan showed that intermittent varicoceles were noted on the left side and very early minimal intermittent varicoceles noted on the right side. The trial judge found that Dr Tan did inform Mr Harte of all these. On Dr Tan`s advice, Mr and Mrs Harte agreed to the bilateral varicocelectomy, it being in Dr Tan`s view the best option in the circumstances.

Dr Tan assured Mr and Mrs Harte that there would be no complications arising from the surgery other than some minor swelling and general discomfort lasting for a few days. This was greatly comforting to Mr Harte as it meant that the side effects would be the same as those he experienced after the procedure in New York. However, the risk of atrophy was never mentioned to Mr and Mrs Harte. Be that as it may, the evidence showed that testicular atrophy was a remote consequence of such a simple surgery and the judge held that an omission to mention such a risk to Mr Harte did not constitute a negligent omission.

The bilateral varicocelectomy was carried out by Dr Tan on Mr Harte on 28 April 1997. The procedure lasted some one hour and twenty minutes. Thereafter, Mr Harte was wheeled to a recovery room in the day ward to rest.

An hour later in the recovery room a fateful event occurred. Against the advice of the hospital nurse, Ms Tan Seng Eng (`Ms Tan`), attending to him, and who brought him a urinal and also offered him a bed-pan, Mr Harte insisted on using the toilet. Mrs Harte said that she would accompany him. The nurse, Ms Tan, and Mrs Harte, helped Mr Harte to sit on the toilet bowl. The nurse then left the toilet, leaving Mrs Harte there with Mr Harte.

While seated on the toilet bowl, Mr Harte fainted and fell off the toilet bowl. Mrs Harte tried to hold him but failed because he is a very big person. As a result, Mr Harte`s head hit the floor first. Nurses were called to help him up and put him on the bed. Upon notification of the fall, Dr Tan sent a neurosurgeon, Dr Balaji Sadasivam, to examine his head. Dr Balaji did not examine the scrotum area. Mr Harte said that on that day, he felt pain at the bump on his head, but not in his testes or scrotum. By the evening of that day, as there did not appear to be any further complication, Dr Balaji, having seen Mr Harte, discharged him from the hospital. There was no evidence then that his testicles were traumatised because of the fall. At that point in time, it would not be possible to realise the injury which eventually occurred.

It must be mentioned that when Mr Harte was discharged, he felt discomfort at the scrotal area, though he could walk slowly. Mr Harte thought that that must be the normal effects of the surgery in the light of what Dr Tan told him earlier. By bedtime, there was some swelling at the scrotum area. Again, Mr Harte thought that that was the normal effect of the surgery.

Post-operation care

We now come to the part where the court held Dr Tan to be wanting, that is, the post-operation care. The next morning, Mr Harte found that both his testes had swollen to what he felt was two to three times their normal size. The swelling was much more than what he experienced after the operation in New York by Dr Dubin. He further felt excruciating throbbing pain around his testicular area. At 9am Mr Harte called Dr Tan`s office but was told that he was busy. Eventually, Mr Harte spoke to Dr Tan and told the latter of how he felt. Dr Tan assured him that nothing needed be done, except to continue taking the prescribed pills and the swelling would subside. And so Mr Harte waited. But the swelling of his scotum got worse, about five to six times the normal size; and so did the pain.

On 30 April 1997, Mr Harte tried without success to speak to Dr Tan as the latter was away on a day trip to Kuala Lumpur. He made several calls because the swelling and pain got worse. He spoke to Dr Tan`s nurse who told him to continue taking the pills and to come and see Dr Tan on 2 May 1997, 1 May 1997 being a public holiday.

The trial judge found that Dr Tan and/or his nurses should have, on 29 April 1997, asked Mr Harte to come to the clinic immediately for an examination.

By 2 May 1997, Mr Harte`s scrotum had grown to a size of about 7 inches/5 inches. It was agonising for him to walk, even with Mrs Harte`s assistance, to Dr Tan`s clinic. Dr Tan explained that Mr Harte had a scrotal haematoma and prescribed painkillers, antibiotics and anti-inflamatory medication to ease the pain and reduce swelling. And if the swelling persisted, he would draw the blood from his scrotum. Dr Tan did not inform Mr Harte that the haematoma could lead to the atrophy of his testes. Neither was an ultrasound scan carried out. The next appointment was fixed for 9 May. What is pertinent to note is that between 2 and 9 May 1997, Mr Harte was so concerned that he called Dr Tan`s clinic every day for advice. Still Dr Tan did not ask him to come and see him ahead of the next appointment.

On 9 May 1997, Dr Tan examined Mr Harte`s scrotum with the ultrasound machine. The swelling had started to subside although his scrotum was still hard. Because the swelling had subsided, Dr Tan did not think it necessary to draw out the blood from the scrotum.

By the time of the next consultation on 26 May 1997, all swelling had completely subsided. Dr Tan put Mr Harte on a three months` course of Povinorum, a drug containing a form of synthetic testosterone called mesteroline....