Tong Seok May Joanne v Yau Hok Man Gordon

• Jurisdiction: Singapore
• Judgment Date: 19 December 2012
• Date: 19 December 2012
• Docket Number: Suit No 885 of 2009
• Court: High Court (Singapore)

Tong Seok May Joanne

Plaintiff

and

Yau Hok Man Gordon

Defendant

[2012] SGHC 252

Andrew Ang J

Suit No 885 of 2009

High Court

Tort—Negligence—Breach of duty—Causation—Res ipsa loquitur—Defendant intubating plaintiff to administer general anaesthesia—Plaintiff claiming injury to anterior longitudinal ligament of cervical spine—Whether plaintiff's informed consent for general anaesthesia obtained—Whether intubation negligently carried out by defendant—Whether defendant was negligent in post-operative care—Whether causation proved—Whether plaintiff could rely on res ipsa loquitur

The plaintiff underwent a lower segment caesarean section (‘LSCS’) surgery in connection with which the defendant anaesthetist carried out the general anaesthesia (‘GA’) procedure. The plaintiff brought a claim in negligence against the defendant for alleged injury to the anterior longitudinal ligament (‘ALL’) of the cervical spine. There were three main aspects to the plaintiff's claim.

First, the plaintiff claimed that the defendant did not obtain her informed consent to the GA procedure as he allegedly did not explain to her the nature, risks of and alternatives to GA, including the risk of neck injury.

Second, the plaintiff alleged that the defendant was negligent in failing to take proper care when manipulating her neck during the GA procedure. The plaintiff's case theory was that she was a potentially difficult patient to intubate, but the defendant did not realise this as he was in a rush and did not carry out a pre-anaesthetic assessment to ascertain her suitability for GA before commencing the GA procedure. The plaintiff further alleged that the defendant did not adequately pre-oxygenate her, nor did he prescribe pre-surgery medication. The plaintiff claimed that the defendant encountered actual difficulty during intubation and that he had no adjuncts to assist him as he did not anticipate difficulty in intubation. There would have been a need to intubate the plaintiff as soon as possible as she was unable to breathe on her own at the material time. Against that background and faced with the possibility of the plaintiff having hypoxia, the defendant had to intubate her without the use of assisting adjuncts, which resulted in his having to use excessive force and/or hyperextending the plaintiff's neck, thereby causing injury to the C4/C5 level of the ALL. The plaintiff's orthopaedic expert gave evidence that the plaintiff's injury occurred because her sub-axial spine was in a state of extension during the intubation. The defendant's orthopaedic expert disagreed and gave evidence that the injury could not have been caused by the intubation as the plaintiff's sub-axial spine would have been in a state of flexion, not extension. The plaintiff's alternative case on causation was that even if she had pre-existing cervical spondylosis at the time of the LSCS, the defendant had triggered her symptoms of neck pain.

Third, the plaintiff claimed that the defendant had been negligent in the giving of post-operative care in that: (a)his post-operative orders were incomplete; (b)he had signed off on her discharge from the Operating Theatre (‘OT’) Recovery Room without certifying that she was fit for discharge; (c)he did not review her condition whilst she was in the ward; and (d)he did not review her even after knowing about her condition.

The plaintiff claimed that the ALL injury worsened over time and developed into a whole constellation of further symptoms and complications. She sought damages for physical, emotional and psychological harm allegedly suffered.

Held, dismissing the claim:

(1) As confirmed by the Court of Appeal in Khoo James v Gunapathy d/o Muniandy[2002] 1 SLR (R) 1024 and the High Court in D'Conceicao Jeanie Doris v Tong Ming Chuan[2011] SGHC 193, a doctor's duty to give advice cannot be separated from his general duty of care to his patient: the test in Bolam v Friern Hospital Management Committee[1957] 1 WLR 582 (‘Bolam’) that ‘ [adoctor] is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art’, as supplemented by the test of logic laid down in Bolitho v City and Hackney Health Authority[1998] AC 232 (‘Bolitho’), applies equally to a doctor's giving of advice as to his duties of treatment and diagnosis. The plaintiff's reliance on the proposition in Pearce v United Bristol Healthcare NHS Trust[1999] PIQR P 53 and Chester v Afshar[2005] 1 AC 134 (‘Chester’) that a doctor has to inform the patient of a significant risk if it would affect the judgment of a reasonable patient was thus rejected. In any event, the risk of neck injury was not a significant risk: at [57] to [67] and (4) below.

(2) A patient undergoing LSCS usually had a real choice between several anaesthetic options, but her obstetric condition could significantly affect the choice of mode of anaesthesia. This gave rise to joint responsibility on the part of the anaesthetist and the primary treating physician for the giving of advice. An anaesthetist was responsible not only for explaining to the patient the risks of a particular procedure in so far as ‘pure’ anaesthetic considerations were concerned; he had to also confirm that the primary treating physician had explained to the patient the anaesthetic considerations relevant to his field of expertise: at [69] to [76].

(3) The court held that the defendant did not breach his duty of care in so far as the disclosure of the general nature and risks of GA was concerned. The plaintiff had not proved her case that the defendant had neglected to discuss GA considerations relevant to his field of expertise with her. The plaintiff was also informed by her obstetrician about the nature and risks of GA in so far as obstetric considerations were concerned. The Court also found that the defendant did not breach his duty of care in omitting to expressly confirm with the plaintiff what her obstetrician had discussed with her, as he had relied on the usual working practice between himself and the obstetrician (that the obstetrician would always discuss with his patients the preferred choice of anaesthesia in relation to obstetric considerations): at [78] to [116].

(4) The court held that the defendant did not breach his duty of care in omitting to disclose the specific risk of neck injury. According to the anaesthetic expert witnesses, they would not discuss the risk of neck injury with a patient unless their assessment revealed that intubation might potentially be difficult and/or if it was made known that the patient had an existing neck condition or history of neck injury. In an otherwise normal and healthy patient, neck injury arising from intubation was not a commonly known risk. The plaintiff's orthopaedic expert disagreed that neck injury arising from intubation was not a commonly known risk but the court rejected his view as it was not supported by the evidence. The plaintiff failed to prove that the defendant's assessment of her airway was erroneous and that she was actually a difficult patient to intubate. It was also undisputed that the plaintiff had no known neck condition or history of neck injury at the time of the LSCS. Since she was considered a normal and healthy patient for the purposes of GA, the court ruled that the defendant did not breach his duty of care in omitting to disclose the risk of neck injury: at [117] to [150].

(5) The court held that the defendant did not breach his duty of care in omitting to discuss the alternatives to GA with the plaintiff. The court rejected the plaintiff's reliance on Birch v University College London Hospital NHS Foundation Trust(2008) 104 BMLR 168 (‘Birch’) as the duty to inform the patient about the alternative treatment in Birch arose out of the fact that it was unreasonable and imprudent for the four doctors not to have discussed the comparative risks of a suitable treatment which they had been considering up until the last moment; Birch did not lay down a general rule that a doctor had a duty of care to disclose all other alternatives to a patient regardless of their suitability. The applicable test in Singapore was the Bolam test: at [151] to [156].

(6) On the evidence before the court, there were obstetric reasons to favour GA over other alternatives but not such as to preclude those alternatives as viable options. The defendant's anaesthetic expert gave evidence that he would not have advised the plaintiff about the alternatives in these circumstances, while the plaintiff's anaesthetic expert said that he would. The court accepted the evidence of the defendant's anaesthetic expert as it met the Bolitho threshold test of logic. The court thus found that the defendant did not breach his duty of care in not discussing with the plaintiff the alternatives to GA. In view of the usual working practice between the defendant and the obstetrician, the court also found that the defendant did not breach his duty of care in omitting to expressly confirm with the plaintiff that the obstetrician had indeed gone through the process of explaining the alternatives to her: at [157] to [165].

(7) The plaintiff's informed consent was not vitiated by the fact that the defendant had performed the steps leading to the final confirmation of her informed consent in the OT where she was allegedly in a vulnerable mental state. The defendant's anaesthetic expert disagreed with the plaintiff's anaesthetic expert's assertion that informed consent should never be taken in the OT unless in an emergency. The court accepted the defendant's anaesthetic expert's opinion as it met the legal test. Since the plaintiff's obstetrician had already begun the process of obtaining informed consent the night before the LSCS, the plaintiff would have had sufficient time and opportunity to process the relevant information. In the absence of any reason to think that the...