Tort Law

Date01 December 2019
AuthorKumaralingam AMIRTHALINGAM LLB (Hons), PhD (Australian National University); Professor, Faculty of Law, National University of Singapore. Gary CHAN Kok Yew LLB (Hons), MA (National University of Singapore), MA (Birmingham), LLM, BA (University of London); Professor, School of Law, Singapore Management University.
Published date01 December 2019
Publication year2019
Citation(2019) 20 SAL Ann Rev 706
I. Introduction

27.1 There were over 40 torts cases in 2019, of which just over half involved the tort of negligence. Unlike previous years, this year's review will deal only with the ten most significant judgments. A full list of torts cases is included at the end of this chapter for the convenience of readers. Of the ten cases, not surprisingly, five of them are claims in negligence. Of these, three involve medical negligence and two involve negligent misrepresentation causing economic loss. The remaining cases relate to claims under the tort of conspiracy, defamation, fraud (or deceit), malicious falsehood as well as nuisance and the rule in John Rylands v Thomas Fletcher1 (“Rylands v Fletcher”).

II. Negligence
A. Medical negligence
(1) Noor Azlin bte Abdul Rahman v Changi General Hospital Pte Ltd

27.2 The year 2019 was significant for medical negligence, with two Court of Appeal decisions and one High Court decision. In Noor Azlin bte Abdul Rahman v Changi General Hospital Pte Ltd2 (“Noor Azlin”), the appellant had visited Changi General Hospital's (“CGH's”) accident and emergency (“A&E”) department in 2007, 2010 and 2011 complaining of chest pain and breathlessness. On each occasion, X-rays were taken. In 2007, the A&E doctor, noting an opacity in the right region of her chest, referred her to the hospital's respiratory physician for follow-up.

The physician, after reviewing further X-rays, noted that the opacity “appeared to be resolving or had resolved on its own”. He discharged her with an open date instead of ordering a follow-up to confirm that the opacity had resolved. In 2010, the A&E doctor who saw the appellant noted the opacity in the X-ray, but discharged her without any follow—up as he was not aware of the appellant's history. In 2011, the appellant presented at the A&E complaining of pain in the left side of her chest. The A&E doctor, focusing on the X-ray image on the left side of the chest, failed to notice the opacity. The appellant's cancer went undiagnosed until 2012 when she visited another hospital where further investigations were ordered, leading to her being diagnosed with Stage IIA cancer.

27.3 The appellant sued CGH and its doctors, alleging that their negligence had delayed her diagnosis of cancer, resulting in an adverse medical outcome. The High Court judge found CGH negligent for failing to provide the appellant with the X-ray reports or its findings to enable her to determine for herself whether she needed a follow-up or to have a second opinion. The judge found the physician negligent for failing to schedule a follow-up to ensure that the opacity had cleared. The A&E doctors were not found to have acted negligently. Despite finding that CGH and the physician had acted negligently, the judge dismissed the claim, holding that the appellant had failed to prove that the negligence had caused the damage. The Court of Appeal reversed the judge's decision with respect to CGH, finding that its negligence had caused the loss. The decisions with respect to the three doctors were upheld.

27.4 Noor Azlin is significant for its application of the Bolam test to individual doctors and its analysis of the liability of hospitals for systemic failures. Relying on Penney v East Kent Health Authority3 (“Penney”) and Muller v King's College Hospital NHS Foundation Trust4 (“Muller”), the appellant advanced a bold argument that the Bolam/Bolitho test should not necessarily apply to questions of pure diagnosis. Both Penney and Muller concerned negligent misreading of samples on a slide: in Penney it was a cervical smear test that was wrongly reported as negative, and in Muller it was a biopsy that was wrongly reported as non-malignant.

27.5 The Court of Appeal in Penney treated the question of what was to be seen on the slides as a question to which Bolam v Friern Hospital Management Committee5 (“Bolam”) and Bolitho v City and Hackney Health Authority6 (“Bolitho”) had no application, but held that Bolam/

Bolitho applied to diagnosis. Kerr J in Muller argued that Bolam/Bolitho should not apply in some cases involving questions of pure diagnosis, pointing to the trial judge's comments in Penney:7

All the experts agree that the cytoscreener was wrong. No question of acceptable practice was involved. The issue here to which the experts' evidence was directed was whether the cytoscreeners conduct though wrong, was excusable. This seems to me to fall outside the Bolam Principle. [emphasis in original]

27.6 What is important to highlight is that even though the Court of Appeal in Penney did not go as far as the trial judge, it did endorse the “absolute confidence” test in screening. Under this test, it would be negligent of a screener to report a slide as negative if he or she did not have absolute confidence in the result. For example, the High Court in Manning v King's College Hospital NHS Trust8 (“Manning”) held that unless there was a confidence level of at least 90%, it would be negligent for a pathologist to report a result as negative, even if another pathologist would have reported it as negative. The absolute confidence test allows for a more robust application of Bolitho as a constraint on Bolam.

27.7 Andrew Phang Boon Leong JA rightly held that the Court of Appeal in Penney9 had not rejected the application of Bolam/Bolitho to pure diagnosis cases.10 However, it should be noted that the facts in Noor Azlin11 are distinguishable from Penney and Muller,12 both of which involved pathological screening.13 Regardless of the niceties of the law, doctors should be reassured by the Singapore Court of Appeal's reaffirmation that in the areas of diagnosis, treatment and care, judges will defer to medical opinion in resolving the standard of care in cases involving “genuine medical controversy” unless the opinion is logically indefensible. In short, judges will not second-guess doctors. The court also emphasised that in determining the standard of care, it would take into account the specialisation of the doctor and the surrounding context; this is particularly relevant to emergency medicine.

27.8 The court further held that the standard of care expected of A&E doctors must account for the realities of A&E departments with

high volumes of patients where doctors have to make quick decisions. A&E doctors are expected to take a “targeted approach”, focusing on the patient's emergency and giving less attention to incidental findings. A&E is not a department that provides comprehensive screening. Thus, the A&E doctor who saw the appellant in 2010 was not negligent for failing to order a follow-up as he did not have access to the patient's history; as an A&E doctor, he was not obliged to take the patient's history and was entitled to rely on the patient's account of the physician's assessment of her health. The court held that doctors had to exercise independent clinical judgment and not rely blindly on patients' personal accounts of their health. Notwithstanding, the court did not find the doctor negligent as it recognised that the fault lay with the hospital's system of managing records and information.

27.9 The A&E doctor who saw the appellant in 2011 was not negligent for failing to notice the opacity on the right side as the patient had complained of pain in the left side, justifying his targeted approach of focusing on the area subject to the emergency. However, this does not mean that an A&E doctor can simply ignore incidental findings. Depending on the urgency surrounding the incidental finding and the patient's history, the doctor may discharge his or her duty simply by advising the patient to follow up independently or by ordering further tests and referring the patient to an appropriate specialist.

27.10 The physician was held to a higher standard than the A&E doctors due to his specialist knowledge and the fact that he was not working under the pressures of an A&E department. The court did not find the physician negligent for being unsure whether the opacity had resolved or for failing to order a computed tomography (“CT”) scan at the time. The court recognised that medical diagnosis was not an exact science and respected the judgment of doctors in determining appropriate medical interventions. However, the court found the physician negligent in discharging the appellant without ordering a follow-up to confirm that the opacity had resolved.

27.11 Having considered the allegations against the individual doctors, the court then turned to the hospital, focusing on its system. It found CGH's system of routing radiological reports back to the A&E department to be unsafe as A&E doctors might be too busy with emergencies to review reports carefully. The court was of the view that radiologists should send their reports directly to the appropriate specialist outpatient clinic for a specialist to review, except for cases where the radiologist was unable to discern which specialist department should receive the report. In such cases, the radiologist should send the report to A&E, marking it for urgent action by the senior consultant.

27.12 The court also found that CGH did not have a mechanism to consolidate all the patient's information to ensure an uninterrupted flow of information to all professionals dealing with the patient. Had the A&E doctor who saw the appellant in 2010 the necessary information, he might have ordered further investigations that could have detected the cancer. Finally, the court was critical of the fact that there was no system to record the decisions made by A&E doctors who decided not to order any follow-up. This created an information gap for doctors down the line and an accountability deficit. This deficiency, plus the fact that the hospital bears the evidentiary burden to show that it has an effective system in place, behoves hospitals to keep proper records to enhance patient safety, ensure accountability, and provide evidence of proper...

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