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Grounds publishedDecided 22 Aug 2011
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High Court

D’Conceicao Jeanie Doris (administratrix of the estate of Milakov Steven, deceased) v Tong Ming Chuan

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[2011] SGHC 193Case no. Suit No 270 of 2010

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  1. Tay Yong Kwang J:

  2. Introduction

  3. [1] The plaintiff is the administratrix of the estate of the late Milakov Steven (“MS”). Dr Tong Ming Chuan (“Dr Tong”) is a cardiothoracic surgeon who performed a redo coronary artery bypass graft surgery (“the redo-CABG”) on MS on 12 March 2007. On 23 April 2007, 6 weeks after the redo-CABG, MS passed away from post-operative complications. The plaintiff brought a claim in tort and contract against Dr Tong, alleging that Dr Tong was negligent and/or in breach of contract in relation to the medical advice, care and treatment that he rendered to MS between 9 March 2007 and 23 April 2007.

  4. [2] The trial before me was confined to the issue of liability.

  5. The parties

  6. [3] The plaintiff and MS were married in 1989. Letters of Administration of the estate of MS were granted to the plaintiff on 22 March 2010 and the grant was extracted on 15 April 2010. The plaintiff brought this action against Dr Tong for damages for the benefit of the dependants of MS under ss 20 and 21 of the Civil Law Act (Cap 43, 1999 Rev Ed) (“the Civil Law Act”) and for the benefit of the estate of MS under s 10 of the Civil Law Act. The dependants of MS are:

  7. [4] Dr Tong is a Consultant Cardiothoracic Surgeon in private practice with over 28 years of experience in cardiothoracic surgery. He practises at a clinic in Mount Elizabeth Medical Centre. MS was referred to and first saw Dr Tong on 9 March 2007. Dr Tong performed the redo-CABG on MS on 12 March 2007. From 12 March 2007 to 23 April 2007 (“the post-surgery period”), MS was cared for in the Coronary Care Unit at Mount Elizabeth Hospital. Dr Tong was MS’s primary physician during the post-surgery period.

  8. [5] MS was 65 years of age at the time of his death. He was an American citizen and held Permanent Residence status in Singapore. Prior to his death, MS was engaged on a contractual basis by M/s Chevron Inc, a multinational company based in the United States of America (“USA”), as a consultant on matters relating to communication skills, brand management and public relations. He was also an author of a number of books and articles. His average monthly earnings were around $16,250 per month when he passed away. MS had a history of borderline diabetes and hypertension. Notwithstanding these conditions, before suffering his first major adverse cardiac event (“MACE”) on 17 January 2007, MS had been in good health. The plaintiff testified that MS led an active lifestyle and was accustomed to exercising five or six times a week regularly.

  9. The background

  10. [6] For the purposes of determining liability, it is necessary to understand the events leading up to this claim. The key medical terms will be defined where necessary to facilitate understanding. The facts and definitions are undisputed unless the contrary is indicated.

  11. The first MACE suffered by MS and the treatment he received at St Joseph Medical Centre, Houston (“SJMC”)

  12. [7] On 17 January 2007, when MS was in Houston, USA, he experienced left-side back tightness accompanied by some nausea while doing his normal routine physical exercise. This exercise routine comprised of a walk which usually lasted about 45 minutes to an hour. After MS felt unwell during the course of the walk, the plaintiff, who was walking with him, accompanied him home to rest. As MS continued to feel unwell, the plaintiff brought him to SJMC on the same day to seek medical attention. MS was diagnosed as suffering from ischaemia (insufficient blood supply to the heart muscles), and angina pectoris (chest pain, a symptom of ischaemia). These conditions are distinct from an acute myocardial infarction (“AMI”) (more commonly known as a heart attack). MS did not suffer an AMI on 17 January 2007. This was the first time he suffered a MACE.

  13. [8] MS underwent a coronary angiography on 18 January 2007. A coronary angiography is a procedure to visualise the coronary arteries. To conduct an angiography, the catheter is inserted into a large artery in the groin or the wrist (in MS’s case, the femoral artery was selected), then advanced to the heart and positioned at the mouths of the coronary arteries before injection is performed. To see the coronary arteries, a special dye or contrast medium is injected through the catheter. The dye will “opacify” the vessels and thus makes them visible on the angiogram. Coronary angiography may be said to be an invasive procedure. This procedure is carried out to determine whether there is any significant narrowing or blockage (“stenosis”) in the coronary arteries. Stenosis of the vessels may be caused by coronary artery disease. Where there is stenosis, the blood flow to the heart muscles becomes restricted, which in turn may cause ischaemia, angina pectoris and AMI.

  14. [9] The coronary angiography revealed that MS had coronary artery disease and that the following blood vessels had become stenosed:

  15. [10] MS was advised by his doctors in SJMC to undergo a coronary artery bypass graft surgery (“CABG”). A CABG is a surgery which allows for coronary revascularisation. Revascularisation refers to intervention to restore or improve blood supply to the heart. If coronary revascularisation is desired, there are two procedures that may be performed, namely, a CABG or a percutaneous coronary intervention (“PCI”). The suitability of each procedure is dependent on the particular patient. The aim of a CABG is to insert one or more grafts to the coronary arteries to bypass the stenosed areas. This revascularisation will help to ensure that an adequate supply of blood continues to reach the heart muscles. This is important as oxygen and nutrients, which are vital for muscle survival, are transported through the blood. To perform a CABG, the patient is first put under general anaesthesia. The surgeon then makes an incision down the middle of the patient’s chest and saws through his breastbone. The blood vessels which are to be used as grafts will be harvested. The two types of vessels commonly used as grafts are saphenous veins and internal mammary arteries. The heart will then be stopped, and the patient placed on a cardiopulmonary bypass machine. A cross clamp will be placed across the aorta to prevent blood returning to the heart and a cardioplegia solution administered to prevent cell death within the heart. The grafts will then be inserted. Following this, the patient will be removed from the bypass machine. To complete the surgery, the surgeon will stop any bleeding, wire the breastbone together, and close the incision. As can be seen from this brief description of a CABG, the surgery is a major one.

  16. [11] On his doctors’ advice, MS underwent a triple CABG on 19 January 2007 (“the initial CABG”). The initial CABG performed at SJMC involved the insertion of three grafts:

  17. Recovery after the initial CABG

  18. [12] Following the initial CABG, MS made good recovery, and returned to Singapore in February 2007. Upon his return to Singapore, MS consulted his regular general practitioner, one Dr Michael Chua, as his doctors in SJMC had suggested routine medical reviews. Dr Michael Chua in turn opined that MS would benefit from regular check-ups by a cardiologist and recommended one Dr Christopher Chew, an interventional cardiologist at Mount Elizabeth Medical Centre.

  19. [13] On 23 February 2007, MS consulted Dr Christopher Chew at his clinic. Dr Christopher Chew conducted some tests on MS. MS performed within the acceptable range of results for the tests. Dr Christopher Chew thus advised MS that he was recovering well and that he could continue with his usual exercises and lifestyle. Even so, MS adopted a more sedentary lifestyle and rested at home as he was on medical leave after the initial CABG.

  20. The second MACE suffered by MS and the treatment he received at Mount Elizabeth Hospital (“MEH”)

  21. [14] At around 5.00am on 9 March 2007, MS experienced some chest pain. He presented himself at the Accident and Emergency Department of MEH for a consultation at around 6.00am and requested to see Dr Christopher Chew. It is not disputed that on 9 March 2007, MS suffered an AMI. This was the first AMI that MS suffered.

  22. [15] Dr Christopher Chew examined MS and performed a coronary angiography on him at or about 8.45am on 9 March 2007. It is not disputed that the angiogram suggested that Graft 1 and Graft 2 were completely occluded. The Cardiac Catheterization Report stated that a “total block” had occurred in Graft 1 and Graft 2. The occlusion would mean that no blood could flow through those grafts, thus cutting off the supply of oxygen and nutrients to areas of heart muscle downstream of the grafts. Dr Christopher Chew opined that the AMI had been caused by the occlusion of Graft 1 and Graft 2. With regard to the LIMA-LAD graft, there was a substantial dispute at trial as to its patency. The significance of this dispute will be seen in the discussion on whether the redo-CABG was an indicated and/or appropriate treatment.

  23. [16] Dr Christopher Chew then recommended that MS obtain a surgical opinion from a cardiothoracic surgeon. MS was agreeable to this and Dr Christopher Chew referred him to Dr Tong. At or about 12.00 noon on 9 March 2007, Dr Tong examined MS. It is clear that the option of a redo-CABG was proposed by Dr Tong to MS at this first meeting. The sufficiency of the advice given by Dr Tong to MS on the risks of the redo-CABG and on alternative treatment options is disputed.

  24. [17] On 12 March 2007, Dr Tong carried out the redo-CABG on MS. This was some 7 weeks after the initial CABG conducted at SJMC. A redo-CABG is essentially similar to an initial CABG. It is, however, a much riskier surgery, particularly when the redo-CABG is performed within a short period of time from the initial surgery. The fact that MS’s redo-CABG involved a higher degree of risk than his initial CABG was not disputed by Dr Tong. After an initial CABG, the heart takes some time to recover from the operation. There would be scarring of the tissues in the chest, with adhesions between the heart and pericardium and between the pericardium and the breastbone. The closer the proximity in time to the initial CABG, the more highly vascularised the scar tissue and incision of such tissue would result in a high degree of blood loss. Therefore, a redo-CABG performed shortly after an initial CABG would involve heavier blood loss than the initial CABG. A surgeon doing a redo-CABG would need to proceed slowly, cauterising the vessels to minimise blood loss and would also need to proceed cautiously to avoid severing grafts from the initial CABG that remained patent. This would result in an increased entry time into the chest which would cause the redo-CABG to take more time to complete than an initial CABG.

  25. [18] MS’s redo-CABG started at 9.00am and ended at 6.55pm on 12 March 2007, ie, the surgery lasted close to 10 hours. During the surgery, MS was placed on the cardiopulmonary bypass for 333 minutes, and the cross clamp time was 140 minutes. Three new grafts were inserted during the surgery: two SVG grafts to the marginal branches of the Cx and a right internal mammary artery (“RIMA”) graft to the diagonal branch of the LAD. Following this, the bleeding had to be controlled before the surgery was completed. The usual methods of controlling bleeding, ie, an infusion of platelets and fresh frozen plasma were administered to MS. However, these failed to stop the bleeding, and 2.4 mg of Activated Factor VII (a clotting agent) was then administered. This achieved haemostasis (the stopping of bleeding). MS’s chest was then closed and the surgery completed.

  26. [19] After the surgery, MS was admitted to the Coronary Care Unit at MEH. While in the Coronary Care Unit during the post-surgery period, MS developed post-operative complications including infection and sepsis which seriously compromised his health. On 23 April 2007, 42 days after the redo-CABG, MS passed away from multi-organ failure.

  27. The plaintiff’s claim

  28. [20] The plaintiff particularised her claim in the tort of negligence comprehensively under 17 sub-paragraphs. Broadly, her claim fall under three headings.

  29. [21] First, the plaintiff claimed that Dr Tong was negligent in recommending that MS undergo the redo-CABG. This claim centres on whether the redo-CABG was an indicated and/or appropriate treatment for MS. It is a distinct and logically prior claim to the second group of issues on the duty to advise (at [22]), as the patient should only be advised about indicated and/or appropriate treatments. The plaintiff claimed that the urgent redo-CABG in this case was not an appropriate treatment for the following reasons:

  30. [22] Second, the plaintiff claimed that Dr Tong failed in his duty of care to advise MS on the redo-CABG for the following reasons:

  31. [23] Third, the plaintiff claimed that Dr Tong was negligent in the actual performance of the redo-CABG for the following reasons:

  32. [24] The plaintiff also made corresponding parallel claims based on the contractual duties which Dr Tong owed to MS.

  33. [25] It is noted that the plaintiff made no claim with regard to Dr Tong’s post-operative care of MS.

  34. The defence

  35. [26] Dr Tong denied the plaintiff’s claims. I summarise the salient points of the defence here. Where possible, I have enumerated the defence to correspond to the plaintiff’s claim.

  36. [27] First, Dr Tong averred that a redo-CABG was indicated and appropriate for MS given his evolving infarction, poor coronary condition and the complete occlusion of Graft 1 and Graft 2. He further averred that PCI was not a viable option for MS. MS’s condition and prognosis without the redo-CABG was very poor and it was more likely than not that he would die within three years without the redo-CABG.

  37. [28] Second, regarding his advice to MS, Dr Tong stated he had fulfilled his duty of care in advising MS for the following reasons:

  38. [29] In addition, Dr Tong asserted that MS had discussed the redo-CABG with Dr Christopher Chew and Dr Suelyn Chew (the anaesthetist involved in MS’s redo-CABG) in separate consultations. This was on top of MS’s discussions with Dr Tong himself.

  39. [30] Third, Dr Tong explained that the redo-CABG was not carried out negligently for the following reasons:

  40. Issues

  41. [31] Much of the time at trial was spent cross-examining the expert witnesses over the first thrust of the plaintiff’s claim on whether the redo-CABG should even have been recommended to MS as an option. However, the plaintiff’s written submissions dealt largely only with the second thrust of her claim, that is, whether Dr Tong was negligent in advising MS regarding the redo-CABG. The plaintiff did not strenuously pursue the third thrust of her claim (concerning the negligent conduct of the redo-CABG) during trial or in her written submissions.

  42. [32] Nevertheless, the three issues to be decided are as follows:

  43. I will deal with the issues in the order set out above.

  44. [33] In Singapore, the legal framework for medical negligence was set out by the Court of Appeal in Khoo James v Gunapathy d/o Muniandy [2002] 1 SLR(R) 1024 (“Gunapathy”). I am guided by the approach taken in Gunapathy where the Court of Appeal opined at [4] that it was desirable to “set out the applicable law at the outset in order to keep a tight rein on the arguments” before the court, as “the cart must be put before the horse to prevent it from galloping off on an erroneous tangent”.

  45. [34] In Gunapathy, the Court of Appeal conducted a comprehensive review of the jurisprudence following from the seminal case of Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 (“Bolam”), and affirmed that the test laid down in Bolam (“the Bolam test”) and supplemented by Bolitho v City and Hackney Health Authority [1998] AC 232 (“Bolitho”) was the applicable test in Singapore.

  46. [35] The well-known Bolam test comprises two limbs. The first limb provides that when a situation involves some special skill or competence, the standard of care the defendant will be held to is that of “the ordinary skilled man exercising and professing to have that special skill” (at 586). McNair J stated the second limb as follows (at 587):

  47. [36] Subsequent cases which interpreted and applied the Bolam test had the unintended effect of “[conferring] near-immunity to the medical profession from actions in negligence” (Gunapathy at [58]).

  48. [37] In Bolitho, the House of Lords did a timely review of the second limb of the Bolam test and clarified that the court was not bound to find for a defendant doctor simply because a body of experts testified in his favour (at 241 – 242):

  49. [38] While the House of Lords was concerned to emphasise that not all expert opinions would be accepted, it was also quick to emphasise that it would be a rare case where the opinion did not meet the threshold test of logic (at 243):

  50. [39] The Court of Appeal in Gunapathy (at [63]) opined that “Bolitho presented a timely addendum to the Bolam test”, as it “gave voice to a commonsense understanding which was hitherto unexpressed – that the Bolam test did not represent immunity from judicial inquiry over the medical process”. The Bolitho caveat was that in order for an expert view to qualify as a “responsible” body of medical opinion, it had to satisfy the threshold test of logic. Therefore, the question was what the threshold test of logic entailed and this was examined in Gunapathy at [64]:

  51. [40] The Court of Appeal also unequivocally stated that “judges and lawyers should not play at being doctors” and thus should not enter the fray that is the arena of divided medical opinion, as the “lawyer-judge, while eminently equipped to follow such arguments, finds himself quite out of his depth when called upon to adjudicate over them” (at [3]). Therefore, Bolitho cannot be understood to “herald invasive inquiry into the merits of medical opinion”.

  52. Issue 1: Whether Dr Tong breached the tortious and contractual duties of care he owed to MS in recommending that he undergo the redo-CABG

  53. [41] The question of whether a particular medical intervention is justifiable is the starting point of the inquiry. If the procedure in question is not justifiable, then a patient would not need to be advised of that procedure and, in fact, should not be advised of such a procedure. The issue of whether the particular procedure is justifiable at all must also be considered before the issue of whether the performance of that procedure was negligent. Jackson & Powell on Professional Liability (Sweet and Maxwell, 6 Ed, 2007) (“Jackson & Powell”) at paragraph 13-087 lists the following considerations to be taken into account in determining this issue:

  54. While it is undisputed in the instant case that MS signed a consent form on 11 March 2007, prior to the redo-CABG, a patient’s consent to a medical procedure is not a defence in circumstances where no reasonably competent medical practitioner would have proceeded at all. In Doughty v North Straffordshire HA [1992] 3 Med LR 81, the patient in question consented to the treatment but the defendants were held liable under the Bolam test as no body of reasonably competent medical opinion would have exposed the patient to such treatment.

  55. MS’ coronary anatomy

  56. MS had a left dominant coronary anatomy

  57. [42] Before going into the expert evidence, it is necessary to have an appreciation of MS’s coronary anatomy. It was undisputed among the experts on both sides that while most people have right dominant coronary anatomies, MS’s coronary anatomy was left dominant. While a left dominant coronary anatomy is not problematic in itself, it is a feature that was unequivocally accepted by the experts to have had implications for surgery.

  58. [43] A right dominant person has arterial blood supplied to the left ventricle of the heart split proportionally among the three main coronary arteries approximately as follows: RCA (25%), Cx (15%), LAD (60%). The supply from the RCA to the left ventricle comes from the RCA’s supply of blood to the posterior descending artery (“the PDA”), an artery that reaches the crux of the heart and perfuses some of the left ventricle’s muscles along the way. On the other hand, a left dominant person’s PDA is supplied by the Cx and not the RCA. This means that the RCA supplies negligible blood to the left ventricle, which then depends entirely on the left coronary arterial system (“the LCA”) for its supply of oxygenated blood. The LCA is the arterial system which includes the LMCA, the Cx and the LAD (see [9] above). The Cx and the LAD are smaller (but still extremely vital) arteries which are supplied by the larger LMCA.

  59. [44] The left ventricle of the heart pumps oxygenated blood from the heart into the aorta to be transported to the rest of the body. In the words of Dr Richard Cooke (“Dr Cooke”), one of the plaintiff’s experts, the left ventricle “is the most important chamber” of the heart and also “the chamber upon which life depends”. As MS was left dominant, his RCA carried negligible amounts of blood to the left ventricle. His Cx, however, was dominant and larger than in most cases, and compensated for negligible blood flow via the RCA by supplying oxygenated blood to the PDA (which would be supplied by the RCA in the more common anatomy of the right dominant person).

  60. [45] The upshot of all this is that while a right dominant person’s Cx is responsible for around 15% of the oxygenated blood supply to the left ventricle, MS’s Cx was responsible for almost 40% of the said supply. It was thus clear that the continued viability of MS’s Cx was vital.

  61. The diseased state of MS’s coronary arterial system

  62. [46] It was uncontroversial that MS’s coronary arterial system was severely diseased. We have already established that MS’s LAD and Cx were responsible for most (if not all) of the supply of oxygenated blood to his left ventricle. As explained above, both his LAD and his Cx were supplied by the LMCA. From a reading of the angiogram, the expert witnesses opined that MS’s LMCA suffered a 50% stenosis.

  63. [47] I have explained above that coronary angiography involves shooting dye through a patient’s coronary arterial system in order to visualise it. An angiogram comprises a series of videos (taken from different angles) of the dye passing through the patient’s blood vessels. The experts were allowed to give a running commentary on MS’s angiogram as they were being cross-examined in court. It was demonstrated to the court that as the dye was shot through MS’s LMCA, the visible dye flow tapered to 50% of its width at the mid LMCA. This allowed the experts to determine that MS had a 50% stenosis at the mid LMCA. It was also explained to the court (and this accords with simple physics) that a 50% stenosis (ie, a reduction of the diameter of the vessel by half) would correspond to a reduction in the cross-sectional area to 25%. Therefore, the blood carrying capacity of MS’s LMCA, which supplied most of the blood to MS’s left ventricle, had been reduced by disease to 25% of its normal capacity.

  64. [48] The non-viability of MS’s coronary system was compounded by further disease in MS’s Cx and LAD. Dr Tong stated that MS’s Cx was 99% stenosed at its ostium (ie where it originated from the LMCA). Dr Christopher Blauth (“Dr Blauth”), one of the plaintiff’s experts, was not prepared to accept the 99% figure, but readily conceded that the stenosis was “definitely very tight”. As for MS’s LAD, while the experts disagreed on the patency of the LIMA-LAD graft, it was uncontroversial that the LAD system was diffusedly stenosed. The supply of blood to MS’s left ventricle and the rest of his body was thus compromised.

  65. The evidence of the plaintiff’s experts

  66. [49] The plaintiff called four experts, three of whom I have already mentioned above. They were:

  67. [50] This is an appropriate juncture to distinguish between the job scopes of cardiothoracic surgeons and cardiologists. Cardiothoracic surgeons, such as Dr Tong, are qualified to do open heart surgeries such as CABGs and redo-CABGs. Where the procedure to be performed is non-surgical, this will fall outside of the province of cardiothoracic surgeons, eg, cardiothoracic surgeons do not carry out PCI as it is a non-surgical procedure. Procedures such as PCI are more properly within the province of interventional cardiologists such as Dr Christopher Chew. Cardiologists do not perform surgical procedures. Cardiothoracic surgeons and cardiologists thus complement one another and often work together in teams.

  68. [51] The plaintiff’s experts took the view that a redo-CABG was not indicated and that Dr Tong breached his duty of care by referring MS for a redo-CABG. In their view, MS’s condition had stabilised in the days after his AMI. Dr Cooke stated in cross-examination:

  69. [52] In addition, the plaintiff’s experts were of the opinion that the LIMA-LAD graft was patent and demonstrated “brisk flow” into the distal LAD. The experts found that since MS had no further angina once his heart attack had settled, his prognosis would not be improved by an urgent redo-CABG. As the plaintiff’s experts considered revascularisation unnecessary (at least, unnecessary at that particular point in time so shortly after the AMI) they would have recommended that MS be put on OMT. OMT is the most conservative treatment option for coronary artery disease and does not achieve revascularisation, unlike PCI or CABG. OMT essentially consists of an intensive regimen of medication and lifestyle changes to try to reduce the likelihood of a further MACE like an AMI. OMT may involve the administration of medication to control hypertension and/or thin the blood.

  70. [53] Even if revascularisation was deemed necessary, the plaintiff’s experts thought that it should have been done by way of PCI. PCI is a revascularisation procedure which involves the use of balloons and stents to widen stenosed arteries and prevent them from subsequent narrowing for as long as possible. A balloon will be passed through the coronary arteries to reach the stenosed segments. The stenosed segment will then be dilated with the balloon under high pressure, and stents placed in the arteries to try to keep the artery open.

  71. [54] It is uncontroversial that it is preferable to carry out PCI when the stenting procedure is “protected”, ie, when the heart is protected by a good supply of blood from an additional artery while the stenting is being carried out. The reason for this is that the patient is not placed on a bypass machine while PCI is being carried out and, if in the course of the procedure, the artery being stented becomes occluded, there will be no alternative supply of blood to the heart and the patient would go into an immediate AMI. In the view of the plaintiff’s experts, MS would be protected by the brisk flow through the LIMA-LAD graft and a PCI would thus be a low risk procedure in his case. Dr Cooke went so far as to suggest that the stenting procedure carried an extremely low risk even if MS did not have a patent LIMA-LAD graft, stating that the aforementioned risk of complete occlusion would be less than 0.1%.

  72. [55] Dr Sharma also pointed out that the redo-CABG was a high risk surgery for several reasons, including the possibility of heavy bleeding due to the adhesions of the heart resulting from the first CABG as well as the increased mortality risk arising from operating on a patient just following an AMI. The plaintiff’s experts calculated the risk score to be in the region of 14% from the EuroSCORE risk scoring system and opined that Dr Tong’s risk estimate of 3% was a “considerable underestimate”. The following excerpt from Dr Sharma’s affidavit summarised the position of the plaintiff’s experts:

  73. The evidence of Dr Tong’s witnesses and experts

  74. [56] Dr Tong took the stand himself. He also called the following factual witnesses:

  75. As for expert witnesses, Dr Tong called:

  76. [57] One of the sub-issues that Dr Tong and his witnesses were called on to answer was whether MS had suffered post-infarction angina after his AMI. This sub-issue comes under the first heading of whether Dr Tong was negligent in recommending the redo-CABG and was the only sub-issue under the first heading that the plaintiff substantially pursued in her written submissions. It was uncontroversial that post-infarction angina indicated the need for revascularisation. Counsel for the plaintiff confronted Dr Tong and his witnesses with a pain flow sheet from the hospital which showed that MS had not suffered pain after 10 pm on 9 March 2007, the day he suffered his AMI. Faced with this piece of contemporaneous evidence, Dr Tong and his witnesses had to concede that MS’s pain had been resolved but emphasised that the resolution of pain was due to the medical treatment MS was receiving. Dr Christopher Chew, for example, stated the following on cross-examination:

  77. [58] Dr Sin took a similar position:

  78. [59] As for the LIMA-LAD graft, Dr Tong opined that MS did not have a good functioning LAD and that there was 90% stenosis at the mid-segment of the LAD and a further 60% stenosis of the LAD distal to the anastomosis of the LIMA-LAD graft (“stenosis of the distal LAD”). This meant that the blood flow in the distal LAD was obstructed. When asked to comment on this by Dr Tong’s counsel, Dr Christopher Chew stated:

  79. [60] Further, Prof Buxton took the view that there was “really a very poor flow” in the distal LAD, going so far as to say that he would “regard that as almost non-functional”. When asked whether MS had a protected LMCA, Prof Buxton’s reply was:

  80. [61] This view that MS did not in fact have a protected LMCA had implications on the viability of PCI as an alternative treatment. Dr Christopher Chew was asked to comment on this by counsel for Dr Tong:

  81. [62] When asked to comment on Dr Christopher’s Chew’s response, Dr Sin said:

  82. [63] As for whether Dr Tong’s risk estimate of 3% for the redo-CABG was negligent, Dr Sin and Prof Buxton pointed out that when they used the alternative “Society of Thoracic Surgeons” (“STS”) risk scoring system, they produced risk estimates of 2.3% and 1.7% respectively.

  83. Sub-issues relating to Dr Tong’s recommendation of a redo-CABG to MS

  84. [64] The following sub-issues have arisen for determination:

  85. Sub-issue 1a: Whether the flow of blood to the distal LAD was adequate

  86. [65] One important area of dispute was the adequacy of blood flow provided to the distal LAD. As stated above, Dr Tong’s view was that blood flow to the distal LAD was inadequate. This diagnosis was arrived at on the basis of Dr Tong’s reading of the angiographic studies as well as MS’s clinical history presentation. Under cross-examination, Dr Tong agreed that the stenosis of the distal LAD would be a significant clinical finding. However, counsel for the plaintiff pointed out that these findings were not mentioned by Dr Christopher Chew in documents prepared prior to the trial, though he had the opportunity to do so on three separate occasions.

  87. [66] First, in Dr Christopher Chew’s affidavit, his only finding with regard to the LAD was that it was “relatively small and diffusely atherosclerotic”. Dr Tong then replied that Dr Christopher Chew had found diffused stenosis of the LAD and that the only difference between his view and Dr Christopher Chew’s view was that the percentage of stenosis was not recorded.

  88. [67] Second, in both of Dr Christopher Chew’s two entries in the Clinician’s Collaborative Progress Notes (“the Clinician’s Notes”) on 9 March 2007, there was no mention of any finding of stenosis of the distal LAD. Dr Tong replied that such findings would not be recorded, as they were not clinical findings, but angiographic findings or investigative findings. He explained that clinical notes were aimed mainly at noting the clinical appearance of the patient and how the patient appeared in response to the treatment.

  89. [68] Third, in the confidential medical report, prepared about 10 days after MS’s death, Dr Christopher Chew did not discuss the stenosis of the distal LAD. In fact, Dr Tong himself did not mention the stenosis of the distal LAD in his letter to Dr Christopher Chew dated 29 April 2007, even though, at this time, he knew that the matter had been made a Coroner's case.

  90. [69] I considered these submissions but ultimately found that Dr Tong’s expert witness, Prof Buxton, provided convincing support for the medical view that blood flow to the distal LAD was inadequate. I have already referred to Prof Buxton’s evidence at [60] above.

  91. [70] There was a dispute between the plaintiff’s and Dr Tong’s experts on the issue of whether the blood flow to the distal LAD was adequate. To put the matter at its simplest, the plaintiff’s experts said that it provided adequate flow while Dr Tong’s experts said otherwise. One of the reasons for disagreement was that the angiogram which was provided to the experts provided a “non-selective” view of the distal LAD. When Dr Christopher Chew conducted the angiogram for MS on the morning of 9 March 2007 when MS arrived in the hospital after his AMI, he was only able to achieve a “non-selective” shot of the LAD system in the angiogram. This was because when Dr Christopher Chew injected the dye into MS’s circulatory system, he was not able to place the catheter in the precise location (ie, the orifice of the LIMA) which would best engage the vessels leading to MS’s coronary arterial system. The catheter in this case had been placed past the LIMA and was sitting in the subclavian artery. This meant that there was a less than satisfactory amount of dye shooting through MS’s coronary arterial system so as to opacify it and make it visible in the angiogram. A non-selective shot thus provided a sub-optimal view of the coronary vessels.

  92. [71] Therefore, the angiogram gave only a very faint view of the dye coursing through MS’s coronary arterial system. I should say that the plaintiff did not take issue with Dr Christopher Chew’s performance of the angiography, particularly given the emergency circumstances in which the procedure was undertaken, but was concerned about the implications of the non-selective shots. The lack of clarity in the view provided by the angiogram was fertile breeding ground for legitimate disagreement among the medical experts. The view that the blood flow to the distal LAD was inadequate could not be said to be illogical. Accordingly, I find in accordance with the Bolam test that Dr Tong was not negligent to have held the view that blood flow to the distal LAD was inadequate.

  93. [72] The view that there was an inadequate flow of blood through MS’s distal LAD would lead a doctor to two further conclusions. First, that the overall blood supply to MS’ heart would be very poor. As MS was left-dominant, his left ventricle depended almost solely on the Cx and LAD for its supply of oxygenated blood. However, his Cx suffered a “very tight" stenosis at the ostium which would mean that the blood flow through the Cx would be hampered. If the LAD also had an inadequate blood flow, this would mean that the total volume of blood to MS’s heart might be insufficient. The poorer the blood flow to MS’s heart, the greater the need for revascularisation. Second, if MS’s distal LAD was receiving inadequate flow, then it could not serve as an alternative blood supply to the Cx to protect MS’s heart during the stenting of the Cx in a PCI. This would thus cast doubt on whether PCI was, as the plaintiff argued, the superior option for revascularisation and it is issue that I will now address.

  94. Sub-issue 1b: Whether PCI was the superior option for revascularisation

  95. [73] There appeared again to be genuine disagreement between the experts on both sides regarding this point. The plaintiff’s expert, Dr Cooke, clearly thought that PCI would be safe even if it was carried out unprotected. While he acknowledged the nervousness that many interventional cardiologists might have in carrying out an unprotected PCI, he stated that medical views were changing:

  96. [74] On the other hand, Dr Christopher Chew’s view was that MS was an unsuitable candidate for PCI. He stated in his affidavit at paragraph 18:

  97. [75] I also noted his observation at paragraph 19:

  98. [76] Further, Dr Sin testified as follows:

  99. [77] It was also emphasised to me that PCI is a non-surgical option. Therefore, the decision to offer PCI is within the domain of an interventional cardiologist and not that of a cardiothoracic surgeon. Dr Christopher Chew, MS’s interventional cardiologist, had decided, based on the angiogram, that the LIMA-LAD graft did not provide sufficient blood supply as to protect MS’s heart and decided not to recommend PCI. On cross-examination, the plaintiff’s expert, Dr Blauth, accepted that it would not be unreasonable for a surgeon to accept an interventional cardiologist’s opinion that PCI was unsuitable if that accorded with the surgeon’s own judgment or if the surgeon took the view that the interventional cardiologist had considered the matter and arrived at a sound decision.

  100. [78] Moreover, counsel for Dr Tong also urged the court to keep in mind that that when MS originally presented at SJMC on 17 January 2007 with angina, the doctors there found that CABG was indicated and that PCI was unsuitable. At that stage, MS had only suffered angina but not an AMI. Further, this was a case of angina occurring after exercise, as opposed to angina occurring while at rest. The latter situation would have been greater cause for concern. On cross-examination, the plaintiff gave evidence that although MS preferred to defer the bypass and return to Singapore for the procedure, he was advised by the doctors to undergo the initial CABG immediately in Houston.

  101. [79] Turning now to 9 March 2007, when MS presented himself at MEH, it was clear that his medical condition was worse than when he had presented at SJMC on 17 January 2007. First, he had suffered an AMI, a more serious cardiac event than mere angina, as the AMI had caused some of his heart muscle to die. Muscle necrosis is irreversible and the muscle cannot be revived even on revascularisation. Second, his Left Ventricular Ejection Fraction (“LVEF”) had reduced from 59% in SJMC to 49% at MEH. Third, he suffered the AMI despite being at rest, having adopted a fairly sedentary lifestyle generally and rigorously following the medication regime prescribed to him.

  102. [80] This was accepted by Dr Whelan, one of the plaintiff’s experts:

  103. [81] Therefore, counsel for Dr Tong argued that if a CABG had been indicated in preference to a PCI when MS presented in SJMC, a fortiori, a CABG would be indicated when MS presented at MEH. I found this argument persuasive.

  104. [82] On the evidence, I find that Dr Tong did not breach his duty of care under the Bolam test in deciding not to recommend PCI over the redo-CABG option. I also accept the defence’s case is that it would be unusual for a surgeon to oppose a competent cardiologist’s recommendation regarding the suitability of PCI.

  105. Sub-issue 1c: Whether Dr Tong’s risk estimate of 3% was such an underestimate as to amount to a breach of the standard of care

  106. [83] I will now consider the question of whether Dr Tong’s estimated risk of 3% was made negligently. This is separate from the issue of whether the percentage figure was in fact conveyed to MS, which will be examined later. On this sub-issue, the tenor of the plaintiff’s argument was that the estimate of 3% was such an underestimate as to show that Dr Tong did not properly address his mind to the issue of risk and thus breached the standard of care to MS. The experts on both sides proposed risk scores ranging from the lowest of 2.3% (by Dr Sin) using the STS model to the highest of 14.34% (by Dr Sharma) using the EuroSCORE model. These models are international risk scoring systems, created based on data generated from various cardiac centres. For example, the EuroSCORE model is generated from cardiac centres in Europe. Using one of these models is similar to filling up an online survey form. Various questions about the patients are asked and one chooses from a set of pre-determined answers. After all the answers are entered, a risk score is generated.

  107. [84] The risk scores generated by the models differ on two counts. First, the questions in the STS model and the EuroSCORE model differ, as do the specificity of the pre-determined answers available for selection. Second, even when using the same risk scoring model, two different doctors might select slightly different answers to the questions posed by the model. This is because some degree of medical assessment of the patient is required to select an option; and different doctors might have slightly different views. I thus found that the EuroSCORE and STS risk models served only to provide a “scoring guide” (in the words of Dr Sin) in helping doctors to estimate risk scores for their patients. Risk scores responsibly produced by different doctors for the same patient could legitimately differ to some extent.

  108. [85] The arbitrariness of the risk models was also highlighted to me. The EuroSCORE model defines left ventricular function as “moderate” if its level of function is at 30 to 50%. MS’s LVEF was 49%. By selecting “moderate”, MS’s risk score was 8.66%. However, if MS’s ventricular function improved ever so slightly as to cross the 50% threshold into “good”, his risk score would be dramatically halved to 4%.

  109. [86] In addition, it is noteworthy that these models are primarily used to assess cardiac centres, as opposed to assessing risks for individual patients. Dr Sin is also the director of quality management at the National Heart Centre and he explained that he primarily used these models to benchmark the quality of his institution against other institutions. The primary use of these models is to tell hospital directors whether their cardiac departments are up to scratch. However, the data from the models also helps individual cardiac patients to estimate the risks of medical procedures.

  110. [87] I also noted that while the EuroSCORE model consistently produced risk scores in the region of 14%, the plaintiff’s experts readily conceded that a well-known criticism of the EuroSCORE model is that it overestimates risk. This was supported by a medical article from the Netherlands Heart Journal aptly titled “Evaluation of the EuroSCORE risk scoring model for patients undergoing coronary artery bypass graft surgery: a word of caution.”

  111. [88] Finally, it was also uncontroversial among the experts that personal performance data for individual surgeons were highly relevant in estimating the risk for a patient. At the material time, Dr Tong had encountered two mortalities out of 115 redo CABGs, giving a mortality rate of 1.74%. When questioned about this, Dr Tong stated on cross-examination that several of the patients in the “successful” cases were actually higher risk cases than MS. This could not be easily challenged but Dr Tong’s above-par performance statistics as a surgeon were undisputed and this stood him in good stead. Considering all the evidence, I find that the risk estimate of 3% was not negligently made.

  112. Sub-issue 1d: Whether Dr Tong’s mistaken conclusion that MS had post-infarction angina or unstable angina was an irrelevant consideration that he should not have taken into account in choosing to recommend the redo-CABG

  113. [89] As stated above, the plaintiff alleged that one of the factors that Dr Tong took into consideration in recommending the redo-CABG was the ongoing angina pectoris suffered by MS. However, as clearly evinced by the pain flow sheet, MS did not suffer any pain after 10 pm on 9 March 2007 and remained pain-free until the time that he underwent surgery. Although Dr Tong conceded this point, he asserted, consistently with his other factual and expert witnesses, that MS’s pain-free state was only achieved by placing him under medical treatment. On the basis of his witnesses’ evidence, I accepted Dr Tong’s opinion in this regard as reasonably and non-negligently held.

  114. [90] It is apposite to note at this juncture the plaintiff’s objection to Prof Buxton’s expert opinion that Dr Tong was reasonable in proceeding with the redo-CABG. The plaintiff’s objection was on the basis that Prof Buxton had been confused about wrongly entered dates in the Clinician’s Notes. A 7.30am entry which recorded MS as being comfortable overnight with no chest pain was mistakenly dated 10 March 2007 when it should have been 9 March 2007. Prof Buxton did not appreciate this until the trial. Reading this with the earlier 9 March 2007 entries which indicated MS suffered from angina, it might have caused him to mistakenly believe that MS suffered unstable angina (ie, that MS progressed from not having angina to having angina again), when the reality was that MS’s angina had resolved gradually upon admission to Mount Elizabeth Hospital.

  115. [91] However, on being cross-examined subsequent to the clarification of his confusion about this, Prof Buxton continued to emphasise the effect of pain relieving medications and qualified his agreement that there was no evidence of post-infarction angina by saying that there was no clinical evidence:

  116. Coupled with the evidence given by Dr Tong’s other witnesses, I found that Prof Buxton’s evidence continued to be reliable despite his misapprehension regarding the dates of the medical records.

  117. Sub-issue 1e: The significance of the possibility of a further AMI as a factor in Dr Tong’s decision to recommend the redo-CABG and the timing of recommended redo-CABG

  118. [92] This was Dr Tong’s explanation of his thought process behind the recommendation of the redo-CABG:

  119. Further, Dr Tong opined that MS’s positive response to medical treatment while in hospital (ie, the resolution of angina) did not mean that MS’s underlying coronary disease had been cured, and there was “always a possibility of a relapse”. This relapse could occur without warning, at any time. In other words, Dr Tong’s case was that even though the clinical symptoms, specifically the post-infarction angina here, had resolved, the issue of the coronary disease had not been resolved and something had to be done to treat it.

  120. [93] Dr Christopher Chew’s evidence was consistent with this, as he stated on cross-examination that the doctors were concerned to treat MS’s underlying coronary disease:

  121. [94] Even so, Dr Sharma, an expert witness for the plaintiff, testified that scarring in the first six months would be very vascular and thus opined that the “worst time to re-operate or to perform a redo ... [was] close to the primary surgery”. I understand this to mean that even if a redo-CABG was indicated to treat MS’s underlying coronary disease, Dr Tong ought not to have carried it out on an urgent basis.

  122. [95] However, it was common ground between the expert witnesses that there was a risk of another AMI occurring and that this could happen out of the blue, without warning. Dr Tong’s position was that while the redo-CABG was being performed a relatively short while after the initial CABG (45 days) and a short while after the AMI (three days), this had to be balanced against the need for the redo-CABG and the risk that MS might die from a further AMI if he waited a longer period before undergoing the redo-CABG. As Dr Chew noted in his affidavit at paragraph 29,

  123. [96] Prof Buxton described the medical situation as a “trade-off” in his cross-examination:

  124. [97] What was perhaps the most evocative turn of phrase came from Dr Sin on the stand:

  125. The phrase “a ticking time bomb” clearly captures the risk in delaying the redo-CABG. However, as will be expanded on in greater detail later, this was a risk that could not be calculated.

  126. [98] I also found the following paragraph from Prof Buxton’s written expert opinion particularly illuminating:

  127. [99] Prof Buxton went on in the same paragraph to note that MS was considered a “late” case of intervention:

  128. [100] The court was also referred to a Journal of Thoracic and Cardiovascular Surgery article entitled "Optimal timing of coronary artery bypass after acute myocardial infarction: A review of California discharge data". The article documented a study by John Hopkins Medical Institution which suggested that mortality risk for CABGs dropped notably three days after an AMI. On the totality of the evidence, I find that the risk of a further AMI was a significant factor that Dr Tong rightly considered in his decision to recommend the redo-CABG.

  129. Issue 1f: The significance of MS’s improvement after his AMI as a factor in Dr Tong’s decision to recommend the redo-CABG

  130. [101] The plaintiff argued that the improvement of MS’s health condition subsequent to his AMI on 9 March 2007 meant that the redo-CABG could be delayed. However, the defence countered with the alternative perspective that the recovery instead gave a window of opportunity to go ahead with the redo-CABG and this advantage had to be weighed in the balance. Dr Tong stated in cross-examination:

  131. In a similar vein, Dr Sin stated the following paradox in cross-examination:

  132. [102] Therefore, while the improvement which MS made after his AMI might be a reason to postpone the redo-CABG, I accepted that it was reasonable to take the view that this might equally be a reason to proceed with the surgery since MS’s improved condition meant that he was more likely to survive the redo-CABG operation. Dr Tong also submitted that even if MS did not suffer a subsequent AMI which would kill him, he might suffer another MACE which would further reduce cardiac function and “close the window for a redo-CABG”. I understood this to mean that if this opportunity afforded by MS’s improved health condition was not taken to proceed with the redo-CABG, there was no guarantee that it would still be available later.

  133. Issue 1g: The significance of the rarity of MS’s medical situation as a factor in Dr Tong’s decision to recommend the redo-CABG

  134. [103] The plaintiff argued that a redo-CABG in the nature of what MS underwent was extremely rare for two reasons, which I have termed “the two proximities in time”:

  135. Indeed, Prof Buxton stated that in his 30 years of practice, he had done only one redo-CABG within six weeks of the initial CABG. He further stated that in this one case, the patient had not also just suffered an AMI, as was the situation in MS’s case. Dr Sin also conceded that he had never encountered a patient in MS’s situation. However, he elaborated that although it was unusual for a patient to have a redo-CABG so soon after the initial CABG, it was not unusual to have re-do operations within six weeks of open heart surgery and some operations were even deliberately staggered in that way because the patients were deemed to be high risk cases.

  136. [104] It can be seen that it is extremely rare for a patient to undergo a redo-CABG where there is a coincidence of the two proximities. Even so, I find that the fact of rarity of a redo-CABG in such circumstances should not be given undue weight. The reason for such rarity might be due to the reluctance of reasonable surgeons to proceed in the face of the increased risks, which could support a finding of a breach of duty, or might be due to the rarity of the coincidence of the two proximities in themselves, in which case it might be argued that a redo-CABG in such circumstances amounted to a desperate measure to treat a desperate situation.

  137. [105] As stated above, the plaintiff’s case essentially boiled down to the assertion that reasonable surgeons in Dr Tong’s position would have recognised that the risks involved in undergoing the redo-CABG outweighed the benefits which MS would have received. In 1921, Frank Hyneman Knight (“Knight”) published a book entitled “Risk, Uncertainty and Profit”. He shared an insight which I find helpful to the present analysis. Knight drew a distinction between risks (outcomes with defined probability distributions) and uncertainties (outcomes with undefined probability distributions). In other words, we know our odds when it comes to risks, but we do not when it comes to uncertainties. To my mind, MS faced a risk when it came to proceeding with the redo-CABG, because the doctors could try to quantify the probabilities of things going wrong. However, when it came to declining the redo-CABG, he faced an uncertainty. As noted earlier, MS was akin to a “ticking time bomb” with an unknown detonation time. At the end of the trial, I asked Dr Sin what MS’s odds were if he were to decline the redo-CABG:

  138. [106] I find the question of MS’ chances of survival without going ahead with the redo-CABG simply an imponderable. The plaintiff’s experts who said that MS should not have gone ahead with the redo-CABG candidly accepted that a subsequent AMI might happen “out of the blue”. It was common ground that MS had severe coronary artery disease and it was thus not uncontroversial that a subsequent AMI might well have killed him. The plaintiff’s experts did not put a figure to the chances of that happening and I take it that they could not. If they could put forward such a figure and show it to be significantly lower than the risk MS faced in undergoing the redo-CABG, then Dr Tong would have breached his duty to MS. However, it is precisely on medical imponderables such as the present question that the medical community is allowed to have legitimate disagreements without interference by the judiciary. By definition, it is impossible to calculate imponderables and as stated at Gunapathy (at [3]), “We often enough tell doctors not to play god; it seems only fair that, similarly, judges and lawyers should not play at being doctors.”

  139. [107] It must be emphasised that the plaintiff bears the burden of showing that the view held by Dr Tong was illogical. To this end, the plaintiff noted that one of Dr Tong’s own experts, Prof Buxton, stated that he would not have done the redo-CABG himself:

  140. However, it is clear that Prof Buxton was of the opinion that there was a sizeable group of surgeons who would have operated as Dr Tong did, and while he characterised them as “aggressive”, that adjective is quite distinct from “illogical”.

  141. [108] The plaintiff then relied on the following excerpt from Gunapathy (at [65]) and submitted that since Prof Buxton would not have proceeded with the redo-CABG himself, his medical opinion was not internally consistent and should be rejected:

  142. [109] With respect, I think that is a misreading of Gunapathy. The fact that a doctor acknowledges the practice of one group of doctors while stating that he would have opted for a different course does not of itself cause his opinion to become inconsistent. The correct position, in my view, is that an expert can provide evidence of what practices are accepted as proper by a responsible body of medical men by stating his view of what he believes other doctors would have done (even if he would not himself have adopted that course). This is supported by the case of Sharpe v Southend HA [1997] 8 Med LR in which Cresswell J stated at 303 (col 2):

  143. [110] Therefore, applying the Bolam test and after considering the evidence and arguments presented by both sides, I find that Dr Tong was not negligent in recommending that MS undergo the redo-CABG because he had acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. I also find that the medical opinions supporting Dr Tong were held on a logical basis and satisfy the Bolitho test. In so finding, I find it apposite to recall this passage from Lord Diplock’s speech in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871 (“ (“Sidaway”) at 893:

  144. Of course, a redo-CABG could not be considered “more modern treatment” but the point is that the court should not bind doctors to conservative approaches in medicine as this would ultimately be to the detriment of patients. Otherwise, there might be a chilling effect on the prescription of more “aggressive” and/or interventional procedures, even if these are reasonably thought to be in the best interests of the patient.

  145. [111] It remains for me to make an observation that the plaintiff appeared to have been given notice that Dr Tong would adopt an aggressive medical approach before she consulted him. This surfaced when the plaintiff was cross-examined regarding the advice given to her by Dr Christopher Chew:

  146. The answer in italics could imply that, as a surgeon, Dr Tong was inclined to operate whatever the circumstances and thus did not properly consider MS’s suitability for the redo-CABG and did not properly consider the non-surgical options of OMT and PCI, thus failing to meet the standard of care expected of him. However, I find that if the plaintiff had indeed understood Dr Christopher Chew’s statement to mean that Dr Tong would perform the surgery, regardless of the circumstances and consequences, she would not have proceeded to consult Dr Tong. I believe that the plaintiff went ahead to consult Dr Tong with MS knowing that Dr Tong’s approach would be aggressive and surgery-oriented, yet believing that this was within accepted medical practice and a course which MS should explore.

  147. [112] Having gone through the foregoing sub-issues and making the findings that I have made, I accordingly find that Dr Tong did not breach the tortious and contractual duties of care he owed to MS in his recommendation of the redo-CABG as a treatment option for MS.

  148. Issue 2: Whether Dr Tong breached the tortious and contractual duties of care he owed to MS in advising MS regarding the redo-CABG

  149. The applicability of Bolam to the issue of advice

  150. [113] The Court of Appeal in Gunapathy also considered the issue of the applicability of the Bolam test to advice, noting the different views taken on this issue in Sidaway. The ratio of Sidaway is not easy to determine, as each of the judges appeared to be taking slightly differing stances on the applicability of Bolam. One commentator has thus stated that “much rests on the subsequent interpretation of the case” (Jonathan Herring, Medical Law and Ethics (OUPS, 2 Ed) p 150).

  151. [114] In Gunapathy, the Court’s interpretation of Sidaway was as follows. Yong CJ noted the dissenting view of Lord Scarman that Bolam only applied to diagnosis and treatment and not advice. Yong CJ then pointed out that the majority of the House in Sidaway parted company with Lord Scarman on this issue. Lord Diplock, in the majority, stated (at 893) that the doctor’s duty of care was “not subject to dissection into a number of component parts to which different criteria of what satisfy the duty of care apply, such as diagnosis, treatment and advice”. A doctor’s decision as to what risks a patient should be warned of was stated to be “as much an exercise of professional skill and judgment as any other part of the doctor’s comprehensive duty of care” (at 895). Therefore, Lord Diplock opined that “no convincing reason has … been advanced … that would justify treating the Bolam test as doing anything less than laying down a principle of English law that is comprehensive and applicable to every aspect of the duty of care” (at 893). In Gunapathy (at [137]), the court noted that Lord Diplock had “entrenched the application of Bolam to advice in no uncertain terms”. Lord Templeman was stated to have “effectively supported the Bolam test” even though he did not make specific reference to the test (Gunapathy at [138]). Yong CJ went on to state (at [141]) that “it was clear that Lord Bridge [with whom Lord Keith agreed] did not agree with Lord Scarman’s dissenting view that it was for the court to determine what material risks a prudent patient was entitled to receive”.

  152. [115] However, Yong CJ noted that Lord Bridge did carve a qualification into the Bolam test. The question of advice and risk disclosure should not be abdicated entirely to the medical profession. Yong CJ observed (at [141]) that Lord Bridge took the view that:

  153. This was seen by the Court of Appeal to be “a forerunner to the more general qualification made by Bolitho” (Gunapathy at [141]).

  154. [116] The Court of Appeal made clear that it rejected the trial judge’s “unwarranted” (at [134]) interpretation of Sidaway as declining the view that the Bolam test applied to the issue of medical advice (see [142]). However, the court also clarified that it was not providing a conclusive ruling on the doctrine of informed consent since that issue was not fully vented in that case:

  155. Nevertheless, what is important for the present purposes is that the Court of Appeal went on to affirm that the Bolam test applied to the issue of advice at [143]:

  156. The plaintiff’s proposed test for the issue of advice

  157. [117] While counsel for the plaintiff appears to accept that Bolam, subject to the Bolitho caveat, applied to advice, his submission of what the Bolitho threshold of logic entails might result in a departure from the Bolam test in effect. According to the plaintiff, if the doctor failed to communicate a significant risk to the patient before carrying out the recommended treatment, this would fail to meet the Bolitho threshold of logic and such a failure “would [be] tantamount to the conduct being illogical, irresponsible or unreasonable” and thus amount to a breach of the doctor’s duty of care.

  158. [118] The plaintiff derived this argument from what she saw as the English approach of using Bolitho as “providing sufficient ammunition to the courts to scrutinise and find liability” even when Dr Tong attempted to adduce evidence that his practice conforms to the practice of a respectable body of practitioners. To illustrate this, the plaintiff referred to the decision in Pearce v United Bristol Healthcare NHS Trust [1999] ECC 167 (“Pearce”) where Lord Woolf held (at [21]):

  159. [119] The plaintiff noted that Pearce was characterised by some commentators as being closer to the “reasonable patient” test in the Australian case of Rogers v Whitaker [1992] 175 CLR 479 (“Rogers”) than to the traditional English approach which focuses on the “reasonable doctor”, or more accurately, a “responsible body of medical opinion” (Jackson & Powell at paragraph 13-091). In Rogers, the High Court of Australia departed from the Bolam test (at least in respect of the duty to advise) in favour of the approach of the Supreme Court of Canada in Reibl v Hughes (1980) 114 DLR (3d) 1, holding (at 490) that a doctor had a duty to warn his patient of the material risks inherent in the proposed medical treatment. A risk was material if, in the circumstances of the case, (i) a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it; or (ii) if the medical practitioner is or should be reasonably aware that the particular patient, if warned of the risk, would be likely to attach significance to it.

  160. [120] Later, in Rosenberg v Percival [2001] 205 CLR 434, the High Court of Australia affirmed Rogers and reiterated that Australian law had moved away from the Bolam test in respect of the issue of advice. The plaintiff went on to note that the position adopted in Australia had found favour with the Malaysian courts, and referred to Foo Fio Na v Dr Soo Fook Mun and Anor [2007] 1 MLJ 593 (“Foo Fio Na”), where the Federal Court of Malaysia endorsed the Rogers approach in preference to the Bolam test.

  161. [121] The defence submitted that the plaintiff’s reliance on the cases from other jurisdictions which showed a movement away from Bolam in respect of the issue of advice was misguided for the following reasons. First, some of the key authorities relied on by the plaintiff had already been expressly rejected by the Singapore High Court in Surender Singh (per Lai Siu Chiu J) on account that it was bound by the Court of Appeal decision in Gunapathy:

  162. [122] Second, the highest the plaintiff had put her case was that there appeared to be a reluctance in the English courts in more recent years to apply Bolam and the majority view in Sidaway. However, the defence noted that in Pearce, the court had expressly applied Sidaway. In this regard, I also observed that notwithstanding his language which appeared to lean towards defining liability by reference to the reasonable patient, Lord Woolf expressly accepted as law (at [18]) a passage of Lord Templeman’s speech in Sidaway which emphasised the problems of providing a patient with too much information:

  163. [123] Further, although cases like Chester v Afshar [2005] 1 AC 134 (“Chester”) suggested that the perspective of a reasonable patient should be adopted, this case did not assist the plaintiff. Chester was a case on causation and not the duty and standards of advice and the comments on the standard of care were thus obiter. Even so, it must be remembered that Bolitho was also a case on causation and the important obiter remarks have been widely accepted as supplementing the Bolam test on breach of duty. More pertinently, the comments in Chester may not be applicable in Singapore, as the judgment’s emphasis on human rights and autonomy might be attributed to the binding effect of the European Convention of Human Rights on the English courts pursuant to the Human Rights Act 1998, which Singapore is not bound by.

  164. [124] The plaintiff’s characterisation of the threshold of logic looks like an attempt to abolish Bolam’s applicability to the issue of advice. This is at odds with the Court of Appeal’s decision in Gunapathy which makes it clear that the Bolam and Bolitho jurisprudence applies to the issue of advice. Gunapathy is binding on me. I do agree with the plaintiff that if the medical profession illogically omits to warn of certain risks which patients should undoubtedly be informed of, then the court should interfere on the authority of Bolitho. In this regard, I turn to a passage from the speech of Lord Bridge in Sidaway (at 900), where he was one of the majority judges:

  165. Lord Bridge went on to find for the defendant, accepting the evidence of the medical experts.

  166. Sub-issues relating to the pre-operative advice given by Dr Tong to MS regarding the redo-CABG

  167. [125] As stated earlier, the doctor’s duty of care is comprehensive, and all references to the “duty to advise” are to be understood in light of the comprehensive duty. It is trite law that before a doctor performs procedures on a patient, the patient should be advised on his medical condition, alternative treatment options, the nature of the treatment options and the respective benefits, risks and possible complications of each treatment option.

  168. [126] The plaintiff’s written submissions concentrate on the advice given on (i) the mortality and morbidity risks of the redo-CABG, and (ii) whether MS was informed that his improving health provided him with an option to postpone. The plaintiff has highlighted several specific issues which she argues should have been communicated to MS and these are tabulated as follows:

  169. [127] It is pertinent to make three preliminary points. First, as noted, it was not disputed that MS signed a consent form on 11 March 2007, prior to the redo-CABG. However, the mere signing of a form in itself did not show that Dr Tong had not breached his duty to advise MS.

  170. [128] Second, there is generally no requirement for doctors to explain risks which an average person is ordinarily aware of or which the particular patient has knowledge of (“pre-existing knowledge”). (See the Saskatchewan first instance decision of Haughian v Paine 1986 CarswellSask 184, overruled but not on this point.) Once the patient understands certain information, there may be no further need for the doctor to provide the self-same information. Therefore, the standard of advice which the doctor should provide to his patient differs according to the pre-existing knowledge of the patient. However, Dr Tong would have breached his duty if he had not given MS any advice on the nature of a redo-CABG, its risks and alternatives but assumed that MS had this information simply because he had recently undergone the initial CABG. In cross-examination, the plaintiff accepted that it was a fair assumption that Dr Tong did take steps to ascertain with MS that MS understood the risks and complications of a CABG:

  171. However, while a redo-CABG and the initial CABG follow the same procedure, the risks of a redo-CABG are higher and this is not disputed by Dr Tong. The plaintiff claims that Dr Tong had a duty to advise MS on the higher mortality and morbidity risks of the redo-CABG.

  172. [129] The third issue also pertains to the pre-existing knowledge of the patient, in a situation where a patient is attended to by a team of medical personnel. Once a member of the team advises the patient of certain information and the patient understands such information, the patient can be said to have pre-existing knowledge of such information with the effect that the other members of the team need not repeat the same information to the patient. In the instant case, Dr Tong was one of a team of doctors attending to MS (“the Medical Team”). Dr Tong testified that when he received a referral from a cardiologist, Dr Christopher Chew in this case, he would work as a team with the cardiologist. The Medical Team comprised Dr Tong, a cardiothoracic surgeon, Dr Christopher Chew, a cardiologist and Dr Suelyn Chew, an anaesthetist. The defence noted that there were at least 12 instances of communication between MS and the Medical Team, six of which were with Dr Tong and Dr Christopher Chew.

  173. [130] The defence went on to contend that MS had ample opportunity to ask his doctors for more information if he felt that such information was needed. While accepting that MS could indeed have requested more information, I must reiterate that the onus remains on the doctor to provide advice, regardless of whether the patient asks any questions. The onus is not, and cannot be, on the patient to obtain information by asking questions. The reason for this is self-evident: a patient who does not know what information he does not know will not be able to ask for such information. To require otherwise would be to put the patient in an impossible position. Guideline 4.22 of the Singapore Medical Council (“SMC”) Ethical Code and Ethical Guidelines affirms that this is the position in Singapore:

  174. [131] While the SMC Guidelines do not impose civil liability on the doctors, they provide evidence as to the position taken by a reasonable body of medical opinion.

  175. Sub-issue 2a: Whether Dr Tong’s failure to advised MS of the mortality risks in percentage terms amounted to a breach of duty

  176. A preliminary issue: prejudice

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