High Court · Decided 22 July 2009

Surender Singh s/o Jagdish Singh And Another (administrators of the estate of Narindar Kaur d/o Sarwan Singh) v Li Man Kay and Others

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[2009] SGHC 168Case no. Suit 104/2008

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Lai Siu Chiu J:
Introduction
The parties in this action
[1] This action arose from the tragic death of one Narindar Kaur d/o Sarwan Singh, aged 33 years (the “Deceased”), on 16 February 2005, mere hours after undergoing a surgical procedure, termed Left Hand Assisted Laparoscopic Donor Nephrectomy (“HALDN”), to remove her left kidney for donation to her husband, Surender Singh s/o Jagdish Singh (the “first plaintiff”), who was suffering from end-stage renal failure. Minda Kour d/o Hendar Singh (the “second plaintiff”) is the Deceased’s mother. Where relevant in this judgment, the first and second plaintiffs will be collectively referred to as “the plaintiffs”.
[2] The HALDN procedure was performed at the National University Hospital of Singapore (“NUH”) by Dr Li Man Kay (“Dr Li”) who is the first defendant. Dr Li was assisted by Dr Consigliere David Terence (“Dr Consigliere”) who is the second defendant. Dr Li was the head of the renal transplant team of the Ministry of Health from 2001 to August 2008. He is an urologist and renal transplant surgeon by training and is in private practice. He is also a visiting consultant for urology at NUH and the Singapore General Hospital (“SGH”).
[3] Dr Consigliere is presently a senior consultant and the head of the Department of Urology at NUH which is the third defendant in this case. Where necessary, Dr Li and Dr Consigliere will be referred to collectively as “the two doctors” and the two doctors and NUH will be referred to collectively as “the three defendants”.
The nature of this action
[4] The Deceased left behind as dependents, her husband (viz the first plaintiff) and three young children who are aged 14, 13 and 6 years. The plaintiffs are the co-administrators of the Deceased’s estate and brought this claim on behalf of and for the Deceased’s dependents, on the basis of negligence and/or breach of contract against Dr Li, Dr Consigliere and NUH, pursuant to ss 20 and 21 of the Civil Law Act (Cap 43, 1999 Ed).
Background facts
[5] Before I set out the events surrounding the Deceased’s HALDN procedure on 16 February 2005, it would be necessary to first explain the renal anatomy and the HALDN procedure, for a better understanding of what transpired.
The renal anatomy
[6] Counsel for the two doctors Edwin Tong (“Mr Tong”) had very helpfully provided the court at the commencement of the trial with three diagrams depicting the renal anatomy. These are reproduced in Annex A and should be viewed together with the description set out below.
[7] The renal system comprises of two kidneys (viz the left and the right kidney), two ureters (left and right), a single bladder and a single urethra. The kidneys are highly vascularised organs receiving approximately 20% of the human body’s resting cardiac output. The organs regulate the volume and concentration of fluids in the human body by producing urine which removes, inter alia, waste products from the blood.
[8] The HALDN procedure involved the Deceased’s left kidney and the focus will therefore be on the left side of the renal anatomy. The left kidney is connected to three central systems. In the first connection, the bladder is connected to the left kidney via the left ureter. In the second connection, the left kidney is connected to the aorta via the left renal artery. The aorta, the largest artery in the human body, brings oxygenated blood to all parts of the body. The left renal artery supplies the left kidney with blood and oxygen directly from the aorta. In the third connection, the left kidney is connected to the inferior vena cava via the left renal vein. The inferior vena cava returns blood to the heart from the lower part of the body. The left renal vein drains the left kidney. Simply put, blood flows from the left kidney through the left renal vein to the heart via the inferior vena cava, after waste products have been removed. The left renal artery and the left renal vein are major blood vessels connected to the left kidney. Typically the renal artery branches out from the aorta in a single vessel which then divides into two branches (creating a “Y” shape) that pass into the kidney. The left renal vein, which branches out from the inferior vena cava, may have two or three branches, but these may or may not pass into the left kidney. Apart from the renal artery and the renal vein, smaller blood vessels surround the renal bed, the tissues around the renal artery, the renal vein and the kidney itself.
[9] Urine, the filtered product containing inter alia, waste materials excreted from the left kidney passes down the left ureter and collects in the bladder. It is passed out from the bladder and the body via the urethra.
[10] To remove the left kidney from the donor, all the different tissues attached to the three central systems in [8] must be dissected from the left kidney. Once the dissection of these tissues (which include the left renal artery and the left renal vein) are done, the tissues are secured using a variety of means including clips known as Hem-o-lok clips. Once clipped, the tissues are then transected. The left kidney will then be transplanted into the recipient. As the tissues are usually embedded with other tissues (such as the colon, the spleen and fatty tissues) that have to be first moved, cauterised or removed from the left kidney, the surgeon’s task of identifying and freeing the tissues is challenging. I turn next to the HALDN procedure.
The HALDN procedure
[11] Laparoscopic donor nephrectomy is a type of keyhole surgery performed on a kidney donor to remove one of the donor’s kidneys for transplantation into a recipient. HALDN is one method of keyhole surgery. In HALDN, three abdominal incisions are made by the first surgeon at the start of the surgery. The first incision, of about 7 cm, is made around the patient’s navel for the insertion of the hand port. The hand port allows the first surgeon to insert and use his hand in the patient’s renal bed area during the surgery and also to remove the detached kidney at the end of the surgery.
[12] After this first 7cm incision, two smaller abdominal incisions, of about 10mm, are made for two 10mm ports. An endoscopic camera is inserted through one port while laparoscopic surgical instruments are inserted through the other port. The endoscopic camera is operated by the second surgeon. The camera captures images of the renal bed. These images are magnified and displayed on two television monitors on either side of the operating table. The positioning of the television monitors ensures that both the first and the second surgeons are able to see the images which are displayed about 1m from each of them. With such a set up, one advantage of laparoscopic donor nephrectomy (and HALDN) is that unlike standard open surgery (where the surgeons have the best and perhaps only view of the surgical site), everyone in the operating room can see the images on the two television monitors.
[13] Where surgery is for the removal of the left kidney, the first surgeon, relying on visualisation from the endoscopic camera, will proceed to dissect and transect the left ureter, the left renal artery, the left renal vein and the surrounding blood vessels. Each of these vessels will first be secured and then dissected. If the donor’s renal artery is cut before branching, there will be a single arterial vessel on the graft side (ie, the side where the kidney is to be removed for implantation) for anastomosis (ie, connection) in the recipient. The portion of the renal artery on the graft side must be of a sufficient length for anastomosis. On the other hand, if the renal artery is cut after branching, there will then be two arterial vessels on the graft side for anastomosis in the recipient. Obviously, anastomosis in the recipient would be easier if the arterial vessel is cut before branching, since only one vessel is involved. The challenge however is to identify a sufficient length of the renal artery or renal vein from the proximal end (viz the portion of the vein or artery that comes out of the inferior vena cava or the aorta) before branching occurs, to secure the vessel before transection. Following transection of the left renal vein and artery, the kidney is then removed through the hand port.
[14] The major vessels (which include the renal artery and the renal vein) are secured and transected only after the smaller vessels have themselves been secured and transected. The reason for this order is that once the renal artery is clamped, blood will not flow into the kidney any more. The moment the renal artery is clamped, arterial circulation is interrupted and that starts what is called the warm ischemic time. At this stage, the kidney is live but is deprived of blood. The warm ischemic time ends with the commencement of cold perfusion (which involves the flushing of the extracted kidney with a special iced solution) of the extracted kidney to prepare it for transplantation into the recipient. The warm ischemic time, which is always measured and monitored closely in transplants, should be as short as possible as it affects the quality of the extracted kidney for transplantation.
[15] The portion of the renal artery and the renal vein on the graft side of the extracted kidney would then be left free for anastomosis with the recipient’s renal artery and renal vein. Upon anastomosis, the flow of blood through the transplanted kidney starts again. Suction is frequently applied to the renal bed to remove remnant blood which may collect. This ensures visibility of any active bleeding sites.
[16] After the kidney is removed, mopping, flushing and suction are performed to clean the renal bed of blood and haemoserous fluid. The renal bed and the abdominal cavity are then checked to ensure that there are no bleeding sites and that haemostasis (viz the process by which bleeding stops) is first achieved, before the three surgical incisions in [11] and [12] are closed.
Hem-o-Lok clips
[17] As stated earlier at [10], the use of Hem-o-lok clips is but one of the various methods that are used to secure the renal vein, the renal artery and the surrounding blood vessels in HALDN.
[18] Hem-o-lok clips come in different sizes and are white in colour. The clips are made of a non-absorbable polymer material with a locking device. For our purpose, it is sufficient to note that there are “ML” sized clips and “MLX” sized clips. “MLX” sized clips (“10mm Hem-o-lok clips”) which have a usable length of 10mm are larger than “ML” sized clips (“5mm Hem-o-lok clips”) which have a usable length of only 5mm. Generally speaking, the 10mm Hem-o-lok clips are used for larger vessels like the renal artery and the renal vein while the 5mm Hem-o-lok clips are usually for smaller vessels, such as the gonadal vein and adrenal vein, which are branches of the renal vein. Both clips, in “open” and “closed” mode, are shown in Annex B. The jaws of these clips are not smooth but serrated. This intentional design feature serves two functions – first, it allows the clips to bring the vessels close together but not completely. Second, it also serves as a resistance to slippage where the serrations bite into the outer part of the vessel. The tips of these clips are curved. These curved tips constitute a unique clamping mechanism for keeping the vessels in place.
[19] The clips (which can only go around a vessel if it completely encircles it) are applied around vessels with a special hand-held clip applicator which is inserted through one of the two 10mm ports. The clip applicator provides tactile and sound feedback on the closing and locking of the clips, hence confirming that the clips have indeed locked. This unique locking mechanism provides additional security in renal vessels. There is a “large” clip applicator (in one colour) meant only for the 10mm Hem-o-lok clips and a “small” clip applicator (in another colour) to be used only for the 5mm Hem-o-lok clips. A “large” clip applicator cannot be used for the 5mm Hem-o-lok clips and vice versa. These unique features of the clip applicators ensure that only one size of clip is applied with the use of each clip applicator. In the event the blood vessels are not properly clipped, there will be observable active bleeding, resulting in either additional clips or alternative securing devices being used.
[20] Because the smaller branches of the venous and/or arterial systems (which are secured by the Hem-o-lok clips) usually differ in number and size from person to person, there might be a need for different sized clips and/or different numbers of clips to be used. In other words, the numbers and sizes of Hem-o-lok clips to be used in a HALDN procedure depends on the patient.
[21] Between 2002 and February 2005, international medical literature and practice supported the use of Hem-o-lok clips alone for securing the renal artery, the renal vein and other blood vessels to achieve haemostasis in laparoscopic donor nephrectomies. In fact, the use of Hem-o-lok clips was preferred over other devices such as titanium metal clips (which were prone to dislodgment), staplers (which were prone to malfunction and compromised the length of the blood vessel on the graft side) and sutures (which take longer to put in place and hence increased the warm ischemic time). Having established the medical background, I proceed to set out the undisputed facts.
The facts
[22] The facts hereinafter set out were extracted from the respective affidavits of evidence-in-chief (“AEIC”) of the witnesses of fact for all parties. The facts will then be examined against the evidence given by those witnesses. The considerable details in the facts are necessary because of the manner in which the plaintiffs’ claim was pleaded in the statement of claim.
Events before the HALDN on 16 February 2005
[23] The first plaintiff and the Deceased married in 1993. The Deceased worked as a sales and customer care executive from 2000 until her demise. The first plaintiff has been a prison warden with the Singapore Prison Service since 1991. In early 1996, the first plaintiff was diagnosed with kidney problems. Even though he received treatment, his kidneys failed in 1999 whereupon he underwent regular but financially draining, dialysis. Unfortunately, his condition deteriorated further. The Decreased offered to donate one of her kidneys to the first plaintiff in 2004.
[24] Although he was initially reluctant, the first plaintiff (who was receiving out-patient treatment at NUH) finally agreed. The first plaintiff and the Deceased then approached NUH for advice on such a donation. This set in motion a series of consultations and meetings with inter alia, Ms Manjit Kaur (“Ms Manjit”), who was the Chief Transplant Coordinator of NUH’s Kidney Transplant Programme.
Pre-operative assessments of the Deceased
[25] Sometime around 12 November 2004, the Deceased’s willingness to donate her kidney to the first plaintiff came to the attention of Dr Pary Sivaraman (“Dr Pary”), who was then the Director of the Adult Transplant Programme at NUH. Dr Pary was in charge of NUH’s Kidney Transplant Programme. In the light of the Deceased’s willingness to donate one of her kidneys, arrangements were made to assess her suitability as a donor. Dr Pary oversaw the pre-operative assessments of the Deceased’s donation of her kidney to her husband with Ms Manjit’s assistance.
[26] The Deceased and the first plaintiff attended a surgical assessment with Dr Li on 28 December 2004. Dr Li took the Deceased’s detailed medical history and also performed a physical examination on her. Apart from an allergy to aspirin and a history of asthma, Dr Li noted that the Deceased’s health condition was “Good”. By then, Dr Li had already seen the radiological report (“CT Report”) and the Computed Tomography (“CT”) abdomen scan performed on the Deceased and the scan itself (“CT Scan”). The CT Scan showed the anatomy of the Deceased’s renal artery and renal vein while the CT Report identified the length of the Deceased’s renal artery to be 11mm. Dr Li assessed the Deceased to be fit for HALDN.
[27] According to Dr Li, he explained the surgical procedure to the Deceased “in layman terms” and its advantages over open surgery (HALDN was less invasive while open surgery involved more pain and a longer stay in hospital). Dr Li also advised the Deceased of the usual risks involved in HALDN, including the risks of wound infection and the need for re-operation or conversion to open surgery in the event of complications. He did not discuss the option of robotic laparoscopic nephrectomy with the Deceased as (according to Dr Li) that was not the standard practice for donor nephrectomy.
[28] Dr Pary saw the Deceased on 17 January 2005 to assess (which he did) that she was medically and psychologically fit to undergo a kidney donation procedure. Prior thereto, Ms Manjit had arranged for various tests to be carried out on the Deceased in accordance with the kidney transplant programme in NUH. These included blood and urine tests as well as X-rays. The Deceased gave her medical history to Dr Pary (that she suffered from childhood asthma, had rare asthma attacks, had urinary tract infection during one of her pregnancies, had a left side caesarean section and that she had had an ovarian cyst removed). Apart therefrom, Dr Pary noted that “the Deceased had no other known medical problems” that would preclude her from undergoing the HALDN procedure. Dr Pary explained to the Deceased the short and long term risks of undergoing the kidney donation procedure. According to him, nothing was said about robotic laparoscopic nephrectomy.
[29] Dr Pary warned the Deceased that there was no 100% certainty of a successful transplant and that if she could not accept this risk, she should not proceed with the HALDN procedure. The Deceased was given an “open date” in the event she wanted to come back to discuss the procedure on a later date or if she changed her mind. She told Dr Pary that she had already decided to go ahead with the procedure because she wanted the first plaintiff to stop dialysis and live a normal life.
[30] On 14 January 2005, Dr Khare Balachandra (“Dr Khare”), a consultant psychiatrist with the Department of Psychological Medicine at NUH, conducted a psychiatric assessment of the Deceased, pursuant to Dr Pary’s request. From their discussions, Dr Khare formed the view that the Deceased was “the driving force” behind the decision to donate a kidney to the first plaintiff. Unlike other patients, he noted that the Deceased “exhibited a high level of understanding of the nature of the procedure that she had elected to undergo”. Dr Khare was informed by the Deceased that she was aware of the possibility that the first plaintiff’s body might reject her kidney and that there was a risk of death inherent in such procedures; she fully understood the risks involved. Dr Khare recorded his observations in a Fitness for Consent Assessment Record Form.
[31] On 18 January 2005, the first plaintiff’s treating doctor (Dr Evan Lee from the NUH) informed Dr Pary he had no objections to the first plaintiff undergoing a kidney transplant.
[32] On 28 January 2005, the NUH transplant ethics committee gave their written authorisation for the transplant to be carried out. On 2 February 2005, a blood test was again done on the Deceased to confirm that there had been no significant changes since her pre-operative assessment tests.
The HALDN procedure on 16 February 2005
[33] Besides Dr Li and Dr Consigliere who were the first and second surgeons respectively, one Dr Chong Kian Tai (“Dr Chong”) was the first assistant surgeon in the HALDN procedure. Dr Chong was then a registrar attached to the Department of Urology of NUH (January to June 2005).
[34] Dr Li, who has been performing renal transplant nephrectomies for some 25 years, was the first to perform HALDN in Singapore in March 2002. The HALDN performed on the Deceased was Dr Li’s forty-third such procedure.
[35] Dr Consigliere has been performing renal transplant nephrectomies for some 15 years. The HALDN performed on the Deceased was Dr Consigliere’s twenty-eighth operation.
[36] Dr Li was informed by Dr Ng Kah Wee (“Dr Kah Wee”) of the Deceased’s admission on 15 February 2005 and that the Deceased had been found fit for surgery. Dr Kah Wee was then a house-person with NUH’s Department of Urology. The HALDN commenced on 16 February 2005 at around 0855 hours. With Dr Li, Dr Consigliere and Dr Chong in the operating theatre was Dr Ng Huey Ping, the principal anaesthetist, and four nurses.
[37] According to Dr Li, he made a midline incision of about 7cm in length at the level of the Deceased’s navel, for the hand port. He then put his left hand through this port and inserted the laparoscopic disc. This incision was for the hand port through which Dr Li would remove the Deceased’s left kidney. Next, he made two small abdominal incisions of about 10mm each, for the insertion of two 10mm ports. He then inserted an endoscopic camera through one of these ports whereupon Dr Consigliere took over the handling of the endoscopic camera. The other port was for the insertion of surgical instruments. The endoscopic camera was connected to two 19-inch television monitors, one on each side of the operating table, and which displayed magnified images of the renal bed. While Dr Consigilere handled the endoscopic camera, Dr Chong assisted both Dr Li and Dr Consigilere when required, during the surgery. Dr Chong also observed the entire procedure from the two monitors.
[38] Guided by the images on the television monitor, Dr Li proceeded to deflect the colon releasing the left kidney from the surrounding organs. He identified and dissected the left ureter. He clipped and cut the hilar vessels (which are small blood vessels) surrounding the left renal vein and the left renal artery by applying two 5mm Hem-o-lok clips, spaced apart on each said hilar vessel, before cutting each vessel between the two 5mm Hem-o-lok clips. He observed that the left renal artery had no branches to be ligated. By this time, he had completely cleared and isolated both the left renal vein and the left renal artery. He then transected the left ureter at the pelvic brim with one 10mm Hem-o-lok clip. He pinched the left renal artery between his fingers whereupon the warm ischemic time commenced and was monitored on a wall-mounted digital clock.
[39] Dr Li then applied two 10mm Hem-o-lok clips, side by side, to the left renal vein, before cutting the left renal vein distal to the second clip. He then applied two 10mm Hem-o-lok clips, side by side, to the left renal artery close to the aorta, leaving a margin after the second 10mm Hem-o-lok clip before cutting the left renal artery distal to this second clip. Dr Li deposed that in each case, the two 10mm Hem-o-lok clips were applied to the renal artery and vein properly and that they secured the full circumference of the left renal artery and renal vein. Dr Consigliere, who had moved the endoscopic camera to visually check that the clips fully covered these renal vessels, confirmed this. Dr Chong also agreed.
[40] Dr Li then applied the clips using clip applicators of matching size. Dr Li, Dr Consigliere and Dr Chong all heard the locking sound with Dr Li feeling the tactile feedback from the clip applicators for each clip applied. No clip sprung open after application. Dr Li also visually checked and confirmed, using the magnified images on the television monitor, that the entire circumference of the left renal artery was within the lock and hinge of each clip. He was able to see the lock extending around the renal artery. He also checked and found that there were no adjacent tissues caught within the clips. Dr Consigliere and Dr Chong added that at all times no bleeding was observed to be coming from the renal artery.
[41] According to Dr Li, as the securing of the renal vein and the renal artery are the most important steps of the surgery, the surgical team would have paid full attention to the television monitors during the clipping and cutting of the left renal vein and the left renal artery. In his words, “it would have been obvious to everyone in the surgical team if the clips had not locked properly”. In particular, Dr Li noted that if the left renal artery had been cut without the clips having properly secured the left renal artery, blood would have “spurted out like a fountain at the rate of about 300 – 500mls per minute with normal blood pressure.” The blood would have covered the endoscopic camera and obscured the surgical view from the television monitors. In such circumstances, it would have been impossible to continue with the surgery. However, “no such bleeding occurred during the surgery”.
[42] Following the transection of the left renal vein and the left renal artery, Dr Li then removed the left kidney through the hand port. The extracted kidney was then taken for cold perfusion at a separate trolley in the operating theatre to prepare it for implantation in the first plaintiff. According to Dr Li, this took some ten minutes. During this time, Dr Chong took over the handling of the endoscopic camera and Dr Consigliere then took over as first surgeon to clean out the operation site by suction and saline wash and to achieve haemostasis.
[43] According to Dr Consigliere, he pushed the fat around the stumps of the left renal artery and the left renal vein to check that the clips applied on the left renal artery and the left renal vein were properly secured. He noted that no bleeding was found and Dr Chong, who observed the images on the monitors, agreed.
[44] Following the perfusion of the extracted kidney, Dr Li returned to the operating table to check the operation site before the wound was closed. Dr Li looked at the television monitor while Dr Consigliere exposed the renal bed. Together, they visually examined and confirmed that the left renal artery, the left renal vein and all other ligated vessels were completely secured with no bleeding, and that the clips were properly secured around the vessels with the locking mechanism in place. The two doctors also inspected the renal bed and abdominal cavity and found no bleeding site or haematoma (ie, blood clot). They were both satisfied that haemostasis was achieved. Dr Chong, who observed the images on the monitors, agreed.
[45] Dr Consigliere then inserted a redivac drain to the left renal bed before proceeding to close the wounds. (This is a fine tube with many holes at the end that is attached to an evacuated glass bottle providing suction and is used to drain blood.) The surgery ended at about 1150 hours.
Post operative care
(1) Transfer to the recover room
[46] The Deceased was transferred from the operating theatre to the recovery room at about 1200 hours for continuous monitoring. According to Dr Consigliere and Dr Chong, up to the time of her transfer from the operating theatre to the recovery room, the Deceased’s condition was stable and she displayed no signs or symptoms of active blood loss.
[47] Dr Liu Yun En Bernie (“Dr Bernie”) was the medical officer stationed in the recovery room to look after post-operative cases. Nurse Wong Mei Kin (“Nurse Wong”) was the senior staff nurse working in the recovery room. A clip was put on the Deceased’s finger to monitor her heart rate and oxygen saturation. A blood pressure cuff was also put around her arm and set to measure blood pressure every five minutes. All data were displayed on a monitor.
[48] According to Dr Li, he saw the patient in the recovery room at about 1330 hours. He was informed that the order for the Deceased’s discharge from the recovery room had already been signed. Dr Li noted that the Deceased’s observation parameters and oxygen saturation were normal. She was conscious and complained that her wound was painful. She was on intravenous panic controlled analgesia (“PCA”) morphine (a method whereby a person in pain can administer his own pain relief). Dr Li inspected the Deceased’s wound and found that the dressing was dry. There was no indication that the Deceased was experiencing blood loss and there was no abdominal distension (swelling of the abdomen) while the drain bottle had collected only 110mls of blood stained fluid.
(2) Transfer to Ward 43
[49] According to Dr Consigliere, the Deceased was transferred to the general ward at about 1410 hours. Dr Li had, at the conclusion of the surgery given instructions that the Deceased was to be placed on hourly monitoring in the general ward. The NUH Department of Urology on-call team and Dr Consigliere were to be on 24-hours call for the Deceased. Dr Kah Wee was then stationed in the general ward.
[50] In the general ward, the Deceased was placed in bed 24 of ward 43 (“Ward 43”).
(A) EVENTS IN WARD 43 BETWEEN 1425 AND 1430 HOURS
[51] Based on the AEICs, there appeared to have been two primary parties familiar with the events at Ward 43 between 1425 hours and 1430 hours. They were Dr Kah Wee, and nurse Lourdes Buclig (“Nurse Lourdes”), a Filipino nurse, who was the staff nurse in Ward 43. Their accounts are set out below.
(i) Nurse Lourdes’ account
[52] On 16 February 2005, Nurse Lourdes was on duty in Ward 43. According to her AEIC, around 1425 hours that day, “[w]ith the assistance of one of the Operating Theatre staff, the Ward porter and some student nurses”, Nurse Lourdes transferred the Deceased from the trolley used to transport her from the recovery room to the Deceased’s bed in Ward 43. After the Deceased was transferred to her bed, the Operating Theatre staff and Nurse Lourdes proceeded to examine the Deceased’s dressing, the drain, the PCA and the Deceased’s medical records which were handed over by the Operating Theatre staff. Thereafter, the student nurses measured the Deceased’s parameters under Nurse Lourdes supervision. She verified the measurements taken were accurate before she recorded them in the Deceased’s patient records which comprised, inter alia of the following documents:
(a) an observation chart (“the observation chart”). This chart recorded, inter alia, the Deceased’s temperature, blood pressure and pulse. In the row labelled “Temperature”, the words “Hourly parameter” were written in hand. There were two entries on the observation chart for 16 February 2005, one at 1430 hours, and another at 1600 hours. For the latter entry, the words “pulse feeble” were handwritten;
(b) a clinical chart (“the clinical chart”). This chart also recorded, inter alia, the Deceased’s temperature, blood pressure and pulse. It contained entries for 15 and 16 February 2005, at four-hourly intervals. The last entry, to which no specific time was indicated, also contained the words “pulse feeble”;
(c) an intake and output chart (“the intake and output chart”). This chart recorded the oral and intravenous fluid intake of the Deceased and output (in the form of urine) on 15 and 16 February 2005. The last entry for 16 February 2005 was at 1425 hours;
(d) a pain monitoring chart (“the pain monitoring chart”). This chart indicated the pain felt by the Deceased. It contained only entries for 16 February 2005, with the last entry at 1430 hours; and
(e) treatment and progress notes (“the treatment and progress notes”). These notes recorded the Deceased’s treatment and progress on 15 and 16 February 2005. For 16 February 2005, it contained entries at 1425 hours, 1430 hours, 1600 hours and 1619 hours by Nurse Lourdes. The relevant entry for this case was that at 1600 hours; it reads:
[53] Nurse Lourdes noted that the Deceased’s “vital signs were stable with blood pressure of 108/70 mmHg, heart rate of 70 beats per minute and respirator rate of 16 breaths per minute, and that “whilst the Deceased was slightly drowsy, she was arousable.” She also noted that “[e]verything else was also in order as [the Deceased’s] wound dressing was dry save for a slight blood stain, and the urine catheter in situ was draining clear urine”. She then informed Dr Kah Wee that the Deceased had been transferred to Ward 43 whereupon Dr Kah Wee went to examine the Deceased. After Dr Kah Wee had given her instructions, Nurse Lourdes informed the Deceased that she could not eat or drink. Nurse Lourdes checked the Deceased’s intravenous drip, the intake and the output chart. No time however was stated as to when all this took place.
(ii) Dr Kah Wee’s account
[54] Dr Kah Wee deposed that the Deceased reached Ward 43 at about 1430 hours. She was asked to review the Deceased which she did at 1430 hours. During the review, Dr Kah Wee found the Deceased alert and comfortable, not in pain and afebrile (ie, not having a fever). Dr Kah Wee measured the Deceased’s pulse rate and blood pressure, at 70 and 108/70 mm Hg respectively and documented in the case notes that all her vital signs were stable. The Deceased’s heart sounds were observed to be normal, her lungs clear with good air entry bilaterally. Her abdomen was soft, non-tender and bowel sounds were present. Her calves were supple, her dressing clean and drain collection minimal. After reviewing the Deceased, Dr Kah Wee noted down in the Deceased’s Surgery In Patient Case Record the post-operative plans to be carried out by the ward nurses
[55] Going by Dr Li’s instructions for “hourly monitoring” at [49], the Deceased’s next review should have been at 1530 hours.
(B) EVENTS AT WARD 43 AFTER 1430 HOURS TO THE ACTIVATION OF THE CODE BLUE TEAM AT 1619 HOURS
[56] There were differences between the accounts of NUH and that of the plaintiffs on the events that transpired in Ward 43 after Dr Kah Wee’s examination at 1430 hours and when the Code Blue Team was activated to resuscitate the Deceased. It is therefore necessary to examine in some detail these accounts.
(I) NURSE LOURDES’ ACCOUNT
[57] Nurse Lourdes claimed that at about 1515 hours, as she was walking by the Deceased’s bed, the Deceased waved to and asked her to bring the Deceased a small pillow. Nurse Lourdes obliged. When she brought the pillow to the Deceased, the Deceased had her eyes closed. Nurse Lourdes tapped the Deceased on the shoulder to wake her, the Deceased opened her eyes and apparently told Nurse Lourdes to help put the pillow on her left near the site of the wound. Nurse Lourdes deposed that at the time the Deceased was alert and responsive, did not complain of pain or of being unwell and did not have any other requests.
[58] Nurse Lourdes claimed she went to check on the Deceased at around 1555 hours to take her parameters. However, when she arrived at the Deceased’s bed, a student nurse was already taking the Deceased’s blood pressure. Nurse Lourdes also noted that the relatives of the Deceased were present. She then used a pulse oximeter and connected it to the Deceased’s finger, but was unable to pick up any pulse reading. As she noticed that the Deceased’s fingers were cold, she immediately palpated the Deceased to manually obtain her pulse, which she found to be “faint and feeble”. According to Nurse Lourdes, “[a]s the student nurse experienced difficulty taking the Deceased’s pressure, [she] measured the Deceased’s blood pressure herself” and found it to be a low reading of 80/60 mm Hg and that the Deceased was “slightly breathless” with her respiratory rate at 17 breaths per minute. Nurse Lourdes also claimed that “while [she] did not notice any diaphoresis [ie, sweating], the “Deceased was unresponsive to call and to pain stimulus”. She tapped the Deceased’s shoulders and did a sternum rub on her but the Deceased did not respond.
[59] Nurse Lourdes then rushed to the nursing station to inform Dr Kah Wee that the Deceased was unresponsive. On Dr Kah Wee’s instructions, she called the Urology Medical Officer (one Dr Adrian Tan) and informed him of the situation. Dr Adrian Tan told Nurse Lourdes to activate the Code Blue Team and it was activated (at 1619 hours).
[60] By the time Nurse Lourdes returned to the Deceased’s bed, the Deceased had been put on 100% oxygen via a non-breathing mask and electrocardiogram (“ECG”) leads had been connected to the Deceased’s body in preparation for resuscitation to be conducted by the Code Blue Team. Dr Kannan was the first member of the Code Blue Team to arrive at Ward 43. Nurse Lourdes briefed Dr Kannan on the Deceased’s condition. The rest of the Code Blue Team subsequently arrived and active resuscitation commenced. Nurse Lourdes estimated that the Code Blue Team arrived about 4-5 minutes after activation. She did not participate in the resuscitation procedure but was present in case the Code Blue Team needed further nursing support.
(II) DR KAH WEE'S ACCOUNT
[61] According to Dr Kah Wee, “sometime between 1600 hours and 1615 hours, when she was at the nursing station (a short distance outside Ward 43), she was informed by Nurse Lourdes that the Deceased was unresponsive. Dr Kah Wee told Nurse Lourdes to inform the medical officer of the Deceased’s collapse and immediately went to assess the Deceased’s condition.
[62] When Dr Kah Wee got to the Deceased’s bed, there were visitors with the Deceased and she asked them to leave. According to Dr Kah Wee, “another nurse was with the Deceased trying to measure her blood pressure”. Dr Kah Wee noted that the Deceased was unresponsive to pain stimulus and at that point in time, the Deceased’s “blood pressure and pulse rate readings could not be obtained by the nurse but on quick examination, [she] noted [that the Deceased] was cold and clammy” and that the Deceased’s pulse rate was bradycardiac (ie, slow beating of the heart at a rate below 60 beats per minute), her heart sounds were normal and that air entry to the Deceased’s lungs was good and equal bilaterally. The Code Blue Team was subsequently activated.
(III) ACCOUNTS OF DR LI AND DR CONSIGLIERE
[63] According to Dr Consigliere, he had no knowledge of the events that occurred in Ward 43 from the time the Deceased was transferred there. He was only informed at about 1625 hours of the Deceased’s collapse and that the Code Blue Team had been activated. Dr Li said he had no personal knowledge of the events surrounding the Deceased’s collapse and resuscitation efforts in Ward 43.
(IV) ACCOUNT OF MS JASMAIL KAUR – THE DECEASED'S SISTER IN LAW
[64] Jasmail Kaur (“Ms Jasmail”) is the first plaintiff’s sister and the Deceased’s sister-in-law. In her AEIC, she deposed that at about 1230 hours on 16 February 2005, she received information from NUH that the Deceased’s surgery had been successful, that the Deceased was presently in the intensive care unit (as opposed to the recovery room) and that she would be brought to the general ward at about 1430 or 1500 hours. Ms Jasmail, her mother, the second plaintiff and the Deceased’s aunt (“the party”) decided to visit the Deceased in the general ward.
[65] According to Ms Jasmail, it was at 1600 hours or just past 1600 hours that the party arrived at Ward 43. She walked ahead of the others to the Deceased’s room which had six beds. The Deceased’s bed was the furthest from the nursing station at the end of Ward 43.
[66] At the bedside of the Deceased, Ms Jasmail found her “breathing very heavily” and that she “appeared to be in a state of distress”. The Deceased’s “head had dropped to the right side”. Ms Jasmail called the Deceased and tapped the Deceased’s cheeks but the latter did not respond. The Deceased “looked very pale”, “her hands were placed where the wound was” and “her hands were cold to touch”. Ms Jasmail alleged “[t]here were no nurses in the room at that point in time”, no “medical gadgets were attached to her” and that “[the Deceased] did not have any nurses attending to her”.
[67] Sensing that the Deceased’s life was in danger, Ms Jasmail immediately summoned for help whereupon a nurse came to the bedside. Ms Jasmail claimed that she subsequently ascertained that the nurse was a “trainee nurse”. The trainee nurse examined the Deceased and “then went out of the room and returned with a machine to clip [the Deceased’s] fingers”. However, this “machine read zero”, whereupon the “trainee nurse then ran to the nurse station and called for a doctor or nurse”. A “female doctor came and examined [the Deceased], and then she too ran to the counter and started making calls”.
[68] Ms Jasmail alleged that it was “a good 20 minutes” before a team of doctors arrived at the Deceased’s bedside. The Deceased’s eyes were closed. The doctors attended to the Deceased and “there were a lot of activities”. Ms Jasmail also saw the doctors giving cardiopulmonary resuscitation (“CPR”) to the Deceased. Ms Jasmail left the ward at about 1630 hours to seek assistance from Ms Manjit, whom she knew to be a member of the transplant team of NUH. Ms Manjit came into Ward 43, saw the Deceased and then told Ms Jasmail (and the rest of the party) that the Deceased “was okay”. However, about 1½ hours later, the party was told by the doctors that the Deceased had passed away.
[69] I should point out at this juncture that Ms Jasmail made a police statement soon after the Deceased’s passing (“the police statement)”. In some respects, the police statement was different from her AEIC. I will return to the police statement later.
(C) RESUSCIATTION EFFORTS BY THE CODE BLUE TEAM ON 16 FEBRUARY 2005
(I) DR KANNAN'S ACCOUNT
[70] Dr Kannan was at the material time a medical officer with the Department of Medicine at NUH. He was part of its Emergency Resuscitation Team (viz the Code Blue Team) “which was responsible for performing emergency resuscitation to all patients, staff and other members of the general public experiencing cardiopulmonary arrest in NUH”. Dr Kannan was alerted at 1619 hours on 16 February 2005 and immediately rushed to Ward 43.
[71] The Code Blue Team consisted of five other members. Dr Kannan and they were informed by Ward 43’s nurses that the Deceased had just come back from surgery as a renal transplant donor, that she had been “resting well post-operatively” in Ward 43 for about 2 hours but was then found to be unresponsive. The Code Blue Team commenced aggressive resuscitation making multiple attempts through her veins at various parts of the Deceased’s body, by both the medical and anaesthetic teams simultaneously. However they encountered difficulties as the Deceased was hypovolemic (she had lost too much blood). The Code Blue Team eventually resorted to the (larger) left subclavian vein of the Deceased to attempt resuscitation and simultaneously applied CPR. Despite the valiant efforts of the members of the Code Blue Team, they were unable to revive the Deceased even after 50 minutes of trying.
(II) DR CONSIGLIERE'S ACCOUNT
[72] According to Dr Consigliere, the resuscitation efforts by the Code Blue Team were ongoing when he arrived at Ward 43 at around 1640 hours. He observed the resuscitation performed by the Code Blue Team as well as the Deceased and considered the possible causes for the Deceased’s collapse. He noted that there was no abdominal distension and that although the Deceased’s dressing was slightly blood-stained, the Deceased’s bed was not soaked with blood. The drain bottle, which had a 500mls capacity also appeared to contain 100ml of blood-stained fluid. All these observations suggested to him that there was no active bleeding and that there was no indication for immediate exploration of the abdomen, even though Dr Li and himself were on standby to perform surgery if required. There was no indication that a vascular surgeon should be called.
[73] Dr Consigliere deposed that during the period of resuscitation, the Deceased did not have any pulse or respiration. Further, her heart had no detectable cardiac output. He decided at 1710 hours to stop further resuscitation and the Deceased was pronounced dead at 1717 hours.
The Deceased’s autopsy and the certified cause of death
[74] On 17 February 2005, an autopsy was conducted on the Deceased by Associate Professor Gilbert Lau (“Professor Gilbert”), a senior consultant forensic pathologist with the Applied Sciences Group of the Health Sciences Authority of Singapore. In his autopsy report no. AZ20050456 (“the Autopsy Report”), Professor Gilbert made the following observations:
[75] Professor Gilbert noted that the Deceased’s abdominal cavity:
[76] The “definitive cause of death” was not stated in the Autopsy Report but the “Final Cause of Death” was stated in a subsequent post-mortem histopathology report (“the Histopathology Report”) by Professor Gilbert to be:
[77] The Histopathology Report also noted that the Deceased’s heart showed:
[78] Dr Chong was told by Dr Consigilere to check with Professor Gilbert on the outcome of the autopsy. However, when he arrived at the mortuary on 17 February 2005, Dr Chong was asked to wait in a waiting room. Hence, he was not present during the autopsy and he did not personally examine the Deceased. Subsequently he was briefed by Professor Gilbert on the post-mortem findings. Professor Gilbert told Dr Chong that he would make a formal report and that photographs of the autopsy findings would be taken.
Contraindication for use of Hem-o-lok clips dated 13 April 2006
[79] More than a year after the death of the Deceased, the manufacturer of Hem-o-lok clips viz Teleflex Medical issued (on 13 April 2006) for the first time, a “Contraindication For Use of Hem-o-lok Ligating Clips in Laparoscopic Donor Nephrectomy” in living donor patients.
The findings of the State Coroner
[80] The Deceased’s death was the subject of a Coroner’s Inquiry (“the Coroner’s Inquiry”) held on 26 February 2007. Only Dr Li and Dr Consigilere gave evidence at the Inquiry. Associate Professor Chia Sing Joo (“Professor Chia”), who was then the head and senior consultant of the Department of General Surgery at Tan Tock Seng Hospital, prepared an independent medical report for the Coroner’s Inquiry.
[81] The State Coroner found that:
(a) in all likelihood that the Hem-o-lok clips must have been properly secured during the surgery and that the slippage occurred well after the completion of the surgery as at the recovery room, the drain had 110 ml of blood stained fluid;
(b) information on the contraindication of the use of Hem-o-lok clips for donor laparoscopic nephrectomy surfaced only in April 2006. Hence, the medical team could not be faulted for using Hem-o-lok clips;
(c) the slippage of the Hem-o-lok clips, used to secure the nearest end of the left renal artery occurred inadvertently;
(d) there was no evidence to suggest that either Dr Li or Dr Consigliere ought to be criminally liable for the use of Hem-o-lok clips ;
(d) the acute haemorrhage of the Deceased took place as a result of the inadvertent slippage of the clips used to secure the Deceased’s left renal artery;
(e) the operation itself was uneventful and that there was no recording of any unexpected event. The collapse of the Deceased took place suddenly and unexpectedly. Professor Chia’s view that the resuscitative procedure was acceptable and quick was accepted and there was nothing to suggest any medical mismanagement on the part of the medical team in the post-operative handling of the Deceased;
(f) there was sufficiently close monitoring of the Deceased and there was no unreasonably long lapse of hours in which the Deceased was left unattended such that the sudden bleeding could have been detected even earlier; and
(g) post-mortem examination of the Deceased’s heart showed evidence of small coronary artery disease which in all probability had been clinically silent prior to the Deceased’s sudden and unexpected demise. Professor Gilbert’s opinion that the condition could have accelerated her death or impaired her ability to survive the post-operative haemorrhage was however debatable.
[82] Based on the above findings, the State Coroner returned a verdict of “misadventure”. I turn now to the pleadings.
The pleadings
The statement of claim
[83] The plaintiffs alleged inter alia, that:
(a) doctors at NUH had advised the Deceased that her left kidney could be harvested by means of a robotic laparoscopic surgery. However, the Deceased underwent a HALDN instead;
(b) Dr Li and Dr Consigliere failed to properly secure the Deceased’s left renal artery and/or failed to ensure that the left renal artery was properly secured before completing the surgery;
(c) the Deceased’s death was caused and/or substantially contributed to by blood loss due to an unsecured haemostasis of the proximal resected end of the left renal artery;
(d) the two doctors and other staff at NUH who provided medical and nursing care to the Deceased prior to her death, owed the Deceased a duty to provide appropriate, reasonable and sound medical and nursing care, medical treatment and advice;
(e) at all material times, NUH, its employees, servants and/or agents and/or appointees including the doctors and nurses who provided medical and nursing care to the Deceased, during her stay in NUH owed the Deceased a duty of care to provide appropriate, reasonable and sound medical care, nursing care, medical treatment and advice; and
(f) NUH was vicariously liable to the Deceased for Dr Li, Dr Consigliere and other staff at NUH who provided medical and nursing care to the Deceased, in the event of any breach of duty of care on their part.
Particulars of alleged negligence against Dr Li and Dr Consigliere
[84] The Plaintiffs alleged that Dr Li and Dr Consigliere were negligent and breached their duty of care to the Deceased as follows:
(a) Dr Li failed to explain to the Deceased about the options of an open surgery and that of a laparoscopic surgery and their respective pros and cons;
(b) they failed to take all adequate steps to ensure that the resected left artery of the Deceased was properly and fully ligated;
(c) Dr Li failed to apply the Hem-o-lok clips on the Deceased’s left renal artery properly to ensure that the entire opening of the left renal artery was occluded and sealed properly. Dr Consigliere failed to ensure that this was done;
(d) they failed to take note that the Hem-o-lok clips used were attached to the periphery of the Deceased’s left renal artery rather than covering the entire left renal artery;
(e) they failed to ensure that the Hem-o-lok clips used to occlude the Deceased’s left renal artery were properly secured and would not dislodge;
(f) they failed to visually examine and take steps to confirm that the Deceased’s left renal artery was completely closed and that the Hem-o-lok clips were secured before completing the surgery;
(g) Dr Li failed to carefully examine the interior of the Deceased’s abdomen to confirm that all vessels were completely secured and sealed before completing the surgery;
(h) they failed to ensure that there were no bleeding sites or haematoma at the renal bed before completing the surgery;
(i) they failed to record the number of Hem-o-lok clips used as well as the specific positioning of the clips;
(j) they failed to direct that the Deceased be looked after in the intensive care unit for at least a day before transferring the Deceased to the general ward;
(k) they failed to direct that the Deceased’s vital signs and urine output be monitored continuously until she had completely recovered;
(l) they failed to direct that the Deceased be examined for signs of internal bleeding immediately following the surgery;
(m) they failed to provide for continuous monitoring of the Deceased of her vital signs and urine output in an intensive care unit until the Deceased was completely stable; and
(n) they allowed the Deceased to be transferred to the general ward within 2½ hours after the surgery where continuous monitoring was not carried out.
[85] In the plaintiffs’ reply to the defence of the two doctors, it was pleaded inter alia that:
(a) there was no monitoring of the Deceased after she was sent to the general ward and the Deceased’s relatives found her gasping for breath, cold and unresponsive;
(b) the Deceased’s death was not caused by the small vessel coronary artery disease; and
(c) the two doctors owed a specific duty of care to the Deceased to record the number of Hem-o-lok clips used during the surgery and their specific positioning.
Particulars of alleged negligence and/or vicarious liability against NUH
[86] The plaintiffs also alleged negligence and/or vicarious liability against NUH in that:
(a) it failed to have a system for keeping proper records of the number and specific position of the Hem-o-lok clips used during such surgeries.
(b) it prematurely transferred the Deceased from the recovery room to the general ward after the surgery;
(c) it failed to ensure that the Deceased’s vital signs and urine output were monitored and measured continuously for a day following the surgery or until such time as the Deceased could be said to be out of danger;
(d) it failed to transfer the Deceased to an intensive care unit after surgery where the Deceased’s vital signs and urine output could have been continuously monitored;
(e) it failed to have in place a protocol to continuously monitor or to monitor at frequent intervals the Deceased’s vital signs until the Deceased was completely stable and out of danger;
(f) it failed to have in place a protocol that carried out sufficiently regular examinations of patients for signs of bleeding from surgical sites following a major surgery;
(g) it failed to notice that the continuous bleeding from the surgical site was an indication that the Deceased was experiencing internal bleeding. NUH also failed to carry out timely investigations to rule out bleeding from the Deceased’s renal artery and renal vein;
(h) it failed to carry out adequate and timely steps to control the Deceased’s bleeding and to resuscitate the Deceased;
(i) it failed to diagnose the reasons for the Deceased’s continuing blood loss and to take prompt action by providing the services of a vascular surgeon; and
(j) it failed to promptly alert the two doctors on the Deceased’s post-surgery complications so that they could ascertain the cause of the Deceased’s condition.
[87] It is to be noted that particular (a) of the plaintiffs’ allegations of negligence against the two doctors in [84] related to the pre-operative advice rendered to the Deceased while particulars (b) to (i) related to the conduct of the surgery itself and particulars (j) to (n) related to the post-operative care of the Deceased.
[88] In the plaintiffs’ reply to the defence and counterclaim of NUH, it was inter alia:
(a) denied that Nurse Lourdes had, at around 1600 hours, recorded the Deceased’s blood pressure, rechecked the Deceased’s pulse and had difficulty palpating her pulse;
(b) denied that Nurse Lourdes had alerted Kah Wee who saw the Deceased just after 1615 hours and who had noted the Deceased to be unresponsive with a weak, but present, radial pulse;
(c) contended that the findings in the Coroner’s Inquiry were irrelevant; and
(d) denied that the two doctors did not owe a specific duty of care to the Deceased to record the number of Hem-o-lok clips used during the surgery and their specific positioning.
Particulars of breach of contract against NUH
[89] In addition to the tortious claim set out above, the plaintiffs also alleged that the Deceased had agreed to provide consideration to NUH in exchange for medical care, treatment and advice, and that pursuant to this agreement (“the agreement”), NUH had indeed provided medical care and treatment to the Deceased. It was further alleged that it was an implied term of the agreement that NUH would provide reasonable, good and professional medical care, treatment and care to the Deceased which implied term NUH had breached.
[90] In the plaintiffs’ defence to the counterclaim of NUH, it was pleaded:
(a) that because NUH were negligent in providing medical treatment to the Deceased, they had breached the agreement and were not entitled to medical fees for such treatment; and
(b) there was a total failure of consideration.
Reliance on the doctrine of res ipsa loquitur to establish alleged negligence of Dr Li, Dr Consigilere and NUH
[91] Apart from the extensive particulars pleaded, the plaintiffs also relied on the principle of res ipsa loquitur, “where applicable” to establish the alleged negligence of the three defendants.
Defence of Dr Li and Dr Consigilere
[92] In their amended defence, the two doctors:
(a) denied that the Deceased’s death was caused and/or substantially contributed by blood loss due to unsecured haemostasis of the proximal resected end of the left renal artery;
(b) admitted that they owed a duty of care to the Deceased to provide appropriate and reasonable advice, medical treatment and medical care;
(c) denied that they had discussed or advised the Deceased to undergo the option of robotic laparoscopic nephrectomy;
(d) averred that robotic laparoscopic nephrectomy was not the standard practice for donor nephrectomy in any hospital in Singapore whether at the material time or presently;
(e) averred than an ECG was conducted on the Deceased on 15 February 2005 and that it showed normal results;
(f) averred that sending a patient from the operating room straight to the recovery room, where the patient would be put on continuous monitoring was in line with the reasonable and standard practice at the material time in Singapore;
(g) contended that the Deceased asked for and was given a pillow at around 1515 hours;
(h) contended that Nurse Lourdes, at around 1600 hours, recorded the Deceased’s blood pressure, she rechecked the blood pressure and had difficulty palpating the Deceased’s pulse at around 1615 hours whereupon she informed Dr Kah Wee;
(i) contended that Dr Kah Wee saw the Deceased just after 1615 hours and found that the Deceased’s radial pulse was present but weak. Heart sounds were heard and the Deceased’s lungs were clear with equal air entry bilaterally. The Deceased was cold and clammy and unresponsive to pain stimulus. It was further contended that there was 110 mls of fluid in the redivac drain bottle;
(j) contended that Code Blue was activated at 1619 hours and that the Code Blue Team arrived soon after 1619 hours;
(k) denied that the Deceased’s injuries, blood loss and death were caused and/or contributed to by the negligence of either or both of them;
(l) asserted that at the post-mortem only a haematoma of approximately 15cm in diameter and around 2-3cm in thickness in the left peritoneal cavity (which would be calculated to account for about 550ml of blood), 600ml of blood-stained fluid in the peritoneal cavity and 450ml of blood stained fluid in the drain were found. This finding together with the fact that some 3,250ml of fluid had been infused into the Deceased during the surgery while some further 3,500ml of fluid had been infused into the Deceased during the resuscitation efforts, was inconsistent with prolonged and/or active bleeding from the left renal artery;
(m) averred that the Histopathology Report had noted a “small vessel coronary artery disease”;
(n) denied the particulars of negligence alleged against them;
(o) contended that:
(i) Dr Li had properly applied the Hem-o-lok clips on the Deceased’s left renal artery, and had properly and fully ligated the renal artery;
(ii) Dr Li had ensured that the opening of the renal artery was sealed and that an inspection of the renal bed and abdominal cavity before the closure of the Deceased’s wounds confirmed that the Deceased’s left renal artery had been properly and fully ligated and sealed by the Hem-o-lok clips that were applied;
(iii) Dr Li did not apply the Hem-o-lok clips to the periphery of the left renal artery, nor were the clips attached to the periphery of the left renal artery before the closure of the Deceased’s wound;
(iv) Dr Li had applied the Hem-o-lok clips to the Deceased’s left renal artery in a way that covered and secured the entire left renal artery, and hence properly securing the clips on the left renal artery;
(v) the two doctors had visually examined and confirmed that the left renal artery and all other vessels were completely closed and that the Hem-o-lok clips were secured before closing the Deceased’s wounds;
(vi) the two doctors had inspected the renal bed and abdominal cavity before the closure of the wounds and found no active bleeding areas and/or haematoma;
(vii) the two doctors were acting in accordance with the reasonable and standard practice in Singapore at the material time, when they permitted the transfer of the Deceased from the recovery room to the general ward following a review after the surgery that showed that the Deceased was recovering normally;
(viii) the Deceased was put on hourly monitoring parameters in accordance with the standard and reasonable practice in Singapore at the material time;
(ix) there were no signs that the Deceased was suffering from internal bleeding immediately following the surgery. The two doctors had ascertained prior to completing the surgery that the Deceased was not experiencing internal bleeding in the abdominal cavity. Further, full instructions were given to the general ward to monitor the Deceased. Dr Kah Wee’s observation in the general ward at around 1430 hours was that the Deceased’s blood pressure was 100/70 mmHg, which was within the normal range and consistent with there being no internal bleeding at the time or immediately following the surgery; and
(x) denied that the two doctors owed a specific duty of care to the Deceased to record the number of Hem-o-lok clips used during the surgery or their specific positioning.
[93] Both doctors denied that the principle of res ipsa loquitur was applicable to this case.
Defence and counterclaim of NUH
[94] The position of NUH mirrored that of the two doctors. NUH inter alia:
(a) did not admit that at all material times, it, the two doctors, its employees, servants and/or agents and/or appointees, including the doctors and nurses who provided medical and nursing care to the Deceased prior to her death during her stay in NUH, owed the Deceased a duty of care to provide appropriate, reasonable and sound medical and nursing care, and medical treatment and advice;
(b) denied that the two doctors, the doctors and nurses who provided medical and nursing care to the Deceased prior to her death during her stay in NUH, had, by their contract of engagement and/or employment with NUH, made NUH vicariously liable to the Deceased prior to her death in the event of any breach of duty of care on the part of the two doctors and that it was vicariously liable to the Deceased for such breach of duty of care;
(c) averred that no medical abnormalities were shown during the pre-operative investigations and/or procedures that were carried out on the Deceased;
(d) averred that Dr Pary had, during the Deceased’s pre-operative assessment explained to the Deceased the risks of HALDN, including the fact that statistically there is a 1 in 2,500 to 3,000 chance of death, but the risk of an individual donor dying from HALDN was uncertain;
(e) averred that when Nurse Lourdes passed the Deceased a pillow at 1515 hours, the Deceased’s family members and relatives were with her;
(f) denied that the Deceased’s injuries, blood loss and death was caused and/or contributed by the negligence of its servants, employees or agents;
(g) denied the particulars of negligence alleged by the plaintiffs;
(h) averred that:
(i) following the Deceased’s death, the Coroner’s Inquiry had found that the Hem-o-lok clips were securely applied before and after the harvesting of the Deceased’s left kidney and also inspected thoroughly before the surgical wounds were closed;
(ii) the State Coroner was satisfied that the slippage of the Hem-o-lok clips used to secure the near end of the Deceased’s left renal artery occurred inadvertently;
(iii) the State Coroner was also satisfied that NUH had sufficiently closely monitored the Deceased and there was no unreasonably long lapse of hours in which the Deceased was left unattended such that the sudden bleeding could have been detected even earlier;
(iv) there was no finding by the State Coroner of medical mismanagement or negligence on the part of NUH, its servants, agents or employees, in respect of the surgery and the post-operative care of the Deceased;
(v) it was the post-operative practice of Singapore hospitals including NUH, at the material time, to place donor nephrectomy patients, including the Deceased, in the general ward after the Deceased’s condition had stabilised in the recovery room;
(vi) it was also the practice of Singapore hospitals including NUH, to post-operatively conduct hourly monitoring of parameters (ie, oxygenation, blood pressure and heart rate) for donor nephrectomy patients, including the Deceased, in the general ward and
(vii) NUH did not owe the Deceased a specific duty of care to record the number of Hem-o-lok clips using during the surgery or their specific positioning;
(i) contended that the plaintiffs had not settled the outstanding hospitalisation and medical charges (amounting to S$1,964.33) due and owing from the Deceased’s estate for the surgery;
(j) did not admit that it was an implied term of the agreement between the Deceased and NUH for it to provide reasonable, good and professional medical care, treatment and advice to the Deceased; and
(k) denied the particulars of breach of contract alleged by the plaintiffs .
[95] NUH also denied the doctrine of res ipsa loquitur was applicable.
Counterclaim
[96] NUH counterclaimed against the plaintiffs for $1,964.33 for medical services provided to the Deceased.
The evidence
[97] The trial before this court was only to determine the issue of liability. In the event that the court ruled in the plaintiffs’ favour, their claim for damages will go for assessment before the Registrar at a later date.
Witnesses called by the Plaintiffs
[98] Besides the first plaintiff, the plaintiffs also called as witnesses of fact, Ms Jasmail and Professor Gilbert.
[99] I should emphasise that Professor Gilbert was not an “expert witness” as Mr Palaniappan, the plaintiffs’ counsel, repeatedly said. Although Professor Gilbert performed the autopsy, he was a witness of fact, albeit a very experienced forensic pathologist. Even Professor Gilbert himself readily admitted that he was not expressing any expert opinion on HALDN, on how the Hem-o-lok clips in question had slipped and on matters relating to the post operative care of the Deceased, preferring to “leave it to the relevant clinical experts”.
[100] The plaintiffs had an expert witness in Professor Michael L Nicholson (“Professor Nicholson”). Professor Nicholson is the Professor of Transplant Surgery at the University of Leicester, United Kingdom (“UK”). He is also the Director of Transplantation at the Leicester General Hospital. Professor Nicholson had introduced laparoscopic live donor nephrectomy into clinical practice in the UK in 1998 and since then, he has performed some 230 such operations and has extensive experience in minimal access surgery like HALDN.
Witnesses called by the Defendants
[101] The two doctors called as an expert witness Associate Professor Christopher Cheng Wai Sam (“Professor Cheng”). Professor Cheng is the Head of the Department of Urology at SGH. He is also the Deputy Head of the Renal Transplant Team of the Ministry of Health and the Director of the SGH Renal Transplant Centre.
[102] Amongst NUH’s witnesses of fact were:
(a) Dr Pary;
(b) Dr Khare;
(c) Dr Chong;
(d) Dr Kah Wee;
(e) Dr Bernie; and
(f) Dr Kannan.
[103] The expert witness of NUH was Associate Professor Lim Boon Leng (“Professor Lim”) who is the Head and Senior Consultant of the Department of Anaesthesia and Surgical Intensive Care at SGH.
[104] The three defendants also had a common expert witness in Dr Howard Man Ho Lau (“Dr Howard”). He is an urologist at Westmead Private Hospital and the Hills Private Hospital as well as an Honorary Transplant Surgeon at The New Children’s Hospital in Sydney, Australia. Dr Howard had performed, since September 1998, over 1000 laparoscopic renal surgeries, of which 250 were laparoscopic living donor nephrectomies.
[105] Although NUH intended to call her, Nurse Lourdes never took the stand. On day 3 of the trial (13 February 2009), Ms Chew (counsel for NUH) informed the court she was still trying to locate Nurse Lourdes who had returned to the Philippines where she had sworn and notarised her AEIC. On 16 February 2009, the court was informed by Ms Chew that she was still attempting to procure Nurse Lourdes’ attendance at the trial. Finally, on 23 February 2009 (day 7 of the trial), when the court inquired of her again, Ms Chew said she would not be calling Nurse Lourdes to testify. It was indicated to Ms Chew that Nurse Lourdes’ AEIC would have to be withdrawn in that event. Given her absence from court and that Nurse Lourdes could not be cross-examined on her AEIC, her written testimony had no probative value at all save for the documents I had referred to earlier at [52].
The undisputed facts
[106] Before going further, it would be appropriate to first set out the undisputed facts:
(a) before 16 February 2005, the Deceased had undergone extensive pre-operative tests which confirmed she had no abnormalities and she was medically and psychologically fit to undergo a kidney donation procedure;
(b) on 15 February 2005, an ECG was conducted on the Deceased which results were normal. According to Black’s Medical Dictionary (39 ed 1999 at pp 170), the main applications of the ECG are to diagnose myocardial infarction and cardiac arrhythmias;
(c) on 16 February 2005, at about 0855 hours, the Deceased underwent HALDN at NUH. The HALDN was performed by the two doctors assisted by Dr Chong;
(d) during the HALDN, Hem-o-lok clips were applied to secure the Deceased’s left renal vein and left renal artery, before these vessels were cut and the Deceased’s left kidney removed to be implanted into the first plaintiff who suffered from end-stage renal failure;
(e) the HALDN on the Deceased ended at around 1150 hours on 16 February 2005;
(f) at the conclusion of the surgery at 1150 hours, Dr Li gave instructions that the Deceased was to be placed on hourly monitoring in the general ward. In cross examination, Professor Nicholson agreed that hourly monitoring in the general ward was the “minimum standard”;

The judgment continues past this page. Read the rest at eLitigation.

Surender Singh s/o Jagdish Singh And Another (administrators of the estate of Narindar Kaur d/o Sarwan Singh) v Li Man Kay and Others

Laws this judgment relies on

Grounds of decision

Introduction

The parties in this action

The nature of this action

Background facts

The renal anatomy

The HALDN procedure

Hem-o-Lok clips

The facts

Events before the HALDN on 16 February 2005

Pre-operative assessments of the Deceased

The HALDN procedure on 16 February 2005

Post operative care

(1) Transfer to the recover room

(2) Transfer to Ward 43

(A) EVENTS IN WARD 43 BETWEEN 1425 AND 1430 HOURS

(i) Nurse Lourdes’ account

(ii) Dr Kah Wee’s account

(B) EVENTS AT WARD 43 AFTER 1430 HOURS TO THE ACTIVATION OF THE CODE BLUE TEAM AT 1619 HOURS

(I) NURSE LOURDES’ ACCOUNT

(II) DR KAH WEE'S ACCOUNT

(III) ACCOUNTS OF DR LI AND DR CONSIGLIERE

(IV) ACCOUNT OF MS JASMAIL KAUR – THE DECEASED'S SISTER IN LAW

(C) RESUSCIATTION EFFORTS BY THE CODE BLUE TEAM ON 16 FEBRUARY 2005

(I) DR KANNAN'S ACCOUNT

(II) DR CONSIGLIERE'S ACCOUNT

The Deceased’s autopsy and the certified cause of death

Contraindication for use of Hem-o-lok clips dated 13 April 2006

The findings of the State Coroner

The pleadings

The statement of claim

Particulars of alleged negligence against Dr Li and Dr Consigliere

Particulars of alleged negligence and/or vicarious liability against NUH

Particulars of breach of contract against NUH

Reliance on the doctrine of res ipsa loquitur to establish alleged negligence of Dr Li, Dr Consigilere and NUH

Defence of Dr Li and Dr Consigilere

Defence and counterclaim of NUH

Counterclaim

The evidence

Witnesses called by the Plaintiffs

Witnesses called by the Defendants

The undisputed facts