High Court · Decided 19 December 2012

Tong Seok May Joanne v Yau Hok Man Gordon

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[2012] SGHC 252Case no. Suit No 885 of 2009

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Grounds of decision

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Andrew Ang J:
I. INTRODUCTION
[1] This action arose out of the general anaesthetic (“GA”) procedure during the plaintiff’s (Tong Seok May Joanne) lower segment caesarean section (“LSCS”) surgery. The plaintiff alleged that the defendant (anaesthetist Dr Yau Hok Man Gordon, who had carried out the GA procedure) was negligent in three aspects:
(a) failing to obtain her informed consent for the GA procedure;
(b) failing to take proper care when manipulating her neck during the GA procedure; and
(c) failing to provide reasonable post-surgery care.
[2] The plaintiff claimed that the defendant’s negligence had caused her to suffer from an injury to the anterior longitudinal ligament (“ALL”) of the cervical spine (ie, the first seven vertebrae of the spine starting from the neck to the upper back) which had worsened over time and developed into a whole constellation of further symptoms and complications. She sought damages in the region of about $3m for physical, emotional and psychological harm allegedly suffered.
[3] What caused the plaintiff to withhold legal proceedings until just before the action would have been time-barred? On the plaintiff’s own evidence, she was initially not minded to pursue an action against the defendant because her husband and her father are also doctors. Since the medical profession is, according to her, a well-guarded one where they do not attack their own, she felt that the decision to bring an action would adversely affect her family. The plaintiff also explained that she consulted many different doctors over the years because she wanted to try everything she could first before resorting to legal action. This was disputed by the defendant who alleged that the delay arose only because the plaintiff was shopping around for a favourable opinion before commencing action. Although a litigant’s motivation for instituting an action may not be strictly relevant, I thought it might be useful to place some context as to why this action was only brought three years after the incident.
[4] I should also mention at the outset that this trial spanned a lengthy 39 days and involved 25 witnesses of fact and nine expert witnesses. I have duly applied my mind to the contents of the parties’ lengthy submissions, but I do not intend to chronicle the voluminous contents of evidence so as not to risk the reader missing the wood for the trees. The contents of this judgment are therefore confined only to facts and issues that are truly relevant to the determination of liability. To facilitate understanding, the key medical terms will be explained where necessary when first mentioned.
II. THE FACTUAL BACKGROUND
The parties
[5] The plaintiff graduated with a law degree from the National University of Singapore in 1995 but did not practice as a lawyer, having foregone a legal career in favour of devoting time to her family. She provided tuition in Mathematics and English in premises above her husband’s clinic and generally led an active lifestyle with no history of neck pains. At the material time in 2006, the plaintiff was 35 years old and pregnant with her sixth child. She had had no problems with her five other pregnancies, all of which resulted in delivery by vaginal birth.
[6] The defendant is a medical practitioner in private practice and a specialist in anaesthesiology of 25 years’ standing at the material time. His sub-speciality is obstetric anaesthesia.
The events surrounding the LSCS
[7] On 25 October 2006, when she was 35 weeks and four days pregnant with her sixth child, the plaintiff had some vaginal bleeding and abdominal cramps. Together with her husband, she consulted her obstetrician, Dr Tham Kok Fun (“Dr Tham”), at his clinic in Gleneagles Medical Centre. Dr Tham was the plaintiff’s family friend and had also delivered her previous child. The plaintiff was admitted to Gleneagles Hospital at about 6pm that same day on Dr Tham’s advice. At about 8pm, Dr Tham went to the labour ward to discuss his concerns about the cause of the plaintiff’s bleeding (which had stopped by then) with the plaintiff and her husband. Since the baby was not engaged and was in a transverse lie (ie, at an angle relative to the axis of the mother’s womb), it was not possible to induce labour. Dr Tham suggested LSCS as an alternative. After some discussion (the contents of which were disputed), the plaintiff decided to undergo the LSCS surgery. Dr Tham then made arrangements for the defendant to be the anaesthetist for the plaintiff’s LSCS surgery and confirmed with the plaintiff that the LSCS would start at 10am the next day. The plaintiff’s husband was present with her throughout the discussions that evening. He also stayed with her in the ward until she went for the LSCS the next day.
[8] Since the precise timing of the events on the day of the LSCS on 26 October 2006 is disputed, the times given in this factual background are only estimates. The plaintiff was brought down to the Operating Theatre Reception Room at about 9.40am and was wheeled into the Operating Theatre (“OT”) at about 9.50am. The defendant was engaged at another appointment at Mount Elizabeth Hospital at 9am that same morning. When he was making his way from that earlier 9am appointment to the plaintiff’s appointment (which was scheduled for 10am), his car was blocked by another car at the Mount Elizabeth Hospital car-park. His departure was therefore delayed. The defendant estimated that he arrived at Gleneagles Hospital between 9.45am and 9.50am. It was not disputed that he saw the plaintiff for the first time when she was already in the OT.
[9] The GA procedure commenced at around 10am and the LSCS soon thereafter. The baby was delivered successfully and the entire procedure ended at around 11.25am. The defendant, together with Honrado Laurence Magsano (“Nurse Honrado”) and a Circulating Nurse, escorted the plaintiff from the OT to the OT Recovery Room at about 11.30am. After handing the plaintiff over to the OT Recovery Room nurses and checking that she was responsive and that her vital signs were stable, the defendant left to attend to another surgery in the same hospital. He did not return to review the plaintiff when she was in the OT Recovery Room nor when she was in the ward.
[10] At around 11.35am, Dr Tham saw the plaintiff in the OT Recovery Room. She complained of pain to him but did not indicate the site of the pain. Dr Tham instructed the nurses to administer Pethidine (a pain-killer) to the plaintiff through the intravenous drip. The plaintiff was discharged to the ward at around 12.30pm. The plaintiff stayed in the hospital for another two days before she was discharged on the afternoon of 28 October 2006. The plaintiff claimed to have told the ward nurses that she experienced neck and upper back pains during her hospital stay but this complaint was not reflected in any of the medical records.
Post-discharge
[11] The next day, on 29 October 2006, the defendant received a telephone call from Dr Tham. Dr Tham informed the defendant that the plaintiff’s husband had called him (Dr Tham), claiming that the plaintiff had complained of neck pain since the LSCS and that her husband wanted to speak to the defendant. At or about the same time, the plaintiff’s husband used the Gleneagles Hospital’s answering service to contact the defendant. In response to Dr Tham’s call, the defendant telephoned the plaintiff’s husband. The plaintiff’s husband asked the defendant if the plaintiff’s neck pain was related to the intubation process during the GA procedure. The defendant replied in the negative. The plaintiff’s husband then asked the defendant what the reason for the plaintiff’s neck pain could be. The defendant replied that it could be muscle ache due to the use of Succinylcholine, the muscle relaxant used for the intubation. The plaintiff’s husband did not accept this explanation and the conversation ended shortly thereafter. The defendant did not speak to the plaintiff and/or her husband thereafter.
[12] On 30 October 2006, two days after discharge from the hospital, the plaintiff consulted Dr Chang Wei Chun (“Dr Chang”), an orthopaedic surgeon at Orthopaedic & Traumatic Surgery Pte Ltd, Gleneagles Medical Centre. The plaintiff was in a wheelchair and complained of: (a) severe pain in the neck that radiated to the occiput (the back of the skull) and the upper back; and (b) dysaesthesia (an altered sensation that can manifest itself as discomfort or a burning sensation) in both hands, with the right hand worse than the left. She told Dr Chang that she woke up from the LSCS with “severe pain in the neck and upper back and over the abdominal wound site”. Dr Chang examined the plaintiff and found that:
(a) the cervical spine was generally tender with spasm of the trapezius muscles on both sides;
(b) the range of movements of her cervical spine was about one-third of the normal range, and the plaintiff felt pain when she turned her neck beyond this range;
(c) there were no neurological deficits in the limbs referable to the cervical spine; and
(d) her power, sensation and tendon reflexes were all intact.
Dr Chang also ordered an X-ray of the plaintiff’s neck (“the 2006 X-ray”). From his review of the X-ray, Dr Chang noted that the normal curvature of her neck was absent but that there was no radiological evidence of cervical spondylosis (degeneration of the cervical spine). He made a provisional clinical diagnosis of acute cervical disc herniation from ligamentous neck strain. The plaintiff was advised to rest and to take analgesics.
[13] On 2 November 2006, the plaintiff, together with her husband, went to Dr Tham’s clinic for a follow-up consultation in relation to her LSCS wound. She was in a neck collar. The plaintiff told Dr Tham about her husband’s telephone conversation with the defendant on 29 October 2006. Dr Tham testified that he might have contacted the defendant again after this consultation with the plaintiff but he could not remember for sure. The defendant denied receiving any other phone call from Dr Tham relating to the plaintiff other than the phone call on 29 October 2006.
[14] According to the plaintiff, her symptoms subsequently worsened. On 8 November 2006, she obtained a referral from Dr Chang for physiotherapy. On 10 November 2006, she went to see Dr Chang again, complaining of persistent neck pain with tingling spasms down her upper back muscles and recurrent parathesiae (“pins and needles” feeling) down to her left index, middle and ring fingers and, to a lesser extent, her right hand. Her neck was also stiff. Dr Chang diagnosed her as having likely sustained a traumatic cervical disc herniation from accidental strain. Dr Chang recommended physiotherapy and rest. However, as the plaintiff was busy with the care of her sickly newborn child amongst other matters, she did not go for physiotherapy at all in 2006. Instead, she had massages at home.
[15] As at the end of 2006, the plaintiff was taking six different kinds of medication daily, including Panadol (for pain relief), Ponstan (for pain relief), Papase (for anti-inflammation), Leftose (for anti-inflammation), Neuroforte (vitamins) and Zimor (for gastritis).
The plaintiff’s condition in 2007
[16] The salient points of the plaintiff’s account of her condition in 2007 are as follows:
(a) her symptoms worsened and she would feel pain shooting down her neck and upper back whenever she flexed or extended her neck;
(b) she could not sit upright in a car for long periods due to the pain;
(c) she started to experience a cold patch and a thick sensation over the left upper arm; and
(d) she had “pins and needles” whenever she had to grip anything.
[17] In March 2007, the plaintiff consulted Dr Wong Hee Kit (“Dr Wong”), an orthopaedic surgeon at the National University Hospital. Dr Wong’s initial clinical finding was that the plaintiff had bilateral carpal tunnel syndrome. He ordered a Needle Electromyography and a Nerve Conduction Study with reference to bilateral carpal tunnel syndrome. The plaintiff did not go for the appointment that Dr Wong had fixed but instead went for a Needle Electromyography test arranged by her husband on 30 April 2007 with reference to cervical radiculopathy (ie, compression of nerves). The results of the Needle Electromyography showed that:
(a) there was electrophysiological evidence of a mild right-sided carpal tunnel syndrome; and
(b) there was no clear electrophysiological evidence of cervical radiculopathy, although clinically the plaintiff most likely had a mild, “sensory-only” C5/C6 radiculopathy which was below the detection threshold of the study.
The plaintiff was advised in the Needle Electromyography report to bring the results contained therein back to Dr Wong to be reviewed or to be correlated to an MRI. The plaintiff did not do so as she claimed that Dr Wong’s diagnosis did not address the symptoms in her neck or back. Neither did the plaintiff bring the results of the electromyography back to Dr Chang.
[18] On 1 March 2007, the plaintiff went for an MRI scan (“the 2007 MRI”). In the MRI report, the radiologist noted that mild degenerative disc changes were seen at multiple levels of the cervical spine from the C3/C4 to the C7/T1 region. The radiologist also noted that there was a mild reversal of the normal curvature of the cervical spine. On 9 March 2007, the plaintiff brought the MRI scan and accompanying report to Dr Chang. Dr Chang recommended that she undergo physiotherapy and give herself time to recover. The plaintiff started physiotherapy on 16 March 2007 and eventually settled on attending physiotherapy at Core Concepts Physiotherapy Centre about twice a week.
[19] On 19 November 2007, the plaintiff consulted Dr Lim Lee Leng (“Dr Lim”), a neurologist at the Singapore Neurology & Sleep Centre at Gleneagles Medical Centre. The plaintiff did not go back for follow-up sessions with Dr Lim as she claimed that Dr Lim did not explain how her neck and back pain could have been caused by the conditions that she (Dr Lim) suggested.
[20] Throughout most of 2007, the plaintiff was taking nine different kinds of medication daily. This included the medication that she had been taking in 2006 (see above at [15]), as well as Actal (for gastric), Tanakan (gingko extracts) and Voltaren Emulgel (a topical pain relief and anti-inflammatory drug). In December 2007, the plaintiff stopped taking Panadol, Ponstan and Actal, and instead took Anarex (a muscle relaxant), Mobic (for anti-inflammation) and Valium (for sleep).
The plaintiff’s condition in 2008
[21] In 2008, the plaintiff reduced her tuition commitments by about a third. This trend of reduction continued in 2009 by a further one-third, and in 2010 when the plaintiff stopped giving tuition altogether. In addition to the symptoms described above at [16], she started to experience a “whooshing” sound in her right ear.
[22] On 14 July 2008, the plaintiff consulted another orthopaedic surgeon at the Singapore General Hospital (“SGH”), Dr Tay Boon Keng (“Dr Tay”). Dr Tay ordered an MRI scan and blood tests, but the plaintiff’s husband arranged for her to take the MRI scan and blood tests privately so as to avoid a long wait. The blood tests were only done on 29 July 2008 and they were negative for any rheumatoid and/or auto-immune diseases. The MRI scan was eventually taken on 2 August 2008 (“the 2008 MRI”). In the accompanying MRI report, the radiologist noted, inter alia, that there were multiple mild diffuse disc bulges in the cervical spine from the C3/C4 levels to the C6/C7 levels but no cord compression.
[23] Dr Tay then referred the plaintiff to Associate Professor Lo Yew Long (“Assoc Prof Lo”), a neurologist at SGH and National Neuroscience Institute. On 20 August 2008, Assoc Prof Lo carried out the following neurophysiological tests on the plaintiff without carrying out a clinical examination of the plaintiff beforehand:
(a) transcranial magnetic stimulation (“TMS”) study, a test for motor responses by examining a patient’s muscle twitch response to electromagnetic stimulation;
(b) nerve conduction study to assess if there was any nerve injury;
(c) autonomic nerve function test; and
(d) somatosensory evoked potential study.
[24] The results of these tests were as follows:
(a) TMS study: The TMS study showed that the plaintiff’s left upper limb and left lower limb motor evoked potential (“MEP”) amplitudes were reduced to 3.1mv (instead of the usual 3.5mv) and 0.2mv (instead of the usual 0.4mv) respectively. However, the central motor conduction times for all four limbs were within the normal range. Assoc Prof Lo nonetheless concluded that the plaintiff had corticospinal tract cervical cord dysfunction (an abnormal functioning of the spinal cord in the neck region).
(b) Nerve conduction study: The test results of the nerve conduction study were mixed. The first part of the nerve conduction study showed responses within the normal range (ie, uninterrupted nerve conduction of electrical impulses in the body). However, this was not conclusive of absence of nerve injury as the machines may not be sensitive enough to detect all abnormal responses. The second part of the nerve conduction study which tested the plaintiff’s response to a needle prick, showed “minimal electrophysiological evidence of chronic left C7 C8 radiculopathy”. This meant that the plaintiff had numbness on her left arm and left hand due to “longstanding and not acute root compression in the neck”.
(c) The automatic nerve function test and somatosensory evoked potential study both showed results within the normal range. That said, those tests might not have been sensitive enough to pick up all abnormal readings.
[25] Assoc Prof Lo also reviewed the plaintiff’s 2008 MRI and found the scans to be consistent with the TMS study results showing cord dysfunction. He concluded that the plaintiff had cervical spondylosis and cord dysfunction, although he could not ascertain how and when the latter was sustained. The plaintiff did not return to see Assoc Prof Lo until 12 October 2009.
[26] According to the plaintiff, her symptoms continued to worsen in severity. In December 2008, the plaintiff consulted one Dr Christopher E Furneaux (“Dr Furneaux”), a neurosurgeon at Mercy Specialist Centre in Auckland, in New Zealand, while she was there on holiday with her family. Dr Furneaux told her there were no neurological interventions that would help her condition and recommended that she continue with physiotherapy. By late 2008, the plaintiff began to feel depressed because of the pain in her neck and back, and the effect it was having on her private, family and social life.
[27] Throughout 2008, the plaintiff continued to take almost the same medication as those she took in December 2007 (see above at [20]), except that Valium (for sleep) was replaced with Imovane (for sleep), and Lexapro (an anti-depressant) was added to the list.
The plaintiff’s condition in 2009
[28] In 2009, the plaintiff further reduced her tuition classes by another one-third. In early to mid 2009, the plaintiff started to develop problems with her balance and gait, as well as difficulty in co-ordinating her movements. She stumbled down the stairs at her home twice but fortunately was caught by someone on both occasions.
[29] The plaintiff consulted three neurologists over the course of the year:
(a) On 31 March 2009, the plaintiff consulted Dr Chong Pang Ngiok (“Dr Chong”), a neurologist at PN Chong Neurology Clinic at Mount Elizabeth Medical Centre. She did not return to consult Dr Chong subsequently as she was not comfortable with taking the types of drugs prescribed by him.
(b) On 29 July 2009, the plaintiff consulted Dr Goh Khean Jin (“Dr Goh K J”), a neurologist at the UMSC UM Specialist Centre Sdn Bhd in the University Malaya Medical Centre in Kuala Lumpur (“KL”), Malaysia.
(c) On 12 October 2009, the plaintiff returned to see Assoc Prof Lo.
Both Dr Goh K J and Assoc Prof Lo recommended that she see a pain specialist. On both occasions, the plaintiff took no further action as she was afraid of pain specialists who were usually also anaesthetists.
[30] At around that time, the plaintiff developed twitching in her left eyelid. On 30 October 2009, she consulted Dr Prem Pillay (“Dr Pillay”), a neurosurgeon at Singapore Brain Spine Nerves Centre. Dr Pillay recommended that she continue physiotherapy and referred her for aqua-physiotherapy. The plaintiff obtained an aqua-physiotherapy evaluation on 24 November 2009 and decided against aqua-physiotherapy as she had financial constraints and was uncomfortable with being assigned a male physiotherapist.
[31] On 12 November 2009, the plaintiff went to KL to have a flexion-extension MRI done (“the 2009 MRI”). In the accompanying MRI report, the radiologist noted that there was kyphosis (reversal of the normal curvature) of the cervical spine. The radiologist further noted that mild cervical spondylosis with disc bulges was apparent at all levels between C3 and C7, the most prominent being at C5/C6. A loss of T2 signal was also seen.
[32] On 18 November 2009, the plaintiff saw another orthopaedic surgeon at SGH Specialist Practice, Dr Yue Wai Mun (“Dr Yue”). Dr Yue conducted a physical examination on the plaintiff and found that the range of motion of her neck was reduced and there was decreased sensation in her left upper limb globally. In addition, she had mild weakness when extending her elbows bilaterally. According to Dr Yue, those symptoms showed that there might be a nerve root problem, most likely on the left side. Dr Yue also found that there was no evidence of myelopathy (ie, spinal cord injury) as there did not appear to be a lack of co-ordination or balance. Dr Yue also reviewed the plaintiff’s X-rays and past MRI scans and made the following further observations:
(a) 2006 X-ray: Dr Yue noted that it showed a loss of the normal curvature of the cervical spine and spondylosis (degeneration) particularly at the C5/C6 levels, contrary to Dr Chang’s original observations (see [12] above);
(b) 2007 MRI: Dr Yue noted that there were osteophytes (ie, bone spurs caused by degeneration that do not necessarily cause any symptoms as they are merely touching, and not pressing on or compressing, the spinal cord) indenting the spinal cord at C4/C5, C5/C6 and C6/C7; and
(c) 2008 MRI: Dr Yue noted that the 2008 MRI revealed similar changes as the 2007 MRI, although the 2008 MRI additionally showed a mild disc bulge at the C3/C4 level.
[33] In late 2009, the plaintiff broke down during one of the parent review sessions at one of her children’s counselling sessions. The counsellor suggested she seek professional counselling for herself. The plaintiff decided to do so and saw Dr Rasaiah Munidasa Winslow (“Dr Winslow”), a psychiatrist at Promises Healthcare Pte Ltd, on 28 November 2009. Dr Winslow assessed the plaintiff together with a psychologist, Dr Lam Chun Yin Julia (“Dr Lam”), over a few sessions from 28 November 2009 to 19 January 2010. Dr Winslow diagnosed the plaintiff with post traumatic stress disorder (“PTSD”) and a major depressive disorder on 19 January 2010.
[34] On 7 December 2009, the plaintiff consulted Dr Chang again. Dr Chang conducted a physical examination and found that the plaintiff had a stiff and irritable neck with the range of neck movements reduced by a quarter. Dr Chang also reviewed the plaintiff’s 2008 and 2009 MRIs, and the neurological tests ordered by Assoc Prof Lo (see [23] above). Dr Chang noted that both MRIs showed similar degenerative changes between the C3 and C7 levels and the plaintiff’s curvature of the cervical spine had worsened from 2008 and gone into a state of kyphosis (reversal of the direction of the cervical curve) in 2009. Dr Chang diagnosed the plaintiff’s symptoms to be due to a combination of neck strain and cervical spondylosis, with the former likely to have been caused during the GA procedure conducted by the defendant and the latter likely to have been aggravated by the initial neck strain. Dr Chang was also of the view that the neurological tests ordered by Assoc Prof Lo on 20 August 2008 (see [23]–[24] above) supported his finding of nerve injury.
[35] Throughout 2009, the plaintiff took a total of 12 different kinds of medication daily. This list included the medication that she had been taking in 2008 (see [27] above), as well as Lyrica (for nerve pain) and Xanax (anti-anxiety).
The plaintiff’s condition in 2010
[36] In 2010, the plaintiff stopped working as a tutor. On 19 April 2010, she stumbled down the stairs again but this time there was nobody around to catch her. Her symptoms continued to worsen after the fall. On 27 May 2010, the plaintiff consulted Dr Pillay again. Dr Pillay discussed with the plaintiff the surgical options she could consider and again recommended aqua-physiotherapy.
[37] On 2 June 2010, the plaintiff went for her fourth MRI (“the 2010 MRI”). In the accompanying MRI report, the radiologist noted that there were disc protrusions from C3/C4 all the way to T1/T2 levels (ie, from the cervical spine to the first and second levels of the thoracic spine). The radiologist also noted that there was a loss of normal T2 signal, which was consistent with cervical spondylosis. There was no significant change compared to the 2009 MRI.
[38] On 14 July 2010, following Dr Pillay’s recommendation, the plaintiff signed up for aqua-physiotherapy at Aqua Physio Rehab Center. The plaintiff found it helpful and has continued going there once a week on average.
[39] In June 2010, when the plaintiff was in KL for a short trip, she went to Gleneagles Intan Medical Centre for physiotherapy as she was in pain without her usual physiotherapy. The physiotherapist there was of the view that the plaintiff could have a vestibular disorder and recommended that she go for vestibular physiotherapy to help with her balance and co-ordination problems. Since she returned to Singapore in July 2010, the plaintiff has also been going for vestibular physiotherapy about once every three to four weeks at Tan Tock Seng Hospital to help with her balancing problem.
[40] On 18 August 2010, the plaintiff fell again and injured her foot. She consulted Dr Benjamin Tow Phak Boon (“Dr Tow”), an orthopaedic surgeon at SGH. Dr Tow recommended surgery but the plaintiff was hesitant about such an option. He also recommended that the plaintiff wear a neck collar, but she did not do so on the advice of her physiotherapist. Dr Tow further recommended that the plaintiff see a chiropractor but she did not do so as she was already going for physiotherapy and was concerned about the risk of injury in chiropractic treatment.
[41] On 14 September 2010, the plaintiff consulted Dr Ho Kok Yuen (“Dr Ho”), a pain specialist at Pain Management Service, Raffles Pain Management Centre. Dr Ho performed a physical examination and found that the plaintiff had reduced motor strength to 4+/5 and dysaesthesia (ie, “pins and needles” feeling) in the left upper limb. Her reflexes were normal. Dr Ho suggested several invasive procedures for the plaintiff to consider. Pending her decision, the plaintiff has been going back to see Dr Ho for review about once a month since then. On 14 October 2010 and 23 December 2010 respectively, the plaintiff consulted two other pain specialists – Dr Bernard Lee Mun Kam (at Singapore Paincare Center) and Dr Nicholas Chua Hai Liang (at Tan Tock Seng Hospital) – for further opinions.
[42] Throughout 2010, the plaintiff continued to undergo treatment for her PTSD and depressive disorder with Dr Winslow and Dr Lam. The plaintiff also took a total of 14 different kinds of medication daily, including those that she was taking in 2009 (see above at [35]), as well as Micardis (hypertension) and Neurobion (in place of Neuroforte).
The plaintiff’s condition as at 2011
[43] According to the plaintiff, as at 2011 she was suffering from:
(a) headaches from the base of her head to the whole back of her head, which sometimes worsened to migraine-like intense pain causing nausea;
(b) chronic and persistent pain in her neck, shoulders and upper back, which was worse on bending her neck or turning her head right or left;
(c) shooting pain and muscle spasms down the neck into the upper back, especially when flexing her neck up and down;
(d) left arm parasthesia, a constant thick sensation on the outer part of her upper left arm, with reduced sensation and persistent, abnormal coldness;
(e) sensation of pins and needles in both hands, extending up to the wrists, when gripping onto any object for a while;
(f) permanent numbness of all her fingertips, especially her right thumb;
(g) “pins and needles” in both feet and toes, which worsened on sitting;
(h) vestibular imbalance with nausea when in a moving vehicle;
(i) tripping and problems with co-ordination since 2009, which caused her to fall;
(j) twitching in both eyelids, especially the left;
(k) “whooshing” sound in her right ear, which worsened or instantly came on when her neck was in certain positions;
(l) sleep apnoea and snoring;
(m) poor concentration and memory and inability to think clearly;
(n) depression;
(o) anxiety; and
(p) anger.
[44] The plaintiff further claimed that her life had been affected in the following major aspects:
(a) having to go for various physiotherapies on a regular basis so as to function daily;
(b) inability to function as a wife, mother and homemaker;
(c) loss of independence and self-esteem; and
(d) loss of income as a tutor.
[45] Throughout 2011, the plaintiff reportedly took a total of 14 different kinds of medication daily, including those that she took in 2010 (see above at [42], as well as Ultracet (for pain relief), Stugeron (for giddiness) and Seroquel (for sleep and depression).
III. THE PLAINTIFF’S CASE
[46] The pertinent points of the plaintiff’s case were as follows:
(a) Informed consent: the defendant did not discharge his duty of care to explain to her the nature, risks of and alternatives to GA, including the risk of neck injury.
(b) The intubation:
(i) The plaintiff was considered a potentially difficult patient to intubate;
(ii) The defendant was in a rush and did not carry out a pre-anaesthetic assessment at all to ascertain her suitability for GA before commencing the GA procedure. He therefore did not realise that she would be a potentially difficult patient to intubate.
(iii) The defendant did not adequately pre-oxygenate the plaintiff before intubating her since he was in a rush;
(iv) The defendant had not previously prescribed pre-medication for the plaintiff;
(v) The defendant did not realise that the plaintiff was actually a difficult patient to intubate until he tried to intubate her;
(vi) By this time, the plaintiff was unconscious and her muscles were paralysed. As she was not able to breathe on her own, there would have been a need to intubate her as soon as possible before her oxygen saturation levels dipped dangerously low;
(vii) The defendant’s failure to anticipate difficulty in intubation meant that he did not ensure that adjuncts such as the stylet or bougie (adjuncts used to assist with difficult intubations) were brought into the OT;
(viii) Against the background of these countervailing pressures and faced with possible hypoxia from the plaintiff, the defendant had to intubate the plaintiff without the use of assisting adjuncts;
(ix) This resulted in his having to use excessive force and hyperextending the plaintiff’s neck, thus causing injury to the C4/C5 level of the ALL that runs along the cervical spine;
(x) She complained of neck and upper back pains upon waking up in the OT Recovery Room and subsequently in the ward, which proved her claim that an injury had been caused by the defendant during the administration of GA; and
(xi) The X-ray and the four MRIs taken over the years also proved that the degeneration of her cervical spine was caused by a traumatic injury, which must have been caused by the defendant.
(c) Post-operative care:
(i) The defendant’s post-operative orders were incomplete;
(ii) The defendant signed off on her discharge from the OT Recovery Room without certifying that she was fit for discharge;
(iii) The defendant did not review her condition when she was in the ward; and
(iv) The defendant did not review the plaintiff even after hearing about her condition via telephone call on 29 October 2006.
IV. THE DEFENDANT’S DEFENCE
[47] The pertinent points of the defendant’s defence were as follows:
(a) Informed consent:
(i) The defendant had explained the risks of GA to the plaintiff. He did not explain to the plaintiff the risk of neck injury because that was not a commonly known risk of GA; and
(ii) The defendant did not have to explain to the plaintiff the alternatives to GA because it was the usual practice between Dr Tham and him for Dr Tham to discuss the alternatives with the patient.
(b) The intubation:
(i) The plaintiff was not considered a potentially difficult patient to intubate;
(ii) The defendant had carried out a proper pre-anaesthetic assessment of the plaintiff and confirmed her suitability for GA;
(iii) He carried out adequate pre-oxygenation on the plaintiff before intubating her;
(iv) He did not encounter any difficulty in carrying out the GA procedure;
(v) He had the stylet and the bougie ready (adjuncts used to assist with difficult intubations) in the OT if he needed them and in fact he had no need to use them;
(vi) He did not use excessive force nor did he hyperextend the plaintiff’s neck;
(vii) The plaintiff did not complain of neck and upper back pain upon waking up in the OT Recovery Room or at any time during her hospital stay; and
(viii) The X-ray and the four MRIs taken over the years proved that the degeneration of the plaintiff’s cervical spine was caused by natural wear and tear and not a traumatic injury to the C4/C5 level of the ALL.
(c) Post-operative care:
(i) The post-operative orders were sufficient as those orders not documented were already given verbally to the OT Recovery Room nurses;
(ii) The plaintiff was fit for discharge from the OT Recovery Room as the nurses did not inform him of any change in the plaintiff’s condition;
(iii) There was no duty to pay ward calls to the plaintiff as there was no reason for him to think that her condition required it; and
(iv) There was no duty to review the plaintiff’s condition after talking to the plaintiff’s husband on 29 October 2006 as there was nothing that he could do as an anaesthetist.
V. THE WITNESSES
[48] Other than herself, the plaintiff called 15 other witnesses of fact to give evidence. A table of the plaintiff’s witnesses is compiled below for ease of reference:
[49] The defendant also gave evidence and called eight other witnesses of fact to give evidence:
[50] As for the expert witnesses, the: (a) anaesthetic experts; (b) obstetrics and gynaecology (“O&G”) experts; and (c) orthopaedic experts, gave concurrent evidence during the trial:
[51] In addition to the expert witnesses who gave concurrent evidence, the defendant also called the following two expert witnesses to testify:
(a) Dr Umapathi Thirugnanam (“Dr Umapathi”), a Neurologist and Senior Consultant in the Department of Neurology at the National Neuroscience Institute; and
(b) Dr Lishya Liauw (“Dr Liauw”), a Senior Consultant Radiologist at the Department of Neuroradiology at the National Neuroscience Institute.
[52] Lastly, Dr Tsou Yu Yan Ian (“Dr Tsou”), a specialist in diagnostic radiology with Medi-Rad Associates Radiology Clinic at Mount Elizabeth Hospital, was called by agreement between both parties during the course of the trial as a court expert.
VI. THE GENERAL LEGAL FRAMEWORK
[53] The applicable law on medical negligence is set out in Khoo James v Gunapathy d/o Muniandy [2002] 1 SLR(R) 1024 (“Gunapathy”). The Court of Appeal in Gunapathy adopted the test in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 (“Bolam”) as supplemented by Bolitho v City and Hackney Health Authority [1998] AC 232 (“Bolitho”). The Bolam test (McNair J at 587), quoted with approval in Gunapathy at [54], is as follows:
[54] The House of Lords in Bolitho clarified that “the practice accepted as proper by a responsible body of medical men” must have a “logical basis”, particularly in cases involving the weighing of risks against benefits. This would require the experts to “have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter” (at [241]–[242]). This was interpreted by the Court of Appeal (at [64]–[65]) in Gunapathy to be a two-stage inquiry:
(a) whether the expert directed his mind to the comparative risks and benefits relating to the matter, considering and weighing all the countervailing factors relevant to the issue and rejecting bare and unsupported assertions; and
(b) whether the medical expert had reached a “defensible conclusion” as a result of the balancing process. The test of a “defensible conclusion” was distinguished from the test of reasonableness at [65]:
[55] The Court of Appeal further found (at [70]) that the Bolam test should be applied after the trial judge has made a finding of fact as “it is a well-settled principle that a question of fact, as opposed to a question of the standards of medical practice, does not fall within the province of the Bolam test”. However, “judges and lawyers should not play at being doctors” and should not enter the arena of divided medical opinion because 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]).
[56] With the applicable legal framework in mind, I turn now to address the first issue of informed consent.
VII. INFORMED CONSENT
Overview of the law on giving of advice
[57] There has been some debate about whether the general test for medical negligence in Bolam should apply to the giving of medical advice. The argument against the Bolam test was articulated by Lord Scarman in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and others [1985] AC 871 (“Sidaway”) (at 882):
[58] This objection subsequently found fuller articulation in Pearce v United Bristol Healthcare NHS Trust [1999] PIQR P53 (“Pearce”) and in Chester v Afshar [2005] 1 AC 134 (“Chester”). Lord Woolf MR in Pearce (at P59) opined:
[59] The “reasonable patient” test has been adopted in Australia (see Rogers v Whitaker (1992) 175 CLR 479; Rosenberg v Percival (2001) 205 CLR 434); Canada (see Reibl v Hughes (1980) 114 DLR (3d) 1); and Malaysia (see Foo Fio Na v Dr Soo Fook Mun and Anor [2007] 1 MLJ 593). On this approach, a doctor’s duty to warn his patient of all material risks would cover every situation where: (a) a reasonable person in the patient’s position, if warned of the risk, will be likely to attach significance to it; or (b) if the medical practitioner is or should be reasonably aware that the particular patient, if warned of the risk, will be likely to attach significance to it.
[60] Nevertheless, I find that the law in Singapore is clear. The Court of Appeal in Gunapathy had considered and approved the Bolam test in the context of giving advice after having discussed Sidaway and Lord Scarman’s objections to the Bolam test. It concluded (at [142]–[143]):
[61] Tay Yong Kwang J in D’Conceicao Jeanie Doris (Administratrix of the estate of Milakov Steven, deceased) v Tong Ming Chuan [2011] SGHC 193 (“D’Conceicao”) usefully summarised the Court of Appeal’s interpretation of Sidaway in Gunapathy (at [114]–[115]):
[62] Although the Court of Appeal in Gunapathy clarified (at [142]) that it was not providing a conclusive ruling on the doctrine of informed consent as it did not have the benefit of full submissions on the issue, full submissions were given in D’Conceicao and duly rejected by Tay J.
[63] There were three aspects to Tay J’s analysis, all of which I am in full agreement with. First, Tay J found that the authorities from other jurisdictions advocating the “reasonable patient” test (see [59] above) had already been considered and expressly rejected by the Singapore High Court in Surender Singh s/o Jagdish Singh and another (administrators of the estate of Narindar Kaur d/o Sarwan Singh, deceased) v Li Man Kay [2010] 1 SLR 428 (“Surender”) on the basis that it was bound by the Court of Appeal in Gunapathy (Surender at [152]–[153]). I am also bound by Gunapathy. I note Hri Kumar and Terry Kaan Sheung-Hung’s observations on Gunapathy in “Developments in Singapore Law between 2001 and 2005” (Singapore Academy of Law, 2006) at p 702:
[64] Second, Tay J rejected the proposition that the English cases of Pearce and Chester supported an extension or repudiation of the Bolam test. He found that notwithstanding Lord Woolf MR’s language in Pearce which appeared to support the “reasonable patient” test (see [58] above) Lord Woolf MR had expressly accepted Lord Templeman’s speech in Sidaway as the law (Pearce at P58) and had thereby “effectively supported the Bolam test” (Gunapathy at [138]). Tay J also rejected the plaintiff’s reliance on Chester because: (a) Chester was a case on causation, and therefore any comments on the standard of care were only obiter; and (b) Chester’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 (UK) (c 42) (“Human Rights Act”), which Singapore is not bound by (D’Conceicao at [123]).
[65] I should add that Chester is not without its detractors even in the United Kingdom. It has been described as a radical decision which protects “autonomy interest in being fully informed”; see Jane Stapleton, “Occam’s razor reveals an orthodox basis for Chester v Afshar” (2006) 122 LQR 426. I also note that, to date, no Singapore case has applied either Chester or Pearce.
[66] Third, Tay J in D’Conceicao considered and rejected the plaintiff’s argument that 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 thus amount to a breach of the doctor’s duty of care. Tay J commented (at [124]):
[67] It is clear from the foregoing that a doctor’s duty to give advice cannot be separated from his general duty of care to his patient: the Bolam test supplemented by the Bolitho test of logic (collectively “the Gunapathy test”), applies equally to a doctor’s giving of advice as to his duties of treatment and diagnosis. I accordingly reject the plaintiff’s reliance on Pearce and Chester.
The taking of informed consent in the context of obstetric anaesthesia
[68] While the law on the giving of advice is clear, its practical application to the specific context of obstetric anaesthesia is more difficult and requires further analysis.
The joint responsibility of giving advice
[69] Two related concepts govern the taking of informed consent: First, the giving of advice is the joint responsibility of both the anaesthetist and the primary treating physician. Second, the giving of advice is a process, and not an event, which begins from the moment relevant information is given to the patient until final confirmation of that information by the anaesthetist before the procedure begins. The relevant information thus need not emanate from the same source throughout the process of informing the patient.
[70] Anaesthesia is a unique medical speciality in the sense that it does not stand alone and is always performed in conjunction with some other surgical procedure. When exploring anaesthetic options, the anaesthetist is in the best position to advise the patient about anaesthetic considerations, while the obstetrician is best placed to advise the patient about obstetric concerns. Anaesthetic and obstetric considerations in relation to a patient’s anaesthetic options are rarely ever mutually exclusive. In obstetric cases, two distinctive features stand out. First, unlike, for example, heart surgery, in relation to which GA is more often than not the only option available, a patient about to undergo LSCS usually has a real choice between several anaesthetic options. Second, as agreed by the obstetric experts on both sides, the patient’s obstetric condition is a factor that can significantly affect the chosen mode of anaesthesia. This gives rise to joint responsibility on the part of the anaesthetist and the primary treating physician for the giving of advice.
[71] On behalf of the plaintiff, it was brought to my attention that the Gleneagles Hospital consent form used during the plaintiff’s LSCS has since been amended to separate a patient’s consent to surgery from her consent for the anaesthesia. The plaintiff submitted that this new consent form showed that the anaesthetist has a personal and non-delegable duty to explain the nature, purpose, risks of and alternatives to the proposed anaesthesia to a patient. I am unable to accept this submission.
[72] First, the fact that an anaesthetist is responsible for final confirmation of the patient’s consent before commencing the GA procedure does not detract from the fact that the initial process of advising the patient is a matter of joint responsibility. If the plaintiff’s submission is right, the result would be to give one specialist the responsibility of giving advice in relation to another specialist’s field of speciality when advising on anaesthesia options. This would be unjust.
[73] Second, as the giving of advice is a process and not an event, the anaesthetist does not have to be the one to provide the relevant information to the patient. Information can be communicated by other relevant medical professionals such as the primary treating physician, medical officers, nurses, or even through available resources such as information pamphlets.
[74] I note Tay J’s comments in D’Conceicao (see [61] supra) that in a situation where a patient is attended to by a team of medical personnel (at [129]):
The anaesthetist’s ultimate responsibility for ensuring informed consent
[75] The content of an anaesthetist’s non-delegable duty arises from his control of the conduct of the anaesthetic procedure; he must ultimately ensure that the patient’s consent has been truly informed before commencing the procedure. In other words, the anaesthetist is responsible not only for explaining to the patient the risks of a particular procedure in so far as “pure” anaesthetic considerations are concerned; he must also confirm that the primary treating physician has explained to the patient the anaesthetic considerations relevant to his field of expertise. This final confirmation should be done in a meaningful way by checking with the patient what the primary treating physician had already discussed with her, as opposed to merely asking the plaintiff to confirm that there had been a discussion. However, as I will go on to elaborate, the question of whether or not an anaesthetist has discharged his duty of care in relation to final confirmation depends on the facts and circumstances of each case.
[76] That said, it bears emphasising that there must still be a balance between ensuring the disclosure of every conceivable risk, the constraints of time, as well as the possibility of frightening the patient and inadvertently causing her to come to an unbalanced decision. Ultimately, the Gunapathy test applies in ascertaining the standard to which an anaesthetist will be held when determining whether he has breached his duty of care in this regard.
Issues to be determined
[77] Having explained how the law on informed consent applies in the specific context of obstetric anaesthesia, I turn now to consider whether, on the facts of this case, the defendant had discharged his duty. To determine liability, the following components of informed consent need to be addressed:
(a) Sub-issue 1(a): nature and risks of GA generally;
(b) Sub-issue 1(b): the specific risk of neck injury;
(c) Sub-issue 1(c): the alternatives to GA; and
(d) Sub-issue 1(d): whether informed consent was vitiated by the location where consent was obtained.
Sub-issue 1(a): The nature and risks of GA generally
(i) The defendant’s duty to explain about GA in so far as non-obstetric anaesthetic considerations were concerned
[78] The parties’ respective positions are as follows:
(a) According to the plaintiff, the defendant came into the OT and started the GA procedure immediately without saying a single word to her. The plaintiff relied on three pieces of evidence to show that the defendant could not possibly have spoken to her:
(i) inaccuracies in the anaesthetic record which would have been avoided if the defendant had checked with the plaintiff;
(ii) records of timing which are inconsistent with the defendant having spoken to the plaintiff; and
(iii) the defendant’s rushed manner, preventing him from speaking to the plaintiff.
(b) According to the defendant, he had specifically advised the plaintiff on the general risks associated with GA which included post-operative nausea, vomiting, and soreness of the throat, and that the plaintiff had indicated that she was aware of and understood the general risks associated with GA. He had also asked the plaintiff if she had any questions, to which she answered in the negative. It was only thereafter that he countersigned the plaintiff’s consent form and commenced the GA procedure. The defendant explained that he did not document his discussions with the plaintiff as he had relied on the consent form to record that he had done so.
The Anaesthetic Record
[79] The plaintiff claimed that inaccuracies in the Anaesthetic Record were proof that the defendant could not possibly have spoken to her as he claimed.
[80] First, the defendant wrote “prev GA ok” (ie, “previous GA okay”) under the section on “Anaesthetic History”, although the plaintiff had never undergone GA before. When cross-examined on this mistake, the defendant maintained that he had only written down what the plaintiff had told him:
I note that this is inconsistent with the defendant’s subsequent assertion that he had looked through the Admission History and Nursing Assessment records which reflected that the plaintiff’s previous deliveries were all vaginal deliveries. However, this is not necessarily an irreconcilable inconsistency since the defendant did not specify exactly which of the medical records he was referring to. The fact of the matter is that what was recorded in the Anaesthetic Record was different from what the defendant would have recorded had he relied on any of the other medical records available instead of talking to the plaintiff. The defendant’s explanation was therefore reasonable on the evidence. In fact, based on the defendant’s evidence during cross-examination, it is possible that the mistake arose out of miscommunication:
Based on the defendant’s evidence of his usual practice, the plaintiff might have said “no” to mean that she had not undergone any previous GA procedures, but the defendant had mistaken her reply to mean that there was no problem with her previous GA procedures instead.
[81] The other inaccuracy in the Anaesthetic Record was found in the section on medical history. The tick in the box marked “Nil” was cancelled and the words “Thal Minor” (ie, thalassaemia minor (a blood disorder)) was added. Consequently, the American Society of Anaesthesiologists (“ASA”) classification of “1” was amended to “2”. The ASA classification is a system for assessing the physical fitness of patients before surgery. The plaintiff’s case was that the amendments showed that the defendant did not speak to her at all, and that he subsequently obtained the information about the plaintiff’s thalassaemia minor from the various medical records including Dr Tham’s clinic notes, the Admission History and Nursing Assessment, the Partogram & Labour Chart and the Peri-Operative Nursing Record. The defendant explained that his working habit was to fill up the Anaesthetic Record only after the surgery had started, and not to transcribe his notes while he was speaking to the patient. As such, the amendments were made when he realised that he had filled in the information wrongly. Counsel for the plaintiff, Ms Melanie Ho (“Ms Ho”), submitted that had the defendant really spoken to the plaintiff, her condition of thalassaemia minor would not have slipped his mind just several minutes later. I do not find this argument compelling. If the defendant had not spoken to the plaintiff but had relied on the other medical records to obtain her medical history, he would more likely than not have copied the information down correctly the first time and would not have had to make subsequent amendments. The defendant’s explanation was therefore credible on the evidence before me.
The issue of timing
[82] The plaintiff also relied on the documented timing of events to argue that the defendant could not have had enough time to carry out all that he claimed to have done in the pre-anaesthetic assessment, which includes the discussion of risks of GA. The plaintiff’s case was that the defendant had, at most, five minutes to carry out his entire pre-operative assessment for the following reasons:
(a) According to the Peri-Operative Nursing Record, Nurse Honrado completed her checks in the OT Reception Room and then entered the time on the Peri-Operative Nursing Record as 9.50am, based on the OT Reception Room clock. The plaintiff was wheeled into the OT immediately after.
(b) Since it was undisputed that the defendant only saw the plaintiff when she was already in the OT, he must have arrived just after 9.50am at the earliest.
(c) The documented time of the commencement of the LSCS, as recorded in the Peri-Operative Nursing Record, was 9.55am. According to Dr Tham, that would have been the time that the intravenous cannula was inserted in preparation for the start of the GA procedure.
[83] However, contrary to what Dr Tham explained, Nurse Honrado’s evidence was that the start time of the surgery was the time that the surgeon made the first incision based on the OT clock and not the time that the cannula was inserted. Nurse Honrado confirmed that she, rather than Dr Tham, was the one filling in the records. One would therefore expect Nurse Honrado to be more familiar with the correct documenting practices of the hospital than Dr Tham. However, if one were to accept Nurse Honrado’s evidence that the first incision was made at 9.55am, the documented time of events would not tally for the following reasons:
(a) First, if the time Dr Tham had made the first incision was 9.55am, it would be inconsistent with the fact that the “time out” safety check usually performed just before a surgeon makes his first cut was documented at 10am in the Peri-Operative Nursing Record.
(b) Next, the idea that Dr Tham made the first incision at 9.55am would also be inconsistent with inferences drawn from the Vital Signs Report that pre-oxygenation for the GA procedure only started just after 10am and intubation was completed just before 10.05am. These two inferences, which both parties’ anaesthetic experts have confirmed are valid, are based on the following parameters:
(i) inO2 (inspired oxygen) reading was 21% (ie, oxygen concentration in room air) at 10am and 67% at 10.05am, suggesting that pre-oxygenation started just after 10am; and
(ii) etCO2 (end-tidal carbon dioxide) reading was 0% before 10.05am and 29% at 10.05am, suggesting that intubation was accomplished by 10.05am for the carbon dioxide in the expired breath to be detected in the anaesthetic circuit.
[84] Although the point made in [83(b)] above seems to support the plaintiff’s case, the documented times in the plaintiff’s case still would not tally for the following reasons:
(a) First, the time of the baby’s birth was documented as 10.06am on the Infant Examination records (although it bears noting that there is no evidence as to what clock the timing was based on). However, as verified by the anaesthetic experts on both sides, one could infer from the Vital Signs Report that the baby was born sometime between 10.10am and 10.15am, and not at 10.06am, as the Vital Signs Report showed that the plaintiff’s heart rate and blood pressure dropped significantly during that period.
(b) Second, the plaintiff was unhooked from the monitors in the OT at 11.25am when the surgery ended, as documented in the Vital Signs Report. The end time of surgery, which was taken by Nurse Honrado after she wheeled the plaintiff to the OT Recovery Room based on the OT Recovery Room clock, was also recorded as 11.25am in the Peri-Operative Nursing Record. According to Nurse Honrado, she would have needed at least a minute or two to transfer the plaintiff onto the trolley and to wheel her to the Recovery Room. It was unlikely that the clocks in both the OT and the OT Recovery Room were synchronised.
[85] It is immediately apparent that the various documented times simply do not tally with each other regardless of whether it was based on the plaintiff’s or Nurse Honrado’s account. The defendant’s explanation for this was that the documented times were based on different room clocks, machines and/or watches that were not synchronised. In relation to the manual entries, the recording could also have been made ex post, which meant that the relevant persons might have recorded an estimated time (eg, 9.50am instead of 9.51am) and that they might also have recalled the time wrongly. As such, it is possible that the defendant could have had more, or even less, time to carry out the pre-anaesthetic assessment than what the plaintiff claimed. Given the state of the evidence, I am unable to make a finding of fact as to exactly how much time the defendant had for the pre-anaesthetic assessment.
[86] Notwithstanding the serious dispute regarding the timing of events, little actually turns on the issue of time when it comes to assessing whether the defendant had breached his duty of care in the manner that he carried out his pre-operative assessment. Although more time spent on a pre-anaesthetic assessment may indicate that it was more likely to have been done properly and vice versa, that itself is inconclusive. The time taken for a pre-anaesthetic assessment depends on many varying factors, such as the anaesthetist’s efficiency, the patient’s medical and surgical history, and whether the patient has many questions to ask. I heard evidence from Nurse Honrado that most anaesthetists she works with only take an average of five minutes to complete the anaesthetic assessment of a patient who has no significant medical and surgical history and who does not ask any questions. The defendant’s anaesthetic expert, Prof Sia, indicated that he would probably take about ten minutes for such a patient. The plaintiff’s anaesthetic expert, Prof Delilkan, gave the longest estimate of 30 minutes but I am less inclined to accept Prof Delilkan’s evidence over the others as he admitted to having been out of practice for more than 11 years.
Other alleged shortcomings
[87] The real question, in my opinion, is this: even if the defendant was running late, would that have been sufficiently compelling for him to omit the pre-anaesthetic assessment, including informing the plaintiff about the nature and risks of the GA procedure? On this point, Ms Ho referred to other alleged shortcomings on the part of the defendant to persuade me to find that it was more likely than not that the defendant proceeded with the GA procedure without performing a pre-anaesthetic assessment. These alleged shortcomings were as follows:
(a) the omission to always ensure a reasonable time buffer between appointments;
(b) the omission to order cross-matching tests for blood; and
(c) the omission to prescribe pre-surgery medication.
The omission to always ensure reasonable time buffer between appointments
[88] Much time at trial was spent cross-examining the defendant on his usual course of practice and, in particular, the various instances when he had accepted almost back-to-back and even overlapping appointments. It was submitted, on behalf of the plaintiff, that by failing to ensure that there was always a reasonable buffer between appointments to: (a) follow up properly with the earlier patient; and (b) to carry out a proper pre-operative assessment on the next patient, and a domino effect arose which compromised the care of his patients. I will first set out the defendant’s explanation on his practice generally before turning specifically to the schedule of events on the day of the plaintiff’s LSCS.
[89] The defendant explained that in cases where the surgeries were performed in the same clinic or hospital, less buffer time would be needed as travelling time would be minimal. Further, in cases where the surgeon had booked the defendant for a longer period than what would normally be required for the surgery, buffer time might have already been built into the scheduling. The defendant also pointed out that the day-to-day practice of elective medicine does not always run with clockwork-like precision because surgeries and post-operative care may take more or less time than anticipated. In group practices such as the defendant’s, fellow anaesthetists often cover for each other when needed. Therefore, if Surgery A looks like it will overrun, or if Patient A develops complications post-surgery, the defendant would ask the surgeon performing Surgery B (which was scheduled to follow) to delay Surgery B, or call his fellow colleague in the same practice to take on Surgery B. When cases are performed in clinics (as opposed to hospitals), the schedules are even more flexible. The defendant explained that he would accept back-to-back and overlapping cases as it is common for a group practice to accept the cases first and redistribute them later if necessary. Patient safety would not be compromised as the anaesthetists in his group practice are all qualified and competent although, as the defendant candidly admitted, such an arrangement would not be ideal from a patient’s perspective. The plaintiff pointed out that such subsequent changes were not reflected in his appointment books. However, as the purpose of appointment books is to record prospective appointments, I do not think it unreasonable that the defendant and/or his clerks did not retrospectively update the entries to reflect the actual events of the day. I would, however, add that the defendant’s practice of accepting appointments so close together is of some concern.
[90] Unsatisfactory as the defendant’s practice was, the issue of how the defendant usually scheduled his appointments is not crucial to the present case. What is more important is the defendant’s schedule on 26 October 2006, the day of the plaintiff’s LSCS. The relevant surgeries that he had to attend in the morning were as follows:
[91] I digress for a moment to deal with the plaintiff’s allegation that the defendant had tampered with the entries for 26 October 2006 in his appointment book. In his affidavit of evidence-in-chief (“AEIC”), the defendant stated that he would not have agreed to take on the plaintiff’s case if the preference indicated by Dr Tham was for regional anaesthesia (“RA”) instead of GA as he would not have had enough time to prepare for the LSCS to start on time at 10am. During cross-examination, the defendant supplemented his reasoning by saying that since he had had an early start to the day with his first appointment at 7.45am, he wanted to have some refreshments before going for the plaintiff’s LSCS at 10am. Since an RA generally takes longer to set up than a GA, he would not have had time to do so before the plaintiff’s LSCS if it was to be done under RA. (I pause to note that this explanation about needing refreshments was only raised at trial and not in the defendant’s AEIC. My impression is that this reason was an embellishment and I accordingly place little weight on it.) Ms Ho then asked the defendant where the 7.45am entry was, as it was not very clear in her bundle of documents. The defendant replied that he was referring to the very first entry of the day. After close scrutiny, I agreed that I could just about make out the time “7.45” in the court’s copy of the bundle. The cross-examination then continued on the basis that the very first entry of the day was at 7.45am. However, upon re-inspection of the original appointment book after the trial had ended, both Ms Ho and the defendant’s counsel, Mr Lek Siang Pheng (“Mr Lek”), confirmed that the correct timing was actually “8.45am” and not “7.45am”.
[92] Ms Ho then raised the allegation that the defendant had tampered with the photocopying process so as to cause a mark resembling the digit “7” to appear in the first entry. Upon learning of such an allegation, I directed both Ms Ho and Mr Lek to appear before me in chambers. At the hearing in chambers, Mr Lek assured the court that the defendant had had no part to play in the photocopying process, and that the photocopying of bundles of documents in preparation for trial had been outsourced to the firm’s photocopying contractor. Mr Lek also explained that the mark resembling the digit “7” somehow appeared in the course of photocopying and re-photocopying the page after redaction to leave out the patients’ names in the appointment book. In the original appointment book, there was nothing resembling the digit “7” at all. However, in the original redacted photocopy, a very faint shadow resembling the digit “7” appeared to have been made during the course of photocopying. Subsequently, in the course of re-photocopying the documents to prepare the bundles for trial, the shadow became more distinct. All these explanations were affirmed in an affidavit filed by Mr Lek after the hearing.
[93] Having personally inspected and compared the original appointment book, the original redacted photocopy, as well as the relevant bundles used by the Mr Lek, Ms Ho, and the court’s copy, I conclude that the shadow in the original redacted photocopy and the distinct mark in the bundles used at trial did not look like they had been deliberately made. Further, the distinct “7” in the bundles used at trial were at the exact same spot where the shadow had appeared in the original redacted photocopy. I am therefore fully satisfied on the evidence that no tampering was made. I am also of the view that, on balance, the defendant had made an honest mistake in thinking that the first entry of the day was 7.45am instead of 8.45am. I do, however, wish to add that Mr Lek should have informed the court of this mistake at the earliest opportunity.
[94] Returning to the analysis of the defendant’s schedule, I find that all that the plaintiff has succeeded in doing is to satisfy me that the defendant was often in a rush and that he was probably in some rush on the morning of the plaintiff’s LSCS. It is, however, a big leap to say that the defendant had compromised the plaintiff’s care just because he was in a rush. It bears emphasising that the LSCS was, on the evidence of Dr Tham as well as the O&G experts, an elective surgery and not an emergency surgery even though the plaintiff’s original delivery date was pushed forward by about a month. Surgeries can and often do overrun in practice and there was no compelling reason for the defendant to compromise basic patient care just for the sake of starting the anaesthetic procedure on time. It is also a leap for the plaintiff to say that the defendant was compelled to start the anaesthetic procedure at 10am on the dot because he had a later surgery scheduled at 11.30am. It is undisputed that Dr Tham usually takes only about 40 to 60 minutes to complete an LSCS for patients who are undergoing an LSCS for the first time, and that the OT will usually be booked for 60 minutes only. Dr Tham himself was unsure why he ended up taking about 85 minutes to complete the plaintiff’s LSCS. Therefore, at the time when the plaintiff’s LSCS was about to start, the defendant would not have expected to be late for his 11.30am appointment, which was also in the same hospital. Furthermore, the defendant had explained that if he was running late for his next appointment, he would either have called the next surgeon to delay the surgery or asked one of his fellow anaesthetists in his group practice to take over. On a related point, it is also farfetched to say that the defendant had, from the beginning, closed his mind to the possibility of administering RA because he had said that he would not have accepted the plaintiff’s case if it had been an RA instead of a GA. The defendant’s statement was made in the context of scheduling, and it is a stretch to say that he would have doggedly insisted on proceeding with GA even if the plaintiff was found to be contra-indicated for GA.
[95] As such, even if the defendant was running late and the LSCS was unable to start on time at 10am, I am not satisfied on the evidence that this proves on a balance of probabilities that the defendant had compromised basic patient care.
The omission to order cross-matching tests for blood
[96] The plaintiff’s next allegation was that the defendant omitted to order cross-matching tests for blood despite his concern for the plaintiff’s earlier bleeding problems. “Cross-matching” refers to the process of taking a sample of blood from the patient, sending it to the laboratory to identify what blood type it is, matching with a donor’s blood, and having that blood ready to be given to the patient in the event of blood loss. This process usually takes about two hours. In this regard, the plaintiff relied on cl 1.1.3 of the Singapore Society of Anaesthesiologists (“SSA”) Guidelines which states as follows:
[97] Although guidelines such as the SSA Guidelines are useful in assessing the standard of care that a doctor should be held to, they are not sacrosanct. It must be remembered that guidelines often set out best practices and a departure from best practice is not necessarily improper. According to Prof Sia, even KK Women’s and Children’s Hospital does not incorporate medical guidelines in totality. One must look at all the facts and circumstances to determine if the defendant’s conduct would be regarded as proper by a responsible body of medical men.

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

Tong Seok May Joanne v Yau Hok Man Gordon

Grounds of decision

I. INTRODUCTION

II. THE FACTUAL BACKGROUND

The parties

The events surrounding the LSCS

Post-discharge

The plaintiff’s condition in 2007

The plaintiff’s condition in 2008

The plaintiff’s condition in 2009

The plaintiff’s condition in 2010

The plaintiff’s condition as at 2011

III. THE PLAINTIFF’S CASE

IV. THE DEFENDANT’S DEFENCE

V. THE WITNESSES

VI. THE GENERAL LEGAL FRAMEWORK

VII. INFORMED CONSENT

Overview of the law on giving of advice

The taking of informed consent in the context of obstetric anaesthesia

The joint responsibility of giving advice

The anaesthetist’s ultimate responsibility for ensuring informed consent

Issues to be determined

Sub-issue 1(a): The nature and risks of GA generally

(i) The defendant’s duty to explain about GA in so far as non-obstetric anaesthetic considerations were concerned

The Anaesthetic Record

The issue of timing

Other alleged shortcomings

The omission to always ensure reasonable time buffer between appointments

The omission to order cross-matching tests for blood