Case Summaries

Hii Chii Kok v Ooi Peng Jin London Lucien and another

Media Summary

Civil Appeal No 33 of 2016

Hii Chii Kok v Ooi Peng Jin London Lucien and another [2017] SGCA 38

 

Background to the appeal

1     The Appellant (“the Patient”) underwent a combination of a Gallium PET scan and a CT scan (collectively, “the Scan”) at the Singapore General Hospital. The Scan detected lesions in the head and body of the Patient’s pancreas which might have been cancerous tumours, but might also have been non-cancerous growths. The Patient then consulted doctors from the Second Respondent, the National Cancer Centre of Singapore (“NCCS”), who made a provisional diagnosis that the two lesions were likely to be cancerous.

2     The NCCS doctors referred the Patient to the First Respondent, Dr Ooi, an experienced surgeon with a specialty in pancreatic surgery, among other things. Dr Ooi’s view was also that both lesions were probably (but not definitely) cancerous tumours. He recommended a surgical procedure known as the Whipple procedure, which involved removing parts of the digestive tract and then reconnecting the remaining parts. The Whipple procedure would only be necessary if the lesion at the head of the pancreas was to be removed.

3     The Patient also received advice from doctors on the Tumour Board (a multi-disciplinary team within the NCCS) that the lesion in the body of the pancreas was probably cancerous, but that the nature of the lesion in the head of the pancreas was more uncertain.

4     Dr Ooi agreed that it was not possible to be certain based on the Scan. He advised the Patient that there was uncertainty and explained the pros and cons of proceeding with the Whipple procedure. One alternative (albeit one which Dr Ooi was against) was to remove only the lesion in the body of the pancreas and leave the lesion in the head of the pancreas. Another option was to not operate yet and instead wait six months before performing another scan to confirm the diagnosis. The decision involved a trade-off: if the lesions were cancerous, they might spread during those six months. All things considered, Dr Ooi was still in favour of the Whipple procedure.

5     In the end, the Patient decided to undergo the Whipple procedure. After the Whipple procedure was carried out, both removed lesions were studied and it was determined that they were not cancerous. The Patient later suffered significant post-operative complications which required further surgeries to treat.

6     The Patient commenced proceedings before the High Court, alleging that Dr Ooi and the NCCS had been negligent. The Patient complained that he should not have been recommended and treated with the Whipple procedure, that he was not adequately informed of the technical details of the Scan and its degree of reliability, and that the post-operative care was inadequate. The Patient’s action was dismissed by the High Court and he then appealed to the Court of Appeal.

Main issues

7    The principal concern of the Court of Appeal was what legal test(s) should apply when assessing whether a doctor has been negligent. Previously, all aspects of a doctor’s duty were assessed according to a single legal test known as the Bolam test, which looked to whether there was a body of other doctors who considered the defendant doctor’s course of action to be acceptable (even if there were other doctors who would disagree). The Bolam test was subject to a further inquiry known as the Bolitho addendum, which allowed the court to disregard the opinion of medical experts if it could (on limited grounds) be said to be illogical.

8     The Patient argued that the Court of Appeal should depart from the Bolam test and Bolitho addendum when it came to a doctor’s duty to advise a patient, and should instead adopt the test set out in the case of Montgomery v Lanarkshire Health Board [2015] UKSC 11 (“Montgomery”). The Montgomery test is considered to be more patient-centric.

9     The Respondents argued that the Bolam test and Bolitho addendum should continue to apply to all aspects of a doctor’s duty of care to a patient.

10     The Attorney-General took the view that this appeal raised an issue of public importance. The Attorney-General’s Chambers therefore made submissions before the Court of Appeal which also supported preserving the status quo.

Judgment

11     The Court of Appeal analysed a doctor’s duty as having three aspects: diagnosis, advice and treatment. There was a material difference between the nature of the relationship with regard to different aspects.  A patient would be relatively passive with regard to diagnosis and treatment. In contrast, the discussions (and information conveyed) between doctor and patient under the advice aspect were what allowed the patient to exercise what was ultimately his right to choose what should be done to his body (a concept known as “patient autonomy”).

12     The Court of Appeal observed that the overarching inquiry was whether a doctor had exercised the care which would reasonably have been exercised by an ordinary skilled member of his profession. The Bolam test was a proxy or a heuristic for determining what such a person would have done.

13     With regard to diagnosis and treatment, the Court of Appeal held that the Bolam test and Bolitho addendum would continue to apply. The Court recognised that there would frequently be disagreements among reasonable and competent doctors regarding which treatments or diagnostic processes were appropriate in a particular situation, and that medical knowledge was constantly evolving. The Bolam test, which was based on peer review, accounted for that reality. The Court of Appeal also made some specific observations and clarifications regarding the Bolam test and Bolitho addendum and how they should be applied.

14     With regard to advice, however, the Court held that a different test was required. Patient autonomy had come to be widely recognised – including within the medical profession itself – as being of critical importance. Moreover, compared to earlier times, patients on the whole had access to more information and expected to participate more actively in the consultation process with a doctor. The Court considered that a modified version of the Montgomery test would strike a better balance than the Bolam test in that context.

15     Although the Respondents and the Attorney-General’s Chambers had raised concerns that the Montgomery test might lead to more litigation, encourage “defensive medicine”, and increase the cost of healthcare, the Court of Appeal considered that there was insufficient evidence placed before the Court that these risks were serious enough to override the importance of protecting patient autonomy. The Court also noted that a test which encouraged more discussion of the risks and alternative treatments might reduce misunderstandings between doctors and patients and thus actually reduce litigation.

16     The Court of Appeal stated that under the modified Montgomery test, a court would conduct a three-stage inquiry:

    1. First, was the information material from the perspective of a reasonable patient in a particular patient’s position? Alternatively, was it information which would have been considered relevant and material by that particular patient for individual-specific reasons of which the doctor knew or should have known?

    2. Second, was this information which the doctor was aware of at the material time, and if not, was the doctor negligent (under his duty of diagnosis, not advice) in not obtaining or having this information?

    3. Third, if the information was material and within the doctor’s knowledge, was the doctor reasonably justified in withholding the information? Possible scenarios where withholding information might be justified included cases of emergency or cases where giving the patient the information could cause him significant harm.         

17     Applying the modified Montgomery test to the facts of the case, the Court of Appeal concluded that neither Dr Ooi nor NCCS had been negligent in advising the Patient. Out of the information which the Patient alleged had been withheld, the technical details of the Scan and other matters were not information which a reasonable patient in the Patient’s shoes would have considered material. There was also no particular reason to believe the Patient specifically would have considered those details to be material. Rather, the material information was that there was a risk that the lesions would turn out not to be cancerous given the limitations of the Scan, and that there was an alternative treatment of removing only the lesion in the body of the pancreas without removing the lesion in the head of the pancreas using the Whipple procedure. On the facts, both these pieces of information had been disclosed and sufficiently explained to the Patient.

18     With regard to the diagnosis and treatment of the Patient, the Court of Appeal applied the Bolam test and Bolitho addendum and reached the same conclusion as the High Court had: both the diagnosis and the treatment were supported by a body of medical expert opinion that was not illogical, and so there had been no breach of the standard of care.

19     The Court of Appeal therefore dismissed the appeal in its entirety.

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