H ) A NDRAGOGÍA : EL APRENDIZAJE DE LOS ADULTOS

In 2002, the Singaporean Court of Appeal in Dr Khoo James v Gunapathy d/o Muniandy96

revisited the application of the Bolam test in medical negligence cases. In this landmark decision, the Court ruled that the Bolam test should no longer apply when determining the standard of care in the areas of diagnosis and treatment. The Court instead adopted the English Bolitho principle, but with certain modification. The following section analyses how the Bolitho principle was transplanted into Singaporean medical negligence jurisprudence by the Court in Gunapathy.

2.8.1 The Singaporean High Court

The case of Gunapathy involved a sad medical incident. In this case, Mrs Gunapathy suffered from brain cancer. She was treated by Dr Khoo James who performed open brain surgery to remove the brain tumour in October 1995. Following the surgery, an MRI scan was

94

[1996] 3 All ER 184.

95 _{Ibid 191.}

36 conducted in February 1996. This scan revealed a small nodule in the area where the tumour was removed. The radiologist took the view that the nodule was a scar from the surgical operation and recommended no further action to be taken. Dr Khoo James, on the other hand, diagnosed it a remnant tumour and recommended radiosurgery.97 There was no pathology examination of the lesion to clarify whether it was a tumour. The radiosurgery was performed by Dr Khoo and two other specialists in January 1997. Two months after the procedure, Mrs Gunapathy suffered from serious physical and mental disabilities. She sued, among others, Dr Khoo James for medical negligence alleging that the doctor had given misleading advice, misdiagnosed her medical condition and administered wrongful medical treatment. The following analysis only deals with the issues of diagnosis and treatment.

The main issue before the Singaporean High Court was whether the lesion was a scar or a tumour. There were divided opinions on this question. An expert, called at the request of the trial judge to testify for Mrs Gunapathty, was of the opinion that there was no significant change in the size of the lesion but without offering any conclusion whether the nodule was a scar or tumour. On the other hand, all the defence experts agreed that the nodule had grown and thus took the view that the lesion was a tumour. These experts also testified that the benefit of performing the radiosurgery by Dr Khoo outweighed the risk of not removing the tumour, which they considered to be a rare case in Singapore. In support of this opinion, they relied on two protocols which had yet to be widely used by neurosurgeons in Singapore due to their novelty. One of the protocols was supplied by an American company which manufactured the machine used in the radiosurgery.98 The other was provided to Dr Khoo during his four-day training course in Sydney, Australia in October 1996. The course was organised by the American manufacturer. Mrs Gunapathy’s experts, on the other hand, relied on a protocol which was sent out to all neurosurgeons in Singapore in 1998 which stated that radiosurgery was an inappropriate treatment in the circumstances.

In applying the Bolam test, the High Court accepted the testimony of the court- appointed expert that the lesion did not enlarge in size during the period between the identification of the lesion in February 1996 and the performance of the radiosurgery in

97 _{Radiosurgery is a one-shot treatment procedure which involves the application of a high dose radiation}

to the exact location of the tumour.

98

This machine was stated as a newly developed technology and was acquired by Mount Elizabeth

Hospital in September 1996, a Singaporean private hospital at which Dr Khoo practised as a neurosurgeon.

37 January 1997. Based on this evidence, the trial judge concluded that the nodule was a scar and dismissed the opinions of all the defence expert witnesses. Following this reasoning, the High Court ruled that no responsible practitioner would have recommended radiosurgery in similar circumstances. The trial judge also found that Dr Khoo had used an excessive dosage of radioactive substance during the course of the surgery. The Court therefore held that Dr Khoo James was negligent for, inter alia, misdiagnosing Mrs Gunapathy’s illness and

providing inappropriate medical treatment to her. Dr Khoo appealed these decisions to the Court of Appeal.

2.8.2 The Singaporean Court of Appeal

The key issue confronting the Court of Appeal was whether the trial judge had wrongly applied the Bolam test to question of fact and concluded that the nodule was a scar and not a tumour. The analysis of the Court began with a review of the legal status of the Bolam test in medical negligence cases in Singapore. The Court compared the Bolam test as established by a series of House of Lords99 and Privy Council100 cases with the qualified version of the test as articulated by Lord Browne-Wilkinson in Bolitho.In concluding that the latter principle is the preferred formulation for Singapore, Yong Pung How CJ, who delivered the unanimous judgment of the Court,101 gave the following justifications:

‘In our view, Bolitho presented a timely addendum to the Bolam test. It gave voice to a commonsense understanding which was hitherto unexpressed – that the Bolam test did not represent immunity from judicial inquiry over the medical process. It was not to be satisfied by the production of a dubious expert whose professional views existed at the fringe of medical consciousness. An expert view, in order to qualify as representative of a ‘responsible’ body of medical opinion, had to satisfy the threshold test of logic.’102

This passage suggests two main rationales for substituting the Bolam test for its qualified version under the Bolitho principle in Singapore. The Court of Appeal was of the view that the Bolam test absolves judges of the responsibility of scrutinising the accepted practices of

99 _{Whitehouse [1981] 1 All ER 267, 277 (Lord Edmund-Davies), Maynard [1985] 1 All ER 635, 638}

(Lord Scarman) and Sidaway [1985] AC 871, 881 (Lord Scarman) and 895 (Lord Diplock).

100

Chin Keow v Government of Malaysia [1967] 2 MLJ 45.

101 _{With whom Chao Hick Tin JA and Tan Lee Meng J concurred.}

38 the medical profession. The other reason was that the principle in Bolitho provides a mechanism by which the courts may assess expert medical opinion to determine whether it is a responsible body of medical opinion.

The Court of Appeal defined the ambit of the Singaporean version of the Bolitho

principle. Yong CJ reiterated that the ‘logical basis’ test involves a two-stage inquiry. The first question to be considered is whether the expert opinion that supports the case of a defendant doctor has undertaken a comparative risk and benefit analysis relating to the matter in a given case.103 This inquiry is to be adjudicated by the courts to ensure that the expert witnesses have considered and weighed all the countervailing factors relevant to the issue. The second stage of inquiry requires the courts to consider whether the opinion arrived at by a medical expert constitutes a defensible conclusion.104

The Court placed two limitations on the requirement for ‘defensible conclusion’ under the ‘logical basis’ test. According to Yong CJ, the term ‘defensible conclusion’ that applies in Singapore requires the courts to be satisfied of two criteria. The first is that the medical opinion must be internally consistent.105 The second demands that the opinion must accord with extrinsic facts, for instance, proven medical information or new developments in medical science.106 Yong CJ justified the imposition of these restrictions on the grounds that the open-texture of the term ‘defensible conclusion’ would enable judges to overly intervene in the practice of the medical profession:

‘... Interpreted liberally, Bolitho could unwittingly herald invasive inquiry into the merits of medical opinion. For if ‘defensible’ were to be given a meaning akin to ‘reasonable’, the Bolam test would only be honoured in lip service. A doctor would then be liable when his view, as represented by the defence experts, was found by the court to be unreasonable. We do not think this was the intention of House of Lords in Bolitho...’.107

103 _Ibid. 104 _Ibid. 105 Ibid 433-434. 106 _{Ibid 434.} 107 _{Ibid 433.}

39 These statements indicate a more restrictive interpretation of ‘defensible conclusion’ than the case of Bolitho itself.108 It is worthwhile to probe into the justifications for this reasoning.

The Court of Appeal proffered two reasons for tightening up the requirement for ‘defensible conclusion’ under the Bolitho principle. It was concerned about the problem of excessive judicial intervention if judges are left to make conclusions as to the reasonableness or defensibility of expert medical opinion without clear guidance. An overly interventionist approach, the Court stated, would lead to the spectre of ‘defensive medicine’, bringing about the adverse consequences of rising medical costs and ‘wastage of precious medical resources’.109

The other rationale for tightening up the ‘defensible conclusion’ requirement is the argument of lack of expertise among judges. This limitation is particularly acute in the areas of diagnosis and treatment where the issues involved are often ‘complex and resolvable only by long-term research and empirical observation’.110 This concern was re-emphasised by Yong CJ with these strong cautionary remarks:

‘... In determining whether a doctor has breached the duty of care owed to his patient, a judge will not find him negligent as long as there is a responsible body of medical opinion, logically held, that supports his actions... It would be pure humbug for a judge, in the rarified [sic] atmosphere of the courtroom and with the benefit of hindsight, to substitute his opinion for that of the doctor in the consultation room or operating chamber. We often enough tell doctors not to play God; it seems only fair that, similarly judges and lawyers should not play at being doctors’.111

Finally, the Court addressed the right of the trial judge in Gunapathy to make a finding of fact. Yong CJ reiterated the well-settled principle that a question of fact does not fall within the province of either the Bolam test or its qualified version, citing the English Court of Appeal decision in Penney v East Kent Health Authority.112 In examining the issue whether the High Court erred in making the finding that the nodule was a tumour and not a scar, his Honour also compared the facts in Penney with Gunapathy. In Penney, the appellant

108 _{Kumaralingam Amirthalingam, ‘Judging Doctors and Diagnosis the Law: Bolam Rules in Singapore}

and Malaysia’, [2003] Singapore Journal of Legal Studies 125, 137.

109 _{Gunapathy [2002] 2 SLR 414, 454.} 110

Ibid.

111 _{Ibid 419.}

40 underwent a cervical smear test. The cytology screeners who were employed by the respondent failed to diagnose the specimen of the appellant as cancerous. She subsequently developed cervical cancer. In Penney Lord Woolf MR held that the question of what was to be seen on the slides was a question of fact and could be adjudicated by the trial judge. His Lordship found the trial judge had, after hearing expert evidence, rightly made his finding based on the balance of probabilities that the specimen on the slides was cancerous.

Turning back to the appeal in Gunapathy, Yong CJ stated that the issue as to whether the nodule was a scar was a question of diagnosis which should have been ultimately concluded by medical experts instead of by the trial judge. On this basis, his Honour found that the trial judge had applied the wrong ‘method of reasoning’ which would otherwise ‘surreptitiously import into Bolam by the back door a practice of adjudicating between medical experts on a balance of probabilities’.113

Accordingly, the Singaporean Court of Appeal accepted the evidence of the defence experts that the lesion was a tumour and their risk and benefit analysis supporting the radiosurgery was defensible. In conclusion, the Court overturned the trial judge’s findings of negligence in diagnosis and treatment.114