NUH Liable for Causing Kidney Donor’s Death
SIM JUNHUI (Juris Sub-Editor)
A loving wife donates a kidney to her sick husband. What could have ended as a tribute to true love and the gift of organ donation ended badly when, in a cruel twist of fate, he survived but she died. This was the first donor death following kidney surgery in Singapore.
It precipitated the case of Surender Singh v. Li Man Kay [2009] SGHC 168 [Surender Singh], an interesting case because of the court’s application, or lack thereof, of Dr Khoo James v. Gunapathy d/o Muniandy, [2002] 2 Sing. L.R. 414 [Gunapathy].
Summary of facts
Diagnosed with kidney problems in 1996, the first Plaintiff continued to deteriorate. Eventually in 2004, the Deceased, his wife, offered to donate a kidney to him. To this end, she underwent a Left Hand Assisted Laparoscopic Donor Nephrectomy (“HALDN”) at National University Hospital to remove her left kidney for transplantation into the first Plaintiff.
The two Defendant-doctors—Li and Consigliere—performed the operation. They used several “hem-o-lock” clips (“clips”) to prevent the various kidney-related blood vessels they dissected from bleeding. After an uneventful operation, the Deceased was sent first to the recovery room and then to the general ward for monitoring.
In the general ward, she was to be monitored hourly. Her parameters were first recorded at 1430 hours. However, the next entry was recorded at 1600 hours. Visitors arriving between 1600 and 1615 hours found the Deceased to be unresponsive, cold to the touch and very pale. Her sister-in-law alerted nurses who then informed doctors. The Code Blue Team was activated, but failed to save the Deceased who passed away thereafter.
The autopsy revealed nine clips in total in the Deceased. Specifically, four clips were attached to soft tissue at the periphery of her left renal artery, dissected during the operation and now “wide open”. The Plaintiffs’ medical expert (“Nicholson”) opined that the doctors had applied four clips to the artery, increasing blood pressure which displaced the clips and caused fatal blood-loss. The doctors insisted they had only attached two clips, an accepted medical practice which would not have increased blood pressure unusually.
The court’s decision
The court considered, inter alia, whether the doctors applied two or four clips, and consequently, whether they had fallen below the reasonable standard of care in conducting the HALDN. In addition, the court considered whether NUH had acted negligently by not complying with standard medical practice regarding post-operative monitoring.
The court held that the applicable Singapore law on medical negligence is Gunapathy, which approved the Bolam test. Courts must not find doctors negligent (provided a respectable body of medical opinion, logically held, supports their actions. To qualify as ‘responsible’, the body of medical opinion must pass the threshold test of logic, i.e., the expert must have considered “the comparative risks and benefits relating to the matter”, and arrived at a “defensible conclusion”. To do so, medical opinion must be “internally consistent on its face”, and “not fly in the face of proven extrinsic facts”.
Ultimately, the court held that the doctors followed accepted medical practice in using two clips and were not negligent in conducting the HALDN. However, the court found NUH was liable for causing the Deceased’s death by not complying with standard medical practice regarding post-operative monitoring, which was hourly.
Two parts of the judgment are interesting to consider and will be dealt with in turn.
On whether the doctors attached two or four clips to the artery
Holding that the doctors attached two clips, the court cited, inter alia, the high unlikelihood of attaching four clips in the 1.5-minute warm ischemic time recorded in the Operation Report. “Warm ischemic time” begins when the artery is clamped to interrupt blood circulation and prepare for dissection, and ends with the commencement of cold perfusion, when the extracted kidney is flushed with an iced solution to prepare it for transplantation.
Li testified that he required 45 seconds to apply two clips to the artery, and another 45 seconds to do likewise for the vein, amounting to 1.5 minutes for the warm ischemic time. This accorded with the 1.5 minutes recorded in the Operation Report. Moreover, the Defendants’ medical experts—Howard and Cheng—opined that applying four clips in 1.5 minutes, as the Plaintiffs alleged, was “very improbable”.
However, Nicholson testified that he would take 3 to 4 minutes to apply four clips to the artery and vein. When referred to the 1.5-minute warm ischemic time in the Operation Report, he contended that his own warm ischemic time lasted between 1 and 7 minutes, and that he could achieve a 1-minute warm ischemic time applying five clips. He also observed that, to him, “warm ischemic time” ended with the cold perfusion’s conclusion, not commencement, conceding nonetheless that medical literature did not support his definition.
The court disregarded Nicholson’s evidence because it “did not comport with the requirements of expert evidence laid down in …Gunapathy’s case.” The court probably found that his opinion “[flew] in the face of proven extrinsic facts”—i.e., medical literature defining “warm ischemic time”.
It is submitted that this is questionable. Gunapathy absolves doctors of liability for their acts where a respectable body of medical opinion approves of them. Implicitly, the acts in question would already have been found. The question is whether the doctor’s acts, in circumstances arising from known facts, are sound and supportable. Here, the question remained one of fact.
In other words, the question in Gunapathy is: “Given these known facts, should the doctor have done this, or that? Can liability ensue because he did this, instead of that?” Here, the question remained: “What did he do in the first place?” Gunapathy should not be applied to determine facts that are yet to be determined.
In any case, Nicholson’s evidence was not substantively problematic. To disregard it just because he defined terms differently is perplexing.
Notwithstanding the court’s reasoning here, however, other far more convincing reasons the court gave supported its finding that the doctors used two clips on the artery. It is submitted that the finding of fact is correct.
On whether NUH complied with standard medical practice regarding post-operative monitoring
The court found that standard medical practice, even in NUH, was “hourly monitoring”, and NUH admitted a one-and-a-half hour lapse from 1430 to 1600 hours.
However, NUH alleged that strictly construing “hourly monitoring”, i.e., that the Deceased should have been observed at 1530 hours, ran contrary to “established medical practice”. Their experts testified that “hourly monitoring” was only a guide and did not require reviews exactly every hour. Howard noted that a 30-minute buffer was “entirely acceptable” given the Deceased’s post-operative condition. Cheng remarked that nurses could take 30 minutes to check the parameters of six patients in a ward-room.
Despite agreeing that hourly monitoring on-the-dot was practically impossible, the court held NUH liable in negligence. The court opined that both Cheng and Howard premised their testimonies on the ward actually having six patients on the same monitoring schedules. Without evidence to prove this, the court dismissed their opinions.
It is submitted that Gunapathy should perhaps have been applied here. NUH’s assertion was presumably that interpreting “hourly monitoring” loosely as a guide (which could include an-hour-and-a-half monitoring) was established medical practice. Such was especially the case in special circumstances like those Cheng and Howard cited. No such special circumstances existed here.
However, the court failed to discuss whether a respectable body of medical opinion supported NUH’s assertion as to established medical practice. Either the court decided, on its own accord without reference to medical opinion, that Cheng and Howard were wrong, or it implicitly based its judgment on Gunapathy. Either way is problematic. Judges stepping into the shoes of doctors is precisely what Gunapathy sought to prevent. On the other hand, much may be said about expressly justifying a decision.
Implications of this case
Medical negligence law has come a long way from its inception in England and reception locally in Gunapathy. The Bolam test has its disadvantages. An example of which may be the excessive reverence for the medical profession: “We often enough tell doctors not to play god; it seems only fair that, similarly, judges and lawyers should not play at being doctors.” If taken to the extreme, this statement may sanction judicial indifference to medical behaviour, whether reasonable or otherwise. As evidence of the shortcomings of the Bolam test, Australia, Canada and Malaysia have all rejected it.
Nonetheless, before the Court of Appeal revises its decision on the matter, if it ever does, Gunapathy remains the applicable law locally. Indeed, there may actually be little in principle that is offensive about the Bolam test. When judged in his professional capacity, a skilled professional should be held to the standard of his profession and peers. The phrase quoted from Gunapathy above has often been cited disapprovingly. However, it is submitted that the learned former Chief Justice surely must only have intended it as poetic flourish, and not for it to be construed as strict law.
Whatever the case, Gunapathy must be applied accurately and appropriately. Here, its application in deciding the number of clips used was unnecessary. It was, however, necessary to apply it to consider NUH’s assertions on established medical practice. The failure to do so may have ultimately led to a finding of negligence liability on the part of NUH.
[...] did the court apply the Bolam and Bolitho test in the end? Read our sub-editor’s commentary on Surender Singh to find [...]
What application of the Bolam test you find contentious? Diagnosis? Treatment? Risk? How is the Bolam test contentious at all if we are looking at its application with regards to treatment? Treatment itself is a highly specific issue and the courts should stray from playing doctors. The medical world is full of imponderables and the Bolam test in recognizing this, provides a viable solution to the multitude of practices may vary, although not necessarily incorrectly so.
Even if the Bolam test should produce an absurd result, there is the Bolitho addendum to reign any lax or illogical practices.
Your comment was confusing but I assume what you meant is “Which part are you uncomfortable applying the Bolam test to?” and in your last few words “applying Bolam qualified by Bolitho would rein in any lax or illogical practices”.
Yes, I understand the fears that doctors will start practicing “defensive medicine”.
But why are we happy to let judges play arhcitects, accountants, engineers, any other profession… and afford special protection to people just because they have passed 5 years of medical school?
The chances of a med neg case reaching the courts is rare in the first place. You have to first realise that something was wrong – unlikely because you know nothing except what your doctor tells you. Neither is the hospital going to tell you if they screwed up. Assuming you actually figured out something was wrong, you need the evidence. Unfortunately, it will also be very difficult to get this because it will all be with the doctor or the hospital.
Frankly, I think the obscenely high cost of having to get a medical expert to testify in court (someone willing to testify against the doctor likely has to be flown in from outside Singapore, as in Gunapathy) on your behalf is enough to deter any frivolous claims… people are going to be very very certain something was wrong before they risk that much money.
Title: NUH sued for alleged negligence
Source: Straits Times
Author: K.C. Vijayan, Law Correspondent
Date: 18 Nov 2009
THE National University Hospital (NUH) is being sued for $1 million by two parties claiming medical negligence on its part.
The first suit was filed by a 79-year- old cancer patient, who has alleged that a botched medical procedure required her to undergo open heart surgery later. She claims she is now unable to work as a result.
The second case has been taken out by the family of Derrick Peh, a national serviceman who became paralysed following surgery for a shoulder injury. Corporal Peh died of pneumonia on July 29 this year, three years and four months after the incident.
Both parties are seeking $500,000 each in damages, a records search showed.
These are the second and third High Court suits involving the hospital in the last two years.
In the first, last year, the family of kidney donor Narindar Kaur sued the hospital for medical negligence and breach of contract after she died within hours of the transplant operation.
In July, Justice Lai Siu Chiu ruled that the hospital had to shoulder some blame for failing in its duty of care, and ordered that unspecified damages be paid to the family.
The latest suits were filed within a week of each other earlier this month.
…
Pretrial conferences on the two cases are due next month.
Thanks for your reply Alamode. As you would know, the application of the Bolam test is not confined to treatment only. It encompasses the disclosure of risk too. I would say that the application of the Bolam test with regards to treatment is a perfectly legitimate one. .
In any case, I do not think that Medical Negligence cases are a rarity for the reasons that you suggested. Having the hospitals do an internal cover up is an absolutely ludicrous suggestion, and a criminal one at that.
Rather, it is because of the strict emphasis on adherence to an established set of rules and regulations (I’m hypothesizing here) by the SMC(whom i assume is the regulatory body).
Divergent practices an absolute no-go. For example, the use of animal cells in aesthetic surgery is a no-brainer (Dr Martin Huang)
You are right in saying that it would be hard to find any doctor to make up the ‘body of responsible opinion’. Who would endorse a flagrant flouting of the SMC regulations?
I do not believe that defensive practices of the doctor is an argument that holds much weight. Even if there are defensive practices instituted by the doctor to save himself, the doctor still has to uphold a level of skill and professionalism and this cannot be detrimental for the patient.
Furthermore,
1.Defensive practices contravene medical ethics. Hippocratic Oath.
2.The medical guidelines provided for by the SMC and Criminal Law provide enough deterrent effect, to guard against a detrimental ‘defensive practices’.
In addition, it is the very application of the Bolam test does not allow the judges to play professionals. The Bolam test allows the body of responsible medical opinion to advise the court on what is acceptable.
Lastly, your argument that evidence for a medical negligence case will be hard to obtain is flawed. Records and data can be obtained at free will. If I am not wrong, hospitals are bound by law to release information pertaining to the negligent operation.
In any case, the Bolitho addendum serves to undo the ‘conferring of immunity’ upon the medical profession, especially the practice is found illogical.
Interesting discussion going on here.
I’ve just one point to add in favour of the Bolam Test.
Because of the nature of their work, doctors are already under a fiduciary duty. We call it a doctor-patient relationship, not a doctor-client relationship, unlike a solicitor and his client. There is something sacred about the services rendered by doctor’s to their patients. Admittedly, with fiduciary duties come great responsibilities and obligations. However, we should not lose focus of the central tenets of good faith and best interest that so rightly characterises the relationship between doctors and patients. I don’t believe that there is any doctor out there who does not want his patient to recover with minimal pain and suffering. There is indeed a strong element of compassion and concern overhanging everything that doctors do. Money and prestige might be the entering point for some into a medical career, but to remain in this line takes a certain amount of heart for the sick.
With the understanding of this particular dynamic of a doctor’s occupation, the Bolam test, despite all its perceived leniency, becomes much more palatable when we are dealing with medical negligence cases. The test simply evens up the whole equation, given the minimal amount of goodness doctors already exhibit by choosing to engage in this honorable profession.
Thinking has misread what I said.
I did not mean that hospitals do an “internal cover up”. Rather, who is going to report it, from a practical point of view? Neither am I implying that there will be people who know of it but do not report it. The doctor may not himself be aware that he was negligent or perceive his own treatment as negligent, in all good faith e.g. he did not notice his own error, he saw nothing wrong in trying out a “new method”, etc.
Alamode, I thank you for the clarification. In any case, I do believe that condoning any experimentation on the part of the doctor would lead to slippery slope consequences.
Be as it may, thanks for engaging me in this, because of knowledge of medical law is starkly confined to my year 1 readings.
Doctor-philic, do you have any case authority from Singapore/UK that explicitly mentions the existence of this fiduciary duty you speak of? I understand that its well established, but I could use this for my exam preparation
Thanks
Is there any watchdog body ensuring that NUH is taking good care of its patients and there are no other repeat occurances.
How does a patient or patients relative get justice if they have been affected and are unable to afford a lawyer ???
Shouldnt there be better regulations in place as its very easy for a Doctor to cite medical reasons and very difficult for a patient’s relative to point out discrepancies especially if the patient is badly affected.
Were the nurses responsible for not monitoring the patient?
Can anyone recomend a lawyer that can help to file a case against Hospital? Expensive or not?
Yes, yes! second to Alvin Tan. Can anyone recommend a good lawyer to take up case against, specifically NUH?
We do not think we are in a position to advise on legal representation. In any case, with respect, this is hardly the place to solicit for advice as to such representation.
If my mum is having a laparoscopic hernia mesh repair and is resulted that her intestine being perforated.
Due to the perforated. she had another 5 more operations. Can the case be courted as medical negligence? Thank in Advanced.
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