23 July 2017
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Supreme Court Note: Hii Chii Kok v Ooi Peng Jin London Lucien and another [2017] SGCA 38 (applicable tests for standard of care in medical negligence)

Supreme Court Note
31 May 2017

The Appellant, who had previously been diagnosed with a tumour in his lungs, underwent certain diagnostic scans which detected lesions in the head and body of his pancreas. There was some uncertainty as to whether the lesions were cancerous. On the advice of his surgeon (the First Respondent), and with input from other doctors associated with the National Cancer Centre of Singapore (the Second Respondent), the Appellant then underwent a surgical procedure, known as the Whipple procedure, which removed parts of his pancreas and other parts of his digestive tract. The Whipple procedure gave rise to post-operative complications which required further surgeries to treat. Moreover, the lesions turned out not to be cancerous. The Appellant sued the Respondents for, among other things, not adequately advising him as to the uncertainties surrounding the diagnosis and the alternatives to the Whipple procedure. The High Court dismissed the Appellant’s claims, finding that there had been no breach of the applicable standards of care.

The principal legal issue in this appeal was whether to retain the traditional test for medical negligence as applying to all aspects of a doctor’s duty. That test was the Bolam test (set out in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582), 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 the Bolitho addendum (set out in Bolitho v City and Hackney Health Authority [1998] AC 232), which allowed the court to disregard the opinion of medical experts if it could (on limited grounds) be said to be illogical. The Appellant argued that the test set out in Montgomery v Lanarkshire Health Board [2015] UKSC 11 (“Montgomery”) should apply to advice, while the Respondents argued in favour of retaining the status quo. In addition to the submissions of the parties, the Attorney-General’s Chambers also made submissions (substantially aligned with those of the Respondents), as the Attorney-General considered that the appeal raised an issue of public importance.

The Court of Appeal dismissed the appeal and upheld the High Court’s finding that the applicable standards of care had been satisfied. However, the Court also took the view that the traditional test was no longer suited to assessing a doctor’s duty to advise, as it gave insufficient regard to the principle of patient autonomy, which had come to be recognised as fundamental.

The Court therefore laid down a new test applicable to the standard of care only with regard to advice, which is a modified version of the Montgomery test. The modified test is a three-stage inquiry: first, was the information material either from the perspective of a reasonable patient in the particular patient’s position, or from the perspective of the particular patient for individual-specific reasons of which the doctor knew or should have known; second, was the doctor aware of that information, and if not, was he negligent (under his duty of diagnosis) in not obtaining or having it; and third, if both prior questions are answered affirmatively, was there justification for withholding the information?

On the facts, the Court found that some of the information allegedly withheld was material but had in fact been adequately communicated, and some of the other information, which was in fact withheld, was not material. As for the diagnosis and treatment, the Court found that both had been satisfactory under the Bolam test read with the Bolitho addendum.

The Court also made observations on issues including the nature of the relationship between the general professional standard of care and the specific tests which applied in different contexts; the need for judges to apply the Bolitho addendum scrupulously but with circumspection; and the dynamic interplay between the three aspects of a doctor’s duty (diagnosis, advice and treatment).

On the Bolam test and the Bolitho addendum, and their relationship to the general professional standard of care: see Hii Chii Kok v Ooi Peng Jin London Lucien and another [2017] SGCA 38 at paras 53–64, 76, and 100–112.

On the different aspects of a doctor’s duty: see Hii Chii Kok v Ooi Peng Jin London Lucien and another [2017] SGCA 38 at paras 89–98.

On the reasons for adopting a new test with regard to advice: see Hii Chii Kok v Ooi Peng Jin London Lucien and another [2017] SGCA 38 at paras 113–125.

On the modified Montgomery test: see Hii Chii Kok v Ooi Peng Jin London Lucien and another [2017] SGCA 38 para 68 (on a precursor to the Montgomery test) and paras 126–153.

To view the judgment, click <here>.

Disclaimer: The above is provided to assist in the understanding of the Court’s judgment. It is not intended to be a substitute for the reasons of the Court. The full judgment of the Court is the only authoritative document.