When medical negligence resulted in a loss of chance of survival, or reduced the prospects of a favourable medical outcome, can it form the basis for claiming compensation against the negligent doctor? If so, how is the compensation to be quantified?

These questions formed the center of a dispute between a widow on one hand, and a pathologist and a medical lab on the other, before a five-judge Court of Appeal on Monday (21 January).

Ms Carol Ann Armstrong, 53, brought a suit in 2015 against Quest Laboratories Pte Ltd and its 46-year-old director, Dr Tan Hong Wui, for being negligent in failing to detect the presence of malignant cancerous cells in her husband Mr Peter Traynor’s skin sample in 2009. Mr Traynor died in December 2013, despite undergoing medical treatment after having discovered the presence of malignant cells later in January 2012.

In March last year, Justice Choo Han Teck found that Dr Tan was negligent when he reported that there was no malignancy in the skin sample; however, he did not agree that but for Dr Tan’s negligence, Mr Traynor would have lived till an old age. In other words, Dr Tan’s negligence did not cause the death of Mr Traynor.

Nevertheless, Justice Choo was prepared to accept that Dr Tan’s negligence had led to Mr Traynor’s loss of a “fighting chance” against cancer. In so doing, he followed the approach of the minority judges in a 2005 English court case, that medical negligence resulting in a loss of chance of survival could give rise to a claim for compensation. However, the majority judges in that case, and the common law in general, did not recognise such a loss to be entitled to compensation.

As a result, Justice Choo awarded an approximate sum of S$1.2 million to Ms Armstrong for dependency claims and loss of inheritance. He refused to award her compensation for the loss of appreciation in the value of the Traynor’s family home as well as expenses incurred by Mr Traynor’s estate, on the basis that Dr Tan’s negligence did not cause Mr Traynor’s death.

All three parties to the dispute each filed an appeal against parts of Justice Choo’s decision, which were not in their respective favour. The appeals were heard before Chief Justice Sundaresh Menon, Judges of Appeal Andrew Phang, Judith Prakash and Tay Yong Kwang, as well as Justice Belinda Ang. Professor Gary Chan, from Singapore Management University’s School of Law, was appointed as amicus curiae to provide an independent opinion on the legal issues.

Beginning the arguments for the day, Prof Chan first submitted that reduced prospects of a favourable medical outcome should not be recognised as a legal basis for claiming damages, as no physical harm had been caused to the patient in such a case based on the established legal test for negligence, and that it would open the floodgates of litigation. He also proposed an alternative actionable head of damage, namely, a claim for medical costs that ameliorate the decreased chance of survival.

CJ Menon relied on the example of cancer, in disagreeing with the learned professor’s view that no physical harm had been caused. In a case where a patient’s cancer advanced from a lower stage to a higher one, the physical health of the patient would also have deteriorated at the same time. This, as the Chief Justice put it, amounted to physical harm if it had been the result of a negligent misdiagnosis.

Justice Phang was also not persuaded on the issue of floodgates, as it was based on the presumption that all doctors would have been negligent in their diagnosis and treatment of patients.

Mr Edmund Kronenburg, as briefed by Mr Christopher Goh from Goh Phai Cheng LLC and representing Ms Armstrong, sought to uphold Justice Choo’s finding of facts on Dr Tan’s liability, while appealing against the holding that Dr Tan’s negligence had not caused Mr Traynor’s death and his refusal to allow claims for expenses by Mr Traynor’s estate.

Responding to Prof Chan’s submissions on the legal point, Mr Kronenburg took the position that doctors owed a duty of care to all patients, regardless of their survival rates. The floodgates issue, as he submitted, is squarely dealt with the requirement that negligence on the part of a defendant doctor had to be proved by the plaintiff on a balance of probabilities.

CJ Menon also queried Mr Kronenburg as to the potential arbitrariness in relying on percentages derived from medical statistics to determine chances of survival, when quantifying the amount of damages to be awarded. To this, Mr Kronenburg suggested the possibility of mirroring situations of financial loss when assessing damages for lost chances of survival.

Senior Counsel Kuah Boon Theng, as briefed by a Donaldson & Burkinshaw legal team led by Ms Kang Yixian and representing Dr Tan and Quest Laboratories, spent approximately two hours in forcefully persuading the five judges to accept their expert’s evidence and to find that Dr Tan was not negligent when he made a diagnosis of non-malignancy.

CJ Menon noted that none of the experts, who testified at the trial below, had stood up to justify Dr Tan’s decision not to follow up on the patient or to conduct further tests, thus giving rise to a possibility of a finding of negligence.

At one point, noting that he had never made such harsh criticisms previously in the area of law, Justice Phang also described the defendant’s expert witness’ criticism of the medical statistics as “rubbish”, in suggesting that the witness was not sufficiently objective in giving his opinion.

Ms Kuah also submitted that, in recognising a loss of chance of survival to be monetarily compensable, doctors would be facing an “ethical dilemma” where they would be pressed on to advise patients to incur more medical expenses just to fight for a longer yet insufficient period of survival.

She also aligned her position with Prof Chan’s on the basis of opening the floodgates of litigation, given that this could result in situations where patients who eventually and in fact survived from their ordeals despite the doctor’s negligence could come to court and claim for compensation.

To this, Mr Kronenburg responded that litigants would generally be mindful of financial repercussions of litigation in such scenarios, where the compensation sought would not be worth the legal costs incurred.

After five hours of hearing, CJ Menon announced that the court would reserve judgment.

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