Back
2011 MarsdenLR 5035
CHEW SOO HO
SANMARKAN GANAPATHY & ANOR – Appellant
Versus
DATO DR V THURAISINGHAM & ORS – Respondent
Medical professionals must adhere to a duty of care to diagnose and treat patients appropriately, and failure to do so can lead to liability for negligence.
Headnote:(A) Tort of Negligence - Duty of Care - Medical Profession - The court addressed whether the failure of consultant physicians to investigate and diagnose the deceased's colon cancer earlier constituted a breach of their duty of care - Failure to properly investigate over multiple consultations warranted findings of negligence. (Paras 1-4)
(B) Expert Testimony - The weight and independence of expert opinions can be challenged based on connections to the parties involved - The court emphasized the need for unbiased expert opinions in determining duty of care. (Paras 3-4)
Facts of the case:
The deceased was under the care of the defendants for a long period and presented with various symptoms before being diagnosed with colon cancer on 15.12.2000 - The plaintiffs alleged negligence for failing to diagnose and treat the condition sooner, leading to the deceased's prolonged suffering before her death in 2005.
Findings of Court:
The court found that the defendants failed in their duty of care by not diagnosing colon cancer earlier, thus holding them liable for medical negligence.
Issues: The court addressed the breach of duty, expert testimony's credibility, limitation defenses, and vicarious liability of the hospital.
Ratio Decidendi: The court ruled that the consultant's ongoing relationship with the patient created a duty of care, and the lack of timely investigations constituted medical negligence, emphasizing that expert opinions must be independent and credible.
Result: Defendants found negligent and liable for damages.
| Table of Content |
|---|
| 1. establishment of patient-doctor relationship and negligence based on missed diagnosis. (Para 1 , 2 , 3) |
| 2. claim against medical practitioners for negligence due to delayed diagnosis. (Para 4) |
| 3. disputes on whether negligence occurred due to consultations. (Para 5 , 6) |
| 4. expert testimonies and their contrasting opinions regarding the duty of care. (Para 7 , 8) |
Both the 1st and 2nd Defendants are Consultant Physicians and were practicing at all material times at the Gleneagles Medical Centre (the Hospital) owned by the 3rd Defendant.
Brief Facts of the Case
The Deceased had been consulting the 1st Defendant and/or the 2nd Defendant at the Hospital of the 3rd Defendant for her medical illness or condition as early as 7.1.1980 before her demise. Since 15.12.1992 until before 15.12.2000, Deceaseds medical illness or condition at her various consultations with the 1st or 2nd Defendant was diagnosed by 1st or 2nd Defendant to have suffered from either gastroenteritis or food poisoning.
On 15.12.2000 when the Deceased consulted 1st Defendant with her signs and symptoms at that material time, 1st Defendant ordered endoscopy, ultrasound of the Deceaseds abdomen and a barium enema; tests on the Deceaseds stools and blood were also carried out and the results show that deceased was suffering from cancer of the colon which had spread to her lymph nodes, liver, lungs and bone at the 3rd stage. Hemicolectomy (surgery) was carried out by surgeon Dato Dr. Peter Vanniasingham to remove the malignant tumour on 20.12.2000. Following that, the Deceased had undergone chemotherapy and radiation which continued until she passed away on 8.2.2005. On this fact that the Deceased was only diagnosed of colon cancer in December 2000 when it could have been diagnosed much earlier by the 1st and/or the 2nd Defendants, Plaintiffs alleged negligence on the part of 1st and 2nd Defendants basically that they had failed in their duty of care to diagnose the colon cancer of the Deceased earlier than 15.12.2000 contending that the Deceased had been presenting similar symptoms before 15.12.2000 since her visit in 1992 and/or that the 1st and 2nd Defendants had missed or wrongly diagnosed the Deceased resulting in the Deceased having to undergo pain and suffering. Hence Plaintiffs claimed various damages on the tort of negligence against the Defendants. Defence of the 1st and 2nd Defendant is essentially that there were no signs or symptoms of any colon cancer in the Deceased prior to her consultation on 15.12.2000. There was no indication of the colon cancer that would have led a medical doctor practising as a Consultant Physician treating the patient as the 1st and 2nd Defendants to reasonably embark on an investigation for colon cancer. However, on 15.12.2000, the variance of the signs or symptoms of the Deceased had warranted such investigation for which 1st Defendant initiated and it led to the ultimate diagnosis of colon cancer. 1st and 2nd Defendants denied the allegation of negligence. 2nd Defendant in addition pleaded limitation under section 6 of the Limitation Act 1953 .
3rd Defendant contended that they are not vicariously liable for the acts or omissions of the 1st and 2nd Defendants as 1st and 2nd Defendants were not the servants or employees or agents of the 3rd Defendants Hospital at all material times. Alternatively, they also contended that the 1st and 2nd Defendants had not been negligent in their care and/or management of the Deceased.
The Issues
The issues that can be deduced from the facts and evidence in this case are as follows:
1. Whether the failure or omission of the 1st and 2nd Defendants to investigate and diagnose the Deceased to have suffered from colon cancer earlier than 15.12.2000 constitutes a breach of the d
