Case Details
- Title: BBN (by her next friend B) v Low Eu Hong (trading as EH Low Baby N' Child Clinic)
- Citation: [2012] SGHCR 7
- Court: High Court (Registrar)
- Date of Decision: 28 June 2012
- Case Number: Suit No 234 of 2011, Summons No 782 of 2012
- Coram: Yeong Zee Kin SAR
- Judges: Yeong Zee Kin SAR
- Plaintiff/Applicant: BBN (by her next friend B)
- Defendant/Respondent: Low Eu Hong (trading as EH Low Baby N' Child Clinic)
- Counsel for Plaintiff: Mr Niru Pillai
- Counsel for Defendant: Mr Edric Pan with Ms Rebecca Heng
- Legal Areas: Civil Procedure; Discovery of documents; Disclosure of medical reports; Power to order medical examination; Privileges; Litigation privilege; Medical negligence; Medical confidentiality; Role of independent medical examiner
- Statutes Referenced: Supreme Court of Judicature Act (SCJA) – First Schedule (powers including ordering medical examination)
- Cases Cited: [2012] SGHCR 4; [2012] SGHCR 7
- Judgment Length: 14 pages, 8,436 words
Summary
BBN (by her next friend B) v Low Eu Hong (trading as EH Low Baby N’ Child Clinic) concerned a medical negligence claim brought on behalf of a 12-year-old child who had been born prematurely with extremely low birth weight and later developed retinopathy of prematurity (ROP). The plaintiff alleged that the defendant paediatrician was negligent in failing to conduct eye screenings and in failing to detect the development of ROP. After the parties consented to an assessment of damages without trial on liability, the defendant sought further medical examinations to assist in quantifying damages.
The dispute before the High Court Registrar focused on (i) whether the court should stay the proceedings or instead order the plaintiff to undergo further medical examinations, (ii) whether the proposed examinations were “reasonable” and sufficiently explained, and (iii) whether the plaintiff could insist that medical reports generated by the defendant’s appointed examiners be disclosed to her. The Registrar held that the court has power to order medical examination directly, not merely to stay proceedings, and examined the reasonableness and necessity of the scope of further assessments. On the disclosure issue, the Registrar addressed the operation of litigation privilege and medical confidentiality in the context of independent medical examiners.
What Were the Facts of This Case?
The plaintiff, BBN, was born prematurely at home with an extremely low birth weight. She was subsequently brought to East Shore Hospital and placed in the neonatal intensive care unit. During infancy, she developed retinopathy of prematurity (ROP) in both eyes. As of the time of the proceedings, she had no useful vision in her left eye. The plaintiff’s case was that, throughout her stay at East Shore Hospital and after discharge, she was under the care and treatment of the defendant paediatrician, Low Eu Hong, who practises as EH Low Baby N’ Child Clinic.
In the negligence claim, the plaintiff alleged that the defendant failed to provide appropriate management and care, particularly by failing to conduct any eye screenings and by failing to detect the development of ROP. The procedural posture is important: the parties agreed, in the interest of early resolution, to an order under Order 36 rule 2 for an assessment of damages without any trial on liability or admission of liability. This meant that the case would proceed to quantify damages, and medical evidence would be central to that assessment.
After the consent order was recorded, the plaintiff submitted to medical examinations by experts appointed by the defendant. On 2 November 2011, the plaintiff was examined by Dr Quah Boon Long, a paediatric ophthalmologist. After examining the plaintiff’s eyes, Dr Quah spoke with the plaintiff’s father and requested that both parents undergo eye examinations, suggesting possible hereditary eye defects. The plaintiff’s father declined this request. On 10 November 2011, the plaintiff was examined by Associate Professor Lourdes Mary Daniel, a neonatologist and developmental paediatrician.
Following her examination, A/Prof Daniel requested further assessments: a psychologist assessment and an ENT specialist assessment, to assist in preparing her expert opinion on the plaintiff’s overall medical and functional condition. The defendant’s solicitors conveyed these requests to the plaintiff’s solicitors by letters dated 10 and 11 November 2011. The defendant alleged that the plaintiff then “went back” on her agreement to submit to all medical examinations by the defendant’s appointed examiners. On 18 November 2011, the plaintiff’s solicitors wrote that any further medical examinations would be subject to conditions: (a) the defendant must provide a complete list of the areas and issues for which examinations were to be conducted; (b) the examinations must not address liability; and (c) all medical reports and medical records arising from the examinations must be disclosed.
What Were the Key Legal Issues?
The Registrar identified three principal issues. First, where medical examination is necessary and the patient is unwilling to submit, either unconditionally or on agreed terms, the court had to decide whether the appropriate response is to stay the proceedings or to direct that the patient undergo medical examination. This issue required careful consideration of the court’s statutory powers under the Supreme Court of Judicature Act (SCJA) and the procedural framework for medical examinations.
Second, the court had to determine whether the medical examinations requested by the defendant were “reasonable” and whether the defendant had provided sufficient explanation of their nature, scope, and necessity. The plaintiff’s position was that the defendant’s requests were not sufficiently particularised and that the defendant had not adequately justified why the additional psychological, ENT, and language assessments were required for the damages assessment.
Third, the court had to address whether the plaintiff acted unreasonably in seeking to impose a condition that she be supplied with copies of the medical reports prepared by the defendant’s medical examiners arising from the examinations. This issue required the court to balance the plaintiff’s interests in access to medical information against the defendant’s litigation interests, including the protection afforded by litigation privilege and the confidentiality obligations owed by medical professionals.
How Did the Court Analyse the Issues?
The Registrar began by addressing the procedural question of whether a stay of proceedings is the only available remedy, or whether the court can make a direct order for medical examination. The defendant relied on English procedural tradition, citing Edmeades v Thames Board Mills Ltd [1969] 2 QB 67 and a Singapore Civil Procedure reference (paragraph 40A/1/3 of the Singapore Civil Procedure (2007 Ed)). The defendant also relied on Li Siu Lun v Looi Kok Poh [2012] SGHCR 4, which had considered the court’s power and suggested that a stay might be the traditional mechanism.
However, the Registrar adopted a different view. While acknowledging that Li Siu Lun had considered the question of power, the Registrar disagreed with the conclusion that the court’s power to order medical examination only comprises the power to order a stay. The Registrar emphasised that the SCJA’s First Schedule expressly confers a power to order medical examination where the physical or mental condition of a party is relevant to matters in question. The Registrar reasoned that if Parliament has expressly granted a power to order medical examination, it would be inconsistent to treat the power as limited to staying proceedings only.
In reaching this conclusion, the Registrar distinguished between the separate statutory provisions dealing with stays and those dealing with ordering medical examination. The First Schedule contains an express “Ordering medical examination” provision, and it also contains a “Stay of proceedings” provision. The Registrar’s approach was that the existence of a stay power does not negate the separate and express power to order medical examination. Accordingly, the court could make a direct order requiring the plaintiff to submit to medical examination, provided the conditions for such an order were satisfied.
On the reasonableness and sufficiency of explanation, the Registrar examined the correspondence and evidence provided by the defendant. The defendant’s solicitors had explained that the assessments to be conducted were “reasonable” and that there was no need for a “detailed list” in the manner demanded by the plaintiff. The defendant did, however, outline the general scope: Dr Quah would provide input on the nature of the eye condition developed during infancy; A/Prof Daniel’s assessment had already been addressed in earlier correspondence; and the psychological and ENT assessments were intended to assist in forming opinions on how the plaintiff’s medical condition materially affected her mental and overall developmental health.
Crucially, the Registrar noted that beyond the solicitors’ affidavit and paraphrased explanations, the medical examiners themselves did not file affidavits providing more detailed explanations of what the further examinations entailed or how they were relevant to the determination of quantum. The Registrar therefore scrutinised whether the defendant had met the evidential burden to show that the requested examinations were not speculative or excessive, but rather reasonably required for the damages assessment. The Registrar also considered the practical nature of the assessments: the affidavit indicated that the ENT assessment would address hearing impairment risks associated with extremely low birth weight infants, and that the psychological assessment would involve cognitive assessment, achievement testing, literacy skills, and adaptive skills, requiring multiple visits. The language assessment was also described as requiring multiple visits.
Finally, the disclosure issue required the Registrar to consider privileges and confidentiality. The plaintiff sought a condition that all medical reports and records arising from the medical examinations be disclosed to her. The Registrar treated this as a question of whether such a condition was permissible and whether it would undermine litigation privilege or medical confidentiality. While the truncated extract does not reproduce the full reasoning, the case is clearly framed around “Privileges – Litigation privilege” and “Medical confidentiality between independent medical examiner and examinee.” The Registrar’s analysis would therefore have involved determining whether the reports produced by the defendant’s appointed experts were protected by litigation privilege as documents prepared for the purpose of litigation, and whether any confidentiality obligations prevented disclosure absent a legal basis.
In this context, the Registrar’s approach would have been to balance the plaintiff’s need for fairness and access to medical information against the defendant’s right to conduct litigation effectively without involuntary disclosure of expert materials that are generated for adversarial purposes. The Registrar also had to consider the role of an independent medical examiner: although the examiner’s function is medical, when appointed by a party for litigation, the resulting reports may be treated as part of the litigation process and thus attract privilege. The court’s task was to ensure that the plaintiff was not unfairly compelled to undergo examinations on terms that would compromise the litigation structure, while also ensuring that the defendant did not impose unreasonable or irrelevant examinations.
What Was the Outcome?
The Registrar granted relief to the extent of ordering that the plaintiff undergo the further medical examinations that were found to be reasonable and necessary for the assessment of damages, rather than limiting the defendant to a stay of proceedings. The practical effect was to move the case forward by resolving the procedural impasse over the scope and terms of further assessments.
On the disclosure condition, the Registrar addressed the plaintiff’s attempt to require disclosure of medical reports and records arising from the defendant’s appointed examiners. The outcome would have clarified that such disclosure is not automatically ordered merely because the plaintiff is examined, particularly where litigation privilege and medical confidentiality principles apply to the reports generated for litigation purposes.
Why Does This Case Matter?
This case matters because it clarifies the High Court’s procedural powers in Singapore regarding medical examinations in civil litigation. Practitioners often face strategic and practical difficulties when a party refuses or conditions medical examinations. BBN v Low Eu Hong is significant for its treatment of the SCJA First Schedule: it supports the view that the court can make a direct order for medical examination, not only a stay of proceedings. This is important for case management, especially in personal injury and medical negligence claims where damages assessment depends heavily on medical evidence.
Second, the decision is useful for understanding how courts evaluate the “reasonableness” and necessity of requested examinations. The Registrar’s focus on the adequacy of explanation and the relevance of assessments to quantum provides guidance for litigants and counsel. Defendants seeking further examinations should be prepared to provide sufficiently detailed justification, ideally supported by evidence from the medical professionals themselves, rather than relying solely on solicitors’ summaries.
Third, the case highlights the interaction between litigation privilege and medical confidentiality in the context of court-ordered or party-appointed medical examinations. For plaintiffs, it signals that insisting on disclosure of expert reports as a condition of examination may not always be granted. For defendants, it underscores the need to structure expert instructions and examination processes in a way that preserves privilege and confidentiality while still meeting the court’s requirements for fairness and reasonableness.
Legislation Referenced
- Supreme Court of Judicature Act (SCJA) – First Schedule (including power to order medical examination; provisions relating to stay of proceedings)
Cases Cited
- Edmeades v Thames Board Mills Ltd [1969] 2 QB 67
- Li Siu Lun v Looi Kok Poh [2012] SGHCR 4
- [2012] SGHCR 4 (as referenced in the judgment)
- [2012] SGHCR 7 (this case)
Source Documents
This article analyses [2012] SGHCR 7 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.