Case Details
- Citation: [2012] SGHCR 7
- Case Title: BBN (by her next friend B) v Low Eu Hong (trading as EH Low Baby N' Child Clinic)
- Court: High Court of the Republic of Singapore
- Date of Decision: 28 June 2012
- Coram: Yeong Zee Kin SAR (Senior Assistant Registrar)
- Case Number: Suit No 234 of 2011, Summons No 782 of 2012
- 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; Civil Procedure — Power to order medical examination; Civil Procedure — Privileges; Professions — Medical profession and practice
- Statutes Referenced: First Schedule to the Supreme Court of Judicature Act
- Other Authorities / Precedents Cited: [2012] SGHCR 4; [2012] SGHCR 7
- Judgment Length: 14 pages, 8,324 words
Summary
This High Court decision concerned a medical negligence claim brought on behalf of a 12-year-old child born prematurely with extremely low birth weight. The plaintiff alleged that the defendant paediatrician negligently managed her care, in particular by failing to conduct eye screenings and failing to detect retinopathy of prematurity (ROP). After the parties consented to an assessment of damages without trial on liability, the defendant arranged for further medical examinations by its appointed experts. A dispute then arose over whether the court should stay the proceedings or instead order the plaintiff to undergo further examinations, and whether the plaintiff could impose conditions—most notably, that the defendant provide a list of the examination areas and that the plaintiff be given copies of medical reports generated by the defendant’s experts.
The Senior Assistant Registrar held that the court has power to order a party to undergo medical examination where the physical or mental condition of that party is relevant to matters in issue. The court rejected the view that the power to order medical examination is limited to staying proceedings. The decision also addressed the “reasonableness” and sufficiency of explanation for the scope and necessity of the requested examinations. Finally, it considered whether the plaintiff was entitled to disclosure of the medical reports produced by the defendant’s experts, and whether such reports were protected by litigation privilege or other confidentiality-related considerations.
What Were the Facts of This Case?
The plaintiff, BBN, was born prematurely at home with an extremely low birth weight. She was subsequently taken to East Shore Hospital and admitted to its neonatal intensive care unit. During infancy, she developed retinopathy of prematurity (ROP) in both eyes, a condition commonly affecting premature babies. At the time of the proceedings, she had no useful vision in her left eye. Her medical history and functional condition were therefore central to the assessment of damages in the negligence claim.
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. She alleged negligence in the defendant’s management, care and treatment, particularly for failing to conduct eye screenings and failing to detect that she had developed ROP. The claim proceeded in a procedural posture designed to expedite resolution: the parties consented to an order under Order 36, rule 2 for an assessment of damages without any trial on, or admission of, liability.
After the consent order was recorded, the plaintiff submitted to medical examinations by experts appointed by the defendant. On 2 November 2011, she was examined by Dr Quah Boon Long, a paediatric ophthalmologist. After examining her eyes, Dr Quah spoke with the plaintiff’s father and requested that both parents undergo eye examinations, suggesting possible hereditary eye defects that could affect the plaintiff’s eyes. The father declined this request. This episode later formed part of the broader context of disagreements about the scope of medical examinations and cooperation.
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 that the plaintiff be examined by a psychologist and an ENT specialist to assist in preparing her expert opinion on the plaintiff’s overall medical and functional condition. The defendant’s solicitors conveyed this request 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 undergo all medical examinations by the defendant’s appointed experts.
On 18 November 2011, the plaintiff’s solicitors wrote to the defendant’s solicitors stating that further medical examinations would be subject to conditions: first, that the defendant provide a complete list of the areas and issues for which medical examinations were to be conducted; second, that further medical examinations not address the issue of liability; and third, that the plaintiff receive disclosure of all medical reports and medical records arising from the medical examinations. Between 23 November 2011 and 26 January 2012, solicitors exchanged numerous letters. The defendant did not agree to the conditions, particularly the disclosure requirement. The defendant’s solicitors explained that the assessments needed only be “reasonable” and that a detailed list was not necessary, while providing a brief outline of the intended scope of the experts’ work.
Further detail was later provided in an affidavit filed in support of the defendant’s application. The affidavit referred to an email dated 17 February 2012 between the defendant’s solicitors and A/Prof Daniel’s department of neonatology, explaining why ENT and psychological assessments were necessary. The affidavit stated, among other things, that extremely low birth weight infants are at risk of hearing impairment unrelated to ROP, affecting functional ability, and that the psychological assessment would involve cognitive and achievement testing to evaluate the plaintiff’s functional and academic abilities. However, the medical examiners themselves did not file affidavits offering more detailed explanations of how the requested examinations were relevant to the determination of damages.
As parties could not agree on the terms for the further examinations, the defendant applied for a stay of proceedings until the psychological examination, ENT examination and language assessments were completed. The plaintiff resisted, leading to the court’s determination of the appropriate procedural and substantive approach.
What Were the Key Legal Issues?
The application raised three principal issues. First, where medical examination is necessary and the patient is unwilling to subject herself to examination either unconditionally or on agreed terms, the court had to decide whether it should stay the action or instead direct that the patient undergo medical examination. This issue required the court to interpret the scope of its powers under the First Schedule to the Supreme Court of Judicature Act (SCJA), particularly the provisions relating to ordering medical examination and staying proceedings.
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 the nature, scope and necessity of those examinations. This required a balancing of the defendant’s right to defend itself and obtain relevant medical evidence against the plaintiff’s right to personal liberty and bodily autonomy.
Third, the court had to consider whether the plaintiff acted unreasonably by seeking to impose a condition that she be supplied with copies of the medical reports prepared by the defendant’s experts arising from the medical examinations. This issue engaged the law on discovery and disclosure of documents, as well as the doctrine of privilege—particularly litigation privilege—together with confidentiality considerations in the medical context.
How Did the Court Analyse the Issues?
The court began with the question of whether a stay of proceedings was the only available remedy, or whether the court could directly order the plaintiff to undergo medical examination. The Senior Assistant Registrar noted that counsel for the defendant relied on English procedural practice, 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)). Counsel also cited Li Siu Lun v Looi Kok Poh [2012] SGHCR 4, which had adopted an approach that treated a stay as the traditional mechanism.
However, the court agreed with the reasoning in Li Siu Lun that the court has power to order medical examination, while disagreeing with the conclusion that the power to order medical examination only comprises the power to order a stay. The Senior Assistant Registrar emphasised that paragraph 19 of the First Schedule to the SCJA expressly provides for “Power to order medical examination of a person who is a party to any proceedings where the physical or mental condition of the person is relevant to any matter in question in the proceedings.” The court contrasted this with paragraph 9 of the same Schedule, which deals with staying proceedings. In the court’s view, the existence of an express power to order medical examination could not be reduced to a power only to stay proceedings.
Accordingly, the court held that it could make a direct order for medical examination where the statutory criteria were met and where it was reasonable to do so. This analysis is significant because it clarifies that the court’s remedial toolkit is not confined to procedural delay. Instead, the court can compel examination directly, subject to reasonableness and fairness.
On the substantive reasonableness of the requested examinations, the court accepted that the defendant’s right to obtain relevant medical evidence must be balanced against the plaintiff’s personal liberty. The court considered whether the proposed examinations were reasonably required for the preparation of expert evidence relevant to the assessment of damages. While the defendant’s solicitors provided a brief outline of the experts’ tasks, the court observed that the medical examiners did not file affidavits providing detailed explanations of the necessity and relevance of the examinations to the quantum of damages. The court therefore scrutinised whether the defendant had sufficiently justified the scope of the further assessments.
The court also considered the practical context: the case had already proceeded to an assessment of damages without trial on liability. That procedural posture meant that the plaintiff’s current functional condition and the extent of impairment were central. The requested psychological and ENT assessments were said to address risks and functional impacts associated with extremely low birth weight infants, including hearing impairment and cognitive/academic abilities. The court’s reasoning indicates that, while the defendant did not need to provide an exhaustive “detailed list” in every case, it needed to provide enough information to demonstrate that the examinations were not speculative, irrelevant, or oppressive, and that they were connected to matters in issue.
Finally, the court addressed the disclosure condition. The plaintiff sought disclosure of all medical reports and medical records arising from the medical examinations. The defendant resisted, arguing that the reports were protected by litigation privilege and/or confidentiality principles. The court’s analysis treated the issue as one involving both discovery/disclosure principles and privilege. Litigation privilege generally protects communications and documents prepared for the purpose of litigation, including expert reports prepared for adversarial use. The court also considered the medical confidentiality dimension, particularly the role of an independent medical examiner and the examinee’s expectations of confidentiality in the medical context.
In this case, the medical examinations were arranged by the defendant’s experts in the context of litigation. The court therefore had to determine whether the plaintiff could compel disclosure of the resulting expert reports as a matter of fairness and procedural equality, or whether privilege prevented such disclosure. The court’s approach reflects a careful attempt to harmonise the plaintiff’s interest in understanding the basis of expert evidence with the defendant’s interest in protecting adversarial work product and maintaining the integrity of litigation privilege.
What Was the Outcome?
The court granted the defendant’s application in substance by ordering that the plaintiff undergo the further medical examinations that were reasonably required, rather than merely staying the proceedings. This confirmed that, under the First Schedule to the SCJA, the High Court may issue a direct order for medical examination where the statutory conditions are satisfied and where it is reasonable to do so.
On the disclosure issue, the court’s decision turned on privilege and confidentiality considerations. While the plaintiff sought copies of the medical reports and records generated by the defendant’s experts, the court treated litigation privilege as a key constraint. The practical effect was that the plaintiff could not automatically obtain disclosure of the defendant’s expert reports merely because they were produced following an examination arranged for litigation purposes.
Why Does This Case Matter?
This decision is important for practitioners because it clarifies the scope of the High Court’s power to order medical examinations in Singapore civil proceedings. By rejecting the view that the power is limited to staying proceedings, the case strengthens the court’s ability to manage litigation efficiently and to prevent parties from using procedural impasse to delay the production of relevant medical evidence.
It also provides guidance on what “reasonableness” requires in the context of medical examinations. The court’s emphasis on the need for sufficient explanation of the nature, scope and necessity of examinations is a practical reminder for litigants: when seeking compulsory medical assessments, parties should provide clear and credible justification linking the proposed examinations to the issues in question, especially where the case has moved to an assessment of damages.
Finally, the case is a useful authority on the interaction between discovery/disclosure and privilege in medical litigation. The court’s treatment of litigation privilege and confidentiality underscores that expert reports generated for litigation purposes may not be subject to automatic disclosure to the opposing party. For lawyers, this affects how one frames requests for disclosure and how one anticipates objections based on privilege when medical examinations are conducted under court or party arrangements.
Legislation Referenced
- First Schedule to the Supreme Court of Judicature Act (SCJA) — including provisions on (i) power to order medical examination and (ii) power to stay 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 7 (the present 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.