Medical Negligence: Out with the old! in with the new!

Medical Negligence: Out with the old! in with the new!

The case of Hii Chii Kok v Ooi Peng Jin London Lucien and others can be widely considered to be a monumental decision by the Court of Appeal, in which the Court adopted a new legal test to determine if a doctor has been negligent while dispensing medical advice.

 

Medical negligence in legal terms can be defined simply as “any act or omission which falls short of the standard expected of a reasonable doctor in that particular field of medicine.”

 

Seeking compensation for medical negligence from Dr London and the NCCS, Malaysian businessman Clement Hii Chii Kok’s alleges that they had misdiagnosed and provided wrong medical advice. The Court dismissed his appeal with the new test for negligence. The new test involves seeing whether the doctor is in possession of any material facts about the patient that the doctor should have known and if the doctor was aware of this information and whether withholding such information from the patient is justified.

The New Test

The new test, a modified version of the Montgomery test adopted by the Courts in Britain, it reflects the relationship between doctor and patient. The new test considers the average patient’s opinion on the medical advice received as opposed to the opinions of a doctor’s peers. As a doctor, he or she can fully understand the significance of a patient’s diagnosis. This would mean that they are in a position to make judgement calls based on the importance and gravity of it.

 

The patient, on the other hand, plays a passive role in their medical care. Depending on how severe the medical condition is, the patient may be emotionally fueled to push for treatment without properly considering the full risks of it. This situation may worsen if the patient is unable to understand the complexities and the technical terms of the proposed treatment. As such it is important for doctors to ensure that their patients have been made known and understood the benefits and risks involved in any treatments or procedures as stated in the Singapore Medical Council’s Ethical Code and Ethical Guidelines which came into force on 1st January 2017. Ultimately, the decision falls on the patient to make.

The Old Test

The previous test used in a case of medical negligence is the oft-cited Bolam test. Under the Bolam test, as long as the doctor in question has met the requisite standard of care in his interaction with the patient and as long as his actions are supported by the opinions and practices of other doctors of repute, the said doctor will not be considered to have been medically negligent. It must be of note that during the period the Bolam test was first employed, there was lesser emphasis placed on the principle of patient autonomy as opposed to a doctor’s insights.

What was wrong with the Old Test

The Bolam test by design ignores the freedom of the patient, who should be made known of all the information and options they require that is available before coming to a decision on their treatment. The downside of the Bolam test in proving medical negligence in a Court of Law is that a situation may arise where it becomes acceptable for a doctor to purposely withhold certain information as long as some of their peers would have done the same, even if the practice is outdated or simply out of convenience.

Understanding the Modified Montgomery Test

As shown in the case of Hii Chii Kok v Ooi Peng Jin London Lucien and others, the Court of Appeal utilised a three-stage inquiry to determine if the doctor had fulfilled his duty of care to the patient.

Stage 1: Perspective of the Patient

The patient must first identify the exact nature of the information that he or she claims was not given to him and justify why it would be regarded as relevant and material. The first stage is purely from the perspective of the patient.

 

Relevant and material information may include:
  • the doctor’s examination of the patient’s condition;
  • prognosis of the condition with and without medical treatment;
  • the nature of the medical treatment proposed by the doctor;
  • any risks associated with the proposed medical treatment;
  • alternatives (if any) to the proposed medical treatment, as well as the advantages and risks of those alternatives.
In the event that the doctor does not provide the patient with the sufficient relevant and material information, we can move on to Stage 2 of the test.

Stage 2: Was the Doctor aware of information and Withheld it

Assuming that the court is content the information provided is relevant and material, They will then proceed to determine whether the doctor in question is aware of the information. It may be that the doctor did not conduct a procedure which would have led to the discovery of the information or that they lacked the factual and technical knowledge of the risks or alternative mode of treatments.

Stage 3: Why was information Withheld

Again, assuming that the Courts have found the doctor in question possessing and withholding the information, the third stage of inquiry will then examine the reasoning behind why the doctor chose to do so. As long as the doctor that withheld the information has behaved as how a reasonably competent and skilled doctor should, they cannot be deemed negligent.

 

Some situations where a doctor might withhold information and act based on his medical expertise:
  • Waiver – The patient is entitled to exercise their autonomy by deciding that they do not want to hear further information about the proposed treatment or its alternatives. In this scenario, the patient must have had clearly expressed his waiver.
  • Emergency Situations – if the patient is on the verge of death or serious harm and the patient lacks decision-making capacity, and there is no appropriate substitute decision-maker.
  • Therapeutic Privilege – The doctor has reason to believes that by giving a particular information to a patient would cause them serious physical or mental harm.
In these events, the doctor cannot have been considered negligent in their duty of care to the patient as they can be justified to have been protecting their patient from harm.

 

Unless all these three (3) stages have been fulfilled, a doctor cannot be deemed to have been medically negligent

Conclusion

Ideally, the new method of test for medical negligence will give rise to a more collaborative relationship between doctors and patients. Patients would be made aware of the risks and options that are available to them, and the doctors will be more thoughtful about how and what they communicate to the patients and their loved ones.

How Can We Help You

That being said, malpractice or negligence personal injury are delicate issues and may be technical and complex for you to fully understand. Worry not, at I.R.B. Law; we have experienced lawyers who are well versed in Singapore Medical Negligence.

 

So contact us to receive advice on how your medical negligence can be best handled so that you can focus on getting back up on your feet. Our first consultation is usually free as we wish to focus on you and not on your wallet. So don’t hesitate and reach us at hello@irblaw.com.sg or call us at 6298 2537 and schedule an appointment with one of our experienced lawyers today.
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