Medical Negligence: Duty of Care, Lecture notes of English

Download Medical Negligence: Duty of Care and more Lecture notes English in PDF only on Docsity! 4 Medical Negligence: Duty of Care E t h i c s & P r o f e s s i o n a l i s m By Suresh Nair Editor’s Note: This article is only an abridged version. The complete article is available online at http:// www.sma.org.sg/sma_news/newscurrent.html The steep rise in medical litigation in recent years has left many medical practitioners feeling besieged and has raised the specter of the practise of defensive medicine. Against this background it has become essential that doctors be informed about the nature and extent of the duty that they owe to their patients and other parties. THE GENERAL DUTY OF CARE The rules as to the duty of care in medical negligence cases are the same as the rules applicable to all other kinds of negligence. Before it can be said that a party is under a duty of care to prevent the occurrence of any damage, 3 requirements must be met: (1) The damage in question must be a reasonably foreseeable consequence of the negligence; (2) There must be a relationship of proximity between victim and tortfeasor; and (3) The imposition of liability must in all the circumstances be just and convenient. In most medical cases, there is no difficulty in finding a duty of care. For instance, a doctor certainly owes a duty of care to his patient. But a doctor sometimes owes duties to third parties as well, and questions sometimes arise in relation to a doctor’s duty after hours. In general, it may be said that there are 3 limbs to a doctor’s duty of care - to diagnose, treat and advise. THE DUTY TO ADVISE OF RISKS The nature of the duty to advise of risks has been explained variously. In the American decision of Canterbury v Spence(1), the duty was based on a doctrine recognising a patient’s “right to know” of material risks(2). The Canadian courts in the case of Riebl v Hughes(3) appeared broadly to accept the doctrine outlined Canterbury v Spence. The doctrine has however not been accepted in other courts of the Common- wealth, but the courts of Australia(4) and Malaysia(5) stand with the courts of Canada(6) and the USA(7) in asserting the primacy of the courts in deciding what risks should be disclosed by a medical practitioner to his patient. The real issue, on the view taken in these jurisdictions, is whether a patient has been told of all risks to which he may attach significance(8). This approach appears to be open to the criticism that it does not sufficiently recognise the medical judgment involved in deciding whether or not to disclose a particular risk to a patient. In the case of Sidaway v Bethlehem Royal Hospital Governors(9), Lord Diplock pointed out that the disclosure of risks can only have the effect of deterring a patient from accepting treatment, and that, therefore, deciding what risks ought to be disclosed in particular circumstances “is as much an exercise of professional skill and judgment as any other part of the doctor’s com- prehensive duty of care to the individual patient, and expert medical evidence in this matter should be treated in just the same way. The Bolam test should be applied.” The “Bolam test” is of course a reference to the test for standard of care set down by the House of Lords in the case of Bolam v Friern Hospital Management Committee(10). It has been formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice(11). The result is that, by and large, applying English law, a doctor is only obliged to advise of risks to the extent that his brethren (or a responsible part of it) would. There are, however, caveats to this rule. First, it was recognised in Sidaway’s case that, while a doctor may decline to voluntarily disclose all conceivable risks, he cannot decline to do so when he is specifically asked about them by his patient(12). Second, where a doctor fails to disclose to a patient of a substantial risk of grave adverse consequences, then the Court would be at liberty to find that the doctor breached his duty to advise, even if no expert medical evidence is led to condemn the non-disclosure(13). However, the failure to lead evidence to condemn non-disclosure may of itself indicate that no such risk exists. For instance, in the case of Denis Mathew Harte v Dr Tan Hun Hoe & Singapore General Hospital Ltd(14), the Singapore High Court held that the absence of expert evidence condemning a certain non-disclosure indicated that, probably, the majority of practitioners in the relevant field did not think that disclosure was necessary. Third, the Court may reject expert medical evidence if it cannot be demonstrated to the Court’s satisfaction that the body of opinion relied upon is reasonable or responsible(15). Finally, where high-risk measures are to be undertaken, the onus to advise appears to be higher. In such cases, when circumstances permit, the doctor must give “adequate and unambiguous information, explanation and warning to the patient in the presence of those close to the patient and give the patient ample opportunity to make the decision and give his informed consent in response to the advice”(16). The Singapore High Court has adopted the English position on the issue of the duty to advise of risks(17). As matters stand, therefore, under Singapore law, the extent of the duty to advise of risk is largely a matter for medical judgment. THE DUTY TO THIRD PARTIES Doctors may sometimes fall under a duty of care to parties other than their patients. There are 2 principal circumstances when this may happen: first, in “nervous shock” cases; and second, in cases where the doctor’s services are commissioned not by the “patient”, but by another party, for a specific purpose. The Singapore case of Pang Koi Fah v Lim Djoe Phing(18) involved a claim for “nervous shock” to a third party arising out of medical negligence. Suresh Nair is a partner in the Litigation & Dispute Resolution department of Allen & Gledhill, and a member of its medical negligence practice group. He has been involved in medical cases of various kinds, including cases involving radiotherapy, termination of pregnancies, plastic surgery and sudden deaths. His other areas of practice include insolvency and commercial litigation and arbitration. Page 5