Transcript Medical Negligence - NUS Yong Loo Lin School of Medicine

Informed Consent
Presented By
Associate Professor Catherine Tay
National University of Singapore (NUS)
Faculty of Business Administration
Bachelor of Laws (Hons), London
Master of Laws, London
Barrister-at-Law (England)
Advocate & Solicitor, Singapore
Author of ‘Medical Negligence’ Book
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Informed Consent

Things can go wrong in
surgical procedure and bad
outcome and adverse
results may result due to
human error, negligent or
not.
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Informed Consent

You did not inform me of the risk
which became a reality. I would
not have consented to the
operation if I had known of the
risks, so you have
- caused my injury and
- failed in your medical duty
of care to inform
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Inforrmed Consent

Is there sufficient
information to patient’s
consent?
4
Inforrmed Consent


Consent is an ethical
principle
Medical treatment can only
be performed with consent
of competent pt
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Informed Consent

Giving treatment without
consent is failure to respect
patient’s autonomy
violating an individual’s
right of self-determination
6
Informed Consent

Consent must be freely given with
patient understanding
- the nature
- risks
- benefits
- alternatives
- limitations
of proposed treatment.
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Informed Consent

Any medical treatment
given without consent is an
action for trespass where
damages are payable
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Inforrmed Consent

The consent form is for patient
to acknowledge that the nature
& purpose of treatment has
been
- fully explained
- understood and
- consented to.
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Informed Consent

Pt never consented to
doctor’s negligence but
only to risks &
complications involved
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Inforrmed Consent

In an emergency, where pt is
unable to consent eg
unconsciousness, a doctor is
justified to carry out
emergency treatment based
on
- doctrine of necessity or
- implied consent
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Informed Consent

Implied Consent
It is presumed that pt
would have consented to
treatment as it was
necessary to save his life
or from serious harm
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Doctor’s Legal Duty to
Disclose information


What is the level or standard
of disclosure to be expected in
medical law?
A pt can only give real consent
to treatment if he has sufficient
information to make a decision
for an informed consent
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Checklist - Informed
Consent







name of operation
nature of proposed treatment
what the operation involves
other treatment options or
alternatives
potential complications
risks of operation
risk of no treatment
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Checklist



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special precautions required postoperatively
benefits of treatment
limitations of treatment
success rate of operation
what happens on admission
how pt will feel after treatment
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Informed Consent



Information include warning
Warn of any real risk that treatment
may be ineffective
Alternative treatments should be
told esp. if got choice between
surgical & medical procedures
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Informed Consent


The fact that pt asked
questions showing concern
about the risk would make
doctor aware that pt does
attach significance to the risk
A lot depends on pt’s way of
questioning
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Rogers v Whittaker
(1992)


A 1:14,000 of blindness turned
into a risk which it was found
to be negligent not to disclose
A risk, even if it is a mere
possibility, should be regarded
as ‘material’ if its occurrence
causes serious consequences
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Informed Consent

Once pt ask “How serious?”
the operation is, doctor should
discuss
- the relative conveniences
- expertise
- possible risks.
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Informed Consent


To say less is misleading &
inadequate
Good communication is
stressed and is highly
desirable between doctor-pt
relationship
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Medical Negligence


Failure by doctor to disclose
risks of treatment can result in
action for negligence
The test which medical
negligence is assessed is
Bolam test , now modified by
Bolitho case
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Bolitho case

Failure of hospital doctor to
examine & intubate child
experiencing respiratory
distress, leading to brain
damage through asphyxia
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Bolitho case (1997)

Pt had expert evidence that a
reasonably competent doctor
would have intubated in those
circumstance
- Doctor had own expert witnesses
saying that non-intubation was
clinically justifiable response
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Bolam Test

A doctor is not negligent if what he
has done is accepted current
practice by a responsible body of
medical opinion
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Bolitho case



House of Lords case
The court must be satisfied
that the body of opinion is
logical
Clearly this rejection of Bolam
test
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Bolitho case


It is now a matter for court &
not medical opinion to decide
standard of professional care
Bolitho case represented a
significant nail on Bolam’s
coffin
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Kamalam v Eastern
Planttaion Agency
(1996)

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Malaysian case – where Bolam
test not folllowed
A Malaysian judge can now decide
on his own disregarding expert
medical evidence on the
sufficiency of consent – informed
consent
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Informed Consent

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Medical opinions are still
required to assist the court in
its deliberation
Bolam test has been
challenged & rejected in
America, Canada, Australia,
South Africa & Malaysia
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Singapore cases
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Dennis Matthew Harte v Dr Tan
Hun Hoe & Gleneagles Hospital
Ltd [1999]
Gumapathy Muniandy v Dr James
Khoo & 2 others – July 2001
Pai Lily v Yeo Peng Hock Henry
[2000]
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Informed Consent

Highly desirable for doctor to
record in his medical notes
that
- risks and alternatives were
disclosed &
- understood by pts,
apart from pt signing consent
form
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Medical Ethics

It is no harm to disclose all
‘material risks’ &
information to pts as they
have a right to do what
they want with their own
bodies
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Medical Ethics

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Pts could choose to do nothing
after being informed of
options/alternatives&
consequences of no treatment
This is respecting pt’s autonomy or
self-determination in biomedical
ethics
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Medical Ethics


Doctors must abide by the high
professional standards
Hippocratic Oath is a moral code
concerning beneficence & nonmaleficence ie. the pillars of
medical ethics – do good, do no
harm
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Medical Ethics


Declaration of Geneva
Singapore Physician
Pledge
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Principles of Biomedical
Ethics
1. Autonomy
- decision-making
- respect for individuals
- patient’s rights
2. Beneficence
Do Good
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Medical Ethics
3. Non-Maleficence
Do No Harm
4. Justice
equitable distribution of
benefits & burdens
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Medical Ethics
5. Fidelity
- truth-telling
- confidentiality
6. Veracity
- honesty
37
Medical Ethics

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Medical ethics must lead medical
law
A good medical law is an ethical
law
Doctor must practice sound
medical ethics
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Complaints & Complaints

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Doctors who fail to establish
relationship with patients will
endanger trust & confidence
Doctor who takes time to
explain what and why he
propose to do & how much it
cost are less likely to be
subject of complaints
39
Proving Medical
Negligence
1. Duty of Care
2. Standard of Medical
Care
3. Causation
4. Remoteness (ie suffer
damage)
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NEGLIGENCE


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Is failure to exercise
reasonable care and skill, or
Omission to do something
which a reasonable man
would do, or
Something which a
reasonable man would not do
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Negligence

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Careful doctor but still
negligent
Things can go wrong –
1. Diagnosis
2. Treatment
3. Information Disclosure
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Standard of Medical Care

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Careful doctor but still
Negligent
Keeping abreast with latest
developments and
technology & incorporate
them in his practice
Not expected to read every
article in medical journals
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

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Doctor judged by standard or
awareness and sophistication
to be expected of a doctor in
his sort of profession
All doctors not expected to
have level of awareness
available to a professor
To be judged on what is to be
expected of doctor/dentist in
regular practice
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
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If GP fail to refer patient to
consultant when reasonable
GP would, GP is negligent
No allowance made for
inexperience and age
60 year old GP in private
practice, must meet same
standard of alertness as 30
year GP
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
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Medical Negligence is a Civil
Wrong  TORT
Tort = Wrongful Act
46
Wrongful
Act
Criminal
liability
Civil
liability
Contractual
liable
Tortiously
liable
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ARBITRATION
MEDIATION
LITIGATION
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Medical errors
As to errors of clinical judgement the House of Lords in an important
medical negligence case of Whitehouse V Jordan (1981) had this to
say:
“… Merely to describe something as an error of judgement tells
nothing about whether it is negligent or not. The true position is
that an error of judgement may, or may not, be negligent; it
depends on the nature of the error. If it is one that would not have
been made by a reasonably competent professional man
professing to have the standard and type of skill that the
defendant held himself out as having, and acting with ordinary
care, then it is negligent. If, on the other hand, it is an error that
such a man, acting with ordinary care, might have made, then it is
not negligent.”
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
Penal Code
section 93 - recognises that
patient got right to know, even
if communication may cause
death by shock
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END OF SEMINAR
THANK YOU
Associate Professor Catherine Tay
National University of Singapore
Dept of Business Policy
Email: fbatayc @ leonis . nus . edu . sg
Website : www . catherinetay . com . sg
Tel : 4695704 or 96951656
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