Common Issues that can Turn into Clinical Negligence

Common Issues that can Turn into Clinical Negligence SARA LAU DER YIN SKRINE MEDICO-LEGAL CONFERENCE 2017 WHY DO COMMON ISSUES THAT CAN TURN INTO MEDICAL NEGLIGENCE ARISE? WHY DO THESE ISSUES CONTINUE TO PLAGUE THE DOCTOR S DUTY? WHAT PERPETUATES THESE COMMON ISSUES IN A MEDICAL NEGLIGENCE CONTEXT? 1

What is Negligence?! Failure to exercise proper care! Failure to render correct treatment! Wrong diagnosis! Failure to investigate thoroughly! Lack of mindfulness! Lacking in professional standards! Patient being worse off as a result of your professional service What is Medical Negligence? Medical Negligence Duty of Care Standard of Care CAUSATION Damage! - Consent Advice on Risks! - Diagnosis! - Treatment 2

Negligence Duty of Care What is the Duty of Care? Negligence Duty of Care Neighbour Proximity Closely and directly affected in my act Forseeability Ought to reasonably have them in contemplation 3

Medical Negligence Duty of Care Neigbour Principle in a Medical Negligence Context! Your patient is your legal neighbour! In a medical negligence context, your neighbourly responsibilities only arises from the doctor-patient relationship! Duty of Care exists if the doctor hold themselves out as having special skills and knowledge and the patients consult them as a result of this Medical Negligence Duty of Care Stems from the Doctor-Patient Relationship! Foo Fio Na v Dr Soo Fook Mun & Anor [2007] 1 MLJ 593 (Federal Court) At common law, the duty of care owed by a doctor arises out of his relationship with his patient. Without the doctor and patient relationship, there is no duty on the part of the doctor to diagnose, advise and treat his patient. per Siti Norma Yaakob FCJ 4

Medical Negligence Duty of Care How does the Duty of Care Arise in Doctor- Patient Relationship?! R v Bateman (1925) 94 LBKB 79 If a person holds himself out as possessing special skill and knowledge and he is consulted, as possessing such special skill and knowledge by or on behalf of a patient, he owes a duty of care to use due caution in undertaking the treatment and the patient submits to his direction and treatment accordingly; he owes a duty to the patient to use diligence, care, knowledge, skill and caution in administering the treatment. No contractual relation is necessary, nor it is necessary that the service be rendered for reward. Medical Negligence Duty of Care Case Study! The patient, a young boy, was brought to a polyclinic and the parents of the patient implored the 1 st Defendant to treat the child who was unconscious, had a high temperature and had no control of his limbs.! The 1 st Defendant, who was only an attachment medical student at the time informed the parents that the doctor was not in and told the parents to send the patient to the hospital but the parents of the patient begged the 1 st Defendant to help.! The 1 st Defendant took pity on the parents and took the patient in for treatment. There was a language barrier and the parents of the patient could not explain to the 1 st Defendant if the patient had any specific allergies to medication. 1 st Defendant administered Voltaren and told the parents of the patient to bring the patient to a hospital.! Upon arrival at the hospital, the patient had died. The cause of death was myocarditis brought about by acute septicaemic shock from likely, a typhoid infection. 5

DOES THE 1 ST DEFENDANT OWE THE PATIENT A DUTY OF CARE? Medical Negligence Duty of Care Case Study! This was a real case: Ang Yew Meng & Anor v Dr. Sashikannan Arnasalam & Ors [2012] 3 CLJ 937! Court held that a duty of care had arisen:- once the 1 st Defendant had relented and undertook the treatment of the child, he had taken control of the situation and accepted responsibility. He therefore, in my opinion, must be regarded as entering voluntarily into a relationship of doctor and patient and hence, as assuming a duty to act. As that relationship had arisen, the 1 st Defendant owed a duty to the child and his parents to use due diligence, care, knowledge, skill and caution in administering treatment. 6

Medical Negligence Duty of Care Case Study! Key takeaways on Duty of Care:- " There was no legal obligation on the 1 st Defendant to embark upon the task of treating the child. He was not obliged to do so and could have turned away the mother at the door no legal Good Samaritan requirement. " Since he came to the aid of the child, he will be liable for failure to use reasonable care.! The 1st Defendant was not yet a registered doctor but had at the time passed his MBBS and was working with a government hospital during his internship period while awaiting provisional registration.! The 1 st Defendant was not held liable in negligence as the Court found that he did not fall below the standard of care required of him. What is Clinical Negligence? Medical Negligence Duty of Care Standard of Care CAUSATION Damage! - Consent Advice on Risks! - Diagnosis - Treatment 7

Medical Negligence Standard of Care Falling below the Applicable Standard of Care! Foo Fio Na v Dr Soo Fook Mun & Anor [2007] 1 MLJ 593 (Federal Court) However, in the exercise of his duty of care, the doctor is expected to maintain a standard which under the common law is achieved by the standard satisfied by the hypothetical reasonable man. 8

Medical Negligence Standard of Care What is the Applicable Standard of Care? Assessment of the Standard of Care English Position Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 versus Australian Position Rogers v Whitaker [1992] 175 CLR 479 Medical Negligence Standard of Care The Bolam Test! Facts: # The patient, John Hector Bolam, consented to undergo electroconvulsive therapy but was not warned of the risk of fracture. In the course of treatment, both Bolam s hip joints were dislocated with fracture of the pelvis on each side. # Bolam claimed damages for his injury against the management of hospital, and claimed that the hospital was vicariously liable in permitting the doctor to negligently administer electroconvulsive therapy without administering a relaxant drug or providing a manual restraint, and failing to warn him of the risk! Bolam alleged that the doctor fell below the standard of care in respect of treatment and advice.! At trial, medical evidence showed that the medical profession had divergent views on the desirability of using relaxant drugs and restraining the patient s body by manual control. Risk of fracture was found to be 1 in 10,000. DID THE DOCTOR FALL BELOW THE REQUIRED STANDARD OF CARE? 9

Medical Negligence Standard of Care The Bolam Test! The English Court said NO. The doctor did not fall below the required standard of care as there was a body of doctor who endorsed the approach taken by the doctor in that case.! The Court found that the standard of medical negligence is dictated by the medical fraternity: But where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not is not the test on top of the Clapham omnibus, because he has got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that skill. per McNair J. Medical Negligence Standard of Care the Bolam Test! While the law imposed a duty of care, the standard of care that is owed by a doctor to this patient is left to the standard dictated by the medical fraternity itself:- A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion which takes a contrary view. per McNair J.! Applies to all areas of a doctor s duty advice, treatment, diagnosis BOLAM TEST: WOULD YOUR ACTIONS BE JUSTIFIED BY ANOTHER DOCTOR SKILLED IN THE SAME EXPERTISE? 10

Medical Negligence Standard of Care The Rogers Test! Facts: # Mrs. Whitaker, the patient, only had one good eye. She was advised that an operation on the bad eye would improve its appearance and probably restore significant sight. # She underwent surgery which resulted in her losing sight completely of one good eye, due to a condition known as sympathetic ophthalmia. The doctor had failed to advise Mrs. Whitaker of this risk.! Whitaker alleged that the doctor fell below the standard of care in relation to advice.! The risk of sympathetic ophthalmalia occurring was 1 in 14,000 cases. DID THE DOCTOR FALL BELOW THE REQUIRED STANDARD OF CARE? Medical Negligence Standard of Care The Rogers Test! The High Court of Australia said YES. The Court considered that the factors to determine whether there was a breach of duty varies according to whether it involves diagnosis, treatment or provision of information or advice.! The Court further found that in the case of diagnosis and treatment, the patient s involvement is limited to narration of symptoms and history; it is the medical practitioner that provides treatment in accordance with his skill.! However, in the case of consent after being appraised of risks and advice, no special medical skill is involved. 11

Medical Negligence Standard of Care The Rogers Test! The High Court of Australia stated:- The law should recognize that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient s position, if warned of the risk, would be likely to attached significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. This duty is subject to therapeutic privilege.! Departs from the Bolam test in terms of medical advice! Test of materiality the Court is now the decider of the standard rather than the medical profession ROGERS TEST: IS THE RISK MATERIAL TO THE PATIENT? Medical Negligence Standard of Care The Rogers Test! Rogers test was first developed in a consent/advice case but now applies throughout all areas of a doctor s duty! Field of treatment: Naxakis v West General Hospital [1999] 197 CLR 269 12

Medical Negligence Standard of Care The Malaysian Position BOLAM TEST OR ROGERS TEST? Medical Negligence Standard of Care The Malaysian Position: Preference for Bolam! Before the advent of the Foo Fio Na case, the Bolam test was the preferred test in the area of medical negligence. There was a question of how far the Bolam test applied to the different areas of medical practice. 13

Medical Negligence Standard of Care The Malaysian Position: Departure from Bolam! Foo Fio Na was a landmark case that departed from the Bolam test. The Foo Fio Na case involved the failure to inform the patient of the risk of paralysis that may arise from the operation and other failings in administering treatment (advice and treatment)! Court held:- the Bolam test has no relevance to the duty and standard of care of a medical practitioner in providing advice to a patient on the inherent and material risks of the proposed treatment. The practitioner is duty bound by law to inform his patient who is capable of understanding and appreciating such information of the risks involved in any proposed treatment so as to enable the patient to make an election of whether to proceed with the proposed treatment with knowledge of the risks involved or decline to be subjected to such treatment. Medical Negligence Standard of Care The Malaysian Position! However, because Foo Fio Na was a case that also involved negligent treatment, there was a question as to whether the Bolam test ceases to be relevant in Malaysia law.! This position has now been newly settled by the Federal Court in Zulhasnimar bte Hasan Basri & 1 Or v Dr. Kuppu Velumani P & 2 Ors Civil Appeal No. 02(f)-10-02/2015(W). 14

Medical Negligence Standard of Care The Malaysian Position: A Hybrid The test propounded by the Australian Case in Rogers v Whitaker and followed by this Court in Foo Fio Na in regard to the standard of care in medical negligence is restricted only to the duty to advise of risks associated with any proposed treatment and does not extend to diagnosis or treatment. With regard to the standard care for diagnosis or treatment, the Bolam test still applies Medical Negligence Standard of Care The Malaysian Position: A Hybrid BOLAM ROGERS Diagnosis Treatment Duty of Advise of Risks - Consent 15

The Perpetuation of Common Issues Leading to Medical Negligence! Common Standard of Care does not exist! Different Standards applicable for different areas of the doctor s responsibility! Common Issues continue to exist because of a failure to understand and adhere to the standard of care required in respect of each respective area of the doctor s duty will lead to a perpetuation in common issues. THANK YOU SARA LAU sara.lau@skrine.com +603-20813919 SKRINE 16