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Medical Negligence

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Medical Negligence Powered By Docstoc
					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
                                            1
Informed Consent
   Things can go wrong in
    surgical procedure and bad
    outcome and adverse
    results may result due to
    human error, negligent or
    not.

                             2
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

                                        3
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

                                 5
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.
                                        7
Informed Consent
   Any medical treatment
    given without consent is an
    action for trespass where
    damages are payable




                              8
Inforrmed Consent
   The consent form is for patient
    to acknowledge that the nature
    & purpose of treatment has
    been

         - fully explained
         - understood and
         - consented to.
                                  9
Informed Consent
   Pt never consented to
    doctor’s negligence but
    only to risks &
    complications involved



                              10
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
                                    11
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

                                 12
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

                                    13
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
                                   14
Checklist
   special precautions required post-
    operatively
   benefits of treatment
   limitations of treatment
   success rate of operation
   what happens on admission
   how pt will feel after treatment


                                         15
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

                                       16
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

                                      17
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

                                  18
Informed Consent
   Once pt ask “How serious?”
    the operation is, doctor should
    discuss

       - the relative conveniences
       - expertise
       - possible risks.
                                  19
Informed Consent
   To say less is misleading &
    inadequate

   Good communication is
    stressed and is highly
    desirable between doctor-pt
    relationship

                                  20
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

                                   21
Bolitho case
   Failure of hospital doctor to
    examine & intubate child
    experiencing respiratory
    distress, leading to brain
    damage through asphyxia




                                    22
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

                                    23
Bolam Test
   A doctor is not negligent if what he
    has done is accepted current
    practice by a responsible body of
    medical opinion




                                       24
Bolitho case
   House of Lords case

   The court must be satisfied
    that the body of opinion is
    logical

   Clearly this rejection of Bolam
    test
                                      25
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

                                     26
Kamalam v Eastern
Planttaion Agency
(1996)
   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

                                    27
Informed Consent
   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

                                      28
Singapore cases
   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]

                                     29
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                            30
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

                                31
Medical Ethics
   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

                                      32
Medical Ethics
   Doctors must abide by the high
    professional standards

   Hippocratic Oath is a moral code
    concerning beneficence & non-
    maleficence ie. the pillars of
    medical ethics – do good, do no
    harm

                                       33
Medical Ethics
   Declaration of Geneva

   Singapore Physician
    Pledge



                            34
Principles of Biomedical
Ethics
1. Autonomy
    - decision-making
    - respect for individuals
    - patient’s rights

2. Beneficence
    Do Good


                                35
Medical Ethics
3. Non-Maleficence
      Do No Harm

4. Justice
     equitable distribution of
     benefits & burdens
                                 36
Medical Ethics
5. Fidelity
      - truth-telling
      - confidentiality

6. Veracity
      - honesty
                          37
Medical Ethics
   Medical ethics must lead medical
    law

   A good medical law is an ethical
    law

   Doctor must practice sound
    medical ethics

                                       38
Complaints & Complaints
     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)
                           40
NEGLIGENCE
     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
                                      41
Negligence
   Careful doctor but still
    negligent

   Things can go wrong –
      1. Diagnosis
      2. Treatment
      3. Information Disclosure
                                  42
Standard of Medical Care
      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   43
   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                44
   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
                                     45
   Medical Negligence is a Civil
    Wrong  TORT

   Tort = Wrongful Act




                                    46
           Criminal
Wrongful   liability
                       Contractual
  Act
           Civil       liable
           liability
                       Tortiously
                       liable


                                     47
            ARBITRATION

MEDIATION

            LITIGATION




                          48
49
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.”
                                                                            52
   Penal Code

    section 93 - recognises that
    patient got right to know, even
    if communication may cause
    death by shock




                                      53
          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
                                               54

				
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