SINGAPORE MEDICAL ASSOCIATION SEMINAR ON BIOETHICS

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SINGAPORE MEDICAL ASSOCIATION SEMINAR ON
BIOETHICS HEALTH LAW Medical Negligence (I)
Duty of Care 12 April 2001Allen Gledhill
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OUTLINE

• General Duty of Care
• Duty to Inform
• Duty to Third Parties
• Duty of Care when Off-Duty
• Duty to Refer

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GENERAL DUTY OF CARE
Pang Koi Fa v Lim Djoe Phing 1993 3 SLR 317,
per Amarjeet Singh JC, applying Caparo Industries
Plc v Dickman Ors 1990 1 AER 568 the
requirements are now three-fold, first, the test
of reasonable foreseeability must be satisfied,
second, there must exist a relationship of
proximity as between victim and tortfeasor and
third, the attachment of liability must be
considered just and reasonable...
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• Doctor/patient relationship certainly gives rise
  to duty of care
• - to treat
• - to inform
• Doctor/third party?
• Doctor off duty?
• Doctor who cannot do the job?

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DOCTORS DUTY TO INFORM

• Failure to inform amounts to negligence. May
  also amount to battery.
• Australia (Rogers v Whitaker 1992 175 CLR 479)
  Canada (Reibl v Hughes 1980 114 DLR (3d) 1)
  USA (Canterbury v Spence 464 F 2nd 772 1972
  USCA, District of Columbia) Malaysia (Kamalam v
  Eastern Plantation Agency 1996 4 MLJ 674) all
  focus on the patients right to know, and the
  extent of the duty is fixed by the Court.

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Principle applied in Rogers v Whitaker is as
follows- Except in the case of an emergency or
where disclosure would prove damaging to the
patient, a medical practitioner has a duty to
warn the patient of a material risk inherent in
proposed treatment. A risk is material if, in
the circumstances of the particular case, a
reasonable person in the patients position, if
warned of the risk, would be likely to attach
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. The fact
that a body of reputable medical practitioners
would have given the same advice as the medical
practitioner gave does not preclude a finding of
negligence. Generally speaking, whether the
patient has been given all the relevant
information to choose between undergoing and not
undergoing the proposed treatment is not a
question the answer to which depends upon medical
standards or practice.
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• In England, the leading authority is Sidaway v
  Bethlehem Royal Hospital Governors 1985 1 AC
  871 643. Applied Bolam v Friern Hospital
  Management Committee 1985 1 WLR 582. Per Lord
  Diplock (at 895)-
• The only effect that mention of risks can have
  on the patients mind, if it has any at all can
  be in the direction of deterring the patient from
  undergoing the treatment which in the expert
  opinion of the doctor it is in the patients
  interest to undergo. To decide what risks the
  existence of which a patient should be
  voluntarily warned and the terms in which such
  warning, if any, should be given, having regard
  to the effect that the warning may have, is as
  much an exercise of professional skill and
  judgment as any other part of the doctors
  comprehensive 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.

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• Bolam and Sidaway have been applied in the
  Singapore High Court
• - Jason Carlos Francisco v Dr LM Thng Anor
  (Suit No 573 of 1998) unreported and
• - Dennis Matthew Harte v Dr Tan Hun Hoe and
  Gleneagles Hospital Ltd (Suit No 1691 of 1999),
  unreported.
• But not in the specific context of duty to
  inform.
• In Sidaway, the House of Lords rejected the
  argument that different tests should be applied
  to different aspects of doctor/patient care.

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• Singapore Courts may take different approach when
  the issue of duty to inform comes up.
• Preferable approach is Sidaway - any body of
  professionals that declines to disclose
  information because of fear of liability alone
  cannot be respectable or reasonable. Such
  evidence would be rejected - using the Bolam
  test.

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DUTY TO THIRD PARTIES

• when patient is the third party
• nervous shock

• Sometimes, the patient is the Third Party
• - when examination conducted at the request of
  employer/insurer
• - social workers
• Sub nom (Minors) v Bedfordshire County Council
  1995 2 WLR 152
• House of Lords decided that a psychiatrist
  appointed by Social Services authority to
  advise the authority on whether the child had
  been a victim of sexual abuse and the likely
  perpetrator did not owe a duty of care to the
  child, because the imposition of such duty would
  not be just and reasonable under the Caparo
  test.

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• Sometimes, observing the deteriorating condition
  of a close friend or relative may lead to
  psychiatric illness
• Pang Koi Fa v Lim Djoe Phing 1993 3 SLR 317
• Misdiagnosis by neurosurgeon. Operation to
  remove tumour of pituitary gland. Healthy
  tissue removed.
• Patient began to leak cerebro-spinal fluid
  through her nose and developed meningitis.
• Ultimately passed away.
• Mother witnessed deterioration.

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• Doctor found liable to mother for negligent
  infliction of psychiatric illness and ordered to
  pay 30,000 damages.
• This kind of liability difficult to avoid.
  Cannot prevent close relatives from observing
  deterioration.
• Counselling and spending enough time keeping
  family members updated why deterioration is
  taking place is preventive of a complaint of
  negligence

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• In insurance cases, the doctor is under a
  duty not to damage the applicant in the course
  of examination but beyond this his duties are
  owed to the insurance company and not to the
  applicant.

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DUTY OF CARE WHEN OFF DUTY

• Essence of the duty is voluntary assumption of
  responsibility.
• Makes no difference if care is given
  gratuitously.
• Rv Bateman 1925 LTR 730 at 732, per Lord
  Hewart, CJ-
• If a person holds himself out as possessing
  special skill and knowledge and he is consulted,
  as possessing such skill and knowledge, by or on
  behalf of a patient, he owes a duty to the
  patient to exercise due caution in undertaking
  the treatment.
• If he accepts the responsibility and undertakes
  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 is it necessary that the service be rendered
• for reward.

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• Once responsibility is accepted, usual rules
  apply. Reasonable care must be taken.
• Everett v Griffith 1990 3 KB 163 at 213, per
  Atkin CJ-
• the duty would apply to a doctor treating a
  member of the household of the other party to
  the contract, as it would, in my judgment, apply
  to a doctor acting gratuitously in a public
  institution, or in the case of emergency in a
  street accident and its existence is
  independent of the volition of the patient, for
  it would apply though the patient were
  unconscious or incapable of exercising a
  conscious volition.

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• In emergencies, reasonable care will take
  into account circumstances in which doctor must
  operate.
• When is there a voluntary acceptance of
  responsibility?
• Only when the circumstances are such as to
  indicate a genuine undertaking of
  responsibility for the patients medical
  care.
• corridor consultations
• take a Panadol and sleep on it
• These would generally not qualify.

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• Doctor not obliged to keep clinic open to treat
  would - be patients.
• Barnett v Chelsea and Kensington Hospital
  Management Committee 1969 QBD 428 at 435
• But, once there is a doctor/patient
  relationship, there is a duty to attend, even
  if attendance is required after hours.

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DUTY TO REFER

• Lily Pai v Dr Henry Yeo Peng Hock
• (reported in Straits Times, 29 March 2001).
• Doctor told patient she had to go to SGH
• AE Unit, but Court found that he did not
• tell her to go immediately.
• Patient did not go to the AE Unit and
• became blind in her left eye.

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• Court found doctor liable.
• Case suggests that doctors must emphasise
  need for urgency and possible consequences.
• Saying that the patient must go to AE does
  not suggest sufficient urgency.

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• CONCLUSION
• Rules as to general duty of care are the same
  for doctors as for others.
• Uncertainty about duty to inform. English v
  Australian position? English position preferable.
• There is a duty to 3rd parties in some cases.
• Duty depends on voluntary assumption of
  responsibility.
• Duty extends to making references to others and
  to emphasising urgency.