Medical negligence Law (Problem Solving Answer)

MD. ZUBAIR KASEM KHANMD. ZUBAIR KASEM KHANG 1110969G 1110969MASTER OF COMPARATIVE LAWS MASTER OF COMPARATIVE LAWS

MEDICAL NEGLIGENCE LAWMEDICAL NEGLIGENCE LAW(LAW 6714)(LAW 6714)QUESTION 2QUESTION 2

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FACTS OF THE CASE

LEGAL ISSUES

APPLYING THE CASE

DECIDED CASES: JUDGMENT

CONCLUSION

OUTLINES

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Facts Of The CaseFacts Of The Case

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Continuing…Continuing…

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Therefore, based on the current facts of the case, the following things need to be considered which are-

Duty of Care

Duty to treat.

Duty to Diagnose.

Duty to Warn.

Breach of Duty of Care. Reasonable Prudent Patient Test. Reasonable Prudent Doctor Test.

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Duty of Care…Duty of Care…

“… A duty to use care toward others that would be exercised by an

ordinarily reasonable and prudent person in order to protect them from

unnecessary risk of harm…”

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1st Issue:1st Issue: Whether there is a duty of care Whether there is a duty of care between Dr Zam and Miss Linbetween Dr Zam and Miss Lin

The authenticity of creating responsibility of duty of care of a doctor to his patients had been witnessed by the milestone case of R v Bateman [1925] 94 L.J.K.B 791, where Lord Hewart C.J. held that-

“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 use 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 administrating the treatment… 7


Based on the R v Bateman Case, the following requirements are necessary to create Doctor-Patient relationship which reads-

possessing special skill and knowledge;

he is consulted from Patient’s side;

accepts the responsibility;

patient submits to his direction;

APPLYING TO OUR CASEAPPLYING TO OUR CASE: After Miss Lin consults with Dr. Zam, undergo the see weed wrap programme and take several drugs as it has been recommended by Dr. Zam. Hence, established a doctor-patient relationship between Dr. Zam and Miss Lin and Thus Dr. Zam owed a duty of care to Miss Lin.

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2nd Issue: 2nd Issue: Whether Dr. Zam has breached Whether Dr. Zam has breached his duty of care to Miss Lin particularly his duty of care to Miss Lin particularly

duty to warn…duty to warn…The classic statement of understanding ‘Standard of Care’ demanded of a doctor had been standardized by the decision of McNair J. in Bolam vs. Friern Hospital Management Committee [1957] 1 WLR 582, which has got numerous acceptance in medical paradigm. Based on Bolam Case, the following principles outlet to determine doctors liability which are-

1) The doctor must have acted in accordance with “accepted medical practice”; Ref: Whitehouse v Jordan [1981] 1 WLR 246;

2) The accepted practice must be regarded as proper by “a responsible body of medical men” skilled in that art and not by the standard of the man on the Clapham omnibus; Ref: Gold vs. Haringey Health Authority [1988] Q.B. 481.

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However, the unanimous attitude of the court to follow Bolam Principla in medical disputes had been shifted to a new dictum that established first time by the case of Hucks vs Cole [1993] 4 Med LR. Sachs LJ held that-

“… Where the evidence shows that a lacuna in professional practice exists by which risks of grave danger are knowingly taken…the courts must anxiously examine that lacuna…If the court finds…for not taking the precautions…, its function states that it constitutes negligence…”

This dictum of the Hucks case had got recognition and stamped approval by the case of Bolitho vs City & Hackney Health Authority [1997] 4 All ER 771, whereby Lords Browne held that- the Court is not bound to hold Doctor not liable just because a number of medical experts agree with him…and the court has to be satisfied…such opinion has a logical basis.

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A similar decision has also been made by the Federal Court of Malaysia in the Case of Foo Fio Na vs. Dr. Soo Fook Mun & Anor (2007), where the judge opined that-

Bolam principle is no longer applicable for doctor’s duty to disclose risk,

the Doctor is duty bound by law to inform his patient… such information of the risks involved in any proposed treatment… to make an election of whether to proceed with the proposed treatment with knowledge of the risks involved or declined to be subjected to such treatment.

APPLYING TO OUR CASE:APPLYING TO OUR CASE: In the facts of the question, Dr. Zam breach the duty to warn to Miss Lin because he did not warn about the risks of skin rash in which Miss Lin developed severe skin rash causing her skin all over her body to turn bluish black resulting her unable to go for work. 11

3nd Issue: 3nd Issue: Whether Dr. Zam can be liable Whether Dr. Zam can be liable under the reasonable prudent patient test?under the reasonable prudent patient test?The origin of the concept of reasonable prudent patient test can be traced from Canterbury vs. Spence 464 F2d 772 (DC Cir 1972) case whereby the ‘r.p. doctor test’ was rejected and replaced by new principle called r.p. patient test, i.e. the doctor must disclose to the patient all “material risks” inherent in a proposed treatment. This meaning of “material risks” was further clarified by the Australian case of Rogers vs. Whitaker [ 1992] 175 CLR 479 and determined that the standard of care is a matter for judicial opinion and not medical opinion.

Liability under the reasonable prudent patient test depend on the identification of material risks that the courts have taken into consideration the following factors:1. The likelihood and gravity of risk,2. The desire of the patient for information,3. The mental and physical health of the patient,4. The need for the treatment and alternatives available,5. Medical practice at that time,6. The nature of procedure – routine or complex,

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Factor 1:Factor 1: The likelihood and The likelihood and gravity of risks.gravity of risks.

If the risks is remote, it reduces the need for disclosure but there will be greater need of disclosure if the possible consequences are more serious.

A salient illustration can be seen in this regards is Rogers v Whitaker (1992) 175 CLR 479 case. In this case, although the likelihood of risks is remote, occurring only once in approximately 14,000 of such procedures, but the gravity of losing sight in one of the patient’s eye was significantly increased as the patient was blind in the other eye. Therefore, this risk was considered as a material risk and failure of disclosing the consequence of the treatment led doctor liable for negligence. 13

Factor 2:Factor 2: The Desire of patient for The Desire of patient for informationinformation

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E.g. Rogers v Whitaker (1992) – “Ms. Whitaker showed a clear nervousness, asked all the possible complication of the operation and suggested the doctor to cover her good eye in order to protect it”.

In general, there is no requirement for patient to ask specific questions in order for the risks to be material.

Circumstances in which patient asks questions that reveal their personal fear and concerns would alert medical practitioners to the fact that they attach significance to the risks.

Continued..Continued..

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A similar picture of addressing patient’s specific concerns can be illustrated in the case of Chappel v Hart (1998) 156 ALR 517.

In this case, the patient Mrs. Hart claimed that Dr. Chappel knew that she was a principal education officer where the quality of voice was significant vocationally and she had specifically told Dr. Chappel that she “did not want to end up like Neville Wran (who was an ex-Premier of New South Wales with an extremely husky voice)”.


APPLYING TO OUR CASE:APPLYING TO OUR CASE: Thus, in the facts of the present question,

Dr. Zam had the duty to warn to Miss Lin about the material risk of skin rush, associated with the undergoing sea weed wrap program even though, the possibility of it was less than 1% and she did not ask about the risks.

Dr. Zam ought to know that the particular patient would attach significance to the risk and there is no requirement for the patient to ask specific questions in order for the risks to be material.

However, Miss Lin incessantly mentioned to Dr. Zam about her fear in developing allergic reaction to foreign substances.

Therefore, Dr. Zam is liable for negligence due to failure to worn Miss Lin about the risk inherent with the treatment, under the reasonable prudent patient test. 16

Factor 3: Factor 3: The need for the treatment and The need for the treatment and alternatives availablealternatives available

Chester v Afshar [2005] followed closely the principles in Rogers v Whitaker and Chappel v Hart Cases.

Dr Afshar was found liable for not warning Mrs Afshar about the small risks of the nerve root damage inherent in the operation

His negligent failure to warn her of this risk had deprived “her of an opportunity to reflect, consider and/or seek alternative medical or other opinion as to the options which might be open to her.

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APPLYING TO OUR CASE:APPLYING TO OUR CASE: Dr Zam has a duty to inform to Miss Lin about the risks in order to give her choice whether to

consent or refuse the treatment or she can seek other alternatives. Therefore, Dr. Zam is liable under reasonable

prudent patient test.

4rd issue: 4rd issue: Whether the reasonable prudent Whether the reasonable prudent doctor test can be used to determine Dr. doctor test can be used to determine Dr.

Zam’s liability?Zam’s liability?To examine the issue of reasonable prudent doctor test, we have to flash back to the case of Bolam v Friern hospital Management Committee [1957] 1 WLR 582.

In this case, McNair J. formulated that- “…the 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 area… 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 that takes a contrary view…”

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Based on the judgment, two essential elements layout which are:

1. The doctor must have acted in accordance with “accepted medical practice”.

Supporting case: Whitehouse v Jordan [1981] 1 WLR 246.

2. Accepted practice must be current practice.

Supporting case: Roe v Minister of Health & Anor [1954] 2 QB 66.

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APPLYING TO OUR CASE:APPLYING TO OUR CASE: Dr. Zam will not liable because he had acted in accordance with a practice accepted

as proper by a body of medical men who possess similar skills. He recommended Miss Lin such therapies with

reasonable care and skill.

ConclusionConclusion1. Dr. Zam has a duty of care to Miss Lin because she had consulted

with Dr. Zam and Dr. Zam gave her advise to undergo that sea weed wrap program and taking the drug to melt her body fat.

2. Dr. Zam has the duty to warn to Miss Lin all the risks and consequences associated with the said programme.

3. If the reasonable prudent patient test was applied, Dr. Zam will be liable as he had failed to warn all the risks that is inherent with the sea weed wrap program. Three out of six factors in determining material risks in the scope of reasonable prudent patient test related with the facts in the question which are the likelihood and gravity of risk, the desire of the patient for information and the need for the treatment and alternatives available.

4. If the reasonable prudent doctor test was used, Dr Zam will not be liable or negligent. 20