The Law of Medical Negligence
Impact for Insurers
The plaintiff in Gunapathy Muniandy v Dr James Khoo (Supreme Court of Singapore, July 4 2001) had a brain tumour, which was surgically removed by Dr James Khoo on November 15 1995. The plaintiff subsequently underwent conventional radiotherapy, which was performed by Dr Khor. According to Khoo, this was done to prevent the tumour from recurring. In February 1996 a scan revealed a small nodule in the patient's brain. Khoo and Khor were uncertain as to whether the nodule was a scar from the previous surgery or a tumour, but a third doctor who conducted a follow-up scan later that year concluded that the nodule was probably a scar.
Despite this conclusion, the plaintiff was given the option of a new and experimental procedure to remove the nodule. Soon after the treatment the plaintiff began to suffer serious side effects of the high dosage of radiation, and had to undergo yet more surgery as her condition deteriorated. A tissue sample which was sent for examination revealed no tumour cells, but only brain cells that had been killed by radiation.
By this time the plaintiff had suffered severe brain damage and numerous other neurological complications. The plaintiff sued the two doctors involved in the radiosurgery, as well as Khoo's company, Neurological Surgery Pte Ltd. The plaintiff alleged, among other things, that:
- the doctors failed to give competent advice or conduct the necessary diagnostic procedures;
- the doctors incompetently and wrongly advised her to go for radiosurgery when there was no need for it;
- the doctors failed to warn her of the serious side effects of radiosurgery; and
- the doctors were incompetent in the execution of the radiosurgery treatment.
In their defence the doctors pleaded that although they were unable to determine whether the nodule was a scar or tumour, the plaintiff had insisted on undergoing radiosurgery, despite being advised of the risks. Much to their own detriment Khoo and Khor then changed their defence in the course of the trial and sought to contend through expert evidence that the nodule had grown between February 1996 and January 1997, and was therefore a tumour. The judge found that the failure to plead this defence from the onset affected their credibility.
Having examined the relevant case law, the judge distilled the law of medical negligence into what he dubbed the "Ten Commandments". These are as follows:
- A medical practitioner who holds himself out as ready to give medical advice or treatment, or is consulted by a patient or a prospective patient, impliedly undertakes that he possesses the requisite skill, experience, training and knowledge for the purpose. He must not undertake to treat any disease or disorder which he is not knowledgeable of or experienced in. He must not embark on any treatment or medical procedure, and in particular any radical treatment, of which he is not knowledgeable, or in which he is not trained or experienced.
- A medical practitioner owes his patient a duty of care in diagnosing a condition, advising on the treatment and administering the treatment.
- The practitioner must bring to his task a reasonable degree of skill, knowledge and competence. He must also exercise a reasonable degree of care in diagnosis, advice and treatment, in the light of the particular circumstances of the patient before him.
- The very highest degree of competence and care is not required of him; nor will he be permitted a very low degree of care and competence. The test is the standard of the ordinary competent specialist practitioner.
- Where medical opinions diverge, or where no usual and normal practice is yet in place, the 'reasonable standard' means that a medical practitioner must act in accordance with a practice accepted as proper by a responsible, competent and respected body of medical personnel ordinarily skilled in that particular art, even if a body of contrary opinion also exists among medical personnel. In doing so, he must ensure that the practice he has adopted stands on the ground of logic and sense, and that he has the support of reputable and responsible experts who will support him with logic and sense.
- If there is a special requirement or accepted practice with regard to the diagnosis, advice or treatment, he must comply with it. This is over and above the ordinary reasonable standard, and depends on the particular circumstances of the case.
- If a proposed treatment carries with it a high magnitude of risks and adverse effects, he must ensure that the disease or disorder is serious enough to warrant such a high-risk treatment procedure to be undertaken. The law in all cases exacts a degree of care commensurate with the risk
- Where high-risk measures are to be undertaken, the medical practitioner, when circumstances permit, must give adequate and unambiguous information, explanation and warning to the patient, and allow the patient ample opportunity to make the decision and give his or her informed consent in response to the advice.
- When a treatment or surgical procedure involves a team, someone must take responsibility as the team leader and ensure that everyone in the team understands his function and responsibility, and the precautions each is required to take.
- The practitioner must make and preserve adequate, accurate and unambiguous notes as circumstances warrant. This is particularly necessary in the case of high-risk or novel treatments.
The judge found in favour of the plaintiff. On the facts, he found that there was no informed consent to the procedure based on appropriate and adequate advice. The plaintiff and her husband testified that Khoo had told them that the treatment was "simple", and had not mentioned that it was actually highly potent and experimental. From the notes and correspondence of the doctors involved, the court also found that there was no evidence of any mention of the possible side effects of the treatment. Thus, there was no informed consent given by the plaintiff.
The judge rejected the evidence of several expert witnesses called by the defence on the ground that they were, among other things, not founded on logic and sense. The defence called three expert witnesses who argued that the nodule in the plaintiff's brain was a tumour because it had grown in size during the relevant period. However, since the judge found inconsistencies and significant errors in the reports of the various expert witnesses, he rejected their evidence.
The judge also found that the doctors were negligent in their administration of the radiosurgery treatment on the plaintiff. The court found that Khoo and Khor did not possess the knowledge and skill required to perform the radiosurgery treatment. The court also held that the dosage administered, on the facts, was excessive.
As regards quantum, the judge took into account the fact that the plaintiff was a precedent partner in a quasi-partnership company. She was the driving force behind the company's business and her disabilities caused the company to lose much of its existing business. Based on her salary, the judge awarded her just over $1.6 million for loss of future earnings.
With medical expenses, general damages, and past and future care costs taken into account, the total sum of damages awarded stood at over $2.5 million, an astronomical sum as far as Singapore awards go, although it is mostly attributable to the plaintiff's high income prior to her disabilities.
Following this judgment, a greater degree of care is needed at the proposal stage in eliciting precise and detailed information as to the exact nature of the prospective assured's work as a medical practitioner, and whether he has the requisite skill, experience and training in the areas in which he is seeking to practice.
At present, the practice appears to be to accept a broad outline of the nature of the prospective insured's work or speciality. This will no longer be sufficient, however, and underwriters must probe far deeper and ask more specific questions at proposal stage in order to determine the precise scope of cover that they will provide.
It is usually the case when insuring those practising in specialist fields that the standard of care and skill which must be exhibited to obtain cover is that of a reasonably competent practitioner who has adopted the special protocols and specific standards that apply within his relevant specialist field. Currently, it seems that, with respect to the descriptions given as to the nature and scope of work of prospective insureds, fairly general descriptions are acceptable to underwriters as disclosed in the proposal form. However, this decision demonstrates that medical underwriters may need to find a more effective means of weighing the risk involved, especially in light of the significant damages awarded.
For further information on this topic please contact Balu Rao at B Rao & KS Rajah by telephone (+65 535 2188) or by fax (+65 534 3972) or by email ([email protected]).