Changes in the Law of Medical Negligence
Recent months have seen some developments in the law of medical negligence. The Court of Appeal has qualified the long-standing Bolam test. The courts have also enacted protocols for medical negligence cases, which evince a shift towards a less adversarial approach to resolving such cases, with an increased emphasis on mediation and the appointment of court assessors. This article will look at both developments.
II. Changes in Substantive Law – the Montgomery Test
All law students will be familiar with the Bolam test: a doctor will not have acted negligently if the act complained of is supported by other respected doctors, so long as those doctors’ opinion is internally consistent and logical.1The qualification that the body of opinion has to be internally inconsistent and logical was added in the case of Bolitho v City and Hackney Health Authority  AC 232. Previously, the Bolam test applied to every aspect of the patient-doctor interaction – ie most of the time there would be little need to distinguish between (a) diagnosis; (b) giving of advice; and (c) treatment.
But in Hii Chii Kok v Ooi Peng Jin London Lucien,2Hii Chii Kok v Ooi Peng Jin London and another  SGCA 38. the Court of Appeal held that the Bolam test now applies only when it is alleged that a doctor has negligently diagnosed or treated the patient. Where it is alleged that the doctor was negligent in advising the patient, a new legal test applies (the “Montgomery test”).3After the case of Montgomery v Lanarkshire Health Board (General Medical Council intervening)  AC 1430. The test adopted in Hii Chii Kok was in fact a modified version of the Montgomery test, but this can be disregarded for present purposes.
Since the Bolam and Montgomery tests apply to different aspects of the patient-doctor interaction it is important to understand what that interaction comprises:
- Diagnosis, ie the identification of the patient’s affliction. Diagnosis is the process by which the doctor obtains information from the patient by taking history and physical examination, considers what further investigations are required, analyses the information, and forms a provisional conclusion on what to do.
- Advice, ie the presentation of the appropriate information to the patient. Advice includes giving recommendations on what should be done, providing information on diagnostic procedures and any associated risks, as well as advising treatment plans and associated risks.
- Treatment, ie the implementation or execution of the cure, including medication, surgery, or other procedures.
A doctor may be negligent in his diagnosis of, advice to, and/or treatment of a patient. A doctor may misdiagnose a cancerous tumour as a benign one, wrongly explain what side-effects a particular drug may have, or make a mistake during surgery by amputating the wrong leg.
A. Rationale Behind the Montgomery Test
The Montgomery test is premised on the different natures of (a) diagnosis and treatment; and (b) giving of advice. A patient whose ailment is being diagnosed and who is being treated is merely a passive recipient of care: he is entirely in the doctor’s hands. But when a doctor gives a patient advice, the patient is not a passive recipient of care. This is because patient autonomy means that the doctor has to respect the patient’s right to choose his treatment, even if the choice is not what the doctor would have preferred. And in order for the patient to meaningfully exercise his right to choose, the patient must be supplied with sufficient knowledge.4Sundaresh Menon CJ, 23rd Gordon Arthur Ransome Oration: Law and Medicine: Professions of Honour, Service and Excellence, Annals Academy of Medicine, September 2017 Vol 46 No 9 p 6. So the crux of the Montgomery test is whether the doctor has given the patient sufficient advice and information.
In order to determine whether sufficient advice and information has been provided, the court will apply a variant of the familiar “reasonable person” test: what would that particular patient in his circumstances reasonably regard as material? Critically, this test focuses on the patient’s perspective. It means that, unlike in the Bolam test, the views of other respectable doctors are not determinative.
The Montgomery test will be applied on the facts and circumstances as they existed at the time the material event occurred. There are 3 stages:
- The patient must satisfy the court that relevant and material information was withheld from him.
- If so, the court will determine whether the doctor had that information in the first place.
- If so, the court will determine whether it was justifiable for the doctor to withhold that information from the patient.
B. Stage 1 of the Montgomery Test
Stage 1 of the Montgomery test asks whether the patient failed to receive any relevant and material information. Doctors ought to disclose (a) information that would be relevant and material to a reasonable patient in that particular patient’s position; and (b) information that the doctor knows is important to that particular patient in question.5Hii Chii Kok v Ooi Peng Jin London Lucien  SGCA 38 at .
The relevance and materiality of information is assessed essentially from the perspective of the patient. Relevant and material types of information would include (but are not limited to):
- the doctor’s diagnosis;
- the prognosis with and without medical treatment;
- the nature of the proposed treatment;
- the risks associated with the proposed medical treatment; and
- the alternatives to the proposed medical treatment and their advantages/risks.6Hii Chii Kok v Ooi Peng Jin London Lucien  SGCA 38 at .
The Court will apply a common-sense approach to determining whether specific information was relevant and material. Obviously, there is a fine line between:
- taking reasonable care to ensure that the patient receives all relevant and material information – failing which the patient would be unable to make an informed decision; and
- not indiscriminately bombarding the patient with every iota of information – failing which the patient may simply be left more confused and also unable to make an informed decision.
For example, say a patient is contemplating a particular surgical procedure, which carries with it a number of risks. A doctor does not have to disclose each and every possible risk to the patient. Whether a risk has to be disclosed depends on the severity of the potential injury and its likelihood. Hence the risk of a likely but slight injury should be disclosed; and so should the risk of an unlikely but serious injury. Importantly, however, the risk of a very severe injury would not have to be disclosed, so long as the possibility of its occurrence was “not worth thinking about”, eg because the likelihood of its occurrence is negligible, or because such a risk is common knowledge.7Hii Chii Kok v Ooi Peng Jin London Lucien  SGCA 38 at . One example of such a risk is the risk of being knocked down by a car when crossing the road.
To take another illustration, a doctor will have to tell the patient about the benefits and side-effects of the proposed medical treatment. The doctor must also tell the patient about the advantages and disadvantages of alternative procedures and the consequences of no treatment at all. But the doctor only has to tell the patient about reasonable alternatives – ie the doctor does not have to tell the patient about fringe alternatives or treatments that are obviously inappropriate.8Hii Chii Kok v Ooi Peng Jin London Lucien  SGCA 38 at .
Further, a doctor must disclose information that he knows (or ought reasonably to know) would be important to that particular patient.9Hii Chii Kok v Ooi Peng Jin London Lucien  SGCA 38 at . Eg when a doctor is taking a patient’s history, he will commonly find out the patient’s occupation. That knowledge may be important in assessing what information that particular patient would find material and relevant. Hence a very low risk of slight eye injury would be highly relevant to a professional fighter pilot, even if it might be insignificant to other people.
The doctor does not have to ensure that the patient in fact understands the information provided, but only to take reasonable care that he does.10Hii Chii Kok v Ooi Peng Jin London Lucien  SGCA 38 at . So while the doctor does not have to “test” the patient’s knowledge, the doctor will have to assess the ability of the patient to understand the information. The doctor will have to deliver the information using language and at a pace that allows the patient to absorb that information. Understanding means that the patient must appreciate the significance of the information – hence simply reciting to the patient the statistical probabilities is unlikely to be enough.
C. Stage 2 of the Montgomery Test
Stage 2 of the Montgomery test asks whether the doctor did in fact have the information (that was relevant and material, and not told to the patient).
If the doctor did not have the information, he cannot be negligent for failing to provide that information to the patient. But he could potentially be negligent for not having that information in the first place – ie negligence in diagnosis (because certain investigations were not done) or negligence in treatment (because the doctor did not realise an alternative treatment was available).
D. Stage 3 of the Montgomery Test
The last stage of the Montgomery test asks whether the doctor was justified in withholding the information from the patient: ie was it a sound judgment that a reasonable and competent doctor would have made? If so, the doctor is not negligent, and vice versa.
The burden is on the doctor to justify why the doctor withheld reasonable and relevant information that he knew about (as established at stages 1 and 2 of the Montgomery test) from the patient.
In general (with the exception of (b) below), the focus is not on whether other respectable doctors would have considered it appropriate to withhold that information (ie the Bolam test will in general not apply), but on whether it was objectively reasonable in the circumstances to have done so.
Here are some examples of when non-disclosure of information would be justified:
- Consent: where the patient has expressly said (or it can very clearly be inferred) that he does not wish to hear further information.
- Emergency: in emergency situations where there is a threat of death or serious harm to the patient, the patient temporarily lacks decision-making capacity, and there is no substitute decision-maker.11B. that in deciding whether the situation is so critical that there is no opportunity to provide information to the patient, the court will apply the Bolam test.
- Therapeutic privilege: where the doctor reasonably believes that giving the patient that information would cause the patient serious physical or mental harm (eg patients whose state of mind, intellectual abilities, or education may make it extremely difficult to explain the true reality to them).
III. Changes in Procedural Law (in the High Court)
To understand the changes in procedural law, it helps to start with the Chief Justice’s observation in 2016 that “we must avoid a situation where the practice of medicine comes to be adversely affected by the medical practitioner’s consciousness of the risks of malpractice liability.”12Response by Chief Justice Sundaresh Menon, Opening of Legal Year 2016, 11 January 2016, . Accessed at http://www.supremecourt.gov.sg/Data/Editor/Documents/Response%20by%20CJ%20-%20Opening%20of%20the%20Legal%20Year%202016%20on%2011%20January%202016%20(Checked%20against%20Delivery%20110116).pdf The Chief Justice then listed 3 overlapping measures that were “under evaluation”: (a) promoting mediation as a primary step in resolving medical malpractice disputes; (b) shifting from the present adversarial model to a more judge-led process in which the judge will pro-actively direct the proceedings; and (c) the appointment of medical assessors to help the court with specialised or technical issues.
In July 2017, the High Court adopted a protocol for medical negligence claims.13Supreme Court Practice Directions, Appendix J. Note that the State Courts’ protocol on medical negligence cases has been in place since 2007. There are a number of procedural innovations, some of which seem to have been adopted from earlier experiments:
- There is standardised pre-action specific discovery of documents. The idea is to standardise and streamline the disclosure of medical records and other relevant information. This is to increase the prospect that medical negligence disputes can be resolved quickly.
- The requested information should be provided to the claimant within 7 weeks of the request.14One could query the generosity of the timelines, given the limitation period for personal injury claims of only 52 weeks.
- The plaintiff is required to file and serve the main documents relied on in support of the claim (including expert reports) together with the Statement of Claim.
- The 1st PTC will be convened before a Judge, 3 weeks after the close of pleadings.
- At the 1st PTC, the parties will explore the possibility of resolving the case by, inter alia, mediation. The judge may also discuss with the parties the potential appointment of a medical assessor.
- No directions for general discovery will be taken.
A. Some Thoughts
First, the Montgomery test finds clear expression in the sample letter of pre-action discovery provided in the protocol. The sample letter expressly requests that the medical services provider states inter alia:
- the treatment prescribed, risks in such treatment (if any) and when and how these risks were communicated to the claimant or the deceased and/or his next-of-kin;
- Whether alternatives to the prescribed treatment were discussed and disclosed to the claimant … and if so, why the prescribed treatment was preferred over these alternatives.
This is sensible, as it focuses the parties’ attention from a very early stage on what is likely to be the relevant issues in such case.
Further, the protocol states that pre-action discovery is “in order for a claimant to consider whether he has a viable claim or cause of action against his doctor and/or hospital for medical negligence”. This would suggest that pre-action discovery is not a necessary step for the claimant to take before starting an action – e.g. if the plaintiff has a clearly viable case. Yet it is likely that pre-action discovery under the protocol would be available even where the claimant has a clearly viable case (whereas the converse would be so under a typical O 24 r 6 application), since the protocol assumes that there will be no general discovery.
Second, it is unclear from the protocol what sanction (if any) will be imposed if the plaintiff fails to comply with the requirement to “file and serve the main documents relied on in support of the claim including expert report(s) together with the Statement of Claim.” Such a case is likely to arise most commonly where the decision to sue is taken close to the limitation period, and there is insufficient time to obtain the supporting documents. At the extreme, one possibility might be for the court to strike out the claim immediately. But a sensible solution would perhaps be for the defendant to apply to court for an extension of time to file the defence, with time to start running from the date the plaintiff files the supporting documents (or, even better, for the parties to consent to the same).
Third, the protocol sets out in some detail the potential involvement of a medical assessor. In this regard, it is worth noting that the medical assessor is essentially that of an independent counsellor to the court, who helps the judge to understand and navigate difficult and technical medical issues.15See Judith Prakash JA, The Role, Responsibilities and Essential Skills of Being a Court-Appointed Medical Assessor, 22 October 2016, accessed at http://www.supremecourt.gov.sg/Data/Editor/Documents/The%20Role,%20Responsibilities%20and%20Essential%20Skills%20of%20Being%20a%20Court-Appointed%20Medical%20Assessor%20(22%20oct)%20(Uploaded%20on%20Supreme%20Court%20Website%20on%207%20Nov%202016).pdf But the judge remains the decision-maker. The assessor may be involved before the trial, during the trial, and after the trial. Parties will have the opportunity to respond to the assessor’s views and also to set out the areas on which the assessor will provide his views.
Fourth, one would expect a medical assessor to be at least as senior (in experience and skill) as the parties’ expert witnesses. This in turn raises the question of the cost to properly compensate and attract the best medical professionals to act as a medical assessor. The starting position, as set out in the protocol, is that the costs of the medical assessor will be split between the parties. The court will retain the final discretion to decide who shall bear the medical assessor’s fees and in what proportion. In practice, this means that each party will be advised of the possibility that he/it will have to pay for 1.5 – 2 experts, on top of quite heavy upfront costs (pre-action discovery, reviewing the documents, preparing expert report(s), drafting the Statement of Claim). For a large medical-services provider, this is unlikely to be a problem. But for the everyday man in the street, one has to wonder if having to contribute to the costs of the assessor will be the last straw compelling him to settle, or, worse, discouraging meritorious claims. One way to keep the assessor’s costs down may be for medical assessors to be appointed only in the more difficult or technical cases, and for the court to review with the parties at each stage of the proceedings the necessity of the medical assessor’s involvement.
Fifth, the emphasis on mediation (or other ADR) will renew the debate on the desirability of mediation in cases of bodily injury. It may be argued that mediation by its nature requires a compromise, and that intuitively a person who has suffered bodily injury ought to be wholly compensated. Another view is that mediation increases access to justice and thereby helps to uphold the rule of law.16See Sundaresh Menon CJ, Mediation and the Rule of Law, 10 March 2017, accessed at http://www.supremecourt.gov.sg/Data/Editor/Documents/Keynote%20Address%20-%20Mediation%20and%20the%20Rule%20of%20Law%20(Final%20edition%20after%20delivery%20-%20090317).pdf More pragmatically, mediation works best when the mediator has a solid grasp of the legal and practical issues raised by a particular dispute. This would suggest that the ideal mediator for medical negligence cases would have at least a working knowledge of the medical issues raised in a particular case. But a quick scan of the mediator lists of the Singapore Mediation Centre and the Law Society Mediation Scheme suggests a relative paucity of expertise in the medical field.
As Singapore’s population enjoys increasingly greater access to medical services, and advances in medical technology continue to be made, it is perhaps inevitable that the number of medical negligence cases will increase. It is therefore timely that the courts have re-examined both the substance and procedure of medical negligence cases, and it is to hoped that both substantive and procedural developments go some way to simplifying and rationalising medico-litigation, thereby improving the quality and administration of justice.
|↑1||The qualification that the body of opinion has to be internally inconsistent and logical was added in the case of Bolitho v City and Hackney Health Authority  AC 232.|
|↑2||Hii Chii Kok v Ooi Peng Jin London and another  SGCA 38.|
|↑3||After the case of Montgomery v Lanarkshire Health Board (General Medical Council intervening)  AC 1430. The test adopted in Hii Chii Kok was in fact a modified version of the Montgomery test, but this can be disregarded for present purposes.|
|↑4||Sundaresh Menon CJ, 23rd Gordon Arthur Ransome Oration: Law and Medicine: Professions of Honour, Service and Excellence, Annals Academy of Medicine, September 2017 Vol 46 No 9 p 6.|
|↑5||Hii Chii Kok v Ooi Peng Jin London Lucien  SGCA 38 at .|
|↑6||Hii Chii Kok v Ooi Peng Jin London Lucien  SGCA 38 at .|
|↑7||Hii Chii Kok v Ooi Peng Jin London Lucien  SGCA 38 at . One example of such a risk is the risk of being knocked down by a car when crossing the road.|
|↑8||Hii Chii Kok v Ooi Peng Jin London Lucien  SGCA 38 at .|
|↑9||Hii Chii Kok v Ooi Peng Jin London Lucien  SGCA 38 at .|
|↑10||Hii Chii Kok v Ooi Peng Jin London Lucien  SGCA 38 at .|
|↑11||B. that in deciding whether the situation is so critical that there is no opportunity to provide information to the patient, the court will apply the Bolam test.|
|↑12||Response by Chief Justice Sundaresh Menon, Opening of Legal Year 2016, 11 January 2016, . Accessed at http://www.supremecourt.gov.sg/Data/Editor/Documents/Response%20by%20CJ%20-%20Opening%20of%20the%20Legal%20Year%202016%20on%2011%20January%202016%20(Checked%20against%20Delivery%20110116).pdf|
|↑13||Supreme Court Practice Directions, Appendix J. Note that the State Courts’ protocol on medical negligence cases has been in place since 2007.|
|↑14||One could query the generosity of the timelines, given the limitation period for personal injury claims of only 52 weeks.|
|↑15||See Judith Prakash JA, The Role, Responsibilities and Essential Skills of Being a Court-Appointed Medical Assessor, 22 October 2016, accessed at http://www.supremecourt.gov.sg/Data/Editor/Documents/The%20Role,%20Responsibilities%20and%20Essential%20Skills%20of%20Being%20a%20Court-Appointed%20Medical%20Assessor%20(22%20oct)%20(Uploaded%20on%20Supreme%20Court%20Website%20on%207%20Nov%202016).pdf|
|↑16||See Sundaresh Menon CJ, Mediation and the Rule of Law, 10 March 2017, accessed at http://www.supremecourt.gov.sg/Data/Editor/Documents/Keynote%20Address%20-%20Mediation%20and%20the%20Rule%20of%20Law%20(Final%20edition%20after%20delivery%20-%20090317).pdf|