Standard of Care and Indeterminacy in Medical Negligence
Noor Azlin bte Adbul Rahman v Changi General Hospital Pte Ltd
Medical negligence cases often involve much uncertainty and controversy. In Noor Azlin v Changi General Hospital, the High Court (HC) and the Court of Appeal (CA) dealt with important issues such as the duty of Accident and Emergency doctors (A&E doctors), a hospital’s management system and loss of chance. The implications of this landmark decision are explored in this case comment.
The tort of negligence involves a labyrinth of principles within a detailed framework for awarding compensation to deserving victims. It is trite law that, essentially, the plaintiff must establish the elements of duty of care, breach of duty, causation and unremote damage.
As regards breach of duty, the courts have to ascertain the standard of care and the scope of duty or responsibility which the law expects of the defendant. For medical negligence, the courts have been concessionary towards doctors, laying down the Bolam test, namely that a defendant doctor is not negligent if his practice accorded with a substantial and respectable body of opinion in his field; the fact that he did not do what the majority of doctors would have done does not necessarily mean he was negligent. The leeway given by Bolam was subsequently curtailed somewhat by the Bolitho constraint that the “respectable” opinion has to pass a two-stage enquiry of the threshold test of logic – did the expert direct his mind to the comparative risks and benefits, and did he arrive at a defensible conclusion.
As regards causation, in medical negligence cases, it is often a real challenge seeking to ascertain, the physiological what, how and when of the plaintiff’s medical condition. Where the assertion is that the doctor had failed to do something which could have led to a better outcome for the patient, unresolved difficulties of loss of chance are triggered.
These issues of standard of care and causation in the medical context were encountered and dealt with by the High Court and the Court of Appeal respectively in Noor Azlin bte Abdul Rahman v Changi General Hospital and others (Noor Azlin).1(2018) SGHC 35, on appeal (2019) SGCA 13. This case comment examines the judgments, their implications and the doubts that linger.
Over a period of several years, the plaintiff, Noor Azlin, visited Changi General Hospital (CGH, the first respondent), complaining of chest pain and breathlessness. (On a later occasion, she also mentioned left ribcage pain.)
In October 2007, the plaintiff went to the A&E Department of CGH, and was attended to by Dr Yeo. An X-ray was ordered after which the doctor diagnosed the plaintiff as having gastritis and also referred her to Dr Imran (the second respondent) of the CGH Specialist Outpatient Clinic. During the visit in November 2007, Dr Imran ordered an X-ray and was unsure if the opacity detected was resolving on its own or had completely resolved. However, Dr Imran discharged the plaintiff with an open date appointment without verifying that the opacity had completely resolved.
In 2010, the plaintiff visited CGH A&E and was attended to by Dr Yap (the third respondent). Dr Yap ordered an X-ray and compared it with the X-ray from 2007, determining that it was stable. He ordered an ECG to rule out heart-related problems. He determined that the opacity was an incidental finding unrelated to the plaintiff’s presenting symptoms. He had no access to Dr Imran’s notes but the plaintiff told him that she was certified as fine by Dr Imran. Dr Yap diagnosed the plaintiff pain as musculoskeletal in nature and confirmed this with a senior doctor at A&E. Dr Yap then sent the X-ray for reporting. The report was issued in due course, but it was never received personally by Dr Yap.
In July 2011, the plaintiff again visited CGH A&E and was attended to by Dr Soh (the fourth respondent). Dr Soh ordered two X-rays but did not spot the nodule as he was focused on the left side of the plaintiff’s chest, where the plaintiff had said she was experiencing pain. The X-ray report recommended a follow-up after detecting the nodule but was not received by Dr Soh. Dr Soh diagnosed the plaintiff with costochondritis, a musculoskeletal symptom.
In December 2011, the plaintiff visited the Raffles Medical Clinic and was attended to by Dr Wong. This visit led to referrals, testing and procedures which resulted in her being diagnosed in February 2012 as having stage IIA lung cancer. She underwent a lobectomy (removal of a third of her lungs) in March 2012. However, the plaintiff suffered a relapse in 2014 where the cancer had advanced into stage IV and was retrospectively determined to be an aggressive form of ALK-positive cancer.
The table below gives the reader a clearer picture of the facts:
|October 2007||Dr Yeo||Chest pain, shortness of breath||X-Ray||Detected opacity but diagnosed as gastritis||Referral to specialist|
|November 2007||Dr Imran||Chest pain||X-Ray||Uncertain, resolved or resolving on its own.||Open date|
|April 2010||Dr Yap||Chest pain, shortness of breath||X-Ray, compared with 2007 X-rays|
Deemed opacity an incidental finding
|Discharged, sent X-rays for reporting|
Report not received
|July 2011||Dr Soh||Left ribcage pain||X-Rays & ECG||Musculoskeletal pain|
Did not notice the opacity
|Discharged, sent X-rays for reporting|
Report not received
|November 2011||Dr Wong||Cough, breathlessness, blood in sputum||X-Ray, 3 days after sputum did not go away||Suspected infection||Sent X-Ray for reporting, referred to CGH respiratory physician|
|December 2011||Prof Sridhar||Cough, blood in sputum||X-Ray & CT scan||Benign lesion||Recommended biopsy|
|February 2012||Dr Andrew Tan||Biopsy||Confirmed lung cancer||Referred to surgical oncologist|
|March 2012||Prof Koong||Lobectomy to remove 1/3 of lungs|
|August 2014||Dr Daniel Tan||CT scan & Biopsy||Relapse of Stage IV cancer|
2012 cancer retrospectively determined to be ALK-positive cancer
In the circumstances, the plaintiff sued the first to fourth respondents in negligence, claiming that they had breached their duty of care and caused a delay in diagnosis and treatment of the cancer.
The key issues or clusters of issues which the courts had to address were:
- What is the standard of care expected of an A&E doctor and what is the scope or ambit of his duty? Specifically, what tests should an A&E doctor order and does the Bolam test apply to this decision? What is his duty as regards “incidental findings” and does he have duties of following-up? Are practical constraints to be considered in determining the standard of care of an A&E doctor?
- What is the scope of duty of a hospital as regards its total management of the care of its patients? Specifically, does it have to communicate its test findings and reports to the patient?
- Is a specialist subject to a higher standard of care?
- How and on what threshold of proof is the finding of a medical fact to be ascertained? In the instant case, when did the tumour become malignant?
- What is the legal framework for a loss of chance of a better medical outcome? If one were to construct a hypothetical virtuous chain, what would that chain look like? What amount of compensation should be awarded in such a claim?
High Court’s Decision
In the High Court, Justice Belinda Ang found that Dr Imran had breached his duty of care when he discharged the plaintiff without ensuring that the opacity was benign. She also found that CGH was negligent for not informing the plaintiff of the results of X-ray reports in 2010 and 2011. As for the two A&E doctors, she found that they were not in breach of their respective duties.
However, the claims against Dr Imran and CGH failed on the basis that the plaintiff had not proven on a balance of probabilities, that she suffered from cancer as of July 2011. Ang J reasoned that the size of the nodule was stable between 2007 to 2011 and there was no apparent indicator of a malign tumour from the X-rays and CT scans. Hence, the causation element was not made out as she did not have cancer when she consulted the four doctors.
Court of Appeal’s Decision
The Court of Appeal, comprising Sundaresh Menon CJ, Andrew Phang JA and Judith Prakash JA, affirmed the HC decision as regards the two A&E doctors. However, it allowed the appeal against CGH on the ground that causation was satisfied.
The Court discussed at length the standard of care expected of A&E doctors. Justice Phang, delivering the judgment of the CA, began by explaining:2(2019) SGCA 13 at (68).
“The standard of care expected of doctors who work in the A&E department must be informed by the reality of the working conditions in the department and calibrated accordingly. The A&E department sees a high volume of patients, many of whom would have major trauma or life-threatening conditions requiring urgent treatment.”
He observed how they often had to make decisions at short notice in a highly pressurised environment and were generally expected (by the hospital) to spend only 15 minutes on each patient. Hence, it would be unreasonable to expect them to review cases in as much “breadth, depth or specificity”3Ibid. as a General Practitioner (GP) or specialist in an outpatient clinic. Consequently: 4At (69).
“… an A&E doctor must necessarily adopt a “targeted approach”. What this means is that an A&E doctor can reasonably prioritise the diagnosis and treatment of the patient’s presenting symptoms and the elimination of life-threatening conditions.”
The Court recognised the realities within which A&E departments operate and explicitly endorsed the practice of prioritising the saving of lives.
However, and this is equally important, the honourable Judge continued:5At (75).
“On the flipside, less attention would be given to incidental findings. That is not to say that incidental findings which are detected can or ought to be ignored. The requisite standard of care… would depend, among other things, on the characteristics of the incidental finding, whether it has been picked up before, and the clinical history of the patient. An A&E doctor may be required to do no more than to refer the patient to the appropriate department for follow up…”
Observing that in the A&E realm, doctors worked as a team, Phang JA remarked (with tacit approval) that, often, the A&E doctor who receives the patient will not follow through and the patient is to rely on the system and the department as a whole instead of on any particular doctor. He emphasised:6Ibid.
“In our view, every doctor, including an A&E doctor, owes a duty to apply his mind to every finding that is picked up, even incidental ones. But it is a separate question as to whether or not diagnosis and treatment can be deferred.”
The doctor may decide to defer the case until reports are made available or advise the patient to follow up with a visit to his own GP. According to Justice Phang, in the former case, one duty would be to order that the necessary tests be taken and make arrangements for them; in such a situation:7At (75).
“It would then be the responsibility of the hospital to ensure that there is a proper system in place to ensure that these tests are conducted and their result properly followed up on.”
Applying these principles to the facts, the Court found that Dr Yap did not fall below the requisite standard of care as he had compared the X-ray reports (from 2007 and 2010) and had asked for the plaintiff to be called back should the radiology report so necessitate.8At (76). The Court found that Dr Soh also did not breach his duty as he was entitled to adopt a targeted approach by focusing on the left side of the plaintiff’s chest.9At (82).
In contrast, the Court held that Dr Imran was in breach for discharging the plaintiff despite being unsure whether the opacity had fully resolved.10At (87). However, the Court was of the view11At (104). that Dr Imran’s breach was not causative since, on a balance of probabilities, the plaintiff’s nodule was benign in November 2007.
Moving to CGH, the Court found the hospital in breach of its duty as it did not have in place a system to follow up on the 2010 and 2011 X-ray reports. CGH’s system did not allow for comprehensive management of a patient, and there was no appropriate mechanism for the consolidation of what was known of the patient.12At (98)-(101).
The Court also clarified that the Bolam-Bolitho test applied to pure diagnosis cases, where findings of facts is a precursor inquiry that the Court could undertake without recourse to Bolam. However, any subsequent diagnosis that incorporates interpretation and opinion must be measured against a reasonable standard of care as understood by the medical professionals, and hence the Bolam-Bolitho test must apply.13At (63). The Court also found that the evidential burden shifted to CGH to prove they had followed up on the report.14At (97).
The Court found causation as against CGH by reasoning that as the plaintiff had reached stage IIA in 2012, she must have had passed through stage IA and IB.15At (109). It noted the increase in size of the nodule from 2010 to 2011 and determined, on a balance of probabilities, that the plaintiff had cancer as of July 2011.16At (111). The Court held that if CGH had not been negligent, the cancer would have been detected and a better medical outcome would have been likely.17At (116).
Comments and Thoughts
The Noor Azlin decision is important for several reasons.
First and foremost, the Court of Appeal there set forth in clear and detailed terms the ambit of duty of A&E doctors. Secondly, Singapore’s apex court expressed its expectations of a hospital’s responsibility as regards its total system for the management of a patient’s care. Thirdly, the case suggests that a higher standard of care is expected of a specialist doctor as compared with a generalist. Fourthly, it confirms the continued application of the Bolam-Bolitho test as regards a doctor’s diagnosis of the patient.
The final outcome of the case appears fair – the patient was entitled to be compensated for her loss. It should be pointed out that cases of medical negligence are often not easy to deal with. Factual and medical determinacy may be a challenge and the judges have to grapple with medical technicality and complexity. Specifically, in this case, the medical experts themselves were not certain when the cancer turned malignant. Moreover, as the High Court reminded, there is a need to guard against hindsight bias.18(2018) SGHC 35 at (56).
The reversal of the High Court’s finding on causation was a key finding in the plaintiff’s favour as it was effectively the main obstacle which had caused her claim to fail in the High Court. However, in justifying this reversal, the Court of Appeal had to decide, on a balance of probabilities, when the cancer had turned malignant – a task that experts on both sides could not confidently ascertain. The sanguine view would be that the Court’s conclusion was logical in that the increase in size of the nodule must have indicated that the cancer was malignant, therefore granting the plaintiff a successful claim. A more sceptical view would be that the Court was uncertain as to the date the cancer turned malignant and had, inevitably, to resort to some amount of conjecture. This case illustrates, once again, the difficulties encountered by courts in cases of medical uncertainty and indeterminacy.
Aside from the above, Noor Azlin leaves the reader with the following doubts and queries.
Duty of Care of A&E Doctor
In ascertaining the appropriate standard of care and scope of duty of an A&E doctor, the CA rightly placed great emphasis on the practical realities faced by A&E doctors and their primary concern of saving lives. However, the reference and, it would seem, endorsement of the limited time (of 15 minutes) afforded an A&E patient may be controversial. The question is whether this amount of time is adequate for the purposes. If the time currently accorded is inadequate, then the issue becomes a matter of the hospital’s management – such as having more doctors on duty, or diverting patients to other clinics or hospitals.19After all, specialist clinics or general practitioners may also face large volumes of patients when factors such as the flu season, time of day or number of doctors become a consideration. Following the Court’s reasoning, is it implied that the standard of care of a doctor working in a private clinic is higher than the A&E doctor? One would have expected that each patient should receive the care and attention that his or her case requires.
As regards testing,20It is worth noting the case of Crammond v Medway NHS Foundation (2015) EWHC 3540 where an A&E doctor was found negligent for failing to conduct proper history taking of a patient, placing too much emphasis on the ECG results which were obtained by the triage nurse. It would then seem that in addition to the tests required of an A&E doctor, proper history-taking is equally crucial before the right tests may be ordered. Nonetheless, history-taking in this present case was not an issue that the Courts had to address. the Court reasoned that failing to order a CT scan was not negligent as CT scans were meant for emergencies,21(2019) SGCA 13 at (77) CA. and X-rays were more available at the A&E. However, given the plaintiff’s history of consultations at the same hospital, one wonders if the A&E doctor should not, at least in later visits, consider the possibility of cancer, or the choice of warding the patient and ordering a CT scan at the next possible time. If a CT scan were done, it may have revealed a tumour and then a biopsy may have been ordered in order to ascertain if the tumour is cancerous.
As regards the testing which the doctor should order, the High Court considered in some detail the Bolam-Bolitho test with respect to the A&E doctors and Dr Imran.22(2018) SGHC 35 at (62), (91) and (108). Both courts seemed satisfied that a CT scan would not have been necessary. The lingering question is – given the possibility of lung cancer, should a more thorough investigation have been done? Or perhaps this is a question of medical opinion and best left to doctors.
As regards follow-up, should not a doctor who asks for a report follow up to ensure that he receives the report? Although the hospital is at fault for having a loose system of coordination, should not the doctor be held responsible as well?
On the issue of a junior doctor consulting a senior doctor, the Court of Appeal did not overrule the High Court position that it would have been sufficient for the junior doctor to clarify his diagnosis with a senior doctor in order to discharge his duty of care.23(2019) SGCA 13 at (46) & (81). However, this may be at odds with established case law that a doctor’s inexperience is no excuse for a lower standard of care.24FB v Princess Alexandra Hospital (2017) EWCA Civ 334, which held that whether doctors are performing their normal role or ‘acting up’, they are judged by reference to the post which they are fulfilling at the material time. The health authority is liable if the doctor whom it puts into a particular position does not possess (and therefore does not exercise) the requisite degree of skill for the task in hand (see para 59). One would not have thought that the merely by checking with a senior doctor would, in itself, a junior doctor would be absolved from liability.
Findings of Fact and the Bolam-Bolitho Test
As regards fact-finding, the Court ruled that “a pure finding of fact (such as what could be observed) is a precursor inquiry that the court could undertake without recourse to the Bolam test … any subsequent diagnosis that incorporates interpretation and opinion must be measured against a reasonable standard of care as understood by the medical professionals, and hence the Bolam-Bolitho test must apply.”25At (63).
Typically, a scenario faced by doctors would involve several stages, including the discovery of facts (by tests and scans), diagnosis and treatment. It would seem that, according to the CA, at the discovery of fact stage, the Bolam-Bolitho test does not apply. However, the process of discovery, before a right diagnosis may be made, is also a process that different doctors may undertake differently. For example, doctor A may order a CT scan while doctor B may decide it is not necessary. A correct diagnosis would not be possible if the facts were not properly ascertained through appropriate testing. Therefore, perhaps the decision as to which test(s) to order and the reviewing of the test result(s) should also be considered as the process of diagnosis and be subject to the Bolam–Bolitho test.
Causation – Loss of Chance
On the issue of causation, it is observed that both the High Court and Court of Appeal did not directly address the argument of loss of chance. The loss of chance claim in medical negligence cases is a controversial one and, in general, is not looked upon favourably by the courts.26The loss of chance argument has had an inconsistent history across courts in the United Kingdom, Canada and Australia. In the UK, JD v Mather (2012) EWHC 3063 (QB) seems to suggest the principle applies to cases of clinical negligence, ruling that the negligence had caused the deceased a loss of life expectancy of three years. However, it was rejected in Gregg v Scott (2005) 2 AC 176 by a majority of 3:2. In Canada, the principle was rejected by Judge Gonthier in Laferriere v Lawson (1991) 1 SCR 541 at 605: ‘I am not prepared to conclude that particular medical conditions should be treated for purposes of causation as the equivalent of diffuse elements of pure chance, analogous to the non-specific factors of fate or fortune which influence the outcome of a lottery.’ In Australia, the position is unfortunately even more inconsistent. The principle was applied, and a claim was given in Rufo v Hosking (2004) NSWCA 391 but subsequently firmly rejected in Tabet v Gett (2010) HCA 12.
In Singapore, the loss of chance argument was recently considered by the High Court in Armstrong, Carol Ann v Quest Laboratories Pte Ltd and another (Armstrong Carol).27Armstrong, Carol Ann v Quest Laboratories Pte Ltd and another (2018) SGHC 66. There, a doctor at Quest Laboratories negligently conducted a test on a skin lesion, finding it was not malignant, when a further scan (three years later), revealed that it was in fact malignant. Ms Armstrong brought an action against Quest Laboratories and Dr Tan, alleging that the missed diagnosis deprived Mr Traynor of medical treatment for two years. She claimed that had the cancer been correctly diagnosed, Mr Traynor would have had at least a 64.4 per cent chance of long-term survival.
Justice Choo Han Teck determined that Dr Tan was negligent in sending a report indicating a clean bill of health when further investigation was warranted. The question then was whether this negligence resulted in Mr Traynor’s death. Justice Choo focused less on medical certainty but more on issues of probability and loss of chance, referring to the case of Gregg v Scott,28Gregg v Scott (2005) 2 AC 176. This is a complicated case with facts similar to the instant case. For a detailed understanding of this case and its arguments, Clerk & Lindsell on Torts, Sweet & Maxwell, 22nd ed, 2018 provides a good summary (at pp 117 – 124). The authors have skillfully dissected the arguments of the plaintiff, including an alternative “quantification argument” – that the delay in diagnosis caused physical damage as the plaintiff’s tumour had grown bigger, causing greater pain and suffering requiring drastic treatment with greater side effects. One wonders whether this argument could have applied in the instant case. This argument was nonetheless rejected by the majority in Gregg v Scott. The loss of chance argument, according to the authors, could likely apply in cases of medical negligence when there is uncertainty about the outcome at the time of the negligence, distinguishing the facts of Hotson v East Berkshire AHA (1987) A.C. 750. The authors also attempted to rationalise the relationship between the concept of material contribution to risk of injury (MCRI), as applied in Fairchild v Glenhaven Funeral Services Ltd (2006) UKHL 20, and the loss of chance argument. They opined (at p 124) that the distinction could ultimately be a matter of policy consideration, “The distinction is entirely pragmatic, ie. to avoid creating a wider range of potentially successful claims for negligence … whereas (the causation test of MCRI) was designed to reduce the defendants’ potential liability.” and the dissenting view of Lord Nicholls, in determining damages for loss of chance. Choo J cited, approvingly, the following statement by Lord Nicholls:29At (24) – (31).
“[The] purpose of the [doctor’s] duty is to promote the patient’s prospects of recovery by exercising due skill and care in diagnosing and treating the patient’s condition … The law would rightly be open to reproach were it to provide a remedy if what is lost by a professional adviser’s negligence is financial opportunity or chance but refuse a remedy where what is lost by a doctor’s negligence is the chance of health or even life itself. Justice requires that the latter case as much as the former the loss of a chance should constitute actionable damage.”
and remarked:30(2018) SGHC 66 at (18).
“I accept the logic of the majority that we can never determine what might have been, but that does not mean that no compensation should be allowed. The difficulty or even impossibility of finding an objective award should not prevent the court from assessing what value in monetary terms the loss should be given.”
His Honour did not accept Ms Armstrong’s case that Mr Traynor would have had a 64.4 per cent chance of long-term survival and instead determined, somewhat arbitrarily, that the negligence had caused Mr Traynor to lose four years of his life.
One awaits the judgment of the Court of Appeal for a more clearly reasoned basis for allowing a loss of chance claim in medical negligence cases. In the meantime, the writers suggest that a rational approach would be to consider a hypothetical virtuous chain (HVC). In other words – what is the chain of positive events that need to take place in order for the patient to reach a good outcome? On the facts of Noor Azlin, a simple hypothetical chain in respect of Dr Imran’s liability would look something like this:
The top row considers the negative outcomes; for example, where the doctor opts to discharge the patient without ordering further tests, or where surgery goes wrong. The bottom row considers the desirable course of action. The selection of the events or contingencies for this chain, of course, has to be done judiciously and should not include unlikely or irrelevant possibilities (such as the patient being involved in a traffic accident while on the way to surgery).
Further, it is suggested that in the quantification of the loss, in order to arrive at a figure that is reflective of the plaintiff’s loss and fair to both parties, it is necessary to do a summation of the probabilities. The writers suggest that the current threshold,31The current state of law on the loss of chance is still a balance of probabilities, according to the majority of Gregg v Scott. using a balance of probabilities, is not appropriate since one is not concerned with ascertaining facts. Instead, the threshold of “real and substantial chance”,32Adopting the expression used in Allied Maples Group Ltd v Simmons & Simmons (a firm) (1995) 1 WLR 1602 at 1609-1611, which was endorsed in JSI Shipping (S) Pte Ltd v Teofoongwonglcloong (a firm) (2007) 4 SLR(R) 460: ‘The plaintiff must prove as a matter of causation that he has a real or substantial chance as opposed to a speculative one.’ It should be noted that this expression was used in Allied Maples in relation to the hypothetical action of a third party. The writers suggest it should be used for all stages/events in the HVC. An alternative term would be ‘material’, as in ‘material contribution to injury’ in causation. should to be adopted for each event. If the chance is minimal, then the HVC enquiry should end and the plaintiff has no claim.
To pursue this argument to its logical end, in terms of quantification of loss, it is suggested that a summation needs to be done. Assuming that each event has more than a minimal chance of occurring, an accurate and fair quantum is arrived at by doing a cumulative summation of the chances. For illustration purposes, let us assume the following percentages in the HVC relating to Dr Imran: if Dr Imran had ordered a CT scan, there is a 90 per cent chance that he would have discovered the nodule; if that happened, then there is a 90 per cent chance that he would order the biopsy and hence discover that the tumour was cancerous; upon that discovery, there is a 90 per cent chance that he would recommend a lobectomy; there is an 80 per cent chance that the patient may agree to lobectomy; and there is a 60 per cent chance that the lobectomy would be effective in curtailing the cancer. If we take a cumulative summation of the above chances, the plaintiff’s claim comes to only 35 per cent (0.9 x 0.9 x 0.9 x 0.8 x 0.6) of the better outcome. Thus, instead of a large sum, like $500,000, she should only receive $175,000.
(An HVC can, and should, similarly be done in respect of the loss of chance claim against CGH.)
In summary, three related proposals are made in relation to the ascertainment of the amount for a loss of chance: the adoption of an HVC, a threshold of real and substantial chance for each event in the HVC and a summation of all the chances. It is acknowledged that the proposals are radical and that such framework is likely to face resistance. Judges have to carefully select the relevant events in this HVC. More problematically, judges are loathe to put percentages to each of these events; in particular, there is judicial reluctance to rely on epidemiological evidence and statistics.33The evidential weight that epidemiological evidence carries is a matter of complexity and controversy and English judges are sceptical as to the credibility and relevance of these studies. For an interesting discussion of this subject, readers are referred to Using epidemiological evidence in tort law: a practical guide by Aleksandra Kobyasheva: https://www.gibsondunn.com/wp-content/uploads/2018/10/Kobyasheva-Using-epidemiological-evidence-in-tort-law-a-practical-guide-Journal-of-Professional-Negligence-Bloomsbury-10-2014-.pdf. The difficulties and challenges are acknowledged. However, it should be pointed out that in the insurance industry, actuarial considerations and calculations are regularly done and they play an integral role in the industry. Also, a summation of the chances is necessary in this scenario, as it avoids over-compensation and provides a true reflection of the plaintiff’s loss. Finally, it should be noted that if the summation approach of calculation is adopted, then claims become much more realistic and proportional, and fears of floodgates and concerns of defensive medicine will be considerably reduced.
Duty of Care of Hospitals
As regards the CA’s expectation of a hospital’s system of management, it is noted that given the recent advancement of SingHealth’s centralised patient information system, the change in law is not so relevant to public hospitals in Singapore. It is further noted that the CA did not address the High Court’s holding that it was within the scope of duty of hospitals to inform the patient of incidental findings or reports.34(2018) SGHC 35 at (119).
Are Courts Well-Placed to Make Medical Findings?
On a broader level, one is reminded of the challenges often faced in medical negligence cases. Judges, who typically do not have a medical background, have to confront and digest medical terms, conditions and treatments, and in the face of conflicting assertions and expert opinions, make a decision as to whether there is negligence. As the Court of Appeal in Noor Azlin acknowledged:35(2019) SGCA 13 at (65).
“Judges are not in the best position to resolve questions of genuine medical controversy that confront the medical industry and should not be preferring one body of medical opinion over another unless it has been shown to be logically indefensible.”
In Armstrong Carol,36(2018) SGHC 66 at (14). the Choo J echoed similar sentiments:
“The court is not at all qualified to determine which expert is more competent or which of them has greater expertise than the other. All it can do is to evaluate their evidence together with the rest of the evidence in the trial, and determine which seems more persuasive on the issues in question.”
In a similar vein, the authors of Markesinis & Deakins observe:37Markesinis & Deakin’s Tort Law, OUP, 7th ed (at pp 206).
“Where professional opinion is divided, it is not surprising that judges… normally consider themselves in no better position than the professionals to resolve the matter.”
A possible way to alleviate the difficulties would be to set up a specialised medical court, with the decision being made by a panel of judges and doctors combined, thereby ensuring a fairer and more informed result. This has been considered in other jurisdictions such as the United States,38Blake, Valarie. “The Jury Is Still Out on Health Courts.” Journal of Ethics | American Medical Association, American Medical Association, 1 Sept. 2011. https://journalofethics.ama-assn.org/article/jury-still-out-health-courts/2011-09 and Chodos, J. Should there be specialty courts for medical malpractice litigation? Medicalreview.columbia.edu. https://medicalreview.columbia.edu/article/specialty-courts-2/. but the jury is still out as to workability of this option. Another alternative is New Zealand’s “no fault compensation scheme” which also covers medical negligence, but this approach has its critics.39Wallis, K. (2017). No-fault, no difference: no-fault compensation for medical injury and healthcare ethics and practice. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5198606/.
The Noor Azlin case is a landmark decision on the liability of A&E doctors and of a hospital’s duty as regards the management system for the care of a patient. It provides clarity on important aspects of medical law and is to be welcomed. Its expectations will no doubt be closely scrutinised by lawyers and doctors alike.
As for the evolving jurisprudence on loss of chance in medical cases, one awaits the judgment of the Court of Appeal in Armstrong Carol. Hopefully, the evolving jurisprudence, both locally and abroad, will move towards a fairer albeit more complicated framework of compensation.
Lastly, the Noor Azlin case reminds us, once again, that the world of medicine remains complex and often unfathomable for doctors and, even more so, for judges and lawyers.
On 2 October 2019, the High Court awarded the estate of Noor Azlin S$200,000 as interim payment – see Straits Times, 2/20/19.
|↑1||(2018) SGHC 35, on appeal (2019) SGCA 13.|
|↑2||(2019) SGCA 13 at (68).|
|↑18||(2018) SGHC 35 at (56).|
|↑19||After all, specialist clinics or general practitioners may also face large volumes of patients when factors such as the flu season, time of day or number of doctors become a consideration. Following the Court’s reasoning, is it implied that the standard of care of a doctor working in a private clinic is higher than the A&E doctor?|
|↑20||It is worth noting the case of Crammond v Medway NHS Foundation (2015) EWHC 3540 where an A&E doctor was found negligent for failing to conduct proper history taking of a patient, placing too much emphasis on the ECG results which were obtained by the triage nurse. It would then seem that in addition to the tests required of an A&E doctor, proper history-taking is equally crucial before the right tests may be ordered. Nonetheless, history-taking in this present case was not an issue that the Courts had to address.|
|↑21||(2019) SGCA 13 at (77) CA.|
|↑22||(2018) SGHC 35 at (62), (91) and (108).|
|↑23||(2019) SGCA 13 at (46) & (81).|
|↑24||FB v Princess Alexandra Hospital (2017) EWCA Civ 334, which held that whether doctors are performing their normal role or ‘acting up’, they are judged by reference to the post which they are fulfilling at the material time. The health authority is liable if the doctor whom it puts into a particular position does not possess (and therefore does not exercise) the requisite degree of skill for the task in hand (see para 59).|
|↑26||The loss of chance argument has had an inconsistent history across courts in the United Kingdom, Canada and Australia. In the UK, JD v Mather (2012) EWHC 3063 (QB) seems to suggest the principle applies to cases of clinical negligence, ruling that the negligence had caused the deceased a loss of life expectancy of three years. However, it was rejected in Gregg v Scott (2005) 2 AC 176 by a majority of 3:2. In Canada, the principle was rejected by Judge Gonthier in Laferriere v Lawson (1991) 1 SCR 541 at 605: ‘I am not prepared to conclude that particular medical conditions should be treated for purposes of causation as the equivalent of diffuse elements of pure chance, analogous to the non-specific factors of fate or fortune which influence the outcome of a lottery.’ In Australia, the position is unfortunately even more inconsistent. The principle was applied, and a claim was given in Rufo v Hosking (2004) NSWCA 391 but subsequently firmly rejected in Tabet v Gett (2010) HCA 12.|
|↑27||Armstrong, Carol Ann v Quest Laboratories Pte Ltd and another (2018) SGHC 66.|
|↑28||Gregg v Scott (2005) 2 AC 176. This is a complicated case with facts similar to the instant case. For a detailed understanding of this case and its arguments, Clerk & Lindsell on Torts, Sweet & Maxwell, 22nd ed, 2018 provides a good summary (at pp 117 – 124). The authors have skillfully dissected the arguments of the plaintiff, including an alternative “quantification argument” – that the delay in diagnosis caused physical damage as the plaintiff’s tumour had grown bigger, causing greater pain and suffering requiring drastic treatment with greater side effects. One wonders whether this argument could have applied in the instant case. This argument was nonetheless rejected by the majority in Gregg v Scott. The loss of chance argument, according to the authors, could likely apply in cases of medical negligence when there is uncertainty about the outcome at the time of the negligence, distinguishing the facts of Hotson v East Berkshire AHA (1987) A.C. 750. The authors also attempted to rationalise the relationship between the concept of material contribution to risk of injury (MCRI), as applied in Fairchild v Glenhaven Funeral Services Ltd (2006) UKHL 20, and the loss of chance argument. They opined (at p 124) that the distinction could ultimately be a matter of policy consideration, “The distinction is entirely pragmatic, ie. to avoid creating a wider range of potentially successful claims for negligence … whereas (the causation test of MCRI) was designed to reduce the defendants’ potential liability.”|
|↑29||At (24) – (31).|
|↑30||(2018) SGHC 66 at (18).|
|↑31||The current state of law on the loss of chance is still a balance of probabilities, according to the majority of Gregg v Scott.|
|↑32||Adopting the expression used in Allied Maples Group Ltd v Simmons & Simmons (a firm) (1995) 1 WLR 1602 at 1609-1611, which was endorsed in JSI Shipping (S) Pte Ltd v Teofoongwonglcloong (a firm) (2007) 4 SLR(R) 460: ‘The plaintiff must prove as a matter of causation that he has a real or substantial chance as opposed to a speculative one.’ It should be noted that this expression was used in Allied Maples in relation to the hypothetical action of a third party. The writers suggest it should be used for all stages/events in the HVC. An alternative term would be ‘material’, as in ‘material contribution to injury’ in causation.|