MEDICAL NEGLIGENCE II

1
MEDICAL NEGLIGENCE (II)
BREACH OF DUTY OF CARE CAUSATION DAMAGES
Christopher Chong M/s Helen Yeo Partners
2
BREACH OF DUTY

• BURDEN OF PROOF
• Onus on the Claimant
• Balance of probabilities

3
STANDARD OF CARE

• The Bolam test
• The role of the Court in determining the standard
  of care

4
BREACH OF DUTY

• DETERMINING THE STANDARD
• Expert witnesses
• Guidelines
• Specialist societies
• Practice guidelins from MOH or professional
  bodies
• Medical texts/ articles/ literature

5
DISPUTE OF FACTS

• Opinions must be based on a set of facts
• Testimony of witnesses- whom to believe?
• Importance of Medical Records
• Contemporaneous neutral record of events/
  non-events
• Passage of time

6

• RES IPSA LOQUITUR
• The thing speaks for itself
• Inference of negligence

7
CAUSATION

• The breach of duty must have caused loss or
  damage
• Burden of proof
• The but for test
• that loss would not have occurred but for the
  event
• whether loss would have occurred in any event

8
JOINT LIABILITY

• 2 parties can be jointly liable for the same
  loss/ damage
• Contributory negligence
• Where part or all of the fault lies on the
  claimant
• Preceding events
• Intervening events

9
LOSS/ DAMAGES

• CLAIMS BY PATIENTS
• Compensation for injuries
• pain suffering
• loss of amenities
• physical psychiatric injuries
• determined by judicial precedents

10

• Compensation for additional expenses
• Hospitalization expenses
• Medical expenses
• Nursing expenses
• Compensation for other foreseeable loss
• Loss of salary
• Loss of earning capacity

11

• Limits to claims
• No loss or damage
• Nominal damages
• Complaints to SMC
• Type of loss/ damage must be reasonably
  foreseeable cf extent of damage
• Mitigation of loss
• Public policy

12

• CLAIMS BY OTHER PARTIES
• Bereavement under the Civil Law Act
• Death
• Next of kin
• Fixed sum
• Loss of dependency
• Dependent
• Nervous shock

13
CONCLUSION

• Breach of duty is determined by the Courts after
  a consideration of various factors
• Medical records play a key role
• Causation and damage are issues which are
  considered after a breach of duty has been
  established-
• closing the gate after the horse has run away