Medical negligence
Dr Sing Kong Yuen, BVMS (Glasgow), MRCVS
Date:
25 April, 2011
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I just read a Straits
Times Apr 22, 2011 "Brain-damaged toddler: Hospital,
parents settle suit". No liability admitted, court will
now assess damages payable.
It was a medical negligence suit against the doctors of
Kandang Kerbau Hospital. The plaintiffs were the parents
of a toddler who is brained damaged when the the position of the endotracheal
tube was displaced while the doctors were moving it. The endotracheal
tube brings oxygen from the machine to the lungs. By
shifting the position of the endotracheal tube, the oxygen
was not delivered to the toddler. The toddler suffered brain
damage and is not normal.
Was there medical negligence? Was there a lack of care by
the doctors?
I refer to my real estate REA notes to pass my
examinations in late May, some 6 weeks later by reviewing
this real case.
1. WAS THERE MEDICAL NEGLIGENCE IN THIS CASE?
LAW OF TORT - NEGLIGENCE
I am not a lawyer and this is my own opinion of the
case:
To succeed in an action for negligence, the plaintiff must
show that:
1) the defendant owes him a duty of care - YES
2) the defendant has beached that duty of care - NOT
ADMITTED BY THE DEFENDANT
3) his breach causes damage/loss to the plaintiff - YES.
THE TODDLER IS BRAIN DAMAGED.
4) the damage/loss is not too remote (not controllable,
not foreseeable, not an expert on a particular subject
matter) - THE DOCTOR IS A TOP EXPERT IN CARDIO-RESPIRATORY
FIELD, ACCORDING TO THE DEFENDANT
2. WAS THERE A LACK OF CARE?
LAW OF TORT - DUTY OF CARE - TEST
Duty of Care - "But For" Test
A test of duty of care is: "You must take reasonable care
to avoid acts and omissions that you can reasonably
foresee, would be likely to injure your neighbour"
In tort law, a duty of care is a legal obligation
requiring an individual to conform to a standard of
reasonable care while performing any act that could
foreseeably harm others. It is the first element
that must be established to continue with an action in
NEGLIGENCE. The plaintiff must show that a duty of care
imposed by law (common law usually) has been breached by
the defendant.
LAW OF TORT - DUTY OF CARE - BREACH
Standard of Care - Breach.
More important in professions requiring special skill or
expertise, the person must exercise a reasonable standard
of care that must be measured.
The standard of care is measured by the "reasonable man"
test:
Whether the defendant's conduct fall below the standard of
care which is expected of the reasonable man.
CONCLUSION
The cause of damage is established by the "but for"
test:
The court will ask - would the plaintiff (patient, buyer,
tenant, owner) has suffered the injury but for the
defendant's (doctor's, agent's) negligence?
The Kandang Kerbau Hospital settled out of court (High
Court's claim for damages must be above $250,000) without
admitting liability and this was accepted by the parents.
The court will assess the damages.
P.S
The above incident reminds me of one case some 30 years
ago. A vet spayed a dog. The dog became comatose during
surgery, according to the operating vet who was not in
private practice at that time.
The owner (a leading flight stewardess) was asked to take
the dog home as the vet could not do anymore. I saw the
dog. It was paddling and not able to live normally. So,
was this a case of deprivation of oxygen during the spay
or some reactions? I don't know. Many complications can
occur during anaesthesia, in medicine and surgery and
the only advice
I can give is that one must not be complacent.
 For
readers who don't know what I mean, an endotracheal tube I
used at Toa Payoh Vets for dog anaesthesia is shown left.
It brings oxygen and isoflurane gas from the machine to
the dog's lungs to permit surgery without pain. An
endotracheal tube can also brings just oxygen to a person
or animal with respiratory distress (panting non-stop and
becoming blue).
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