Medical negligence – A new test

INTRODUCTION Medical law is an expanding legal field, evolving with the times. Doctors were previously thought to know best, leaving patients with little or no say in the choice of treatments. However, access to knowledge, medical or otherwise, has seen a change in the nature of the doctor-patient relationship, with more emphasis given to patient autonomy. This landmark decision, in an attempt to strike a balance between both interests, has modified the Montgomery test and adopted a new three-stage test in determining the standard of care expected from a doctor in giving medical advice to his patients
THE FACTS In 2013, the appellant, Tan Sri Clement Hii Chii Kok (“the Patient”) was found to have pancreatic lesions which were diagnosed to be tumours. Several treatment options were presented and surgery for the removal of the pancreatic lesions was decided. Post-operative findings showed that the Patient’s pancreas had a hyperplasia and not tumours. Nevertheless, the Patient recovered well after surgery and was discharged from the hospital. The Patient subsequently developed complications and had to undergo further consultations and operations. After being discharged, the Patient brought a claim against his surgeon, Professor Ooi Peng Jin London Lucien (“Dr Ooi”) and the National Cancer Centre of Singapore Pte Ltd (“NCCS”) (“the Respondents”) for negligence.
THE ISSUES The main issues discussed were (i) what the applicable test(s) is/are in relation to the assessment of the standard of care in medical negligence, and (ii) whether the Respondents fell below that standard of care.
THE DECISIONS The High Court dismissed the claim in its entirety. The Court of Appeal agreed with the decision of the High Court and held that the applicable standards in relation to the entirety of the Respondents’ interaction with the Patient were not breached.
Ratio Decidendi (The Reasoning) Medical care is broadly divided into three aspects, namely, (i) diagnosis, (ii) advice, and (iii) treatment. The Singapore Court of Appeal had decided to depart from the Bolam[1] test (supplemented by the Bolitho[2] addendum) in determining the standard of care required from a doctor in dispensing medical advice and had, instead, adopted a new three stage test, a modified version of what is known as the Montgomery[3] test. The standard of care for the duty of diagnosis and treatment however remains the same.
The applicable tests
Bolam test The Bolam test states that a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in the particular art, even if there is a body of opinion who would take the contrary view.
Bolitho addendum The Bolam test was later supplemented in Bolitho. The Bolitho addendum required that the body of opinion relied upon must also satisfy a threshold test of logic, failing which the court could disregard that body of opinion.
The Montgomery test The Montgomery test provided that, in addition to risks or alternative treatments which a reasonable patient in a similar position would wish to know of, the doctor is also expected to advise the patient as to risks or alternative treatments which the specific patient would in fact have wished to know of for reasons known, or which should have been known, to the doctor. However, the exceptions for withholding such information are, (i) if disclosure would be seriously detrimental to the patient’s health, or (ii) necessity.
The Modified Montgomery test (“the New Test”) The New Test, formulated by the Singaporean Court of Appeal, consists of three stages, namely (1) sufficiency of information, (2) possession of information, and (3) justification for withholding information.
Stage 1 – Sufficiency of information
The patient must identify the exact nature of the information (“Information”) that he alleged was not given to him and establish why such Information would be regarded as relevant and material. Doctors are expected to disclose (a) relevant and material information to a reasonable patient situated in the particular patient’s position, or (b) information that a doctor knows is important to the particular patient in question. The question of whether such information is reasonable material is one that is measured by common sense.
Stage 2 – Possession of information
The court will determine on whether the doctor was in possession of the Information. The question would be whether the doctor ought to have ordered the relevant tests or apprised himself of the medical knowledge, which would have furnished him with the information.
Stage 3 – Justification for withholding information
The court must be satisfied that the non-disclosure was justified having regard to the doctor’s reasons for withholding information and to consider whether it was a sound judgment having regard to the standards of a reasonable and competent doctor. Three exceptions however may justify the withholding of such information, namely, (i) waiver[4], (ii) emergency situation[5], and (iii) therapeutic privilege[6].
CONCLUSION Although several concerns has been raised claiming that the decision would lead to a number of issues including the increase in the cost of healthcare, frequency of litigation, as well as the practice of defensive medicine on the part of the doctors, it would seem that the decision would give rise to a more collaborative relationship between doctors and patients, striking a healthy balance between the interests of both patient and doctor.

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Wong Keat Ching
Thavaselvi Pararajasingam
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Idza Hajar Ahmad Idzam
[1] Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
[2] Bolitho (Administratrix of the Estate of Patrick Nigel Bolitho(deceased)) v City and Hackney Health Authority [1997] 4 All ER 771
[3] Montgomery v Lanarkshire Health Board [2015] UKSC 11
[4] Waiver should ordinarily be expressed or extremely clear.
[5] Threat of death or serious harm to the person and the person temporarily lacks decision-making capacity and there is no appropriate substitute decision-maker.
[6] Where the doctor reasonably believes that the very act of giving particular information would cause the patient serious physical or mental harm.

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