Medical Negligence and Malpractice in Singapore
Medical negligence or malpractice is a failure to exercise an accepted standard of care in medical professional skills or knowledge, resulting in injury, damage or loss.
Such transgressions can have severe consequences – in 2007 an elderly woman was given 1,000 times the correct dose of radioactive iodine due to the negligence of her doctor. Following the incident, the woman developed thyroid gland disorder and was later diagnosed with lymphoma, a cancer of the blood. News reports indicated that the woman and her family managed to obtain an out-of-court settlement with the hospital in return for monetary compensation.
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Unfortunately, the answer is no – medical negligence isn’t a crime. 😣 However, the patient may lodge a complaint with the Singapore Medical Council (SMC), or take up legal action against their doctor! 💁♀️ – Medical negligence is a failure (on the doctor’s part) to exercise an acceptable standard of care in medical skills or knowledge, which resulted in injury or other losses to the patient. In a court case, the patient must provide evidence of the doctor’s negligence. The matter must also be considered by medical experts, who have to conclude that the practice carried out by the negligent doctor was unacceptable. 🤔 – Should their legal action be successful, it’s possible for the patient to be awarded compensation 💰💰 for items such as loss of future earnings and medical expenses, depending on the severity of their injury. Despite this, legal action should be a last resort, as a full trial would be very costly and time-consuming. 🤧 It would be best to settle such matters via mediation or out of court settlements instead! #SingaporeLegalAdvice
Where to Find Recourse
In cases of medical negligence, legal recourse may be available to the victim. Legal advice may be sought and litigation may be commenced against the errant doctor. Depending on the amount that the victim is claiming for, the case can be heard in either the High Court or the State Courts.
Most medical practitioners have medical malpractice insurance to insure their legal liabilities in the event of a legal claim. Of the approximately 10,000 doctors in Singapore, a majority are insured by the London-based Medical Protection Society. In some cases the victim may also choose instead to sue the clinic or hospital, which is likely to have deeper pockets than a junior doctor.
Nevertheless, litigation can be very costly and should be avoided as much as possible. The state of the legal system means that a plaintiff needs to engage a lawyer, seek medical expert witness testimony, legally review medical records, and be subject to corroborative medical examinations that can take a substantial amount of time.
Out-of-court settlements binding the victim and the culprit are sometimes reached to recompense the victim and minimise legal fees incurred by both sides. Besides litigation, other avenues are also available for the victim to seek redress.
Lodging a Complaint with the Singapore Medical Council
In a case of malpractice, the first port of call should be to lodge a complaint with the Singapore Medical Council (“SMC”), which is a statutory board under the Ministry of Health. The SMC is responsible for the regulation of the conduct of doctors in Singapore.
The SMC is able to look into issues relating to:
- Complaint touching on the conduct of a registered medical practitioner in his professional capacity or on his improper act or conduct which brings disrepute to his profession;
- Information on the conviction of a registered medical practitioner of any offence implying a defect in character which makes him unfit to practise as a medical practitioner;
- Complaint that the professional services provided by a registered medical practitioner are not of the quality which is reasonable to expect of him; or
- Information touching on the physical or mental fitness to practise of a registered medical practitioner.
To initiate a complaint, the complainant must have a cause of action, which could include:
- Professional misconduct;
- Complaints relating to issues of medical ethics and standards; and
- Complaints relating to the physical or mental fitness of the medical practitioner to practise.
The SMC does not have the jurisdiction to:
- Help you to write your complaint;
- Order a medical practitioner to provide the medical treatment you want;
- Help you with a claim for compensation;
- Order a medical practitioner to give you access to your records; or
- Make a medical practitioner apologise to you in any manner.
The Complaints Committee of the SMC will conduct a preliminary investigation into the complaint. Some of the options available to the Complaints Committee are to:
- Order that the complaint be dismissed;
- Order that the medical practitioner be issued with a letter of advice;
- Order that the medical practitioner be issued with a letter of warning;
- Order that the medical practitioner undergo medical or psychiatric treatment or counselling;
- Order that the medical practitioner undertake and complete specified further education or training within a specified period;
- Order that the medical practitioner report on the status of his medical practice at such times, in such manner and to such persons as may be specified by the Complaints Committee; or
- Order that the medical practitioner seek and take advice, in relation to the management of his medical practice, from such persons as may be specified by the Complaints Committee.
If you are dissatisfied with the decision of the Complaints Committee, you may appeal to the Minister for Health within 30 days of the outcome of your complaint.
Additionally, the Complaints Committee may recommend the following actions:
- Mediation: The Complaints Committee is empowered to order that the complaint be brought before the Singapore Mediation Centre for mediation. Please visit the Singapore Mediation Centre website for more information on the mediation process. If the Complaints Committee refers the complaint for mediation, there will be no additional cost to the complainant.
- Formal inquiry: If the Complaints Committee is of the view that a formal inquiry is necessary for the complaint, it shall order that the matter to be brought before a disciplinary proceeding.
- Health inquiry: If a Health inquiry is necessary to examine the doctor’s fitness to practise , the Complaints Committee shall order the matter to be brought before a Health Committee.
To submit a complaint, you may reach the SMC’s website here.
SMC-Medical Council Mediation Scheme
The SMC-Medical Council Mediation Scheme is designed to help complainants resolve disputes with their registered medical practitioner.
Complainants who wish to raise an issue about a registered medical practitioner will first have to register their complaint with the Complaints Committee of the Singapore Medical Council. The Complaints Committee may then refer the matter to mediation at SMC and may order the personal attendance of the complainant and the registered medical practitioner at mediation.
All fees payable to SMC will be borne by the Singapore Medical Council. Each party will bear its own costs, expenses and disbursements of its participation and the fees of its advisers (if any) in relation to the mediation.
Mediation is generally confidential. No settlement reached in the mediation will be binding until it has been reduced to writing and signed by or on behalf of the parties.
For more information on mediation, you may reach the Singapore Mediation Centre’s website by accessing this link.
Healthcare Mediation Scheme
The Healthcare Mediation Scheme (“HMS”) is designed to offer mediation services for disputes between patients and healthcare institutes. The HMS offers incentives for both patients and healthcare institutes to resolve any differences between them through a frank and confidential discussion. Free mediation advice is given for those who need help deciding whether to apply for mediation and preparing their case for mediation, and full subsidies for early settlement through good faith mediation.
The HMS is usually used for the following types of issues:
- Seeking financial compensation;
- Seeking close-door apology;
- Where there is a disagreement with the institution’s explanation or opinion of medical findings; or
- All billing and financial dispute matters.
All mediations under HMS will be facilitated by two mediators specially selected for their competence in resolving disputes regarding patient care and management, service quality, and medical fees.
For more information on mediation, you may reach the Singapore Mediation Centre’s website here.
Seeking Independent Legal Advice
It may be necessary to obtain legal advice if you intend to pursue legal action. In specialised cases involving medical negligence, it is prudent to select a lawyer with past experience in similar matters.
Even after the decision is made to proceed with a lawsuit, multiple options are still available to resolve the matter without a full blown trial. A full blown trial involving medical negligence may be especially costly and time-consuming, because they tend to turn on conflicting expert evidence which requires expert witnesses to testify at length.
Neutral evaluation, mediation, and out-of-court settlements are options available during the course of legal proceedings to negate the necessity of a trial. The former two are alternative dispute resolution processes, usually conducted at the Primary Dispute Resolution Centre.
Legal Test for Medical Negligence
The doctor treating a patient owes a duty of care to his patient to take care and act diligently in all areas, which include:
- Accurate assessment and diagnosis;
- Timely and appropriate investigations;
- Safe and effective treatment;
- Giving information on disease and medication;
- Obtaining consent of patient throughout the relationship;
- Appropriate and timely referral;
- Appropriate response when called to attend; and
- Maintaining medical confidentiality.
With the 2017 case of Hii Chii Kok v Ooi Peng Jin London Lucien and another, there are now two differing standards of care applicable to medical negligence cases relating to diagnosis and treatment, and to medical advice, respectively.
Standard of care for diagnosis and treatment
The applicable standard of care for diagnosis and treatment is as stated in the Singapore case of Gunapathy, which applied the test developed in Bolam and subsequently further refined in Bolitho.
Briefly, under the Bolam test, a doctor would not be found negligent if there was a respectable body of medical opinion, logically held, that supported his actions or omissions. This means that a defendant doctor would have to adduce evidence in the form of an expert opinion to support his actions or omissions.
In addition to the above, the expert opinion adduced must also satisfy the threshold test of logic, which is expressed in the two-stage Bolitho inquiry. The Bolitho inquiry directs the court to ask:
- Whether the expert had directed his mind to the comparative risks and benefits relating to the matter, considering and weighing all the countervailing factors relevant to the issue and rejecting bare and unsupported assertions; and
- Whether the medical expert had reached a ‘defensible conclusion’ as a result of the balancing process. To this end, there are two aspects of ‘defensibility’ that must be satisfied. First, the medical opinion must be internally consistent, cogent and coherent on its face, and, second, the medical opinion should not ignore or controvert known medical facts or advances in medical knowledge.
Standard of care for medical advice
In the 2017 case of Hii Chii Kok v Ooi Peng Jin London Lucien and another, the court clarified that a modified Montgomery test shall govern the standard of care applicable to doctors in respect of medical advice rendered in Singapore. The rationale of the modified Montgomery test was said to be based on enhancing patient autonomy, specifically, to ensure that patients are given the sufficient information to arrive at an informed decision as to whether to agree to a proposed therapy or treatment.
The modified Montgomery test proceeds in three general stages as follows:
- The patient must identify the exact nature of the information that he alleges was not given to him and establish why it would be regarded as relevant and material from his own perspective. Such information include but are not limited those of material risks concerning the recommended treatment and any reasonable alternatives or variant treatment.
- It must be shown that the doctor was in possession of that information.
- An examination of the reasons why the doctor chose to withhold the information from the patient from the doctor’s perspective. If the doctor can justify his withholding of that information, he will not be found in breach of the applicable standard of care. Whether a doctor is so justified is determined according to what an ordinary and reasonable doctor would have done in the circumstances.
Even if the doctor is found negligent under the modified Montgomery test, there are certain situations that may exculpate the defendant doctor. A non-exhaustive list of such situations include:
- Instances of waiver: when the patient informs the doctor of his wish to not hear further information about the proposed treatment or alternatives
- When treatment was provided on an emergency basis
- When the doctor reasonably believes that his giving of that particular information would cause the patient serious physical or mental harm (known as the “therapeutic privilege”)
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