As a preliminary, what is the difference between medical negligence and medical malpractice? Briefly, medical negligence is concerned with the law of torts, specifically the tort of negligence which is a cause of action for most patients against their doctors. Medical malpractice engenders a much larger category of misfeasance by doctors such as inappropriate behavior towards patients or behavior which brings the profession into disrepute. Medical malpractice may also involve disciplinary action by the Singapore Medical Association.

An active lawsuit is a source of great financial and emotional stress to a doctor, and may also lead to disrepute, regardless of the outcome of the lawsuit. There is thus great interest in the prevention of such lawsuits.

Avoiding litigation: managing expectations

You may have guessed that communication with the patient is the key to ensuring a common understanding and to prevent false expectations. However, that is only half correct. In cases where failed procedures result in the loss of life, the party leading litigation would be the estate of the deceased, the family members. Thus, the other half of the answer would be that a doctor has to be equally, if not more, concerned about the expectations of the family.

Miscommunication is a potential problem. You cannot be certain that the patient would represent your views correctly to his family members. Miscommunication between the patient and his family could place you in a precarious position of liability when something goes wrong. Therefore, it would be prudent that prior to the procedure, you request to speak to the family members, not only to discuss post-procedure care, but also to ensure that there is a synchronization of expectations, and to alleviate any pressing concerns that the family may have.

Legal landscape on medical negligence

Singapore’s policy stance and law on medical negligence is neatly encapsulated in the Court of Appeal decision of Gunapathy, applying the test developed in the English decision of Bolam and Bolitho. Following this test, a doctor would not be found to be negligent if there was a logical opinion held by a respectable body of practitioners that supported his actions. That being the legal status quo, doctors need not worry – the process of medical practice is what negligence is concerned with. In other words, the failure of a procedure per se is insufficient for negligence liability.

Medical negligence law in Singapore is even-handed. There is clear public interest in shielding doctors from frivolous lawsuits, as doctors are not infallible. Furthermore, imposing an unrealistic standard of care could result in defensive medicine, where doctors perform their duties in fear of litigation, rather than in the interests of the patient.

What can you do to protect yourself in the event of a lawsuit?

However, when worse comes to worst, what can a doctor do to protect himself in the event of a lawsuit?

First, always ensure adequate record keeping. This provides a practical advantage when evidence is adduced in court – written records are almost always more credible.

Second, reasonably detailed note-taking. In particular, you should note, for instance, that you’ve proposed other options that the patient rejected. You should note down the exact risks and complications of a particular procedure. Along those lines, you need to also note the patient’s acknowledgement of the comparative risks and benefits.

Third, consult other professionals when in doubt. Pertinent to uncommon ailments and procedures, the probability of things going wrong is higher and thus greater care must be taken to guard against the allegation that the doctor did not perform his duties diligently. Apart from this, it is also practically helpful in litigation to demonstrate that the opinion of the doctor is one held by “a respectable body of practitioners”.

While there has been an increase in both the number and quantum of claims filed against doctors in recent years, the threat of litigation does not hang over the head of the modern doctor. The position in Singapore is that, according to Chief Justice Sundaresh Menon in the Legal Year 2016 speech, that medical practice cannot be distorted by the fear of lawsuits. Indeed, the ongoing establishment of a mediation scheme between the legal system and the Singapore Medical Association highlights the need to keep litigation to a minimum. Thus, as long as doctors demonstrate due diligence, the fear of litigation is more apparent than real. MIMS

Read more:
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To err is human - the cost of medical negligence
Is medical malpractice on the rise?

Sources:
1. 12 Jan 2016, The Straits Times, “CJ seeks to ease doctors’ fears of malpractice suits”. http://www.straitstimes.com/singapore/courts-crime/cj-seeks-to-ease-doctors-fears-of-malpractice-suits
2. Feb 2016, Singapore Medical Association, “Defensive medicine – the need for re-imagination of our medical litigation paradigm”. https://www.sma.org.sg/UploadedImg/files/Publications%20-%20SMA%20News/4802/CMEP.pdf