breach of duty of care causation damages · medical negligence (ii) breach of duty of care...
TRANSCRIPT
MEDICAL NEGLIGENCE (II)
BREACH OF DUTY OF CARE
CAUSATION
DAMAGES
Christopher Chong
M/s Helen Yeo & Partners
BREACH OF DUTY
� BURDEN OF PROOF– Onus on the Claimant
– Balance of probabilities
STANDARD OF CARE
� The “Bolam” test
� The role of the Court in determining the standard of care
BREACH OF DUTY
DETERMINING THE STANDARD
� Expert witnesses
� Guidelines– Specialist societies
– Practice guidelins from MOH or professional bodies
� Medical texts/ articles/ literature
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
RES IPSA LOQUITUR
� The thing speaks for itself
� Inference of negligence
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 anyevent
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
LOSS/ DAMAGES
CLAIMS BY PATIENTS
� Compensation for injuries– pain & suffering
– loss of amenities
– physical & psychiatric injuries
– determined by judicial precedents
� Compensation for additional expenses– Hospitalization expenses
– Medical expenses
– Nursing expenses
� Compensation for other foreseeable loss– Loss of salary
– Loss of earning capacity
� 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
CLAIMS BY OTHER PARTIES
� Bereavement under the Civil Law Act– Death
– Next of kin
– Fixed sum
� Loss of dependency– Dependent
� Nervous shock
CONCLUSION
� Breach of duty is determined by the Courtsafter a consideration of various factors
� Medical records play a key role
� Causation and damage are issues which areconsidered after a breach of duty has beenestablished-– closing the gate after the horse has run away