Legal test on doctors' negligence: MOH, AGC studying impact

Experts say the new test is unlikely to significantly change the way doctors practise, but could get them to pay more attention to how they get their message across.
Experts say the new test is unlikely to significantly change the way doctors practise, but could get them to pay more attention to how they get their message across.PHOTO: ST FILE

The Health Ministry (MOH) and Attorney-General's Chambers (AGC) are studying the impact of a new legal test used by the Court of Appeal to determine if a doctor has been negligent in giving medical advice.

The test - in which the average patient's opinion on the advice received carries more weight than the opinions of a doctor's peers - was used in a landmark decision last week.

MOH said it initially had concerns that a legal test that does not take into regard doctors' views would "create uncertainty" in the profession. "(This) could lead to defensive medical practices and ultimately result in additional procedures and costs for patients," an MOH spokesman said.

However, the spokesman added that the courts have accepted that "the expert evidence of doctors on matters of medical practice and judgment will continue to be of some significance".

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The new test, a modified version of what is known as the Montgomery test, was used by the Court of Appeal in a case in which a businessman sued a surgeon and the National Cancer Centre Singapore for allegedly providing wrong advice ending in unnecessary surgery. The businessman lost the appeal.

Previously, Singapore's courts had used only the oft-cited Bolam test, which states that a doctor is not negligent if his actions could be supported by other doctors.

National University of Singapore law faculty professor A. Kumaralingam said the new test marks a "fundamental shift" from giving weight to what doctors believe is relevant information, to what patients think about the matter.

"Ideally, it should lead to a culture of collaborative autonomy where doctors and patients are equal partners in managing the patient's health," he said.

Experts say the new test is unlikely to significantly change the way doctors practise, but could get them to pay more attention to how they get their message across.

Said Dr Jeremy Lim, a partner in Oliver Wyman's global health practice: "The new test should ideally encourage doctors to reflect and be even more thoughtful about how and what they communicate to patients and their relatives.

"It should clarify the expectations and standards of care in communicating the pros and cons, and risks of any proposed treatments."

An oft-cited concern with the new test is that to protect themselves, doctors may provide too much information, thus making it more difficult for their patients to make sound treatment decisions.

Dr Desmond Wai, who practises at Desmond Wai Liver and Gastrointestinal Diseases Centre, said the balance between disclosing enough information and sharing too much can be a tricky one. He personally tailors his consultations to the specific details of each case.

"We need to understand the patient's socio-economic background and education level, and adjust our explanation accordingly," he said.

"For patients with big families, I usually call for a family conference to ensure each and every member of the family is aware of the medical diagnosis and options, before coming to a consensus."

A version of this article appeared in the print edition of The Straits Times on May 20, 2017, with the headline 'Legal test on doctors' negligence: MOH, AGC studying impact'. Print Edition | Subscribe