There has been some confusion about the new medical negligence test set out by the Court of Appeal recently.
One of the misconceptions is that the patient's opinion in hindsight will trump the expert views of the doctor and his peers, and that doctors will now have to be mind-readers and guess what obscure information the patient could possibly want to know, even if he does not bring it to the doctor's attention.
In his letter (Engage patients? Yes, but don't expect doctors to mind-read; May 27), Mr Edmund Khoo Kim Hock states that a doctor cannot be expected to read his patient's mind, so he must not be held responsible for not predicting the inner concerns of a patient which were not divulged at the clinic.
This is erroneous, as it suggests that the Court of Appeal has unfairly placed an impossible burden on doctors without bearing in mind the practicalities of medical practice.
The Court held that doctors must give relevant and material information to a patient, and information they know would be important to a reasonable patient in that patient's shoes, even if the patient does not require it.
The information must be given in a way that the patient can understand. This is to ensure the patient can make an informed decision.
It is also incorrect to suggest that the new test for medical negligence focuses on the patient's judgment of the doctor's advice in hindsight.
In its judgment, the Court of Appeal specifically warned against "hindsight bias" and "outcome bias".
It has pointed out the critical importance of ensuring that the courts, in evaluating whether the doctor has met the requisite standard of care in any aspect of his interaction with the patient, should apply the relevant tests with reference only to the facts that were known at the time of the material event.
The Court has also emphasised that the doctor's duty is to take reasonable care, and that he is not expected to meet "unrealistic standards of behaviour".
This means that consideration must be given to the situation of the doctor, who is "not required to ensure that the patient fully comprehends the information given, but only to take reasonable care in this and other respects".
Terence Seah
Partner
Virtus Law LLP
