Court adopts new legal test to determine if doctor was negligent

Datuk Seri Hii Chii Kok (left) alleged that he was informed by Prof London Lucien Ooi and NCCS that he had pancreatic cancer.
Datuk Seri Hii Chii Kok (left) alleged that he was informed by Prof London Lucien Ooi and NCCS that he had pancreatic cancer.PHOTO: ST FILE

In a landmark decision, the Court of Appeal has adopted a new legal test to determine whether a doctor has been negligent while dispensing medical advice.

The apex court used the detailed new test in dismissing an appeal by Malaysian businessman Clement Hii Chii Kok, according to the written judgment released yesterday.

In 2013, Datuk Seri Hii had sued Singapore surgeon London Lucien Ooi and the National Cancer Centre Singapore (NCCS) for misdiagnosing him and giving him wrong medical advice. He lost his case last year.

The court used the new test for negligence, which involves seeing whether there is material information about the patient that the doctor should know and if the doctor is aware of this information.

The test also considers whether a doctor is justified in withholding such information, including in emergencies or when giving the information would cause more harm.

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.

In this case, the courts decided to use a modification of the so-called Montgomery test, which considers whether the patient is receiving useful medical information, rather than whether it is the common practice.

The new test includes a three-stage inquiry to determine if the doctor had fulfilled his duty of care to the patient, lawyers said.

  • About the case

  • Prominent Malaysian businessman Clement Hii Chii Kok had undergone complex surgery in August 2010 to remove parts of five organs.

    He alleged he had been told by Singapore surgeon London Lucien Ooi and the National Cancer Centre Singapore (NCCS) that he suffered from "pancreatic cancer" and that surgery was the only option.

    But both defendants deny the claims and said they never told him he had cancer of the pancreas. They said there were multiple specialist opinions that showed that the cancer could not be ruled out in his case and surgery was recommended.

    Datuk Seri Hii, who studied law, sued the NCCS and Professor Ooi for damages, claiming that they had failed to provide proper advice, did not consider the results of various other tests and failed to get his informed consent.

    But Justice Chan Seng Onn in a judgment in February last year ruled in favour of the defendants, saying this claim was not borne out by the evidence.

Patients, in general, now have access to more information and are expected to participate more actively in the consultation process with doctors, said the five-judge panel including Chief Justice Sundaresh Menon and Judges of Appeal Chao Hick Tin, Judith Prakash, Tay Yong Kwang and Steven Chong.

The court also held that while there were concerns the new test could lead to more litigation and encourage "defensive medicine", there was not enough evidence to show these concerns overrode the patient's autonomy.

Legal Clinic LLC director, Ms Kuah Boon Theng, who was the NCCS' lawyer, said the court is saying it is time that "doctors should instead empower patients to exercise their autonomy by giving them the information they need in order to make meaningful decisions about their own care".

If the traditional test were used, doctors could simply claim that it is their practice to not reveal certain information, she added.

While Britain's courts have adopted the Montgomery test since 2015, the test does not have a three-stage inquiry.

Because of this, there has been criticism about whether doctors would prioritise protecting themselves, overloading the patient with unimportant information, rather than to provide them with accurate guidance, said Ms Kuah.

With the modified Montgomery test, doctors can withhold information too, but they will have to prove that doing so will protect the patient from harm, she explained.

She told The Straits Times: "It is a remarkable and thoughtful decision that goes further than Montgomery ever did in providing guidance to the medical profession on informed consent."

A version of this article appeared in the print edition of The Straits Times on May 13, 2017, with the headline 'Court adopts new legal test to determine if doctor was negligent'. Subscribe