Friday, April 22, 2011

417. Negligence lawsuit

I just read a Straits Times' report on a negligence suit against the doctors of Kandang Kerbau Hospital. The plaintiffs were the parents of a child who is not normal now since the doctors were alleged to have shifted the position of the endotracheal tube during the movement of the child. The endotracheal tube brings oxygen from the machine to the lungs. By shifting the position of the endotracheal tube, the oxygen was not delivered to the child and the child's brain was damaged, making her now unable to look after herself.

Was there medical negligence? Was there a lack of care by the doctors?

I refer to my real estate REA notes to pass my examinations in late May, some 6 weeks later by reviewing this real case.

1. WAS THERE MEDICAL NEGLIGENCE?
LAW OF TORT - NEGLIGENCE
To succeed in an action for negligence, the plaintiff must show that:
- the defendant owes him a duty of care - YES
- the defendant has beached that duty of care - NOT ADMITTED
- his breach causes damage/loss to the plaintiff - YES
- the damage/loss is not too remote (not controllable, not foreseeable, not an expert on a particular subject matter) - YES. THE DOCTORS WERE EXPERTS IN CARDIO-RESPIRATORY FIELD


2. WAS THERE A LACK OF CARE?
LAW OF TORT - DUTY OF CARE - TEST
Duty of Care - "But For" Test
A test of duty of care is: "You must take reasonable care to avoid acts and omissions that you can reasonably foresee, would be likely to injure your neighbour"

The cause of damage is established by the "but for" test:
The court will ask - would the plaintiff (patient, buyer, tenant, owner) has suffered the injury but for the defendant's (doctor's, agent's) negligence?

LAW OF TORT - DUTY OF CARE - BREACH
Standard of Care - Breach.

More important in professions requiring special skill or expertise, the person must exercise a reasonable standard of care that must be measured.

The standard of care is measured by the "reasonable man" test:
Whether the defendant's conduct fall below the standard of care which is expected of the reasonable man.


CONCLUSION
The Kandang Kerbau Hospital settled out of court (High Court's claim for damages must be above $250,000) without admitting liability and this was accepted by the parents. Otherwise, legal fees would be much more and the parents may win or lose the case.

P.S
The above incident reminds me of one case some 30 years ago. A vet spayed a dog. The dog became comatose during surgery, according to the operating vet who was not in private practice at that time.

The owner (a leading flight stewardess) was asked to take the dog home as the vet could not do anymore. I saw the dog. It was paddling and not able to live normally. So, was this a case of deprivation of oxygen during the spay or some reactions? I don't know. Many complications can occur during anaesthesia, in medicine and surgery and the only advice I can give is that one must not be complacent.


An endotracheal tube in veterinary medicine is shown below:




something wrong with blogger's layout: The picture is at:
http://www.sinpets.com/dogpix/20081124Tooth_ache_Old_Dalmatian_Bites_People_Singapore_ToaPayohVets.jpg

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