MEDICAL LAW & ETHICS

DR PAUL CHANDEPUTY DIRECTOR (CLINICAL)

Adv Dip (Med Sci), MBBS, MBA (Healthcare Management)

Estimated death due to Medical Errors

Malaysian Primary Care

Professional Negligence and Medical MalpracticeMalpractice: professional

misconduct or demonstration of an unreasonable lack of skill with the result of injury, loss, or damage to the patient.

Negligence: unintentional action that occurs when a person performs or fails to perform an action that a reasonable person would or would not have committed in a similar situation

The Tort of NegligenceMalfeasance: performing a

wrong or illegal actMisfeasance: improperly

performing an otherwise proper or lawful act

Nonfeasance: failure to perform a necessary action

Four Ds of NegligenceDuty: responsibility established by

doctor-patient relationshipDereliction: neglect of dutyDirect or proximate cause:

continuous sequence of events, unbroken by any intervening cause, that produces injury and without which injury would not have occurred

Damages: injuries caused by the defendant

Protect yourselfLiability insuranceMedical Indemnity insuranceMalpractice insurance

SettlementOut of court

◦Mediation◦Payment (Ex-Gratia)

Court◦Judge to decide

Bolam PrincipleBolam vs Friern Hospital Committee

(1957)Your are right when your colleague

‘says’ you are right“I myself would prefer to put it this way, that he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilledin that particular art. .... Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that would take a contrary view”

Bolitho v City & Hackney Health Authority (1997)“His Lordship further held that ‘if it can be demonstrated that the expert medicalopinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not responsible”

Roger v Whitaker (1999)“where it was held that ‘[the standard of care]is not determined solely or even primarily by reference to the practice, followed or supportedby a responsible body of opinion in the relevant profession or trade. It has to be decided‘whether it was reasonable for one or more of the steps to be taken.... [and this] was not forexpert medical witnesses to say whether those steps were or were not reasonable”

CourtsMagistrate (First and Second

Class)SessionsHighAppealFederalSpecial (Part XV of Federal

constitution)

In the News!

2 April 2014. NST

Cases

Case 128 years old P3SVD, uneventfulDischarge from ward 2 days laterPersistence pain and PV

dischargeCame back to hospitalGauze left in the vagina

Case 2Post MVAHead hit the windshield of carMultiple shattered glass over neck

woundsT&S done, glass remove, pt discharge.Pain persist, visited JPL 3x, then admittedETD MO remove glasses, discharge ptProblem persist. Came back 8 months

later. Xray done, retained glassesPaid ex-gratia

Case 39/12 child, fever + cough for 2 days and

eye gazingETD at 12mn, MA seen, Diagnosed Viral

fever then dischargeWent to district MO (ETD) when fever

persist, AGE, discharged20 mins later, went back to district,

worsening eyes gazing, refer to secondary hospital, then admitted

Died due to meningitisEx Gratia : RM14.4k

Case 419 yrs old, headache + vomiting x 1/52Treated symptomatically and

discharged2 days later came back, symptomatic

treatment, then discharge3rd and 4th visit – casualty (migraine)5th visit – worsening. CT: SOLDied on the following dayPayment : RM66.5k

Case 5 An anaesthetist gave anaesthesia to a patient with an intra-

orbital abscess. The abscess was drained by the ophthalmologist, who also gave an intravitreal injection of antibiotics. The patient has sued the ophthalmologist. The patient's solicitor served a subpoena, with RM300, on the anaesthetist to be a witness. The solicitor also requested that the anaesthetist give a detailed account of her involvement.

Doctor asked whether she has to attend court.COMMENTS 1.   The anaesthetist has to attend court as a subpoena has

been served. She can charge a witness fee. 2.   The detailed account amounts to a medical report.

Consent must be obtained from the patient (via the solicitor) and a fee can be charged for writing the medical report.

3.   Please refer to the attached sheet on Subpoena and Witness Fees.

Case 6 An Obstetrician & Gynaecologist treated a lady with second degree prolapse

uterus with a cystocoele. Under spinal anaesthesia while attempting a vaginal hysterectomy the patient sustained a two cm bladder tear during the dissection.

After discussing with the patient and the patient's husband the doctor did a total abdominal hysterectomy. The bladder was repaired from the vaginal approach. A continuous bladder drainage was instituted.

Two days postop, urine leaked from the vagina. The patient was examined under G.A. and a one centimetre bladder tear was noted. This was repaired in two layers. Again continuous bladder drainage was done.

She was discharged on third postop day. On the ninth postop day she was reviewed. There was no urine leaking. The continuous bladder drain was removed. On the fourteenth postop day the patient returned with urine leaking.

The obstetrician and gynaecologist referred her to a urologist. The urologist delayed the repair to three weeks later to get optimal result. The bladder repair was successful.

The obstetrician and gynaecologist received a Writ of Summons

Case 6 .. contCOMMENTS

1.   On lacerating the bladder the member should have asked for help from a urologist.

2.   If no urologist was available the obstetrician and gynaecologist should have completed the hysterectomy. The bladder should be drained continuously. The obstetrician and gynaecologist should refer the patient to the urologist as soon as possible.

3.   In today's setting unless the obstetrician and gynaecologist is urologically trained lesions of the kidney, ureter, bladder and urethra should be managed by a urologist.

4.   The case could not be defended. It was settled out of court for a sum without admission of liability.

Case 7 In October 2006 a 42 year old female was diagnosed as grade II infiltrating,

ductal carcinoma of the breast - Right mastectomy and axillary clearance were performed in October 2006.

She underwent a course of chemotherapy and radiotherpy from November 2006 to February 2007.

In March 2008 she presented with pain in the left sternoclavicular area. C.T. Scan of the area reported nothing abnormal.

In June 2008, during follow up she yet complained of pain in the left sternoclavicular area. An ultrasound of the abdomen revealed multiple liver secondaries.

A re-staging C.T. Scan confirmed metastatic disease in the liver and medial end of the left clavicle. She was advised to undergo a course of chemotherapy.

A meeting between patient, oncologist and radiologist was held to discuss the missed findings of the C.T. Scan of March 2008.

She lost confidence in her doctors in Malaysia and sought chemotherapy overseas.

The oncologists and radiologists overseas have confirmed that the metastases were present at the medial end of the left clavicle in the C.T. Scans of March 2008.

The patient succumbed to her illness in June 2009. In March 2012 the oncologist and radiotherapist and the hospital received a

letter of demand for general and special damages of RM462,416.00.

Case 7.. cont 1.   Oncologist and radiologist should have admitted the error in the

interpretation of C.T. Scans of March 2008 and apologized immediately.

2.   Giving an apology is not an admission of liability. In many incidents an immediate apology has diffused the situation. In this instance a letter of demand was issued to the radiologist, oncologist and the hospital because of the delay in tendering the apology.

3.   The radiologist has missed the findings in the C.T. Scan of March 2008. He bears the responsibility of the error, but the oncologist cannot be exonerated as he had the clinical advantage of examining the patient and correlating the clinical findings with the C.T. Scan findings.

4.   The deceased's estate has not continued to pursue the matter. If the matter is pursued, an out of court settlement should be considered with the radiologist bearing the bulk of the damages.

Case 8 – Landmark TrialPlaintiff (husband of deceased and

patient) Against Dr A (colorectal surgeon), Dr B

(trainee), Dr C and D (Anaes) E (HKL)Deceased got intestinal obstruction.

First presented in Temerloh HospitalThen referred to HKL under Dr AWhen pt arrived in HKL, Dr A was in

conference. He instructed his trainee Dr B to take consent for surgery

Case 8 – Landmark TrialPatient refuses ryles tube. Dr B explain the

need for a ryles tube to prevent any regurgitation during surgery but patient was adamant.

Dr A saw the pt the next morning before surgery, pt agreed to proceed for surgery after discussing with Dr C. Pt phone her husband and passed the phone to Dr A for consent.

During Dr C was busy, hence Dr D was called in to help for surgery, rapid sequence induction was given

Patient died after surgery because of severe regurgitation (aspiration pneumonia)

Case 8 – Landmark Trial In the light of the evidence and current medical practice, non-insertion of the

Ryle's tube prior to induction of anaesthesia was acceptable medical practice so long as the medical team was prepared for the eventuality of aspiration as was the case here. The Dr D and Dr B had taken all necessary precaution and preparation to anticipate regurgitation. They had used the RSI technique for anesthesia while a trained anesthetic nurse applied cricoid pressure

The A, Band Ddefendants breached their duty of care to the patient in failing to inform and advise her adequately and sufficiently of the inherent and material risks - particularly of death due to aspiration - of proceeding with the surgery and anaesthesia without insertion of the Ryle's tube. The patient had consented to the surgery and anaesthesia without having appreciated the grave risks involved

Even though the consent form did not require the plaintiff's consent to the surgery, the factual matrix of the case indicated that the Dr A had a duty to inform the plaintiff of the nature of the surgery and the inherent and material risks of the procedure especially in view of the patient's refusal to have the Ryle's tube inserted. It was clear from the evidence that the patient depended on the plaintiff to make the decision to proceed with immediate surgery

ConclusionMedico-legal environment

heavierConsentCode of Professional ConductConsent : http://goo.gl/5R1aiZConfidentiality : http://

goo.gl/e1GK0FGood Medical Practice http://

goo.gl/Ttx0xEwww.mmc.gov.my