With the recent advent of medicolegal cases in Malaysia such as Siow Ying Chee v Columbia Asia and the case of the late Zainudin Kadir, a former chief executive officer of Projek Lintasan Kota Holdings Sdn Bhd, many private sector doctors have become increasingly reluctant to undertake high-risk cases, for fear of potential litigation.
As for the public, when the media highlights such cases, it undermines their trust in the medical fraternity. This could have a negative impact on the relationship between doctors and patients, since the fundamentals of treatment in such a relationship is built on the basis of trust.
With that being said, who can the public rely on for their medical treatment in the future?
“A failure to understand something does not mean it is irrational. It may simply mean that it lies on the far side of our limited abilities to take things in and make complete sense of them.”
— Alister E. McGrath
Understanding how the court reached its verdict by proving negligence is therefore crucial, before doctors start viewing the courts as a threat to medical practice.
Historical Development Of Medical Negligence
In the early days of medical practice, the doctor-patient relationship is based upon a paternalistic approach model.
Patients fully entrust their health to their physicians, and ethically, this stems from a paternalistic principle of medical practice.
Autonomy was not a huge part of medical ethics until the release of The Principles of Biomedical Ethics in 1977 by Beauchamp and Childress, which emphasised the principle of autonomy before it was widely accepted as one of the four pillars of medical ethics.
As the years progress and patient autonomy became the fundamental principle of medical practice, along with an increasing awareness of patient rights, the basis of medical practice has evolved so that patients are now actively involved in the process of treatment.
Such an approach is now known as a shared decision-making model.
Proving Negligence
Proving negligence in a court of law is not an easy feat. There are four main criteria to be fulfilled before one can be held liable for negligence:
- Establishing the duty of care.
- Breach of the duty of care.
- Causation due to the breach of duty.
- Damages or sufferings.
For example, let’s take a look at the recent case involving the late Zainudin Kadir, where the High Court awarded an amount of RM 5.1 million to the plaintiff (represented by the deceased’s wife):
Facts Of The Case
The deceased was a 56-year-old, relatively healthy man who was conservatively treated for sinusitis from 2012 to 2016, before being referred out to an otolaryngologist for a definitive treatment, i.e. surgery involving bilateral functional endoscopic sinus surgery with septoplasty and turbinoplasty.
He was given approximately one week to decide on the operation, and on February 26, 2016, the two-hour surgery took place from 5.45pm to 8.05pm.
The operation was uneventful and he was subsequently extubated. He was monitored in the operation theatre’s recovery bay and was discharged to ward 30 minutes later with a pain score of 8 (severe pain) and notably, still drowsy.
Thirty minutes after being discharged to ward, unfortunately, he was noted to be cyanosed (bluish discolouration of skin due to the lack of oxygen circulation). He was attended by the otolaryngologists and immediate resuscitation was undertaken.
Oxygen supplementation was applied, but the oxygen link to the source was absent, and therefore, oxygen delivery was delayed. At this point of time, the deceased sustained a cardiac arrest.
Cardiopulmonary resuscitation was carried out and a Code Blue was activated. The first attempt at intubation was done by the otolaryngologist, which unfortunately tracked down into the oesophagus instead of the lungs.
Upon arrival of the anaesthetist five minutes later, the deceased was reintubated. Hypoxia time was estimated to likely be more than five minutes.
While the deceased achieved a return of spontaneous circulation, no blood gases (which monitors the adequacy of oxygenation post-resuscitation) were taken, and he was sent to the intensive care unit for post-resuscitation care.
The first CT brain scan done was normal, but a second CT scan later showed severe, irreversible brain damage, causing the deceased to deteriorate into a vegetative state, requiring tracheostomy, before being discharged on April 11, 2016.
Issues That The Plaintiff Sued For
1. Inadequacy in preoperative counselling in terms of alternative treatment (conservative vs operative); should he had been counselled, he would have not opted for surgery.
One of the issues raised was whether the deceased were given appropriate advice on the choices of treatment – conservative treatment vs surgical treatment and the risks associated with them.
The doctors were found not to be liable as cross-examination found that the otolaryngologist did advise the deceased of all the possible avenues to resolve his health issue.
The catch here was that no proper documentation in writing was done regarding the advice provided to the patient. Collective evidence from cross-examinations showed that the deceased was indeed given ample time to return home and discuss with family members before opting for the surgery.
With that being said, negligence failed to be proved here.
2. Premature discharge to ward post operation.
In fact, the crux of this case lies in the possibility of discharging the deceased prematurely and not keeping him monitored in the recovery bay for a longer period of time.
The nature of the surgery and his age and the possibility of potential complications should have been taken into consideration. Although the anaesthetist and the otolaryngologist had a brief discussion on whether a high-dependency unit or intensive care unit admission is required post operation prior to extubation, the consensus was not documented in writing.
Additionally, the anaesthetist was also not informed regarding the deceased’s condition prior to discharge; in severe pain and drowsy.
3. Inadequate monitoring in ward.
Despite knowing the nature of the surgery, the deceased was not monitored closely in the ward, post operation, with a continuous saturation probe.
4. Inadequacy in critical incident management and resuscitation.
The failed attempt at intubation by the otolaryngologist and the reasoning given by the defendant was not acceptable in court.
Basic lifesaving skills should be instilled in all doctors, regardless of specialty.
Despite having wrongly intubated the deceased, manual bagging was continued until the arrival of the anaesthetist which thereafter, the deceased was reintubated.
The absence of the oxygen link during the resuscitation process was also not documented in writing, which points to the possibility of the defendants attempting to escape liability.
Proving Negligence
1. Establish the duty of care.
Historically, the establishment of duty of care is determined by the case of Donoghue v Stevenson, where Lord Atkin once said:
“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being affected when I am directing my mind to the acts or omissions which are called in question.”
This has profoundly influenced the evolution of doctrine of negligence, establishing the presence of such linkage with two essential concepts in place: the concept of reasonable foreseeability and the concept of proximity.
A good doctor-patient relationship fulfils such criteria, which establishes the presence of duty of care.
2. Breach of duty of care
Utilising the Bolam Test and Bolitho Test, which states:
“A doctor is not negligent if he or she acts in accordance with a responsible body of medical opinion, provided that the Court finds such an opinion to be logical.”
The views of expert witnesses from the same fraternity advocated that post-operation observation should be no lesser than an hour, taking into account the nature of the surgery and the deceased’s age.
Apart from that, it is also illogical and unreasonable to not have been equipped with the proper basic life-saving skillset as a doctor. i.e. intubation.
3. Breach of duty causing Injury or damage.
Proving causation in a court of law requires a two-stage process, where the first stage involves determining whether the damage would have occurred but for the negligent act.
This may not be accurately applied in the majority of medical cases. due to the existing illness of the patient, which could have materially contributed to the damage.
Causation is commonly proved by asking if the act has materially contributed to the damage. In this case, multiple factors such as prematurely discharging the patient, the delay in oxygen delivery during the resuscitation process, and failed intubation have materially contributed to the damage suffered by the deceased.
4. Established sufferings from the damage.
As a result of such unfortunate events, the deceased suffered irreversible brain damage, putting him in a lifelong vegetative state.
As the deceased was previously gainfully employed and was a person of high repute with an impressive career, the loss of potential earnings amounted to approximately RM4 million in the quantum of damages.
What then can doctors do to reduce the risk of litigation?
Takeaway Points For Doctors
- Consent Taking: A full-fledged, licensed practitioner should provide advice and document all inherent and material risks in relation to the patient. No shortcuts can be taken. It is of absolute importance to explore what is inherently important to the patient, the patient’s concerns, and the patient’s social history, so that risks of particular importance to the patient can and should be emphasised.
- Expect the Unexpected: Foreseeability of an outcome or event should be used alongside with clinical knowledge to guide decisions and should not be taken for granted. for which we do not know when it may fail us.
- Honesty is the Best Policy: As the saying goes, honesty is indeed the best policy, especially in consultations and in documentation. Mistakes are unavoidable, and doctors are not infallible. Having the responsibility to own up to a mistake is important. Ultimately, to err is human, and doctors are just like everyone else, just equipped with additional knowledge and specific skillsets to treat ailments.
- Keep Your Feelings at Bay: It is easy to get disheartened whenever we come across litigation cases that our colleagues unfortunately got into. Yes, we feel for them, and we fear for them. It is important to note that litigation occurs when there is a proven malpractice, and as long as an action is proved in such that it has materially contributed to the damage suffered by the patient, any assumed possibilities of precedent events in fact, may not be of much relevance. Therefore, learn from these pitfalls and move on.
- To Cure Sometimes, To Relieve Often, and to Comfort Always: Every patient that we meet is a vulnerable individual. We are therefore to be reminded to always have the patient’s best interests in mind. While “The art is long, and life is short”, not all illnesses can be cured, and we are taught to offer comfort always as doctors, and not just merely treating. Ensuring patient satisfaction, happiness, and having a good relationship between you and your patient helps in reducing the risk of litigation.
Dr Evelyn Ting is ‘a medical officer at the Ministry of Health.
- This is the personal opinion of the writer or publication and does not necessarily represent the views of CodeBlue.
