12/13/2011. Edmund Kronenburg Managing Partner Braddell Brothers LLP

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1 Edmund Kronenburg Managing Partner Braddell Brothers LLP This document was created for a presentation by the person stated above. It should not be regarded or relied upon as formal legal advice and may not be reproduced or distributed without the express written permission of Braddell Brothers LLP. Unless stated as being true, all examples used in this presentation are based on fictional events and characters and any similarity to any persons or entities is coincidental and unintended. Main legal aspects : Relationship, Liability & Risk management A quick legal re cap : Relationship & Liability Who do I work for? Who can sue me? Healthcare to foreigners & in foreign countries The consent process vs the consent form Aesthetic medicine vs Plastic Surgery Communication issues : Foreigners, Old patients Causation : Changes in Singapore medical law? Allegations of overcharging 2 1

Unless stated as being true, all examples used in this presentation are based on fictional events and characters and any similarity to any persons or entities is coincidental and unintended.

2 Relationship Liability with patient with next of kin with immediate work colleagues with fellow professionals with superiors with employers Contract Tort (e.g. Negligence, Assault, Battery, Defamation, Harassment, False imprisonment) Risk management Civil liability : Breach of Contract, Tort etc. Criminal liability : Murder, Culpable Homicide, Causing Hurt, Outrage of Modesty, Criminal negligence etc. Professional liability : Misconduct, gross negligence 2

Negligence, Assault, Battery, Defamation, Harassment, False imprisonment) Risk management Civil liability : Breach

3 Breach of Contract Tort (e.g. Negligence, Assault, Battery, Defamation, Harassment) Interaction between Breach of Contract & Tort Implied duty of care and skill Duty of care & skill in tort = Bolam standard Standard of a responsible & competent healthcare professional Interaction between Intentional Wrongs & Negligence Assault, Battery, False Imprisonment Negligence Vicarious Liability Elements : Duty of care owed by defendant to plaintiff Breach of the duty of care Falling below the standard of care required of the defendant in the circumstances of the case. Bolam test / Bolitho decision Damage Loss and/or injury (cf. Damages ) Caused by the breach ( Causation ) Must not be too remote ( Remoteness ) 6 3

Standard of a responsible & competent healthcare professional Interaction between Intentional Wrongs & Negligence Assault, Battery, False Imprisonment Negligence Vicarious

4 Judith Prakash J. citing Lord Browne-Wilkinson s speech in the Bolitho case in Jason Carlos Francisco v. Dr L. M. Thng & Singapore General Hospital Pte Ltd [1999] SGHC 206 [A] defendant doctor cannot escape liability for negligent treatment or diagnosis simply because he leads evidence from a number of medical experts who are genuinely of the opinion that the defendant s treatment or diagnosis accorded with sound medical practice because what is required is that the practice must be accepted as proper by responsible, reasonable, and respectable professionals and the court must be satisfied that the exponents of the body of opinion relied upon can demonstrate that such an opinion has a logical basis 8 4

a number of medical experts who are genuinely of the opinion that the defendant s treatment or diagnosis accorded with sound medical practice because what is required is that

5 Scenario (Completely fictional) : Nurse Onekind hired by company A, first works in hospital B, then gets seconded to hospital C (which is owned by company D, a sister company of company A). In the eight months that she seconded to hospital C, Nurse Onekind: has a run in with the HOD Dr Bobo who works for company D; is part of a team sued by a patient Angryman of hospital C Is sued by the next of kin of patient OldLady of hospital C; constantly gets groped and rear end slapped by Dr Romeo; has an intimate relationship with patient LauPek for 2 weeks; and then has an intimate relationship with married Dr Twotime. Example : You provide medical services to an American, Indonesian, Bruneian, perhaps in Singapore or Johor or Jakarta. Meeting client expectations, protecting yourself from risk What laws apply? Considerations : Where do you provide the services? What is the law of the contract? What is the nationality of the foreigner? Where are you going to be sued? (Enforcement) Communication issues consent will get to this later. 5

the next of kin of patient OldLady of hospital C; constantly gets groped and rear end slapped by Dr Romeo; has an intimate relationship with patient LauPek for 2 weeks; and then has an intimate

6 A Consent Form means nothing with the Consent Process. The Consent Process starts in the consultation room and ends when the patient goes under, or when the treatment / procedure starts, whichever is first. the nature, risks and complications of which have been explained to me by Doctor who should Doctor X be? When you witness a consent form being signed, what do you really witness? How can consent be vitiated? Misrepresentation, fraud, simple omission? What law governs the consent process? Foreign patient in Singapore Singapore owned healthcare centre in foreign country Foreign country rich individual who has doctor flown in Responsible doctor (Bolam) vs Reasonable patient (Rogers) Is there any other information that you need, or want, before making a decision? 6

the nature, risks and complications of which have been explained to me by Doctor who should Doctor X be? When you witness a consent form being signed, what do you really witness?

7 Holding out as to qualifications : Examples : The doctor from Cambridge. I trained under Plastic Surgeon Dr Website : I handle xxxx procedures daily. Plastic Surgeons who handle such procedures say that If an aesthetic doctor does liposuction, to what standard should he perform it? Responsible and competent general practitioner Responsible and competent aesthetic doctor / surgeon Responsible and competent plastic surgeon Problem : Functional outcome vs aesthetic outcome Misrepresentation, fraud or just miscommunication? Post treatment / surgery : Poor follow up when things go bad. Problems for nurses and clinic staff. Placed in difficult situations. Often called to testify as to : Whether doctor held him/herself out as being qualified. What took place in the consent process. What took place in the surgery. What took place post operatively. Example : Death in liposuction case Coroner s Inquiry 7

Responsible and competent general practitioner Responsible and competent aesthetic doctor / surgeon Responsible and competent plastic surgeon Problem : Functional outcome vs aesthetic outcome

8 Effective communication is integral to healthcare. Admission form, rates, exclusions, training, choice of law Consent process and form Information as to condition, advice as to treatment Precautions on medication Doctor s orders over the telephone (2 nurses enough?) Patients come from myriad linguistic backgrounds with different intellectual ability. Forget patients. Many foreign healthcare professionals in system How to ensure effective communication? Useful tools & reminders : Have it in writing. Translate if required. Have translators on hand for major languages. Keep it simple : Use simple English, not legalese. DO NOT orally re phrase or simplify anything written down. DO NOT breach patient confidentiality. DO NOT take instructions from those who are not patients. What about NEXT OF KIN? When in doubt as to whether patient can consent, act in patient s best interests? E.g. Jehovah s witnesses 8

nurses enough?) Patients come from myriad linguistic backgrounds with different intellectual ability. Forget patients.

9 Causation and its importance to negligence. Pai Lily (SCA, 2000) Causation must be proved on a balance of probabilities. Surender Singh (SHC, 2010) Significant increase in risk satisfies test of causation. Raises questions : When is a risk significantly increased? What does one have to prove? N died hours after removal of left kidney for donation to husband. Procedure done by Prof Li, Dr Consigliere at NUH. Procedure involved used of Hem o lok clips. No problem with post operative care in recovery room. N transferred to ward 43 at Ordered to be monitored hourly. Monitoring not done? Gap in evidence as to monitoring from 1430 to N s sister in law said that at 1600, N was in distress. Resuscitation failed. N died at

N died hours after removal of left kidney for donation to husband. Procedure done by Prof Li, Dr Consigliere at NUH. Procedure involved used of Hem o lok clips.

10 Forensic pathologist found that the Hem o lok clips had slipped. Cause of death : Acute intra abdominal haemorrhage due to a failure of haemostasis. One year after N died, manufacturer of clips issued a contraindication on clips being used in laparoscopic donor nephrectomy. Plaintiff alleged NUH did not monitor N properly in the ward. Plaintiff relied on section 108, Evidence Act to shift burden to NUH to show that it had monitored N properly. Plaintiff successfully established prima facie case that NUH did not do so. So section 108 came into play. Section 108, Evidence Act : When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. NUH could not show that it monitored properly. Court found that NUH's failure to properly monitor the Deceased in Ward 43 from after 1430 hours materially increased the risk of injury to the Deceased. Assessment of damages ordered. NUH did not pursue their appeal. Claim against the manufacturer of the clips? 10

Plaintiff relied on section 108, Evidence Act to shift burden to NUH to show that it had monitored N properly. Plaintiff successfully established prima facie case that NUH did not do so.

11 Issue of charges is important from the one man general practitioner to the largest of hospital groups. Charges are contractual. No price stated = reasonable charge. What is a reasonable charge depends on the current thinking of the profession. Charges cannot be anti competitive. You cannot price fix. What is the agreement? Should be clearly spelt out. Package deal (lump sum) or My fees plus other doctors fees? Is it acceptable to double charge? E.g. One charge for standing by, while earning money seeing other patients. What amounts to overcharging is very subjective. The senior surgeon vs the Senior Counsel. How much for a piece of work? Shoes, bags, clothing vs medical or other professional services Solution : Transparency in charging Clearly written contract clauses on pricing and charges Agreement that such clauses are fair and reasonable given the individual or circumstances involved. If you try to make a quick buck without transparency, you may be caught out. 11

Package deal (lump sum) or My fees plus other doctors fees? Is it acceptable to double charge? E.g. One charge for standing by, while earning money seeing other patients.

12 Edmund J Kronenburg ej.kronenburg@braddellbrothers.com Braddell Brothers LLP Advocates and Solicitors since 1883 One Raffles Place #30 02, Singapore T F D This document was created for a presentation by the person stated above. It should not be regarded or relied upon as formal legal advice and may not be reproduced or distributed without the express written permission of Braddell Brothers LLP. Unless stated as being true, all examples used in this presentation are based on fictional events and characters and any similarity to any persons or entities is coincidental and unintended. 12

braddellbrothers.com This document was created for a presentation by the person stated above.

Ethical dilemma in professional practice. By Muhammad Iqbal

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