Excellent summary. To add on to the above, I can provide TS the view from the hospital/doctor's/expert medical witness perspective. I've been called to testify as an expert witness in the past, and there are a few issues that limit the effectiveness of such testimony, whether it's for or against the plaintiff's case.
1. Collegiality. This is one of the strong tenets of the foundation of medical practice anywhere in the world. Many times, we've been unfairly accused of 'banding' together and not willing to speak up against another professional in 50-50
medical cases (clear negligence, misconduct, molestations/sexual crimes obviously do not fall in this category). The rationale behind this is that patients are complex and unique individuals, and best practices merely mean it covers the area under the Bell's Curve for 60% of the patients, with 20% on either end belonging to the "others" category. If I think about the significance of that, it simply means that what happened to one doctor could easily have happened to me - and thus, unless the case is clearly one of gross mismanagement medically, wrong medications administered, wrong organ surgically removed, gross negligence of care on part of the attending doctor etc, most of the time, the tragedy is placed on the complexity of the patient's case, and the unpredictable nature that is life.
2. Bolam and Bolitho - the twin pillars of proof of negligence: In medical negligence litigation, a key step is for the claimant is to prove that the physician or the doctor failed to meet the required standard of care. The traditional test in law in such cases remains the Bolam test which states that a doctor is not negligent if what he has done would be endorsed by a responsible body of medical opinion in the relevant specialty at the material time. The Bolitho Test, which is a later test and is an amendment to the Bolam Test, helped to clarify what was meant by “a responsible body,” defining it as one whose opinion had a “logical basis.” So, if the attending doctor has done what was required at that time, according to best practices - e.g. room O2 saturations, Pulse rate, BP sans inotropes all being stable enough to warrant a transfer out of ICU - the doctor cannot be held responsible for the unfortunate events that transpired post the transfer (refer to No. 1 above).
3. Not just one medical expert, and no gold standard. Whilst the plaintiff can call upon his own roster of medical experts, so can the hospital, and it's not uncommon to have 2 pre-eminent giants & experts in their fields clash in court. And, just like reasonable doubt, if 2 experts can't agree, what chance does the plaintiff think the judge and jury, who are laypersons not trained in the intricacies and complexities of medicine, could? In that case, most often than not (except in America, where lawyers run the medical service), the doctor will not be blamed - because he did not stand to gain from the patient's demise, nor was the demise an act of malice on his part.
4. The pre-existing state of the patient. If this was a strapping, healthy young man with no pre-existing medical conditions, the weigh of evidence may be shifted somewhat in the plaintiff's favour vs if this were a case of an elderly patient with complex co-morbidity & post-transplant on immunosuppressant therapy. Index of survival would be obviously different, and the evidence may be shifted away from a favourable ruling given the latter scenario. It's a sad fact of life that limited resources in the face of unlimited requirements require harsh decisions to be made on the part of the attending doctor - the ICU bed may be needed for a more urgent case that had a better chance of survival, and who's to say that new patient's life is worth less than the old one's? It's never easy.
5. Last by not least: Cost. I was asked to give expert testimony in one simple case, and had my AEIC (affidavit evidence in chief) drafted by the lawyers, but obviously required multiple amendments and corrections on my part, and I only turned up for one session of the High Court hearing. The bill from my practice to the defendants (who won the case, by the way) came up to nearly SGD30,000. And that particular case was a simple one, where the judge took my testimony, weighed it with that of the countering expert's, and ruled in our favour without needing more evidence to be presented. I can't imagine what a complicated case would entail. Since that one case, I've never availed myself for such duties anymore - it simply isn't worth the money, and it also meant bruising the egos of colleagues on the opposing end - not an experience I wish to repeat.
The receipt which I generated, and of which I still keep a copy in .pdf format till this very day, with the details redacted obviously:
» Click to show Spoiler - click again to hide... «
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I'm not trying to pour cold water onto TS's case, and if he feels there's definite grounds to go on in terms of negligence by the doctor, then by all means, he should go ahead to seek an answer at the very least. I hope he finds peace no matter what the outcome is, but I also hope that he enters into this with his eyes wide open and realise the enormity of the task ahead of him.
So you are claiming not to pour cold water but you just provided a plethora of reasons to dissuade TS from taking legal action?
Dec 7 2023, 03:07 PM
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