BREACH OF DUTY OF CARE CAUSATION DAMAGES · MEDICAL NEGLIGENCE (II) BREACH OF DUTY OF CARE...

MEDICAL NEGLIGENCE (II)

BREACH OF DUTY OF CARE

CAUSATION

DAMAGES

Christopher Chong

M/s Helen Yeo & Partners

BREACH OF DUTY

� BURDEN OF PROOF– Onus on the Claimant

– Balance of probabilities

STANDARD OF CARE

� The “Bolam” test

� The role of the Court in determining the standard of care

BREACH OF DUTY

DETERMINING THE STANDARD

� Expert witnesses

� Guidelines– Specialist societies

– Practice guidelins from MOH or professional bodies

� Medical texts/ articles/ literature

DISPUTE OF FACTS

� Opinions must be based on a set of facts

� Testimony of witnesses- whom to believe?

� Importance of Medical Records– Contemporaneous neutral record of events/

non-events

– Passage of time

RES IPSA LOQUITUR

� The thing speaks for itself

� Inference of negligence

CAUSATION

� The breach of duty must have caused loss or damage

� Burden of proof

� The “but for” test– that loss would not have occurred but for the

event

– whether loss would have occurred in anyevent

JOINT LIABILITY

� 2 parties can be jointly liable for the same loss/ damage

� Contributory negligence– Where part or all of the fault lies on the

claimant

� Preceding events

� Intervening events

LOSS/ DAMAGES

CLAIMS BY PATIENTS

� Compensation for injuries– pain & suffering

– loss of amenities

– physical & psychiatric injuries

– determined by judicial precedents

� Compensation for additional expenses– Hospitalization expenses

– Medical expenses

– Nursing expenses

� Compensation for other foreseeable loss– Loss of salary

– Loss of earning capacity

� Limits to claims– No loss or damage

� Nominal damages

� Complaints to SMC

– Type of loss/ damage must be reasonably foreseeable cf extent of damage

– Mitigation of loss

– Public policy

CLAIMS BY OTHER PARTIES

� Bereavement under the Civil Law Act– Death

– Next of kin

– Fixed sum

� Loss of dependency– Dependent

� Nervous shock

CONCLUSION

� Breach of duty is determined by the Courtsafter a consideration of various factors

� Medical records play a key role

� Causation and damage are issues which areconsidered after a breach of duty has beenestablished-– closing the gate after the horse has run away