Adopting a more patient-centric legal standard the right call

In a landmark judgment released last Friday, the Singapore Court of Appeal embraced a more patient-centric standard to decide if a doctor has fulfilled his duty to provide medical advice.

The Court dismissed the appeal of Mr Clement Hii Chii Kok, who had sued Dr London Lucien Ooi for complications from major surgery that turned out to be unnecessary. Mr Hii, a Malaysian businessman, had two suspicious pancreatic nodules.

Multiple tests could not confirm whether these nodules were cancerous or not. After extensive counselling, Mr Hii opted for aggressive treatment in view of the possibility of cancer.

Dr Ooi, a surgeon at the National Cancer Centre, performed surgery to remove the nodules. Unfortunately, the operation led to various complications, while the nodules turned out to be non-cancerous.

The crux of Mr Hii’s complaint was that he should not have been offered surgery, and was not adequately informed of the uncertainty of the cancer diagnosis. The High Court dismissed Mr Hii’s lawsuit in 2016, prompting his appeal, which was turned down by the nation’s highest court last week.

In doing so, the Court of Appeal also established a new legal standard to determine whether a doctor had been negligent in his care.

Up till now, the standard of care had been the “Bolam test” with a “Bolitho addendum”. The court of appeal made it clear that this standard of care applied not only to physicians, but also to other professionals.

The principle of the “Bolam test” is that the court, as a medically untrained party, cannot determine what is medically “correct”; instead, this should be left to the professional opinion of the body of physicians.

Under Bolam, a doctor is not negligent if he does what other competent doctors would have done. Hence, a “rogue doctor” who does what other doctors deem unsafe or harmful would be negligent. On the other hand, where there is controversy between physicians about whether treatment A or B is better, either is acceptable.

The “Bolitho addendum” clarifies that a physician cannot defend himself by referring to other physicians who do the same, if this practice is outright illogical (for example, it goes against proven facts, does not weigh risks and benefits, or is internally inconsistent). Therefore, Bolitho offers a safeguard against commonly held but unreasonable practices.

It should be noted that for liability to arise, it is insufficient to prove that a doctor did not meet the standard of care. It is also necessary to prove that this negligence resulted in demonstrable harm to the patient.

Over the years, the “Bolam test” has come under criticism. Arising from a 1957 British judgment, an era of Doctor-say-Patient-comply, the “Bolam test” took a rather paternalistic stance of emphasising medical judgment over the patient’s viewpoint. But medicine has changed dramatically since the 1950s.

Today’s doctor-patient relationship is a partnership founded on mutual trust and open communication.

Except in an immediately life-threatening situation, or when dealing with demented or obtunded patients, I sit down with my patients to explain the disease they have, its consequences, and the benefits and risks of the various treatment options available.

While I provide my recommendations, patients have the autonomy to accept or refuse the treatment I offer. In this light, the “Bolam test” seems to give too little heed to patient autonomy.

While many jurisdictions have moved away from Bolam and Bolitho, it remained the standard of care in Singapore, having last been upheld by the Singapore Court in 2011. This case provided the Court of Appeal with an opportunity to re-examine whether it should remain the standard of care.

Firstly, the Court held that Bolam and Bolitho still applied in the areas of diagnosis and carrying out treatment that had been agreed upon. Correct (or at least defensible) diagnosis is a matter of the physician’s experience and judgment.

Carrying out treatment (for example, surgery) is a matter of the physician’s skill. Both have little to do with the patient’s opinion. Therefore, whether a physician had been competent in diagnosis and treatment is a matter best adjudicated with reference to reasonable professional opinion, as set out in Bolam and Bolitho.

On the other hand, in the provision of advice to patients, the Court recognised that the “Bolam-era conception of the patient as a passive recipient of treatment no longer prevailed within the profession or in the wider society”.

Patients today have access to more information and expect to participate more actively in the consultation process with a doctor, the court noted.

Therefore, the Court adopted a new standard of care that acknowledges patient autonomy to decide on his/her treatment, and obliges physicians to enable this autonomy by providing sufficient information on the benefits and risks of treatment, including available alternatives.

What constitutes “sufficient information” is determined from the patient’s perspective — what a reasonable patient would want to know, and what this particular patient is likely to find important — not the Bolam standard of what other information physicians would have provided.

As part of a three-stage inquiry to determine if a doctor has fulfilled his duty, the court will also look at whether the doctor is aware of the information in the first place, and whether the doctor could have any justification for withholding the information.

Consider this scenario: A famous singer had a neck lump. He sees a surgeon, who diagnoses thyroid cancer, and proposes surgery to remove the thyroid. This surgery carries a very small risk (less than 1 per cent) of nerve damage leading to permanent hoarseness of voice.

This would be inconvenient for most patients, but career-ending for the singer. Suppose the surgeon knows that the patient is a famous singer, but does not inform the patient of this risk, and proceeds with surgery. Unfortunately, hoarseness of the voice occurs.

Under Bolam and Bolitho, the surgeon could possibly have defended himself if it were the professional norm not to counsel patients on risks of less than 1 per cent probability, notwithstanding this patient’s occupation.

Under the new test, however, the surgeon clearly falls short of providing relevant information that the patient would have wanted to know. This does not mean bombarding the patient with every single detail, but only what is reasonably important.

I personally find the Court’s position fair and right.

While the Court’s judgment breaks legal ground locally, it is already what physicians here practise on a day-to-day basis. This is also codified in the 2016 Singapore Medical Council Ethical Code and Ethical Guidelines.

There were concerns that a shift away from Bolam and Bolitho would promote medical litigation and defensive practice, and increase healthcare costs. I beg to differ.

On the contrary, in providing a well-calibrated legal standard that offers clarity, the Court removes much of the uncertainty that had been driving some defensive medical practices in the past few years.

There are adequate safeguards written into the judgment to deter frivolous lawsuits.

Furthermore, it has been shown that the root of much litigation is poor doctor-patient communication, rather than malpractice per se; encouraging sound doctor-patient communication will only decrease, not increase, litigation.

More importantly, it is the right thing to do — and not simply for fear of the lawyers.

ABOUT THE AUTHOR:

Nigel Fong is a Resident in Internal Medicine at Singhealth. He was a President’s Scholar and maintains a keen interest in healthcare policy.