Doctors and the law

The Straits Times Asia News Network Singapore

The Court of Appeal has upheld the Bolam principle, a canon of medical negligence litigation in Commonwealth jurisdictions, in striking down a High Court award of S$2.5-million damages to a claimant. Madam Gunapathy Muniandy, who suffered partial paralysis after brain surgery, will also have to pay $100,000 costs.

Essentially, Dr James Khoo and Dr Khor Tong Hong, the defendants, were successful in their argument that in their diagnosis and treatment, they had acted "in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art". The language forms the kernel of the famous 1957 English Bolam case. Six expert witnesses for the Singapore doctors testified that their management of the patient was consistent with the standards expected of such specialists. The Bolam test had been satisfied.

Medical claims have always been an intensely adversarial business, and this judgment is bound to sharpen the division between advocates for a legal cornerstone, and those who feel that reform in the way medical misadventure is settled would be not just a good thing, but fairer and less wrenching emotionally and financially, for both plaintiff and defendant.

One argument against the Bolam test mentioned in legal scholarship is that it can be degraded by the possibility, no matter how slight, of an inherent bias. That is, doctors tend to protect their own if called to testify. To put it crassly, you scratch my back and I'll scratch yours.

But this view, which health professionals and medical insurers naturally dispute as jaundiced, can be seen as self-limiting. If not, Commonwealth courts would systematically have abandoned Bolam as a defining principle.

In short, a judge need not be in thrall to a medical expert. Justice Judith Prakash endorsed the Bolitho qualifier in a 1998 case, writing that the court had to be certain there was a logical basis before accepting expert opinion as corroboration. While the more reform-minded lawyers and doctors here reflect on the choices, they could turn their minds to a fundamental change of approach. Is the present system the best there is to punish incompetent doctors and compensate injured parties, or conversely, to keep defensive medicine at bay and expose opportunistic litigants?

At different times, arbitration and mediation have been proposed. There are merits, in that the element of adversity is removed. Another mode to consider is the no-fault scheme practiced in the Nordic countries and New Zealand. The Swedish system is a based on the principle of avoidability. Adjudicators determine if, one, an injury resulted from treatment; two, the treatment was medically justified; three, the outcome was unavoidable.

Singapore may be forced onto one of these paths at some stage.