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Medical negligence lawsuits: 'Loss of chance' of better outcome flagged as vital point of law

Medical negligence lawsuits: 'Loss of chance' of better outcome flagged as vital point of law

Source: Straits Times
Date Published: 03 Apr 2019
Author: K.C. Vijayan

Appeal against award in another case could impact outcome against CGH.

A five-judge Court of Appeal has reserved judgment in a landmark case earlier this year on whether compensation should be given to victims of medical negligence who might have had a better chance of survival had it not been for a flawed diagnosis or treatment process.

Lawyers say the outcome could have a bearing on any amount of damages in the medical negligence suit brought by Ms Noor Azlin Abdul Rahman against Changi General Hospital.

The hospital was found negligent by the apex court in February in the delayed diagnosis of Ms Azlin's lung cancer.

Ms Azlin died on Monday, aged 39, hours before her lawyer's application for an interim payout was due to be heard in court.

In the earlier case heard in January by the five-judge court, Quest Laboratories and its medical director appealed against a High Court decision last year that awarded more than $1.2 million to Ms Carol Armstrong. She had sued them for failing to detect cancer in a skin sample taken from her husband in 2009.

Her husband, Mr Peter Traynor, who was based in Singapore as an IT specialist manager, died of skin cancer in 2013 aged 47.

The judge in the case accepted that the negligence had caused Mr Traynor "to lose a fighting chance, and also probably caused him to die years earlier".

This "loss of chance" was flagged as a significant question of law on appeal before the court comprising Chief Justice Sundaresh Menon, Judges of Appeal Andrew Phang, Judith Prakash, Tay Yong Kwang and Justice Belinda Ang.

Senior Counsel Kuah Boon Theng pointed out for the defendants that the law does not recognise loss of chance as a sufficient reason to claim damages in negligence suits.

She cited the examples of Britain and Australia, where courts have rejected claims against loss of chance.

She argued that Singapore courts have followed the British decision, which means "the claimant must show on a balance of probabilities that he had at least a 50 per cent chance of a better outcome to begin with, which had been reduced by the defendant's negligence to below 50 per cent".

But Ms Armstrong's lawyer Edmund Kronenburg countered that the judge had not made the $1.2 million award on the grounds that Ms Armstrong's husband had lost a fighting chance, but rather on the recognition, among other things, that Mr Traynor should have lived at least another four years.

Singapore Management University law professor Gary Chan, who was appointed by the Court of Appeal as amicus curiae (adviser), noted that several policy considerations as to why reduced prospects of a favourable medical treatment may not be regarded as sufficient grounds for damages in negligence.

He said that if this were allowed, every medical negligence claim could potentially be reframed as loss of chance, resulting in a floodgate of claims, among other things.

But he also said there are countervailing arguments on why some form of recovery in cases involving reduced prospects of a favourable medical outcome should be allowed, or there may not be sufficient deterrence against negligent practitioners, among other things.

Meanwhile, Ms Azlin's claims are also on hold, pending probate action and an application by the representative of her estate to be appointed to deal with the outcome of her negligence claim.

The Court of Appeal had remitted the question of the quantum of damages to be awarded, if any, to be decided by the trial judge.

Source: Straits Times © Singapore Press Holdings Ltd. Permission required for reproduction.

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