Dato Dr N.K.S. TharmaseelanMBBS, FAMM, FACS, FICS, FRCOG

MHREI, BHMS,

LLB, LLM, FFFLM, CLP

IMMEDIATE PRESIDENT, MALAYSIAN MEDICAL ASSOCIATION

IMMEDIATE PRESIDENT, MEDICO-LEGAL SOCIETY OF MALAYSIA

THE LAW

PRACTICE OF MEDICINE

KNOWING THE LAW

Standard of care

Consent

Communication

Standard of Care

Foo Fio Na vs Dr Soo Fook Mun & Anor(2007) 1 CLJ 229 , FC

Following Rogers v Whitaker ( 1992) 175

CLR 479

Limited to Disclosure ?

Bolam still for Treatment !

Consent

Gurmit Kaur Jaswant Singh v Tung Shin Hospital Anor

High court of Malaya , Kuala Lumpur Rosilah Yop JC Suit No S6-22-705-200417th April 2012

ConsentABDUL RAZAK DATUK ABU SAMAH v

RAJA BADRUL HISHAM ZEZEZAMAN & ORS

HIGH COURT MALAYA , KUALA LUMPUR VAZEER ALAM MYDIN MEERA J.C. CIVIL SUIT 21NCVC-96-2011 11 APRIL 2013

Gurmit Kaur

Multipa ra, Para 4 , 3 8 years

Removal of Cervical Polyp

Found Uterine Fibroid

To remove Fibroid

‘Consent ‘ signed after ‘ explanatio n’

Hysterectomy done

On follow up

When can I get pregnant ?

Gurmit Kaur

Gurmit Kaur alleges

Various options not discussed

Consent taken without providing full details

Husband not involved /informed when consent taken

Doctor says

BUT

Various options discussed

Multiparous , 38 years

Did not inform wants more children

Had per vaginal bleeding and pain after Polypectomy – Fibroid

Recommended Hysterectomy

Judge ‘

No documentation

No Witness

Consent had only IC & Name of patient

Uterine fibroid may not be the cause of bleeding

Diagnosis wrong – Plaintiff not suffering from menorrhagia & dysmenorrhoea

Doctor said sorry – so must have done a mistake

Observation by Judge

Notes says –Patient does not want more childrenDid not mention myomectomy orconservation of uterus

Judge – Retrospective

JudgeConsent – form

I ……… the Husband / wife of …………of the named patient hereby agree to ……………

This form Should be used in certain Major Gynaecological operations egHysterectomy , Oopherectomy , and the patient is living with the husband

So why consent not taken

Abdul Razak v Dr Raja Badrul& ORS Colorectal Surgeon known personally to the plaintiff

Patient - 71 yrs female with Intestinal Obstruction

Admitted to Termerloh Hosp. Transferred to HKL after one week

Ryle’s Tube to insertion for emptying stomach

Patient adamantly refuses consent for Ryle’s tube insertion several times , Documeneted

Surgeon decides emergency operation

Calls and informs Husband at home need for surgery – Agrees

Abdul Razak

Surgeon decides to have RT passed after Anaesthesia in OT due to refusal by patient

Regurgitates & Dies when RT passed under Anaesthesia

Husband says

I was in Hospital prior to surgery

Why I was not told of refusal to allow RT insertion

Would have got wife to consent

Wife’s fears not allayed

Wife may not have been told RT can be inserted without distress

Wife not told she can die

Surgeon made no attempt to insert RT himself left it to others

Surgeon

After surgery – Surgeon informs successfully carried out surgery

Not told patient was critically ill

Anaesthetist tells Plaintiff , patient critically ill

Experts Even with Ryle’s Tube patient can still aspirate

Without Ryle’s Tube , patients have been operated without problems .

Risk of aspiration is significant with or without Ryle’s Tube

Ryles Tube is not mandatory

Judge -RT non insertion is acceptable practice provided team can meet eventualities –care

Consent not taken properly , no witness Records does not show informed of

risks , death

Plaintiff not informed

Wife does not make decision without him

Communication

Consent

Case records

Care

Important , now as ever

THANK YOU