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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