A doctor and a lawyer in two cars collided on the expressway. The lawyer, seeing that the doctor was a little shaken up,  elped him from the car and offered him a drink from his hip flask. The doctor accepted and handed the flask back to the lawyer, who closed it and put it away.

‘Aren’t you going to have a drink yourself?’ asked the doctor.

‘Sure, after the police leave,’ replied the lawyer.

Just as no man is an island, no professional can be completely independent of his fellow professionals from other disciplines. However, there has always been some amount of friendly rivalry between doctors and lawyers, if not cautious, quiet respect.

In as much as the common man on the street or a heartlander, a doctor will likely look to a lawyer to assist him in his purchase of real property, or in deciphering the contractual complexities of his partnership agreement.

In this era of the better informed patient, the physician may also require his legal brethren to defend him against malpractice allegations; after all, clinical negligence claims have been on the rise.

This may be of greater import, now that the time-honoured Bolam defence (that a doctor is not negligent if he is acting in accordance with a practice merely because there is a body of opinion which takes a contrary view) may become somewhat restricted after the Bolitho pronouncement.

In Bolitho, the House of Lords held that a doctor could be liable for negligence in respect of diagnosis and treatment despite a body of professional opinion sanctioning his conduct where it had not been demonstrated to the judge’s satisfaction that the body of opinion relied on was reasonable or responsible.

Lest the alarm bells start going off in the heads of our medical brethren by this pronouncement, let us be reassured by Lord Denning’s ruling in Roe v Minister of Health [1954] 2 QB 66:

We should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors will be led to think more of their own safety than the good of the patients. A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only misadventure.

On the other hand, a lawyer may need a physician’s healing touch for his personal well-being. On a professional basis, he may require his medical brethren’s assistance in legal suits involving medical matters — either as a professional witness in a ‘runner’ or as an expert witness in an assault case.

Indeed, there is a growing recognition of the scope for and importance of such inter-professional co-operation, a multi-disciplinary practice, particularly in the court setting.

In the United Kingdom, the Woolf Report resulted in two major developments: the adoption of a Pre-Action Protocol and Guidelines for Expert Meetings. The examination of the issue of expert witnesses has also resulted in a Practice Direction on Experts and Assessors, addressing various issues including expert reports, questions to experts, etc.

With a view to introducing reforms in clinical negligence litigation in England, Lord Woolf called for the founding of an umbrella organisation of people from every interest group involved in healthcare disputes, who would not normally come together but whose contributions together could go a long way towards benefitting patients and health professionals alike. This included patients’ and consumers’ representatives, doctors, managers and dentists, solicitors, experts, the Lord Chancellor’s Department, General Medical Council, the Law Society and the UK Central Council for Nurses, Midwives and Health Visitors.

With the subsequent introduction of a Pre-Action Protocol in clinical disputes, a climate of transparency is being developed when something goes wrong with a patient’s treatment or if the patient is dissatisfied with it and wants to make a claim. This is done by providing for a timed sequence of steps for patients and healthcare providers (as well as their legal advisors) to follow when a dispute arises. The purpose is to facilitate the exchange of relevant information and help to resolve disputes without going to the courts, if possible.

This must be the way to go, since it is obviously in the interest of patients that claims be resolved speedily and satisfactorily.

Not only does lack of openness prolong the claimant and defendant’s agony (having paid just so much more fees), it erodes the patient-healthcare provider relationship and creates a general mistrust or distrust of professionals, and an expectation of them being quick to close ranks when a claim is brought.

On the other hand, hospitals and doctors involved in such cases not only suffer from added stress, but are made to divert resources which would otherwise be used for treating patients.

It would be a desirable move for us in Singapore to explore the possibility of introducing such a device, with a view towards encouraging patients to voice concerns or dissatisfaction with treatment early, so that healthcare providers can carry out prompt investigations and develop a system of early reporting.

If and when a claim is sought, sufficient information should also be disclosed so as to discourage the prolonged pursuit of a weak claim, or a prolonged defence of a good one.

The second area, we may (as in the UK) wish to continue to address relates to the numerous issues that arise from the role of expert witnesses in court cases.

In Singapore, the Law Society and the Singapore Medical Association have tried to address some issues in this area and jointly issued a ‘Best Practices Guidelines’ for doctors and lawyers in civil litigation matters earlier thi s year. Recommendations relating to fees for the preparation of medico-legal reports, trial preparation and court attendance were made.

Can we do more?

Should there be a definitive form and specific content for an expert’s report, for instance, the expert’s qualifications, details of any material or tests that the expert has relied on or even summaries of a range of opinions in any particular area and of conclusions reached? Should the expert witness also be required to verify his report with a ‘statement of truth’?

We may also wish to clarify the duties of expert witnesses — to maintain professional objectivity, to be of assistance to the court and to that end, to supply literature or references that may assist the court in its decision, etc.

From another perspective, should lawyers instructing experts be required to give clear and specific instructions, including the nature and extent of expertise called for, the purpose of requesting a report or an advice, or giving a description of the matter under investigation or even information about legal proceedings?

Whilst there are a multitude of difficult questions to be dealt with, I am confident that with continued medico-legal co-operation and continued close ties between both our professionals and professional bodies, we shall be better able to provide our clients and the courts with quality expert evidence and a higher quality of clinical negligence litigation.

With a Pre-Action Protocol, patients will hopefully receive early responses to as simple a question as how they came to be injured — an answer no one seeks to or seems to give until they start limping down the litigation path.

As for the doctor who embarks on an inevitable collision course with a lawyer — perhaps with openness and mutual respect, the two will be less suspicious about sharing a drink by the wayside!

Palakrishnan
President
The Law Society of Singapore