How to Fight a Negligence Claim

During the height of the Covid-19 epidemic, a patient was admitted to hospital in extreme respiratory distress and placed under the care of an ICU specialist (a Howden client). The specialist intubated the patient and placed him on oxygen, but there was no improvement so he ordered the patient to be laid on his side. As the patient was moved his tracheal tube became dislodged, but this went unnoticed by the hospital staff. Several minutes later the patient went into cardiac arrest, and the displaced tube was discovered. The patient was resuscitated, but unfortunately suffered severe hypoxic brain injury and subsequently passed away. 

At around the same time, seventy-four-year-old Madam Tan Yaw Lan was taken by ambulance to A&E at Tan Tock Seng Hospital (TTSH) suffering from a persistent fever. Her medical history included chronic heart and kidney disease, hypertension, and type-2 diabetes. The initial diagnosis at TTSH was an infection of unknown origin, and she was admitted. After two days she began to show improvement, and on the third day was being assisted to shower by an intern nurse when she suddenly collapsed. Despite attempts to resuscitate her, Madam Tan never regained consciousness and died some three weeks later. The family decided against an autopsy, and the Coroner later ruled that the cause of death was ischaemic heart disease and pneumonia.

From a malpractice insurance point of view, the first case appeared to be straightforward. The care provided to the patient was lacking, and as a direct result the patient suffered injury. While there might be debate around some details, to my mind the ICU specialist’s position was indefensible and therefore a settlement should be pursued. However, at our first meeting the doctor declared that he had a rock-solid defence. He handed me a medical report from a colleague of his, stating that the patient’s injury might not have been caused by the dislodged tube, but rather by “Covid getting into his brain”. 

At his point I should reveal that this incident took place at a hospital outside Singapore. In some parts of Asia, the view that a patient who has been injured through medical negligence should be compensated has not yet been fully accepted. Instead, doctors will sometimes band together and force the patient to resort to expensive and complex litigation. In Singapore, thankfully, a more enlightened attitude prevails and cases where negligence has indeed occurred are generally settled – an outcome that protects the interests of all parties. It is for this reason that so few malpractice cases ever reach the courts.

Our second case, despite displaying no clear-cut evidence of malpractice, did in fact proceed to court, and provides us with a good example of how to correctly respond to allegations of malpractice when the hospital and doctors have a defensible position.

The Allegations

Madam Tan’s family brought a medical malpractice suit against TTSH and treating doctors. There were multiple allegations, as follows:

This strategy of bringing numerous allegations is consistent with modern approaches to litigation.

The Defence

Among the first steps taken by the TTSH defence team were to propose a small settlement (of $15,000) and to suggest that the parties submit for mediation. Both of these proposals were rejected by the plaintiffs, with later implications. The case proceeded to court, where the strongest element of the claim against TTSH was the alleged failure to detect that Madam Tan had suffered a heart attack. To defend this, TTSH brought in an expert from the National Heart Centre, who pointed out that a heart attack was not the only possible cause of Madam Tan’s collapse – a blood clot in the lung was another possibility. Note that as there was no autopsy, TTSH needed only to prove that there were feasible medical alternatives.

Turning to the issue of withholding medications, TTSH simply argued that there was no evidence that linked medications to Madam Tan’s death. The change had been made in order to focus on the sepsis she had been diagnosed with at admission.

For the allegation regarding showering, TTSH produced the testimony of the intern nurse, who stated that Madam Tan had not objected to being taken to shower. This refuted the claim that she did not believe in showering whilst ill.

Finally, on the allegation regarding being slow to resuscitate, TTSH pointed out that attempting to use an AED while the patient lay on a wet shower floor was inherently dangerous, and so the decision to move Madam Tan back to her bed before beginning resuscitation efforts was justified.

The Judgment

The methodical approach taken by the TTSH defence team in rebutting each of the allegations succeeded and the judge found in their favour. The final chapter of the case sounds a cautionary note to potential claimants, as a costs award of $756,000 was made against Madam Tan’s family. TTSH successfully argued that as they had made an early offer of settlement, the plaintiffs should bear all costs incurred after the offer was rejected.

The death of any family member is a traumatic experience, and it is natural that bereaved relatives will want to understand exactly what took place. However, it is another thing to conclude that any adverse outcome in a hospital setting must involve negligence. As the TTSH defence team was able to demonstrate, each of the decisions made by the staff charged with caring for Madam Tan could be justified.

In the case of the Covid patient, I was able to point out to the hospital and doctors that their interests would be better served by letting the insurer pursue an out of court settlement.

In malpractice insurance claims, knowing when to fight and when to concede ensures the quickest and simplest path to resolution.

Authored by:

Mike Griffiths
Regional Director, Healthcare
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