Calvin Ho
in Medical Liability in Asia and Australasia (Springer, 2022), pp 245-265
Published online in November 2021
Abstract: The basis of medico-legal claims against a doctor may occur in contract law, tort law or criminal law. This chapter focuses on the ethical and legal requirement of informed consent, which in tort law relates to two legal actions, namely trespass to persons (or battery) and negligence, as they give effect to a patient’s right to autonomous decision-making on matters relating to her or his medical treatment and care. These legal actions have been central in defining legal expectations of the doctor’s responsibility to the patient which, apart from the provision of medical advice, includes medical diagnosis and treatment. Where medical advice is concerned, an important change in the legal standard of care, from one that was profession-centric to a more patient-centric formulation, is also considered. This development has been codified into statutory law, and is instructive in a number of ways. From a jurisprudential angle, it shows the law to be normatively open, as the change occurred interactively with the norms of medical ethics, and the practical realities of professional medicine. Developments since this change suggest that the courts may be more open to look beyond the doctor-patient relationship in addressing institutional and systemic deficiencies. If medical jurisprudence should advance in this direction, it may be fair to say that medical liability is likely to acquire a more prominent role in sustaining quality of medical care.
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