2. CONTENTS
• COMPARISON:
1. Sources of law in Louisiana vs Singapore
2. Types of loss & action that loss of chance is recognized for
3. Valuation of the loss of chance
4. (Element of the action to which loss of chance applies)
• Observations
2
3. LOUISIANA
• Mixed legal system
• Louisiana Civil Code covers many areas of
private law: property, torts, law of persons
etc.
• Sources of law = Legislation, custom and
equity
• Law is first created by legislature and
written in the code; ”precedent” develops
the code
• Criminal & constitutional law follow the
common law system, like the other states in
the US
• Common law system
• "the common law of England (including […]
equity), so far as it was part of the law of
Singapore immediately before 12.11.1993
shall continue to be part of the law of
Singapore”; courts may depart when societal
conditions have evolved to the extent that
existing rules are inappropriate (Application
of English Law Act,, art. 3)
• Heavy influence in contract, tort, restitution,
administrative law; criminal, company and
evidence law are statute-based (influence of
Indian caselaw)
SINGAPORE
1) SOURCES OF LAW
3
4. LOUISIANA
• Jurisprudence
constante
• =La. courts reinterpret the law with
every new case, but may give great
weight to an interpretation of the
law as set forth in a long line of
consistent decisions
• Stare decisis
• =Sg judges must apply the law as it has
been set out in one prior case, when the
prior decision was made by a court higher
than the court rendering the present
decision
SINGAPORE
1) SOURCES OF LAW
4
5. 1) MEDICAL NEGLIGENCE SUITS IN
LOUISIANA: SOURCES OF LAW
• Elements set out in La. Rev. Stat. Ann. § 9:2794(A)
• "In a malpractice action based on the negligence of a physician […], the plaintiff shall have the
burden of proving:
• (1) The degree of care ordinarily practised […]
• (2) That the defendant either lacked this degree of knowledge or skill or failed to use
reasonable care and diligence, along with his best judgment in the application of that skill.
• (3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this
degree of care the plaintiff suffered injuries that would not otherwise have been incurred."
• Medical Malpractice Act (La. Rev. Stat. Ann. § 40:1231.2)
• Legislative intent = keep healthcare affordable and limit exposure of healthcare providers
• Statutory cap: USD 500,000 + interest + cost
• Cap excludes future medical care; payment out of Patient Compensation Fund 5
6. 1) MEDICAL NEGLIGENCE IN
SINGAPORE: SOURCES OF LAW
• Caselaw
• 1) Existence of a duty of care
• 3-stage test in Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR(R) 100
• 2) Breach of the duty by falling short of the standard of care expected
• Diagnosis and treatment: Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 + Bolitho v
City and Hackney Health Authority [1998] AC 232, affirmed in Khoo James and anor v Gunapathy d/o
Muniandy and anor appeal [2002] 1 SLR(R) 1024
• Advice to patient: Hii Chii Kok v Ooi Peng Jin London Lucien and anor [2017] SGCA 38
• 3) Claimant suffered damage as a result of the defendant’s actions:
• 3a) Damage is of a type that the law recognises and protects
• 3b) Defendant’s actions caused the damage sustained by the claimant
• Singapore Medical Council’s Ethical Code and Ethical Guidelines
6
7. 2) RECOGNITION OF THE LOSS OF
CHANCE DOCTRINE: OVERVIEW
LOUISIANA SINGAPORE
Medical
negligence
√ √
Economic loss Theoretically open √
7
8. 2) LOSS OF A CHANCE IN MEDICAL
MALPRACTICE (LOUISIANA)
• Louisiana Supreme Court in Hastings v. Baton Rouge General Hospital first
recognized the right of a victim to recover damages for the loss of a chance of
survival. 498 So.2d 713 (La. 1986)
• "Seminal” case: Smith v. State, Dep’t of Health & Hosps., 676 So. 2d 543 (La.
1996)
• Loss of chance is a distinct, cognizable injury from wrongful death; "not...a change or a relaxation of
the usual burden of proof by a preponderance of the evidence." Id at 547.
• “plaintiffs were not required to prove a ‘reasonable’ or ‘substantial’ chance of survival. The issues in loss of a
chance of survival cases are whether the tort victim lost any chance of survival because of the defendant’s
negligence.” Id at 547.
• Expansion to loss of chance of a better outcome
• Hargroder v. Unkel, 888 So. 2d 953 (La. App. 2d Cir. 2004) (lost chance of better recovery from a stroke),
• Graham v. Willis-Knighton Med. Ctr., 699 So. 2d 365 (La. Cir. 1997) (lost chance of avoiding amputation of a
limb);
8
9. 2) LOSS OF A CHANCE IN MEDICAL
MALPRACTICE (SINGAPORE)
• Considered for the first time – and accepted!!! – in Armstrong, Carol
Ann v Quest Laboratories Pte Ltd and anor [2018] SGHC 66, [16]-[19]
• Loss of chance is a cognizable loss in medical negligence claims
• Alleviates the claimant’s burden of proof when assessing damages
• Followed the minority opinion in the split UK House of Lords decision Gregg v
Scott [2005] 2 AC 176; declined to follow Australian High Court in Tabet v Gett
240 CLR 537.
• Not yet before Singapore Court of Appeal
9
10. 2) LOSS OF CHANCE TO OBTAIN
ECONOMIC BENEFIT (SINGAPORE)
• Asia Hotel Investments Ltd v Starwood Asia Pacific Management Pte Ltd [2005] 1 SLR(R)
661
• Based on English law on causation in loss of chance cases, developed in a line of solicitors’ negligence
cases
• Adopted "three-category" approach in Allied Maples Group Ltd v Simmons & Simmons [1995] 1
WLR 1002
• 1) Where the negligence consists of Df’s positive act to determine, as a matter of historical
fact, whether on a balance of probabilities, that that act caused the Pf’s loss. Once established
on a balance of probabilities, the fact is taken as true and Pf recovers his damage in full. No discount
because the court considers that the balance is only just tipped in his favour. Pf gets nothing if he
fails to establish the BoP
• 3) Where the negligence consists of Df’s omission no longer a question of historical fact, but
to determine answer to the question "What would the Pf have done if the equipment been provided
/ the advice/instruction been given?” Pf must prove, on BoP, that he would have taken action to
obtain the benefit or avoid the risk.
• Judge can disbelieve Pf’s own evidence that he would have taken action if there is compelling
evidence that he would not have done so
10
11. 2) ECONOMIC LOSS? (LOUISIANA)
• Pelas v. Golden Rule Ins. Co., 1999 U.S. Dist. LEXIS
9800, at *10 (E.D. La. June 28, 1999)
• admitting evidence of a loss of chance for survival resulting
from an insurer’s refusal to cover a medical procedure
• "in light of Louisiana's treatment of loss of chance of survival
as a distinct, compensable injury, there is no reason to
arbitrarily limit the recovery of damages based on the
identity of the tort-feasor, particularly in a case like the
present one which is very similar to a medical malpractice
case"
11
12. LOUISIANA
• “[T]he lost chance of survival in professional
malpractice cases has a value in and of itself that
is different from the value of a wrongful death or
survival claim.” Smith at 547.
• Lump sum approach
• Fact finder determines value of lost chance without
multiplication of percentage chanceby wrongful
death damages: Smith
• In deciding damages, jury is guidedevidence of
percentages of chance of survival, along with
evidence such as loss of support and loss of love
and affection, and any other evidence bearing on
the value of the lost chance
• On appeal, can take percentages into account
• Loss of chance damages = wrongful death damages
• Multiplier-multiplicand approach
• Fact finder estimates no. of years that the deceased
might have lived had proper medical treatment been
given ("lost years") on the basis of percentage chance of
survival: Armstrong, Carol Ann v Quest Laboratories
Pte Ltd, [2018] SGHC 66 at [19].
• Dependency claim = Benefits dependants would have
received per year * Years they would have received the
benefits
• Inheritance claim = Savings per year * Years the patient
would have been employed
• Computed separately w/ different discount rates
(difference in accelerated receipt): Zhu Xiu Chun alias
Myint Myint Kyi v Rockwills Trustee Ltd
(administrators of the estate and on behalf of the
dependants of Heng Ang Tee Franklin, deceased and
or appeals [2016] 5 SLR 412 (CA)
SINGAPORE
3) VALUATION OF THE LOST CHANCE –
MEDICAL MALPRACTICE
12
13. LOUISIANA
• 1. The patient had a chance of survival or recovery at the
time of the alleged medical malpractice;
• 2. The healthcare provider’s action or inaction deprived
the patient of all or part of that chance (causation);
• 3. The plaintiff must prove causation by a preponderance
of the evidence, that is, it is more likely than not (or,
there is greater than a 50% chance), that the malpractice
deprived the victim of all or part of that chance.
• 4. The plaintiff does not have to prove that the patient
would have survived or completely recovered if properly
treated.
• However, causation cannot be presumed in loss of
chance claims. The Louisiana Supreme Court has
expressly noted that “[a]llowing recovery for the loss of a
chance of survival is
• Loss of chance as a cognizable loss in
medical negligence and in contract
• In medical negligence, alleviates the
plaintiff’s burden of proof at the
assessment of damages stage:
Armstrong, Carol Ann at [16]-[19]
• For economic loss, ”real substantial
chance” vs BoP
SINGAPORE
4) LOSS OF CHANCE AS MEASURE OF
DAMAGES, BUT WITH IMPLICATIONS FOR
BURDEN OF PROOF IN CAUSATION
13
14. OBSERVATIONS
• Common recognition of the closeness of the doctor-patient
relationship
• But different functions: justification for allowing loss of chance in the US =
justification for finding a duty of care (proximity) in Singapore
• Lower standard of care of doctors in Singapore compared to
Louisiana accounts for fewer medical negligence cases reaching the
causation/assessment of damages stage
• Opening the floodgates is a common concern across jurisdictions
when allowing recovery for loss of chance
• Gregg v Scott (UKHL): refused to accept loss of chance in medical negligence
• Restatement (Third) of Torts §26: Institute left open question of whether areas
beyond medical malpractice to which loss of chance might be expanded
14
Notes de l'éditeur
LA. CIV. CODE ANN. arts. 1 & 4 (2011). Article 1 provides: “The sources of law are legislation and custom”; Article 4 provides: “When no rule for a particular situation can be derived from legislation or custom, the court is bound to proceed according to equity. To decide equitably, resort is made to justice, reason, and prevailing usages.”
CONSIDERING PRECEDENT IN LOUISIANA: BALANCING THE VALUE OF PREDICTABLE AND CERTAIN INTERPRETATION WITH THE TRADITION OF FLEXIBILITY AND ADAPTABILITY Mary Garvey Algero (2012) 58 Loyola Law Review 113
» In civil law and mixed jurisdictions, past decisions usually carry some degree of persuasive authority, but they are not usually considered law like they are in common law jurisdictions.
Except to the extent that a line of decisions can achieve the status of jurisprudence constante and perhaps become “custom”20 or that courts may consult prior decisions to guide their decisions when they turn to equity, precedent is not a legislatively recognized source of law in Louisiana.21 In fact, Louisiana courts often state that they are not bound by precedent like their common law brothers.22
André Cousin II, Lousiana Law Clerk
”Additionally, this may cause variation in the jurisprudence applied by the five Louisiana Circuit Courts of Appeal to vary. For example, the 2nd circuit may have very harsh jurisprudence that is applicable to Operating while intoxicated (OWI). Conversely the the 3rd circuit, especially in Lafayette, may be more lax and apply jurisprudence favorably to the defendant.”
Recall the other ways of avoiding the application of precedent:
Materially distinguish the facts of the case to be decided from those of the higher court’s case
Show that the higher court’s case was made per incuriam (=in violation of the principle of stare decisis)
§ = section
Find the La. Rev. Stat., Title 9 ”Civil Code Ancillaries” at https://legis.la.gov/legis/Laws_Toc.aspx?folder=75&level=Parent
NB. MMA was redesignated in 2015 from § 40:1299.42(B)
Hastings v Baton Rouge General Hospital
Facts: Hastings was taken into the emergency room with stab wounds to the neck. It was determined he needed to undergo an emergent thoracotomy at a different hospital; however, the emergency room physician never transferred the patient and he passed away.
Trial court: granted a directed verdict in favor of the defendants, finding the patient’s wounds was the cause-in-fact of his death, and not the hospital’s failure to transfer.
Louisiana Supreme Court: “plaintiff is not required to shoulder the impossible task of proving that surgery would have saved Cedric Hastings' life. It was only necessary to show a reasonable probability that the procedure would have been lifesaving in these circumstances.” [emphasis added] Id. at 722. The court remanded the case for a trial on the merits.
NB. Because of a pre-existing condition, the chance was less-than-even
Smith v. State
Facts: Smith underwent a routine pre-op chest x-ray before foot surgery. Although the x-ray revealed a mass in his right trachea, the hospital staff failed to inform the patient of the x-ray results. Smith returned to the hospital 15 months later, and a chest x-ray on that date showed the mass had doubled in size. During this visit, Smith learned of the earlier x-ray report for the first time. Further testing revealed that the mass was cancer and he died four months later after undergoing chemotherapy.
Smith’s survivors filed a medical malpractice action seeking survival and wrongful death damages.
Trial court: plaintiffs did not meet their burden of proving the 15 month delay in treatment caused the patient’s death or a loss of a chance of survival when the patient had outlived statistical averages for the type of cancer he had. Id. at 548.
La. Court of Appeal for the Second Circuit: noted expert testimony at trial indicated the patient had lost some chance of survival by not receiving earlier treatment and reversed the trial court. Id.
Louisiana Supreme Court: on writ of certiorari, established that the loss of a chance is a distinct, cognizable injury from wrongful death, holding “plaintiffs proved by a preponderance of the evidence that the negligence...deprived [the patient] a chance of survival, a loss for which the [hospital] must respond in damages.” The Court further held “plaintiffs were not required to prove a ‘reasonable’ or ‘substantial’ chance of survival. The issues in loss of a chance of survival cases are whether the tort victim lost any chance of survival because of the defendant’s negligence.” Id. at 547. Thus, the patient’s survivors were not barred from recovering damages even though the chance of survival at the time of the initial x-ray was less than 50%.
In Graham v. Willis–Knighton Med. Ctr., 97–0188 (La. 9/9/97), 699 So.2d 365, the
Louisiana Supreme Court extended the scope of the loss of chance doctrine to include the loss of a chance for a better outcome. There, the plaintiff sustained a gunshot wound to his abdomen and underwent emergency surgery. However, the general surgeon failed to summon the on-call vascular surgeon to revascularize the patient’s leg upon completion of an intestinal repair and ultimately, his leg was amputated. The Louisiana Supreme Court affirmed the patient was entitled to damages for the loss of chance of saving his leg from amputation. Id. at 373.
b. Loss of Chance to Avoid an Additional Medical Procedure In Holtzclaw v. Ochsner Clinic, P.C., 02-555 (La. App. 5 Cir. 10/29/02); 831 So.2d 495, the plaintiff's intestine was perforated during a colonoscopy for removal of polyps. Although the
patient reported symptoms indicative of a perforation to a nurse, she did not notify the treating physician. Antibiotics were not administered until after an 18-hour delay, and the patient required a colostomy. The Louisiana Court of Appeal for the Fifth Circuit affirmed that the evidence supported a finding that the nurse's negligence resulted in the plaintiff's lost opportunity to avoid the colostomy. Id.
In Bianchi v. Kufoy, 2010-607 (La. App. 3 Cir. 12/8/10); 53 So.3d 530, the plaintiff
exhibited unusual symptoms of pain, swelling, redness and loss of vision following cataract surgery. The physician who performed the procedure failed to treat the symptoms and also failed to refer the patient to a specialist. The patient subsequently lost almost all of his vision in the affected eye. When viewing the totality of the evidence, the Louisiana Court of Appeal for the Third Circuit determined there was sufficient proof that the physician’s negligence diminished the patient’s chance for a better recovery from the traumatic and complicated cataract surgery. Id. at 536.
Armstrong, Carol Ann v Quest Laboratories
Facts: Pathologist did not diagnose malignancy in a patient’s skin sample. Two years later, the patient found his armpit swollen and saw an oncologist. Another pathologist reviewed the same sample and found malignancy. The patient died four months later. His estate brought a claim in tort.
Singapore High Court (Chao Hick Tin J): Chao J considered the narrowly split House of Lords decision of Gregg v Scott [2005] 2 AC 176, where the doctor had negligently misdiagnosed non-Hodgkins lymphoma as fatty tissue and died – the majority refused to recognize loss of chance of survival – of less than 50% -- as a legitimate loss, whereas the minority would have. He affirmed the minority view, citing the existing recognition of the loss of chance of obtaining economic benefit / avoiding economic loss as actionable damage.
Gregg v Scott
Malcolm Gregg would have had a 42% chance of ‘survival’ (defined as being in remission after ten years) had he been diagnosed at the correct time. The negligent delay in diagnosis caused his chance of survival to fall to 25%. The House of Lords decided that a lost opportunity of 50 percent or less of a better outcome was not cognizable harm and therefore the patient suffering harm could not recover.
!!! Consider with Noor Azlin Bte Abdul Rahman v Changi General Hospital Pte Ltd and others [2018] SGHC 35 – Ang J held that the claim would failed on causation anyway because patient would have received the same treatment even if the cancer diagnosis had occurred at an earlier stage
Critics of Louisiana’s lump sum approach:
Dionne R. Carney 1997
Fischer 2010
La. Defense Counsels’ Association 2011
Different conceptual basis. But both leery of the % survival chances given by doctors to patients.
