Problem Clarification
1.
Firstly,
in the moot problem itself, there is no ground of judgment and in mooting or on
appeal level.
2.
Secondly,
regarding the ground of appeal, in English version of moot, the ground of
appeal had specically mention disclosure of risk at the time of discharge but
this did not appear on Malay version of moot, which may cause confusion.
Which i quote "The grounds of appeal are:- a) They were not negligent in
not alerting the Respondent’s parents at the time of discharge of the possible
onset of RLF and/or ROP;"
Meanwhile in Malay version, "Alasan-alasan rayuan daripada pihak Perayu
adalah seperti berikut:- a) Perayu Kedua dan Ketiga tidak lalai dalam
tanggungjawab mereka untuk tidak memberi tahu dan/atau memaklumkan kepada
ibubapa Responden akan kebarangkalian untuk Plaintif berhadapan risiko RLF dan
/ atau ROP'
1.
The
ground of judgment is at the decision at para 9 of the Q.
2.
Thus,
assumption can be made whether information is vital to be given out before or after
treatment/discharge. Both parties have to prepare on both arguments. But please
only refer to your Moot Session.
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The moot problem ground 2, we are sort of not
clear regarding that the ground stated 'judges erred in deciding the standard
of care'
Meaning the Appellant is saying that the Judge is
wrong in determining the standard of care applied by a medical practitioner.
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I would
like to ask on regards to the second ground of both the english and bm version.
Does both versions provide the same meaning? Is there any possibility that it
provides different meaning? because for the english version, the second ground
states that the judge made mistake in ruling out (exclude) the standard of care
and as for the bm version, the judge made mistake in deciding on the standard
of care without mentioning excluding the standard of care.
Not clear of the Q. But refer to your Moot session
please. So argument is based on your Moot Q (Bahasa=Bahasa; English=English).
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Regarding
the mooting question, is it BI and BM one are the same? Coz for 2nd ground, the
words use for BI version is "rule out" and the definition found in
dictionary means preclude or prevent or in the case should be exclude. However,
for BM version one is "memutuskan". The meaning is somehow different.
Please
only refer to your Moot Session Q. FYI, ruling out here means deciding.
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For the mooting, will the mooting question be
interpreted according to English version ? because for the ground of appeal /
rayuan....BM n BI different
[English version]: "They were not negligent in
not alerting the Respondent’s parents *at the time of discharge* of the
possible onset of RLF and/or ROP"
BM version did not mention time of discharge..... [BM
version]: "Perayu Kedua dan Ketiga tidak lalai dalam tanggungjawab mereka
untuk tidak memberi tahu dan/atau memaklumkan kepada ibubapa Responden akan
kebarangkalian untuk Plaintif berhadapan risiko RLF dan / atau ROP"
does that mean for Malay, the appeal is not specified
to "time of discharge", and can be after discharge/ before discharge
etc?
Invited Judges will give out their opinions based on
the Moot Q for Moot Session. So Bahasa=Bahasa/ English=English.
What
are the grounds that the trial judge decide that the second and third defendant
was negligent? Is it solely because second defendant did not alert the parents
on the possible complications or there are other grounds, such as insufficient
medical equipment, failure to check for complications on the part of the second
defendants?
Q is
silent on this. But from the grounds of appeal given, you may assume negligent
on not informing.
What
are the authority relied upon by the trial judge to decide the standard of care
used?
Sorry. You must do
your research on this.
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1)Adakah plaintif yang
mengalami apnoicc spells dan bertukar biru dan berhenti bernafas diberikan
rawatan dan diberikan cardiac massage yang diperlukan?
2)Dalam tempoh masa hari
kesepuluh (3/1/2011) sehingga 7/2/2011, adakah apa-apa jenis rawatan diberikan
kepada plaintif?
1) Soalan tidak berapa
jelas. Tetapi dr fakta kes (soalan moot), rawatan diberikan terhadap Plaintiff
(Luna).
2)Fakta kes (soalan
moot ) tidak menyebut (silent) untuk isu ini. Oleh yang demikian, Mooters boleh
member andaian bahawa tiada rawatan diberikan (berbalik kepada fakta).
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1. The moot problem did not
provide the required information on the cover page, namely the information
about court at first instance where the parties are known as plaintiff and
defendants respectively. Even if we can make assumption that the court is at
Malacca as the hospital (defendant 3) is at Malacca. we are lacking of the
information on court suit no. and year
2. Is there any further
check-up or treatment done by Appellant for the Respondent after the discharge
from hospital?
1. Formality of the
cover page is as provided by the guideline. The Court and Moot No. is depending
on your Moot Group.
2.
The issue is silent, thus assumption can be
made whether there is treatment or not. Based on the facts, u may assume no
further treatment was made at the hospital
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1. Is Dr Erik Anakin Lau a
specialist of Opthalmologist, Padiatrician or a General medical practitioner?
2. Had the trial judge based the
judgement on a medical opinion by Dr Serena Song?
3. Had Dr Erin Anakin Lau and
the nurses performed Cardiac Massage on the baby?
1. Facts are silent
on this. Assumption can be made. But, it is safe to say that he is a general
medical practitioner.
2. Facts are also
silent on this. Practically, decision made by judge was made by testimonial and
evidences from the previous court. Thus, you may assume that the judgment might
be made by her opinion.
3.Facts were silent. But treatment was done (based
on facts).
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1. Can it be assumed that the 2nd defendant tried to inform
risks and procedures involved eventhough the parents ultimately is not informed
of the complications and risks?
2. Is the 2nd defendant a specialist like the 1st defendant
(paediatrician) or is he just a general practitioner?
3. For the 2nd ground, what does the term ruling out means?
Does it mean that the trial judge do not want to take into account the standard
of care of the defendants?
4. Can the weight of the premature baby be assumed?
5. What is the standard of care used by the trial judge in
determining the trial judgement?
6. Can it be assumed that there is a consent form signed by
the parents of the premature baby and a liability-waiver clause is included in
the form?
7. From the facts, is it certain that the blindness in the
premature baby is ONLY caused by the excessive oxygen?
8. did the defendants advise for the parents of the baby to
come back for regular check up?
9. is there no more consultations between the defendants and
plaintiff after the discharge?
10. is the baby confirmed blind by the time of discharge?
1.
Tried? The
assumption of yours is risky, because you need evidence (facts() to rpove it.
But you may assume that information were given up to what they (doctors)
suppose to.
2.
Facts are
silent. Best to assume general practitioner.
3.
Ruling out
here means, the judge decided as per judgment.
4.
If it is
relevant to your argument, yes you may.
5.
That you may
assume.
6.
This will be
depending on what is the standard of care that you argued.
7.
Looking form
the facts, yes. But you may argue some other contributory factor.
8.
Nothing in
the Q, so may put assumption if you feel relevant to your argument.
9.
Nothing in Q,
assumption can be made. Best to say no.
Nothing from
the facts, because the parents realised when they brought her home.
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1)Did
the parent gave consent initially to the doctor to handle the baby before the baby was placed into the incubator
and hood (or did the parents consent to the oxygen therapy. Because that play
an vital role in our situation. or we just based on assumption?
2)
What is the Dr Erik Anakin Lau specialized in or how many years of experience
he has in that field ?
3)
How much is the percentage on the concentration level of oxygen given towards
the baby?
4)
Is this case ought to be held in COA or FC?
or
all just based on assumption?
1.Not sure whether it is relevant to your argument, but you may
assume that consent is given since her mother gave birth at the Hospital does,
in such situation, what else can the doctor does to save the infant?
2.Q is silent. Best to say general practitioner.
3. Please read back the facts.
4. Appeal Court since the
previous court is High Court.
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1. Whether the
respondent or the parents of the baby had asked for any medical condition of
the baby from the appellants during the baby being treated in the hospital?
2. Whether there is any
medical report given to the respondent before or during discharge from the
hospital?
3. Whether the baby was
born in low weight?
4. Whether the baby had
been properly examined or went through any scanning to ensure her healthy
before her being discharge?
1.Nothing in
the Q. You may assume if you feel relevant in your argument.
2. Nothing in
the Q. You may assume if you feel relevant in your argument.
3. Nothing in
the Q. You may assume if you feel relevant in your argument. She is premature.
4. Nothing in
the Q. You may assume if you feel relevant in your argument.
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1.what is the position
of second defendant? Please refer to the moot question
2. Is he under contract
of service or having the same position like first defendant ? Yes
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1) facts of the case
show the appellants include 3 defendants (dr raven, dr erik, and the hospital).
However, the trial judge had dismissed the first defendant. My clarification
here is concerning who the counsel for the appellants are defending;ONLY DR
ERIK & THE HOSPITAL OR ALL THREE DEFENDANTS? Did out consel represent Dr
Raven during the first trial? Use your understanding of
the law to determine the issue in this question
2) may we assume that
the parents were unable to provide consent at that immediate time consent was
required due to their absence since the facts are silent on it? and may we
assume that the dad was ultimately unavailable as the facts of the case did not
mention the whereabouts of the father?
2.you may
assume so long you are not far from the facts given. Bear in mind, the mother
gave birth of the premature infant in the Hospital, so what type of consent are
you arguing? And if you feel the need to argue on the father’s availability,
then assumption may be made as the Q is silent.
3) the second ground of
appeal states that the judge had erred by RULING OUT the standard of care,
which means that the judge had cancelled the use of standard of care or did not
apply the usage of standard of care when deciding the case, UNLIKE THE BM
VERSION of the question which state that the judge had in fact used a certain
standard of care, but a wrong one. Is this true? Refer to ‘ruling out the appropriate measures’ means the standard of care is used by the Judge
in making decision.
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1.
Based on 1st ground of
appeal, what is meant by 'at the time of discharge'?
please do
research
2. Based on 1st ground
of appeal, whether the possible onset of RLF/ ROP could be understood as
arising from oxygen therapy?
Yes.
3. Based on 2nd ground
of appeal, the standard of care of a medical practitioner should be determined
from whose perspective? medical opinion or reasonable layman? Please refer and
revise your law of tort
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