Problem Clarification

 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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