Judicial approach in medical negligence in malaysia

UNIVERSITI KEBANGSAAN MALAYSIA SEMESTER I SESI 2015/2016

IJAZAH SARJANA UNDANG-UNDANGMedical Law (UUUK 6195)

Judicial Approach in Medical Negligence cases in Malaysia:-

Pro-Bolam, Pro-Whitaker or Pro-Bolitho

Prepared by: Siti Fairuz (P73969)

1) INTRODUCTION, THE QUESTION & THE ISSUES.

2) BOLAM TEST, BOLITHO TEST & WHITAKER TEST.

3) JUDICIAL APPROACH & TREND IN MALAYSIA.

4) IMPLICATION TO HEALTH CARE IN MALAYSIA & PROPOSAL FOR REFORM.

CONTENTS





CONTENTS

According to learned judge, Gopal Sir Ram in his article, The Standard of Care: Is the Bolam Principle still the law (2000) 3 MLJ ixxxi:- “It may come somewhat as a surprise to a layman in Malaysia that the standard according to which members of the medical profession in this country falls to be judged today rests upon principles laid down almost 2 centuries ago in Great Britain.”

Between 1800 – 1957, there were a number of occasions on which the courts in UK had to deal with the thorny questions as to what amounts to professional negligence in a doctor.

The question is : “The Judicial approach in medical negligence cases in Malaysia? Pro-Bolam, Pro-Whitaker or Pro-Bholito?”

INTRODUCTION, THE QUESTION & THE ISSUE

Judicial approach

• What causes the changes in the trend?

• What is the impact of the judicial interpretation to the medical practice or healthcare system in Malaysia?

• What is the trend of the judiciary in M’sia when confronting with medico-legal cases?

• Judges are more prone to apply which test and principles?

• Is it Bolam test ? Or Bolitho test? Or Whitaker test?

Brief information about medical negligence:- • Negligence per se is defined as in the legal thesaurus:- “ negligence…means more than heedless or careless

conduct, whether in omission or commission: it properly connotes the complex concept of duty, breach and damage thereby suffered by the person whom the duty was owing.” *1

• The landmark case about negligence is Donoghue v Stevenson (1932) AC 562, where Lord Atkin introduced the “neighbourhood principle” to show the necessity of “proximity” between parties.

• In R v Bateman (1925) LJKB 791, Hewitt CJ describes negligence in the field of medicine to be:- “…if a person holds himself out as possessing a special skill and knowledge; and he is consulted by or on behalf of a patient, he owes a duty to the patient to use due caution in undertaking the treatment. If he accepts the responsibility and undertakes the treatment and the patient submits to his direction and treatment accordingly, he owes a duty to the patient to use diligence, care, knowledge, skill and caution in administering the treatment.”

• Medical negligence is a branch of the law of.*2

• Once the duty of care has been established between the doctor and the patient, the next point is to ascertain if there has been a breach of that duty of care.

• In order to prove that the doctor has breached his duty towards the patient, the patient would have to prove that the doctor did not conduct himself in accordance with the standard of care established.

What is the standard of care that is required of a doctor?

Duty of care

Breach of that duty


Brief information about standard of care required of a doctor:- • The standard of care that is required is higher than that of a common person.

• In Lanphier v Phipos ((1838) 8 C & P 475 Tindall CJ said that a professional does not undertake to use the highest possible degree of skill, “he undertakes to bring fair, reasonable and competent degree of skill.” The standard of care is also to be adjudged in accordance with the level of knowledge and practice that the industry has and was prevailing at the time of the breach.

The standards of care of doctors in medical all area of aspects were discussed and this is where we will be seeing what are the standard of care required of a doctor through Bolam’s, Bolitho and Whitaker’s case.

Principle:- In an ordinary case, it is generally said that you judge that by the action of the man in the street. He is the ordinary man. But where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not is not the test of the man on top of the Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent..it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.

BOLAM (1957)

Principle:- The judge needs to be satisfied with the body of expert opinion relied upon. The expert medical opinion must be demonstrated to the judge’s satisfaction that the body of opinion relied upon is reasonable or responsible. But if in rare cases, it can be demonstrated that the expert opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.

BOLITHO (1997)

Principle:- In Australia, it has been accepted that the standard of care to be observed by a person with some special skill is that of ordinary man exercising that special skill…but that standard is not determined solely by reference to the practice followed by a responsible body of opinion. Further the Bolam principle have discarded. Instead, the Courts have adopted that while evidence of acceptable medical practice is a useful guide for the courts, it is for the court to adjudicate on what is the appropriate standard of care after giving weight to the paramount consideration that a person is entitled to make his own decision about his life.

WHITAKER (1992)

What were the Judiciary approach applied in formulating the above principles?






CONTENTS

Before Bolam’s test, 2 cases that influenced the formulation of Bolam’s test which are:-

The first case is Hunter v Hanley (1955) SC 200 which Lord Clyde (Lord President) said at p.204:- “In the realm of diagnosis and treatment, there is ample scope for genuine differences and one man clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill or knowledge than other would have shown. The true test is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty if acting with ordinary care.”

The second case Roe v Minister of Health (1954) 2 ALLER 131, Lord Denning (Court of Appeal) stated at p.137:-”if the anesthetists had foreseen that the ampoules might get cracked with cracks that could not be detected on inspection, they would no doubt, have dyed the phenol a deep blue; and this would have exposed the contamination. But I do not think their failure to foresee this was negligence. It is so easy to be wise after the event and to condemn as negligence that which was only a misadventure. We ought always to be on our guard against it, especially in cases against hospitals and doctors. Medical science has conferred great benefits on mankind, but these benefits are attended by considerable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking the risks. Every advance in technique is also attended by risks. Doctors, like the rest of us, have to learn by experience and experiences teaches them in a hard way. Something goes wrong and shows up a weakness, and then it is put right. This is just what happened here.”

BOLAM TEST

However these 2 cases dealt with the standard of care expected of a medical practitioner in the field of diagnosis and treatment but it does not cover the medical aspect of giving

medical advice. In Bolam, the issue of medical advice is introduced.

BOLAM v FRIERN HOSPPITAL MANAGEMENT COMMITTEE (1957) 2 ALL ER 118:- • Brief facts of the case:-

BOLAM TEST

1 229/4/1954:-

Pla. was admitted in Def. hospital. Pla. sufferring from after effects of a mental illness of the depressive type.

30/7/1954:- Pla. was discharged.

316/8/1954:-

Pla. was readmitted suffering from depression.

4 18/8/1954:- 1. Pla. was examined by Dr. J de Bastarrechea; 2. Dr. J advised Pla. To undergo electro-convulsive

therapy. 3. This treatment is carried out by placing electrodes

on the head of the patient which allows an electric current to pass through the brain. One of the results of the treatment is to cause convulsion in the nature of a fit.

4. Dr. J did not warn Pla. of the risk of treatment i.e. fracture.

5. Pla. signed consent form.

5

19/8/1954:- 1. Pla. undergo electro-convulsive

therapy.

6

23/8/1954:- 1. Pla. undergo electro-convulsive

therapy again but this time it was administered by Dr. C Allfrey.

2.During this treatment, no relaxant drug was administered, Pla. was not restrained and a male nurse stood at each side of the Pla. in case he should move from it.

3. In the course of treatment, the Pla. sustained severe physical injuries ie fractures.

7

25~30/8/1954:- 1. Pla. undergo electro-convulsive

therapy again but this time it was administered by Dr. C Allfrey and he administered relaxant drugs to avoid further fractures.

8

Post operations:- 1. Pla. sues the Doctor for:- a) Failure to administer the relaxant

drugs or without restraining the convulsive movements of the Pla. by manual control ;

b) Failing to warn Pla. of the risk. 2. Pla. sues the Hospital for:- a) Negligence in permitting Dr. Allfrey to

administer the treatment without relaxant drugs;

b) Vicariously liable.

9

29/2/19571. Court, McNair Judge

held that the Defendants were not negligent.

BOLAM v FRIERN HOSPPITAL MANAGEMENT COMMITTEE (1957) 2 ALL ER 118:- • The main issues in this case are:- a) On the doctor following one school of thought on medical treatment can be regarded as negligence since

they are 2 recognized school of thoughts; and

b) On whether the doctor has the duty to warn of the risk of the treatment.

• Evidences/Arguments during proceedings:-

a) On the first issue:- take note that Pla. Did not argue on the treatment and diagnosis proposed.

• Plaintiff’s arguments:-

Failed to use relaxant drugs which will exclude the risk of fracture;

And if the relaxant drugs were not used, at least some form of manual control beyond shoulder control, support of the chin, and placing pillow under the back, should have been used.

• Defendant’s arguments:- There are 2 school of thought about the usage of the relaxant drugs:- One school of thoughts encourage

the usage of the relaxant drugs in the treatment as it will reduce the risk of fracture while another school of thoughts does not encourage the usage of the relaxant drugs except in certain cases, as there is a risk of death.

Thus, the defendants did not use the relaxant drugs as the risk of death is much more serious than the risk of fracture.

On the manual control, there were many techniques advocated such as a nurse on top of the patient or by using a restraining sheet the risk of fracture is increased.

BOLAM TEST

BOLAM v FRIERN HOSPPITAL MANAGEMENT COMMITTEE (1957) 2 ALL ER 118:- • Evidences/Arguments during proceedings:-

b) On the second issue:-

• Plaintiff’s arguments:-

Defendants fail to warn Plaintiff of the risks involved in the treatment;

• Defendant’s arguments:-

It’s the accepted practice during that time that doctors don’t warn patients as to techniques. About the risk to life, doctors will usually wait for the patient to ask. If the patient don’t ask anything, the doctor don’t say anything about the risk.

Another reason for not informing the risk to Plaintiff is because the defendants view that was some danger in emphasizing the risk to a patient who is mentally ill. The doctors were of the view that if he does so, the Plaintiff may deprive himself by refusing a remedy which is the only available hopeful remedy open to him. (Doctor’s know best rule)

• Court’s decision :- (based on the jury system), McNair Judge held:- (establish the standard of care in medical practice & secondly whether there is a breach of that standard of care), p.122

a) The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent.

b) A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical skilled men in that particular art.

c) The doctor is not negligent merely because there is a body of opinion that takes a contrary view.

BOLAM TEST

Cases that followed the Bolam’s test thereafter:-• Whitehouse v Jordan (1981) 1 ALL ER 267; Wilsher v Essex Area Health Authority (1988) 1 ALL ER 871:- concerning

the treatment of patients;

• Maynard v West Midland Regional Health Authority (1985) 1 ALL ER 635:- in a case that involved diagnosis;

• Sideway v Governors of Bethlem Royal Hospital (1985) 1 ALL ER 643:- in a case that concerned the disclosure of information to a patient and the obtaining of her consent to a procedure;

• Airedale National Health Service Trust v Bland (1993) 1 ALL ER 820:- in a case involving the determination of the best medical interest of a patient who being in a vegetative state was unable to give his consent to discontinue the medical support. Rationale put forward by using the Bolam’s test:-

• To protect the hospital and the doctor from floodgates of medical claim, for the mankind has received greater benefits from the medical science

• By imposing a liability on hospitals and doctors for everything that happens to go wrong, it will be a disservice to the community at large – doctors would think more of their own safety than of the good of their patients since the initiative would be stifled and confidence shaken. – as per Lord Denning in Roe v Minister of Health

• Difficult to interfere with medical as judges are not expert in medical field. Leave it to medical experts.

Overview of the Bolam test v normal breach of standard of care:- the differences is at the “determination” of the standards:-

BOLAM TEST

Medical Negligence as per Bolam Test Other areas of Tort

• The determination of the standard of care in medical negligence cases is determined by medical judgment

• The determination of the standard of care in other areas is determined by the court.

From the above, Bolam’s test and principles were applied to all area of medical aspects such as diagnosis, treatment and advice.

Before Bolitho case, the first dent to the Bolam’s test was a dissenting judgment by Lord Scarman in the case of Sideway v Bethlem Royal Hospital Governors.

Lord Scarman stated that:- “ …in my view, the question whether or not the omission to warn constitutes a breach of the doctor’s duty of care towards his patients is to be determined not exclusively by reference to the current state of responsible and competent professional opinion and practice at the time, though both are, of course relevant considerations, but by the court’s view whether the doctor in advising his patient gave the consideration which the law requires him to give to the right of the patient to make up her own mind in the light of the relevant information whether or not she will accept the treatment which he proposes…”

BOLITHO TEST

On the issue of advice given by a doctor to a patient, whether to reveal or not the risk inherent to the treatment proposed, should consider the following

Responsible & competent

professional opinion

Reference to the current

practice

The rights that law has accord to patients i.e. the

right of patient to make up her own mind in the light of

the relevant information whether or not she will accept the treatment

From the dissenting judgment by Lord Scarman in Sideway’s case, in terms of medical aspect of advice by doctor to a patient, the court and not the medical judgment will determine of the doctor

has breached the standard of care in medical law.

BOLITHO (administratrix of the estate of Bolitho (deceased)) v CITY & HACKNEY HEALTH AUTHORITY (1997) 4 ALL ER 771:- • Brief facts of the case:-

• The main issues in this case are:- a) Relates with the issue of causation; b) Relates with the approach to professional negligence laid down in Bolam.

• Evidences/Arguments during proceedings:- • On the second issue:-

• Plaintiff’s arguments:- That over the last 2 hours before the catastrophe the Deceased was in a state of respiratory distress

progressing to hypoxia and should therefore be intubated.

• Defendant’s arguments:- Since the evidence of the nurse contradict, the doctor considered that they would not intubated the

deceased since the evidence of the nurse does not show that the deceased is passing through the stage of hypoxia.

BOLITHO TEST

1 211/1/1984:-

Pla. was admitted in Def. hospital. Pla. sufferring croup.

15/1/1984:- Pla. was discharged.

316/1/1984:-

1.Pla. was readmitted as he was having difficulty in breathing;

417/1/1984:-

1.At around 12.40 pm, the 1st episode occurred, Pla. was having difficulty in breathing & was white in color;

2.The nurse called for Dr. Horn. but Dr. Horn did not attend. 3.At around 2 pm, the 2nd episode occurred and again Dr.

Horn was called. But Dr. Horn said she was on afternoon clinic & asked Dr. Rogers to come but Dr. Rogers didn’t come.

4.At about 2:30pm, the final catastrophe began. Pla. was unable to breath and collapsed and by time he was resuscitated, he suffered brain damage and subsequently died.

513/11/1997

1.1991: Plaintiff claim dismissed2.1992: COA dismissed Pla.

Appeal3.1997: House of lords gave

decision in favor of Pla.

BOLITHO (administratrix of the estate of Bolitho (deceased)) v CITY & HACKNEY HEALTH AUTHORITY (1997) 4 ALL ER 771:- • The Bolitho test:- a) In Bolam, McNair Judge stated that the Defendant had to have acted in accordance with the practice

accepted as proper by a “reasonable body of medical men” Later he referred “to a standard of practice recognised as proper by a competent reasonable body of opinion”.

b) And in Maynard’s case, Lord Scarman refers to a respectable body of professional opinion”

c) The use of the word – responsible, reasonable and respectable :- shows that the Court has to be satisfied that the exponents of the body of opinion relied on can demonstrate that such opinion has a logical basis.

d) In particular, in weighing of risks against benefits, the judge before accepting a body of opinion as responsible, reasonable or respectable, will need to be satisfied that the experts have directed their minds to the question of comparative risks and benefits.

e) Referred to Hucks v Cole (1968) (1993) 4 Med LR 393:- • In that case, a doctor failed to treat with penicillin a patient who was suffering from septics places on her

skin though he knew them to contain organisms capable of leading to puerperal fever. The COA find the defedant negligent.

• Sachs LJ:- “When the evidence shows a lacuna in professional practice exists by which risks of grave danger are knowingly taken, the court must anxiously examine that lacuna, however small the risks and particularly if the risks can be easily avoided. If the court find, on analysis of the reasons for not taking those precautions, in the light of current professional knowledge, there is no proper basis for the lacuna and that it is definitely not reasonable that those risks should have been taken, that constitutes negligence.”

BOLITHO TEST

BOLITHO (administratrix of the estate of Bolitho (deceased)) v CITY & HACKNEY HEALTH AUTHORITY (1997) 4 ALL ER 771:- • House of Lord (Lord Browne-Wilkinson stated that :- “the authority cases demonstrates that in cases of diagnosis and treatment there are cases where despite a body of professional opinion sanctioning the Defendant’s conduct, the Defendant can be properly held liable for negligence.

This is because in some cases, it cannot be demonstrated to the judge’s satisfaction that the body of opinion relied on is responsible or reasonable. In the vast majority of cases, the fact that distinguished experts in the field of particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are questions of assessment of the relative risks and benefits of adopting a particular medical practice, a reasonable view presuppose that the relative risks and benefits have been weighed by experts before forming their opinion.

But if in rare cases, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that body of opinion as not reasonable or responsible.”

BOLITHO TEST

What Bolitho test is doing is to effectively put the court on vigilance and how a judge should approach when dealing with expert professional opinion i.e.” to see whether the reasons given

for putting a patient at risk are valid in the light of ant well known advance in medical knowledge.

That medical opinion should be responsible, reasonable and respectable.

Overview of Bolitho test:-

• Bolitho test seeks to correct the misperceptions of the Bolam test.

• Bolitho test has set in train a process whereby judges scrutinize medical evidence, affirming that expert evidence was not immune from judicial scrutiny.

• By allowing judicial scrutiny on the professional opinion, it allows judicial intervention .

BOLAM TEST

a) From the above, Bolitho test is regarded as addendum to Bolam’s test i.e. as a guide for the court when dealing with professional expert opinion.

b) In Bolam’s test, expert opinion is not scrutinzed but in Bolitho’s test, it encourages the court to be vigilant when dealing with the professional expert opinion.

ROGERS v WHITAKER (1992) 109 ALR 625:- • Brief facts of the case:-

WHITAKER TEST

1 21983:-

1.Pla. decided to to have an eye examination. When Pla. was small, she suffered an injury to her right eye which left her right eye almost totally blind.

2.She was referred to the appellant (Dr. Rogers) and he prescribed surgery on her right eye.

22/5/1984:- 1.Pla. had

consultation with Dr. Rogers & he informed that the surgery will improve and probably restore significant sight to the right eye.

2.Three weeks later, on the 2nd consultation, Pla. agreed to the surgery.

31/8/1984:-

1.The surgery was carried out.

4Post operation:-

1.After the operation, there was no improvement to the right eye;

2.Most importantly, Pla. developed inflammation in the left eye as an element of sympathetic opthalmia which leads to the loss all sight in the left eye.

3.As the sight in the right eye had not been restored, the Pla. was thus almost totally blind.

519/11/1992

1.1984:- Plaintiff claim was allowed & Dr. Rogers was found negligence;

2.1991:- Dr. Rogers appeal at the COA of New South Wales & was dismissed.

3.1992: Dr. Rogers appeal at the High Court of Australia & was dismissed and found to be negligent.

ROGERS v WHITAKER (1992) 109 ALR 625:- • The main issues in this case are:- • Did the doctor’s failure to advise and to warn of the risk inherent in the operation constitutes a breach of

duty?

• Evidences/Arguments during proceedings:-

• Plaintiff’s arguments:- That Plaintiff incessantly questioned the doctor of the possible complications, was keenly interested in the

outcome of the suggested procedure, including the danger of unintended or accidental interference with the good left eye;

On the day of the operation, Pla. asked whether something could be put over the left eye to ensure that nothing happened to it.

• Defendant’s arguments:- The evidence was that sympathetic opthalmia was not something that came to mind to mention to the

Plaintiff. There was evidence led from a body of reputable medical practitioners that they would not have warned

the Plaintiff of the danger of the sympathetic opthalmia.

• The Whitaker test:- a) In F v R (1983) 33 SASR 189, the Court refused to apply Bolam’s principal and King CJ stated:- “ the ultimate

question is not whether the defendant’s conduct accords with the practice of his profession or some part of it, but whether it conforms to the standard of reasonable care demanded by the law. That is a question for the court and the duty of deciding it cannot be delegated to any profession or group in the community.”

WHITAKER TEST

ROGERS v WHITAKER (1992) 109 ALR 625:- • The Whitaker test (contd):- b) In Reibl v Hughes (1980) 114 DLR Supreme Court of Canada stated:- “To allow expert medical evidence to

determine what risks are material and hence should be disclosed and correlatively, what risks are not material is to hand over to the medical profession the entire question of the scope of the duty of disclosure, including whether there has been a breach of that duty. Expert medical evidence is of course relevant to findings as to the risks that reside as a result of the recommended surgery or other treatment. It will also have bearing on their materiality but this is not a question that is to be concluded on the basis of expert medical evidence alone. The issue under consideration here is the patient’s right to know what risks are involved in undergoing or foregoing certain surgery or other treatment.”

c) King CJ in the earlier case:- that in giving advice to patient, the amount of information or advice which a careful and responsible doctor would disclose depended upon a complex of factors such as: the nature of the matter to be disclosed, the nature of the treatment, the desire of the patient for information; the temperament of the patient and the general surroundings circumstances.

d) There is a fundamental differences between diagnosis and treatment and on the other hand the provision of advice or information. In diagnosis & treatment, the patients contribution is limited and the doctor will provide diagnosis and treatment according to his level of skill. However, except in emergency cases, all medical treatment is preceded by the patient’s choice to undergo it. @ in other words it means that in legal terms, the patient’s consent to the treatment may be valid once she is informed in broad terms of the nature of the procedure which is intended. Since the decision is by the patient, it would be illogical to hold that amount of information that influences the patient’s decision. (the right to self-determination).

e) A risk is material if in the circumstances of particular case, a reasonable person, if warned of the risks would likely attach significant to it. If that risk is material, the doctor has a duty to warn the patient of the material risk inherent in the proposed treatment.

WHITAKER TEST

ROGERS v WHITAKER (1992) 109 ALR 625:-

• The High Court of Australia held :-

a) That there was a material risk inherent to the procedure;

b) That whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is not a question that depends upon medical practices;

c) In cases where no specific inquiry is made, the duty is to provide the information that would be reasonably be required by a person.

d) The ratio decidendi is in the aspects of medical advice by the doctor to the patient, the Bolam principle was reversed. Also it is for the court to decide and not medical judgment to determine if the doctor has breached the standard of care in medical law.

WHITAKER TEST

ROGERS v WHITAKER (1992) 109 ALR 625:-

Cases that followed the Whitaker’s test thereafter:-a) In Rosenberg v Percival (2001) HCA 18 (this case was in respect of advice given by the dental surgeon to

the patient), High Court of Australia Gummow Judge:- to determine whether a risk is material:-

WHITAKER TEST

To determine whether risk is material or not:-

Objective test Subjective test

i.e. whether a reasonable person in the patient’s position if warned of the risk would likely attach significant to it

i.e. should reasonably be aware that the particular patient, if warned of the risks, would likely attach significant to it

Plus must also consider the following to decided the amount of information to disclose:- a) The nature of the matter to disclose; b) The nature of the treatment; c) The desire of the patient for

information; d) The temperament & health of the

patient; and e) The general circumstances

Yes No

The risk is material & must disclose to patient The risk is not material or due to therapeutic privilege – no need to disclose

a) The principle is this case is in the medical aspect of advice by the doctor to the patient, it is for the court to determine if the doctor has breached the standard of care in medical law and not the medical judgement.

b) Its can be refer to as patient-centric test, while Bolam test and Bolitho test can be referred to as doctor-centric test.





CONTENTS

Facts of the case:- a) This case is brought by the dependents of the deceased. The deceased had died of anaphylactic shock as

the result of the injection of procaine penicillinb) The plaintiff family alleged that the defendant doctor was negligent in prescribing the injection without

making any prior inquiry from the patient, which would have revealed that the deceased was allergic to drug.

Issues in this case:- a) Whether there was negligence by the defendant doctor.

Judge’s findings in this case:- a) Applied the Bolam’s test ie:- “the test is the standard of the ordinary skilled man exercising and professing

to have that special skill. A man need not possess the highest expert skill; it is well established in law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.”

b) Based on the facts of the case, the defendant doctor when prescribing the drug did not bother to ask or attempt to discover whether the deceased was sensitive to the drug.

c) A medical practitioner who prescribes penicillin injection for a patient without inquiring about the latter’s reaction to it is not exercising the standard of care required of an ordinary man practicing that particular profession and accordingly is guilty of negligence.

CHIN KEOW v GOVERNMENT OF THE FEDERATION OF MALAYA & ANOR (1964) 1 MLJ 322

Facts of the case:- a) In 1956, the appellant suffered disablement while in the employment of the 2nd respondent. The 1st

respondent was a doctor and engaged by the 2nd respondent as a visiting medical officer to look after the health of the 2nd respondent employees.

b) The 1st respondent treated the appellant for an itch on his hands and legs by injecting a drug called “acetylarsan” which was alleged to have resulted in paralysis of the appellants hands and legs.

Issues in this case:- a) Whether the injection caused the paralysis?

b) If so, whether the 1st respondent was negligent in giving such injection.

Judge’s findings in this case:- a) Different opinion were presented to the court as to the supposed treatment and the procedure in giving

the treatment to the appellant. b) The majority of the judgement accepted the testimony of the respondent and his explanation that the

prescription and dosage given to the appellant, although at variance with the manufacturer’s recommendation, was made based on his personal experience.

c) The emphasis by the majority judgment in not accepting the appellant’s expert evidence is the classic doctor-centric approach. The court did not examine the reasonableness of the treatment.

d) Barakbah LP cited Lord Denning in Hatcher v Black (1964) CLY 2289:- “ in a hospital when a person was ill and came in for treatment, no matter what care was used there was always a risk; and it would be wrong and bad law to say that simply because a mishap occurred the hospital and doctors were liable. Indeed it would be disastrous to the community. ..the jury should only find the doctor guilty when he had fallen short of the standard reasonable medical care.”

e) The judges found that the 1st respondent not negligent because the medical practitioner need not have the highest degree of skill.

SWAMY v MATTHEWS & ANOR (1968) 1 MLJ 138

Facts of the case:- a) The Plaintiff consulted the company doctor with regards to her haemorrhoids and was recommend to see

the Mr. Alhady, senior consultant surgeon, who admitted her and recommend an operation since he found her haemorrhoids to be in advanced stage.

b) Before the operation, a pre-operative sigmoidoscopic examination was to be performed by Mr. Alhady. He was however occupied and he delegated the examination to the anaesthetist.

c) The anaesthetist performed the said examination under general anaesthesia and great care and concentration was needed.

d) During that operation, the anaesthetist saw some blood and he consulted Dr. Alhady and Dr. Alhady carried out immediate laparotomy.

e) Plaintiff claims that she suffered nervous shock and will not be able to continue with the piles operation. And due to that, she will continue to suffer pain & discomfort from her haemorrhoids.

Issues in this case:- a) Whether the anaesthetist has failed to exercise due care & attention in the performance of the said

sigmoidoscopy?

Judge’s findings in this case:- a) Several medical experts gave conflicting opinions on whether it was proper for an anaesthetist to perform

the sigmoidoscopy examination under general anaesthesia. One expert witness has expressed the view that its better to perform without anaesthesia so that the patient could inform the anaesthetist of any pain.

b) The court however observed that the technique taken by the anaesthetist is also a general and approved practice. By applying the Bolam’s test, it did not matter if there is another body of opinion that would have taken the contrary view.

c) The anaesthetist is not negligent.

ELIZABETH CHOO v GOVERNMENT OF MALAYSIA & ANOR (1970) 2 MLJ 171

Facts of the case:- a) The defendant an ophthalmologist was sued by the plaintiff of negligence pertaining to an eye operation of

his right eye which was lost to post-operative infection; Issues in this case:-

a) Whether defendant explained the material risk of infection to the plaintiff;

b) Whether defendant acted in accordance with body of skilled men;

Judge’s findings in this case:- a) Based on the evidence adduces, it appears that the defendant had explained the risk of infection to the

plaintiff;

b) Just because the defendant took a different view from the other doctor, it does not by itself amount to want of care. Since the defendant had done what the general body of practitioners would have done, and even if there is a different school of thought as to what should be dine, the law allows such differences of opinion regarding the treatment to be given.

c) In applying the Bolam principle, in order to recover damages for failure to give warning the plaintiff must show not only that the failure was negligent but also that if he had been warned he would not have consented to the treatment.

d) The defendant is not negligent.

LIEW SIN KIONG v DR SHARON DM PAULRAJ (1996) 5 MLJ 193

Facts of the case:- a) The late Mr. D was employed by the 1st Defendant at the time of his death – Mr. D had been suffering from

hypertension. On July 3, 1984, Mr. D complained of giddiness and fainted at work – he was taken to the estate clinic and examined, prescribed medication & discharged.

b) On 6 & 10 July 1984, he was attended to clinic by 2nd defendant. On 11 July 1984, as a result of the giddiness and fit, he was taken to the Kluang hospital for emergency treatment and was subsequently transferred to Johor Bahru Hospital and he passed away on the 12 July 1984.

Issues in this case:- a) Whether defendant negligent in not admitting patient to hospital resulting in death of patient; b) Whether defendant negligent if he acts in accordance with the practice accepted as proper by a body of

medical opinion; c) Whether standard of care should be determined by court or profession.

Judge’s findings in this case:- a) Applying the Whitaker’s test, the standard of care to be observed by a person with some special skill or

competence is that of ordinary skilled man exercising and professing to have that special skill. That standard of care is not determined solely by reference to the practice followed or supported by a responsible body of opinion in the relevant profession. The ultimate questions is whether it conforms to the standard of reasonable care demanded by law and that is a question for the court to decide and it cannot be delegated to any profession in the community.

b) The 2nd defendant failed in his duty as a doctor to his patient in deciding not to admit him into hospital and deciding that medical leave was not necessary and declining to give it. The fact that deceased was not hospitalized caused or contributed to the cause of his death. There was a breach of standard of care in the medical aspect of diagnosis and treatment by the doctor to the patient.

KAMALAM A/P RAMAN & ORS v EASTERN PLANTATION AGENCY (1996) 4 MLJ 674

Facts of the case:- a) In 1984, the Plaintiff consulted the defendant doctor who was an orthopedic surgeon. Plaintiff complained

of numbness in his fingers – on the advice of defendant, he underwent surgery (the 1st operation)– for 3 weeks post operation, he experienced paraylsis.

b) Plaintiff discharged himself from the hospital and subsequently went to the general hospital where one Dr. Kazem operated on him (2nd oeration) and he improved slightly.

Issues in this case:- a) Whether defendant has failed to diagnose, treat and advise plaintiff on operation;

b) Whether defendant had performed the surgery with fair and reasonable standard of care and skill as expected of ordinary professional professing such skill when treating plaintiff.

Judge’s findings in this case:-

a) In considering whether a doctor has breached his duty in respect of the provision on information and advice, the court rather than a body of medical opinion shall be the judge of the issue. However, legal authorities have agreed that medical opinions are still required to assist the court in its deliberation. (applied the Whitaker’s test).

b) Based on the evidence adduced, the defendant doctor is nor negligent.

HONG CHUAN LAY v DR EDDIE SOO FOOK MUN (1998) 7 MLJ 481 & (2006) 2 MLJ 281

Facts of the case:- a) Plaintiff was admitted into Assunta hospital as plaintiff was involved in an accident near the hospital – at

the time of the admission plaintiff was able to move her limbs. b) The 2nd defendant a visiting consultant examined plaintiff and informed her that she had dislocated 2 neck

bones. c) The 2nd defendant ordered traction treatment to be carried out and during this treatment, plaintiff was

able to move her limbs. But the treatment was discontinued after 2 days by the 2nd defendant on the basis that it was unsuccessful and after a failed attempt at closed manipulation under anesthetic. 2nd defendant recommended surgery (1st operation).

d) After the 1st operation, plaintiff discovered that she was unable to move her body & limbs – 2nd defendant assured plaintiff that the paralysis was temporary and plaintiff will recover in 2 weeks.

e) Thereafter, one Dr. Mohandas a neurosurgeon conducted myelogram test on the plaintiff in the presence of the 2nd defendant.

f) Later plaintiff was taken to the operating theater for a 2nd operation and after the 2nd operation, plaintiff was able to move only her hands.

g) Plaintiff claimed:- • Although 2nd defendant recommend surgery but he did explain the risks of surgery although she had

asked him of the dangers of the 1st operation. She was told that the surgery is a minor one. She further stated that if she had known that the 1st operation is a major one with high risks, she would not have consented.

• With regards to the 2nd operation, she did not know the purpose of the 2nd operation & did not consented to it.

• She had met with Dr. Mohandas personally after she was discharged and he informed her that a piece of wire which was placed to correct the dislocation had pressurized her spinal cord thus causing the paralysis which was discovered after the myelogram test. That was why the 2nd operation had to be done to remove the wire pressuring the spinal cord.

FOO FIO NA v HOSPITAL ASSUNTA & ANOR (1999) 6 MLJ 738 (HCT), (2001) 2 MLJ 193 (COA) & (2007) 1 MLJ 593 FC

Facts of the case:- h) 2nd Defendant claimed:-

• The wire was not in the spinal cord and this was shown by an x-ray he had taken. (However the x-ray was never produced in court which was detrimental to both plaintiff’s and defendant’s case.)

• That plaintiff had consented to both the operations and as such he could not be blamed for what went wrong in the operations.

i) Both parties bring their expert witness – Plaintiff expert witness i.e. Dr. Arumugasamy gave his expert evidence after examined her, taking x-rays on her and after examining the case notes of the plaintiff. – while defendant’s expert i.e. Dr. Myles Gibson is from UK and a member of the Medical Protection Society to which the 2nd defendant is a member. Dr. Myles admitted that he had not seen the plaintiff thogh she was available and did not also see her x-rays. He admitted that he see formed the opinion afer he saw the case notes of the plaintiff given by the 2nd defendant and he prepared his opinion in the office of the 2nd defendant solicitors.

Issues in this case:- a) Whether 2nd defendant has applied the standard of care that is required of him? b) The effect of the expert opinion; c) Whether consent properly obtained

HCT Judge’s findings in this case:- a) The principle in medical negligence cases is that the court itself has to decide on the doctor’s negligence

after weighing the standard of skills practiced by the relevant profession. A doctor is expected to give a fair and reasonable standard of care & skill expected of ordinary competent medical practitioner and even though the normal standard is followed, a doctor may still be liable for negligence if something goes wrong with the follow up treatment such as lack of observation.

b) On the issue about the informing of the material risks, the HCT judge applied the Whitaker’s test and considered the risk of paralysis as a material risk of which the Plaintiff should have been warned. Based on the evidence, the Plaintiff did not know that she consented to a spinal cord operation & was told that it was a minor one, not a major one which might led to paralysis.


HCT Judge’s findings in this case:- c) The expert evidence of 2nd defendant ie Dr. Gibson was self-serving since he was a council member of the

Medical Protection Society ie a society established to protect any undoing or negligence of a member to which 2nd defendant is a member. His evidence could not be relied upon.

Court of Appeal Judge’s findings in the appeal made by the 2nd defendant ie Dr. Soo Fuk Mun:-a) Allowed the doctor’s appeal to set aside the high court judgment. b) The court is unwilling to depart from the Bolam’s test on 2 reasons:-

• As a matter of precedent it is not open to the COA as an intermediate court of appeal to alter the law as that is a function reserved for the apex court.

• The Bolam test placed a highly threshold for a plaintiff to cross in an action for medical negligence. If the law played too interventionist a role in the field of medical negligence, it will lead to the practice of defensive medicine. The cost of medical care for the man on the street would become prohibitive without being necessarily beneficial. For the time being, the Bolam test maintains a fair balance between law and medicine.

Federal Court decision on the appeal made by Foo Fio Na:- a) The main issue in the appeal was whether the Bolam principle applied in all aspects of medical negligence.

The federal court held that the question posed and the decision made would be to public advantage. b) In this regard, the Federal Court found it necessary to reconsider whether Bolam principle should be

applied , particularly in determining the standard of care of medical practitioners in providing advice to patients on the inherent or material risks of the proposed treatment.

c) Federal court held as follows:- • The Bolam test has no relevance to the duty & standard of care of medical practitioner in providing advice

to a patient on the inherent and material risks of the proposed treatment. The practitioner is under a duty bound by law to inform his patients who is capable of understanding and appreciating such information of the risks involved in any proposed treatment so as to enable the patient to make election of whether to proceed with the proposed treatment with knowledge of the risk involved or decline the treatment.


Federal Court decision on the appeal made by Foo Fio Na:- c) Federal court held as follows:- (continued)• There is need for members of the medical profession to stand up to the wrong doings; if any as is the case of

professionals in other professions. On this basis, the Whitaker test would be more appropriate and a viable test of this millennium than the Bolam test.

• The phrase “Doctor knows best rule should now be followed by the qualifying words “if he acts reasonable and logically and get his facts right.”

• The appellant appeal is allowed and the High Court Judgment is restored.


1) In determining medical negligence cases, the court will look at the standard of care in the area of medical aspects such as diagnosis & treatment, providing medical advice or informing inherent risks to the treatment proposed to the patient and the value of the expert medical opinion.

2) In terms of diagnosis & treatment and providing medical advice or informing inherent risks to the patient, the court nowadays followed the federal court decision in Foo Fio Na. The ratio decidendi is that the Bolam test in the medical aspect of advice by doctor to patient was reversed and the test Whitaker test was adopted with approval.

3) Example of cases that applied Whitaker’s test are:- a) Dominic Puthucheary & ors v Dr. Goon Siew Fong (2007) 1 MLJ 593; b) Hasan Datolah v Kerajaan Malaysia (2010) 2 MLJ 646

4) In terms of the value of expert medical opinion, the court appeared to combine the Bolitho test together with the Whitaker test. Based on the Whitaker’s test, it is the court, and not the medical opinion that decides on the liability of doctors who are defendants in medico-legal claims. The critical point is the expert medical opinion must be able to withstand the logical analysis, the scrutinisation and evaluation by the court to be accepted under s.45 of the Evidence Act 1950.

5) Example of cases that discuss on the evaluation of the expert medical opinion:- a) Chai Hoon Seong v Wong Meng Heong (2010) 8 MLJ 105; b) Matthew Scoot Oakley v Dr. George Varughese & Anor (2010) AMR 326

6) From the above, it can be said that in determining the standards of care in the medical aspects of diagnosis, treatment and advice, it’s the court to decide.

7) However, in the medical aspect of diagnosis and treatment, the court will still requires expert medical opinion because diagnosis and treatment is based on medical knowledge. In this situation, the court will need to determine whether the expert medical opinion is logical and not biased. Thus it is important that the expert medical opinion on the diagnosis & treatment to be reasonable, respectable and responsible as it will be needed to determine the standards of care in the area of diagnosis & treatment. The doctor knows best rule is now qualified. It will be relevant provided that the doctors acts reasonably and logically and get his facts right.

8) While for the medical aspect of providing advice from a doctor to a patient, since it involves the patient’s right, the value of the expert medical opinion is not so high required as in the above situation. What is important is whether the inherent risk is material and whether the patient if informed about the risk, will made his decision with the inherent risk in his knowledge and assessment of his decision.

JUDICIAL TREND IN MALAYSIA





CONTENTS

1) Defensive medicine practiced by doctors and hospitals:-• As per mentioned by Gopal Sri Ram Judge (COA) in Foo Fio Na’s case, wherein the cost of medical care will

increase for the man on the street;

2) Patient autonomy triumph over medical paternalism:- • The trend is now moving towards patient’s right to self determination.

• With the increasing of public awareness and growth of consumer rights, the medical profession need to change their mindset and be prepared to accept patients as partners in making decision pertaining to the patient’s medical conditions.

3) As a result, the medical landscape or the health care system in Malaysia needs to be improved in order not to encourage defensive medicine and at the same time, making the medicine practice accountable.

4) About the issue of which test prevails in Malaysia, in my opinion, there is no test that is prevailing on its own. This is because each test has its own strengths and is relevant to be used subject to each facts of the case. It cannot be said that Bolam is no longer relevant especially in Malaysia, there is a need to have a certain standard for the doctors in order to determine whether they fall short of that standards.

5) In my opinion, Bolam test and Bolitho test are relevant when it comes to determining doctors standard of care in the medical aspect of treatment and diagnosis while Whitaker test is relevant when it comes to disclosure and giving advise to patient of the material risks of the treatment prosed.

6) Example for reforming are as follows:- • Introducing pre-action protocols; • Promoting alternative dispute resolution or mediation; • Legislate the principles of law for clarity; • Introducing the No Fault compensation scheme.

IMPLICATION TO THE HEALTH CARE IN MALAYSIA

A. Books:- • Medical Law in Malaysia by Kartina Aisha Choong, 31 July 2012, Wolters Kluwer Law & Business• Medical Negligence Law in Malaysia by Dr. Puteri Nemie bt Jahn Kassim, ILBS, 2003

B. Articles & Journals:- • The Law of Medical Negligence: Where does it stand post Foo Fin Na by Ahalya Mahendra (2013) 1 MLJ

cvI• Meidating Medical Negligence claims in Malaysia: An Option for Reform by Dr. Puteri Nemie bt Jhan

Kassim, (2008) 4 MLJ clx• The standard of care in Medical Negligence cases in Malaysia- Is there a diminution of judicial

supervision by adopting the “Bolam” test? By K Kuldeep Singh (2002) 3 MLJ cxl• The standard of care: Is the Bolam principles still the law? By Gopal Sri Ram, (2000) 3 MLJ IxxxI• Bye-Bye Bolam : A Medical Litigation Revolution? By Margaret Brazier, Medical Law Rev (2000) 8(1):85• Medical Negligence Litigations in Malaysia: Current Trend and Proposal for Reforms by Dr. Puteri Nemie

bt Jahn Kassim • Abandoning the Bolam Principle in Doctor’s Duty to Disclose Risks in Malaysia: Are we heading in the

right direction? by Dr. Puteri Nemie bt Jahn Kassim

C. Cases:-• BOLAM v FRIERN HOSPPITAL MANAGEMENT COMMITTEE (1957) 2 ALL ER 118:- • BOLITHO (administratrix of the estate of Bolitho (deceased)) v CITY & HACKNEY HEALTH AUTHORITY

(1997) 4 ALL ER 771:- • ROGERS v WHITAKER (1992) 109 ALR 625:- • CHIN KEOW v GOVERNMENT OF THE FEDERATION OF MALAYA & ANOR (1964) 1 MLJ 322• SWAMY v MATTHEWS & ANOR (1968) 1 MLJ 138• ELIZABETH CHOO v GOVERNMENT OF MALAYSIA & ANOR (1970) 2 MLJ 171• LIEW SIN KIONG v DR SHARON DM PAULRAJ (1996) 5 MLJ 193• KAMALAM A/P RAMAN & ORS v EASTERN PLANTATION AGENCY (1996) 4 MLJ 674• HONG CHUAN LAY v DR EDDIE SOO FOOK MUN (1998) 7 MLJ 481 & (2006) 2 MLJ 281• FOO FIO NA v HOSPITAL ASSUNTA & ANOR (1999) 6 MLJ 738 (HCT), (2001) 2 MLJ 193 (COA) & (2007) 1

MLJ 593 FC

REFERENCES