REGIONAL NEWS

Doctor Knows Best? Perhaps Not, Says Malaysian Federal Court


This article examines the decision in Foo Fio Na v Dr Soo Fook Mun & Anor where the Federal Court has lifted the veil of protection afforded to medical practitioners under the Bolam Test.

Introduction

The decision by the Federal Court of Malaysia in Foo Fio Na v Dr Soo Fook Mun & Anor has altered the test to be applied in evaluating expert evidence when medical negligence is alleged. Following in the footsteps of other Commonwealth jurisdictions, the Federal Court departed from the Bolam test which has been applied by the Malaysian courts for more than 30 years.

The Bolam test, deriving its name from the case of Bolam v Friern Hospital Management Committee [1957] 2 All ER 118, is that 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 men skilled in that particular art’. In practice, this has been taken to mean that the court will not find a doctor negligent as long as there is a body of medical opinion that supports his actions.

Facts

The appellant suffered, inter alia, two dislocated vertebrae as a result of an accident. The first respondent was the orthopaedic surgeon who treated the appellant and the second respondent was the hospital in which she was warded. The first respondent performed an operation on the dislocated vertebrae, which involved the insertion of a loop wire to stabilise the spinal cord. The appellant became paralysed the day after the operation. Dr Mohandas, a neurosurgeon, found that the wire loop was pressuring the spinal cord and was the cause of the total paralysis. The first respondent, in the absence of Dr Mohandas, performed a second operation on the appellant on the same day to remove the wire loop. The second operation did not remedy the paralysis and the appellant remains wheelchair bound to this day.

The High Court and the Court of Appeal

The appellant sued the respondents. The High Court held that the paralysis was caused by the first operation performed by the first respondent and not by the accident. The High Court also held that the first respondent was negligent in the following respects:

1 In tying the wire loop which compressed the spinal cord and led to the paralysis;

2 In not doing anything immediately after the discovery of the paralysis to remedy it; and

3 In performing the second operation in the absence of Dr Mohandas, who had pointed out the cause of the paralysis.

The respondents appealed. The Court of Appeal allowed the appeal and set aside the orders of the High Court. The Court of Appeal took the view that firstly, it ought not to alter the law on the standard of proof of medical negligence as that is a function reserved for the apex court. Secondly, as a matter of practical justice, the Bolam test rightly sets a high threshold for a plaintiff to cross in an action for medical negligence.

The Federal Court Decision

The appellant sought leave to appeal to the Federal Court on the question as to ‘whether the Bolam test … should apply in relation to all aspects of medical negligence’.

In granting leave, the Federal Court restricted the question for determination to ‘the particular aspect of medical negligence [which] relates more specifically to the duty and standard of care of a medical practitioner in providing advice to a patient in the inherent or material risks of the proposed treatment’.

The Federal Court reversed the decision of the Court of Appeal, pointing out that the Bolam case was decided by a jury, and expressed the view that Bolam’s case would have been decided differently in the current environment. Tan Sri Siti Norma Yaakob, Chief Judge of Malaya, distinguished the Bolam case on the following grounds:

1 Medical evidence showed that the risk of fracture to Bolam was one in 10,000;

2 The electro-convulsive therapy given to Bolam was a breakthrough treatment at that time and a person suffering from Bolam’s medical disorder had little or no hope of recovery but would today have a real chance of recovery; and

3 The hospital’s negligence included failure to warn Bolam of the risks involved in electro-convulsive therapy thereby depriving him of his right to decide whether he was going to take those risks or not.

The Federal Court held that the duty owed by a doctor to his patient arose out of his relationship with the patient which in turn gave rise to a doctor’s threefold duty to diagnose, advise and treat his patient. Ordinarily, a professional is expected to maintain a standard satisfied by the hypothetical reasonable professional. The Bolam case, however, redefined that standard to one which had the effect of restraining the judiciary from treating medical experts as they would experts from other professionals. The apex court was of the view that this was an ‘over protective and deferential approach’.

The Federal Court further made a comparison of the facts of the Bolam case with those of the instant case to demonstrate the vast differences:

1 Unlike the appellant, who was described as ‘a bright young lady’ by the Court of Appeal, the court doubted that Bolam, a mental patient, was in a position to give any consent to any treatment to be given to him.

2 The Federal Court also doubted that Bolam was in a position to comprehend the true nature of the risks involved, had a warning of risk been communicated to him.

3 The risk of injury in the nature of the fracture suffered by Bolam was one in 10,000 whereas the risk of paralysis to the appellant was present and real.

4 In the Bolam case there was a responsible body of medical opinion adduced to support the position taken by the hospital, while in the instant case, no such evidence was adduced as to whether or not the appellant should be warned of the risks of paralysis.

The Federal Court held that the Bolam test has no relevance to the duty and standard of care of a medical practitioner in providing advice to a patient on the inherent and material risks of the proposed treatment. Instead, the court ruled that:

A practitioner is duty bound by law to inform his patient 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 an election of whether to proceed with the proposed treatment with knowledge of the risks involved or decline to be subjected to such treatment.

The Federal Court also adopted the principle laid down by the Australian High Court in Rogers v Whitaker [1992] 175 CLR 479 that:

While evidence of acceptable medical practice is a useful guide for the courts, it is for the courts 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 decisions about his life’.

The Federal Court then dealt with the issue of whether the decision in Rogers was restricted to cases relating to negligent advice or also extended to diagnosis and treatment. Previously, the interpretation of the Rogers test attracted a view that the Bolam test continued to govern matters of diagnosis and treatment whilst patient advisement fell to be judged by a different and perhaps higher standard.

The Federal Court by expressing its approval of Naxakis v Western General Hospital & Anor [1999] HCA 22 1 where the Australian High Court applied the Rogers principle to a case involving negligent diagnosis suggests, per obiter dicta, that the application of the Rogers test in Malaysia is not restricted to cases of negligent advice.

In the course of the decision, the Federal Court also recognised the ‘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’.

The Federal Court then answered the question posed to it in the negative – that the Bolam test does not apply to the aspect of medical negligence that relates to providing advice to a patient on the inherent or material risks of the proposed treatment. Indeed, the Court appears to have gone further and implied that the Bolam test may no longer apply to any aspect of medical negligence 
in Malaysia.

Implications

The decision in Foo Fio Na has attracted some interest from the public at large and the medical community in particular. Some have suggested that this will lead to defensive medicine as a result of doctors being wary of the consequences of treating patients. Others fear that the professional indemnity insurance for doctors will be increased drastically to cushion the effects of this decision which is seen by many doctors as taking away their ‘long standing’ immunity from liability.

It must be noted the test as adopted by the Federal Court is not alien to the common law. There is no empirical evidence to the effect that the medical profession has collapsed in other jurisdictions where there was a departure from the Bolam test. To quote Lord Woolf in his inaugural lecture in the new Provost Series, delivered in London in 2001, it is ‘unwise to place any profession or other body providing services to the public on a pedestal where their actions cannot be subject to close scrutiny’.

Lord Woolf in his lecture also stated that the principle laid down in Bolitho [administratrix of the estate of Bolitho (deceased)] v City and Hackney Health Authority [1997] 4 All E.R. 771 ‘will enable a court to distinguish between two sets of medical opinion. When faced with conflicting expert evidence, what a court regularly does is to select the reasoning of the expert which is logically persuasive … when interference is justified they (the Courts) must not be deterred from doing so by any principle such as the fact that what has been done is in accord with practice approved by a respectable body of medical opinion’.

The question of what patients are entitled to expect of their doctors is one which Malaysian society has to address at some point. As Malaysia prepares to celebrate the half century of its independence, it seems appropriate that a test formulated in the very year of its independence has been re-examined.

Ashok Kumar Mahadev Ranai

Skrine (Kuala Lumpur, Malaysia)

E-mail: amr@skrine.com

*This article has been published in Issue No. 1/2007 of Legal Insights - the Skrine Newsletter.