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Malayan Law Journal Articles/2013/Volume 1/The Law Of Medical Negligence

[2013] 1 MLJ cvi

Malayan Law Journal Articles

2013

THE LAW OF MEDICAL NEGLIGENCE: WHERE DOES IT STAND POST

FOO FIO NA?

Ahalya Mahendra

LLB (Hons) (Bristol), LLM (Lond)

Barrister of Gray's Inn (England & Wales)

Advocate & Solicitor

High Court of Malaya

Medical negligence law1 is a branch of the law of tort arising from a doctor holding himself out to a patient as
possessing special skill and knowledge; and he is consulted by, or on behalf of a patient as possessing such
skill and knowledge.

If the doctor so holds himself, and goes on to consult with the patient, the doctor 'owes a duty to the patient
to use due caution in undertaking 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 ...'2

Once the duty of care is established between the doctor and the patient, then the next point is to ascertain if
there has been a breach of that duty of care. In order to prove the breach of the doctor's duty to the patient,
the patient would have to prove that the doctor did not conduct himself in accordance with the standard of
care as established by law.

The aim of this article is to review the law on the standard of care in medical negligence, in particular to
analyse the Malaysian Courts' position or positions as the case may be, following the seminal Federal Court
decision of Foo Fio Na v Dr Soo Fook Mun & Anor.3

The starting point on any discussion of the standard of care in medical negligence law is the test applicable
to the medical profession. McNair J in
1 MLJ cvi at cvii
Bolam v Friern Hospital Management Committee4 stated that: 'The test is the standard of the ordinary
skilled man exercising and professing to have that skill ...'.5

In order to determine if the doctor has breached the standard of care, McNair J in Bolam held 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... Putting it the other way round, a doctor is not negligent, if he is
acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view'.6
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This statement of law became known as the Bolam test.

The Bolam test differs from the determination of breach of standard of care in other areas of the law of tort
of negligence. In the general law of the tort of negligence, the court determines the issue of the breach of
standard of care, whereas the breach of the standard of care in medical negligence under the Bolam test is
determined by medical judgment.

When evaluating the evidence of the expert medical opinion, McNair J in Bolam stated that '... it is right to
say this, that it is not essential for you to decide which of two practices is the better practice, as long as you
accept that what (the doctor) did was in accordance with a practice accepted by reasonable persons; but if
the result of the evidence is that you are satisfied that his practice is better than the practice spoken of on the
other side, then it is a stronger case.'7

The Bolam test was applied to the medical aspects of diagnosis, advice8 and treatment by the doctor to the
patient. It is arguable though that if there were misstatements in the giving of diagnosis and advice by a
doctor, those acts are governed by the tort of negligent misstatement.9

The Bolam test was the gold standard applied in the Commonwealth region until decisions such as the
House of Lords in Sidaway v Bethlem Royal Hospital Governors,10 the High Court of Australia in Rogers v
Whitaker,11 the House of Lords in Bolitho (administratix of the estate of Bolitho (deceased) v City and
Hackney Health Authority12 and the High Court of Australia in Naxakis v Western General Hospital.13

The first dent in the Bolam test was made in Sidaway. The decision of Sidaway turned on the issue of the
advice given by the doctor to the patient. The Bolam test was applied by the majority of the judges, although
each judge took different views of the test.14

Lord Scarman, who gave the dissenting judgment, stated that:

I am satisfied, for reasons which I shall develop, that the trial judge and the Court of Appeal erred in law in holding that,
in a case where the alleged negligence is a failure to warn the patient of a risk inherent in the treatment proposed, the
Bolam test, ... , to which I shall refer in detail at a later stage of my speech, is to be applied. In my view the question
whether or not the omission to warn constitutes a breach of the doctor's duty of care towards his patient 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 consideration, 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 ...
(Emphasis added.)

In other words, Lord Scarman in his dissenting judgment held that in the medical aspect of advice by the
doctor to the patient, the court, and not medical judgment, will determine if the doctor has breached the
standard of care in medical law.

In Bolitho, the facts of the case were in regards to the treatment of the patient by the doctor. In giving the
judgment, Lord Browne-Wilkinson referred to,
1 MLJ cvi at cix
inter alia, the Court of Appeal decision of Hucks v Cole15 and Privy Council decision of Edward Wong
Finance Co Ltd v Johnson Stokes & Master.16

Lord Browne-Wilkinson stated that:

These cases demonstrate 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 properly be held liable for negligence (I
am not here considering questions of disclosure of risk). In my judgment, that is because, in some cases, it cannot be
demonstrated to the judge's satisfaction that the body of opinion relied upon is reasonable or responsible. In the vast
majority of cases, the fact that distinguished experts in the field are of a particular opinion will demonstrate the
reasonableness of that opinion. In particular, where there are questions of assessment of the relative risks and benefits
have been weighed by the experts in forming their opinions. But if, in a rare case, it can be demonstrated that the
professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion
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is not reasonable or responsible. (Emphasis added.)

It would appear from the foregoing unanimous decision of the House of Lords delivered by Lord
Browne-Wilkinson that whilst the Bolam test remains applicable in cases of medical diagnosis and treatment,
in rare cases, where 'professional opinion is not capable of withstanding logical analysis', the court will
determine if the doctor has breached the standard of care in medical law. This additional requirement
became known as the Bolitho addendum to the Bolam test.

What the Bolitho addendum to the Bolam test effectively does is to put the court on vigilance 'to see whether
the reasons given for putting a patient at risk are valid in the light of any well-known advance in medical
knowledge, or whether they stem from a residual adherence to out-of-date ideas.'17

It is relevant to note what Lord Browne-Wilkinson in Bolitho stated with respect to how a judge should
approach expert professional opinion:

My Lords, I agree with these submissions to the extent that, in my view, the court is not bound to hold that a defendant
doctor escapes liability for negligent
1 MLJ cvi at cx
treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of the
opinion that the defendant's treatment or diagnosis accorded with sound medical practice ... The use of these
adjectives -- responsible, reasonable and respectable -- all show that the court has to be satisfied that the exponents of
the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular in cases involving,
as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being
responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed
their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter.

Moving to Australian shores, seismic movement in the common law world followed the decision of Rogers v
Whitaker. The decision of Rogers v Whitaker, which pre-dates the decision of Bolitho, was in respect of
advice given by the doctor to the patient.

The majority of the Australian High Court's decision was given jointly by Mason CJ, Brennan, Dawson,
Toohey and McHugh JJ, which considered, amongst others, the Bolam test and Sidaway. The majority
judgment stated that:

In Australia, it has been accepted that the standard of care to be observed by a person with some special skill or
competence is that of the ordinary skilled person exercising and professing to have that special skill ... But, that
standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible
body of opinion in the relevant profession or trade .... Further, and more importantly, particularly in the field of
non-disclosure of risk and the provision of advice and information, the Bolam principle has been discarded and, instead
the courts have adopted ... the principle 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 decision about his life' ...

The ratio decidendi of the Rogers v Whitaker was that the Bolam test, as adopted and applied in Australian
law, was reversed in the medical aspect of advice by the doctor to the patient. Furthermore, it is for the court,
and not medical judgment, to determine if the doctor has breached the standard of care in medical law.

With respect of the formulation of the test for the standard of care in the aspect of advice by the doctor to the
patient, the joint decision of the High Court of Australia in Rogers v Whitaker stated as follows:
1 MLJ cvi at cxi

The law should recognise that a doctor has a duty to warn a patient of material risk inherent in the proposed treatment;
a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned
of the risk, would be likely to attach significance to it or if the medical practitioner is, or should reasonably be aware that
the particular patient, if warned of the risk, would be likely to attach significance to it. This duty is subject to the
therapeutic privilege.
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Further elaboration of the formulation of the test was addressed by the High Court of Australia in Rosenberg
v Percival.18 According to Gummow J, to ascertain whether a risk is 'material', the Rogers test sets an
objective limb (ie 'a reasonable person in the patient's position, if warned of the risk, would be likely to attach
significance to it') or a subjective limb (ie 'should reasonably be aware that the particular patient, if warned of
the risk, would be likely to attach significance to it').

Gummow J in Rosenberg v Percival went on to state that 'what is of immediate importance is that the key to
the formulation in both limbs is the phrase 'likely to attach significance to' the risk.' Gummow J expressly
approved the judgment of King CJ in F v R19 as cited with approval in Rogers v Whitaker.

For ease of reference, the relevant part of the joint decision in Rogers v Whitaker states as follows:

King CJ considered ... that the amount of information or advice which a careful and responsible doctor would disclose
depended upon a complex of factors: the nature of the matter to be disclosed; the nature of the treatment; the desire of
the patient for information; the temperament and health of the patient; and the general circumstances ...

Following Rogers v Whitaker was Naxakis, a decision of the High Court of Australia. Naxakis was in respect
of the medical aspects of diagnosis and treatment by the doctor to the patient. On the issue of standard of
care, Gaudron J stated as follows:

The Bolam rule, which allows that the standard of care owed by a doctor to his or her patient is 'a matter of medical
judgment', was rejected by this Court in Rogers v Whitaker. In that case, it was pointed out that, in Australia, the
standard of care owed by persons possessing special skills is that of 'the ordinary skilled person exercising and
professing to have that special skill [in question]'. In that context, it was held that 'that standard is not determined solely
or even primarily
1 MLJ cvi at cxii
by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade.

In Rogers v Whitaker, I pointed out that, at least in some situations, 'questions as to the reasonableness of
particular precautionary measures are ... matters of commonsense.' In this case, the first question to be
determined is, in essence, whether it was unreasonable for the hospital and Mr Jensen not to have taken the
precautionary measure of excluding other causes of the appellant's symptoms. And assuming there was
some evidence that there were steps that could be taken to exclude other causes, it was for the jury to form
their own conclusion whether it was reasonable for one or more of those steps to be taken. It was not for the
expert medical witnesses to say whether those steps were or were not reasonable. Much less was it for them
to say, as they were frequently asked, whether, in their opinion, the hospital and Mr Jensen were negligent in
failing to take them.' (Emphasis added.)

The decision of Naxakis was to discard the Bolam test in the medical aspect of diagnosis and treatment by
the doctor to the patient, and to further hold that it is for the court, and not medical judgment, to determine if
the doctor has breached the standard of care in medical law.

The case of Rogers v Whitaker can be described as the swinging of the pendulum in the standard of care in
the medical aspect of advice by the doctor to the patient from a doctor-centric test (the Bolam test and
Bolitho) to a patient-centric test (Rogers v Whitaker and Rosenberg v Percival). This movement reflects the
court's recognition of the patient's right to information on their medical condition to enable the patient to make
his own decision about his life.

However, the extension of the application of Rogers v Whitaker (following the decision of Naxakis) to the
doctor's duty to diagnose and treat the patient does not appear to serve either the doctor's interest or the
patient's interest. After all, the doctor's duty to diagnose and treat is based on medical knowledge. In this
respect, it is pertinent to note that the decision of Naxakis did not consider full arguments for extending the
test in Rogers v Whitaker to cases of medical diagnosis and treatment, neither did the court engage in any
formulation of the test for the standard of care. To that extent it could be argued that the decision of Naxakis
is of limited weight.
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1 MLJ cvi at cxiii

WHERE THEN DOES THE LEGAL JURISPRUDENCE OF MEDICAL NEGLIGENCE STAND IN

MALAYSIA?

The Bolam test has been followed by the Malaysian Courts in decisions such as Chin Keow v Government of
Malaysia & Anor,20 Elizabeth Choo v Government of Malaysia & Anor21 Kow Nan Seng v Nagamah &
Ors22 and Hor Sai Hong & Anor v University Hospital & Anor.23

However, legal inroads started to be made in the test of standard of care in medical law in Kamalam a/p
Raman & Ors v Eastern Plantation Agency (Johore) Sdn Bhd Ulu Tiram Estate, Ulu Tiram, Johore & Anor.24
This was a case which concerned the diagnosis and treatment by the doctor to the patient. Richard Talalla J
stated as follows at p 691:

For my part, I see Bolam's case and that of Elizabeth Choo being referred to by the learned judge not for a proposition
that there being differences of opinion as to treatment, choice of a treatment, which is the standard medical practice, is
not by itself negligence. I do not see the learned judge as having addressed himself to the Bolam principle and upon
doing so, applying it. Accordingly, I do not find myself by reference to Kow's case being fettered by the Bolam principle
but on the contrary, bound by the ruling of Salleh Abas FJ, set out above, which ruling corresponds with the ruling by
the then Lord President in Swamy's case and I propose to adopt by way of elaboration of those rulings the
abovementioned dicta extracted from the decision in the Rogers' case. I should emphasise that while due regard will be
had to the evidence of medical experts, I do not accept myself as being restricted by the establishment in evidence of a
practice accepted as proper by a responsible body of medical men skilled in that particular art to finding a doctor is not
guilty of negligence if he has acted in accordance with that practice. In short, I am not bound by the Bolam principle.
Rather, do I see the judicial function in this case as one to be exercised as in any other case of negligence,
unshackled, on the ordinary principles of the law of negligence and the overall evidence.

The decision of Kamalam did not follow the Bolam test in order to determine if there was a breach of
standard of care in the medical aspect of diagnosis and
1 MLJ cvi at cxiv
treatment by the doctor to the patient. Richard Talalla J in fact referred to, and applied Rogers v Whitaker25
in holding that it is for the court, and not medical judgment, to determine if the doctor has breached the
standard of care in medical law.

The Federal Court has the opportunity to review the law on the standard of care in medical negligence law in
Foo Fio Na v Dr Soo Fook Mun & Anor.26 The question of law to the Federal Court was '... whether the
Bolam test as enunciated in Bolam Friern Hospital Management Committee [1957] 2 All ER 118, in the area
of medical negligence should apply in relation to all aspects of medical negligence.'27

Steve Shim LJ in allowing the appeal when on to state that:

It may be noted that in this case, the particular aspect of medical negligence relates more specifically to the duty and
standard of care of a medical practitioner in providing advice to a patient on the inherent or material risks of the
proposed treatment.

Siti Norma Yaakob FCJ in delivering the judgment of the Federal Court in Foo Fio Na, considered, amongst
others, the Bolam test, Sidaway, Rogers v Whitaker, Bolitho and Naxakis, and went on to state the standard
of care applicable in the law of medical negligence.28

Her Ladyship at p 611 of the judgment stated that:

we are of the view that the Rogers v Whitaker test would be more appropriate and a viable test of this millennium then
the Bolam Test. To borrow a quote from Lord Woolfe's inaugural lecture in the new Provost Series delivered in London
in 2001, the phrase 'Doctor knows best should now be followed by the qualifying words 'if he acts reasonably and
logically and gets his facts right'.
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The ratio decidendi of the decision of Foo Fio Na is that the Bolam test in the medical aspect of advice by the
doctor to the patient, as adopted and applied in Malaysian law, was reversed, and that the Rogers v
Whitaker test was adopted with approval.
1 MLJ cvi at cxv

Lastly, it is important to note that per curiam, Siti Norma Yaakob FCJ at  p 607 of the judgment in Foo Fio
Na stated that:

In the realm of diagnosis, treatment and the duty to warn, the ruling of the High Court of Australia in Naxakis v Western
General Hospital & Another (1999) 162 ALR 540 was able to settle the ongoing doubt which existed in Rogers v
Whitaker, as to, whether Rogers was restricted to cases relating to negligent advice only.

Therefore, in the medical aspects of diagnosis and treatment by the doctor to the patient, the reference to
Naxakis in Foo Fio Na has left the door open to the expulsion of the Bolam test in favour of the Rogers v
Whitaker test.

Following Foo Fio Na was the Court of Appeal decision of Dominic Puthucheary & Ors (personal
representatives of the estate of Thayalan a/l Kanapathipillai) v Dr Goon Siew Fong & Anor.29 The case
turned on, inter alia, whether there was a breach of the standard of care in the medical aspects of diagnosis
and treatment by the doctor to the patient. In dismissing the appeal, Gopal Sri Ram JCA held on the decision
of Foo Fio Na that '... it is one that is plainly binding on this court ...'.

In Hasan bin Datolah v Kerajaan Malaysia,30 the Court of Appeal had to consider the breach of standard of
care on the issue of advice and treatment by the doctor to the patient. The patient's claim was dismissed on
the grounds that there was no negligence by the doctor and further, there was no proof of causation of
damage.

Sulaiman Daud JCA in delivering the judgment of the court reiterated the principle of standard of care at p
654 (MLJ); p 772 (CLJ) that:

... we agree with learned counsel that Foo Fio Nasupra, had without doubt rejected the Bolam test in so far as it relates
to the determination of the standard of care to be observed by a medical practitioner in a medical negligence suit. The
right or responsibility to make such a determination now rests with the court upon evaluation of the evidence before it,
including the opinion and practices of members of the profession ....

It is clear from the two foregoing Court of Appeal decisions, as well as the mosaic of High Court decisions
following Foo Fio Na that the decision of Rogers v Whitaker applied to the medical aspects of diagnosis,
advice and treatment by
1 MLJ cvi at cxvi
the doctor to the patient. In other words, it is for the Malaysian Court, and not medical judgment, to determine
if the doctor has breached the standard of care in medical negligence law.

Moving on to the medical aspect of advice by the doctor to the patient, the Rogers v Whitaker formulation of
the test for the standard of care appears to have been overlooked in Malaysia, with the exception of the
decision of Dr Ismail Abdullah v Poh Hui Lin (administrator for the estate of Tan Amoi @ Ong Ah Mauy,
deceased).31

To reiterate the Rogers v Whitaker formulation, a doctor has a duty to warn a patient of material risk inherent
in the proposed treatment, and the ascertainment of whether a risk is 'material' has either an objective limb32
or a subjective limb.33

Additionally, the phrase on whether the (particular) patient would 'likely to attach significance to' the risk
should take into consideration, 'the amount of information or advice which a careful and responsible doctor
would disclose, depended upon a complex of factors: the nature of the matter to be disclosed; the nature of
the treatment; the desire of the patient for information; the temperament and health of the patient; and the
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general circumstances ...'34

The real divide in Malaysian medical negligence law post Foo Fio Na, is the issue of evaluation of expert
professional opinion.

This divide in the evaluation of expert professional opinion is seen in the Court of Appeal decision of Hasan
Datolah on the one hand, and on the other, the High Court decisions in Lechemanavasagar a/l S Karuppiah
v Dr Thomas Yau Pak Chenk & Anor35 and Chien Tham Kong v Excellent Strategy Sdn Bhd & Ors.36

In Hasan Datolah37, Sulaiman Daud JCA stated that 'The right or responsibility to make such a determination
now rests with the court upon evaluation of the evidence before it, including the opinion and practices of
members of the profession.'38

His Lordship went on to apply this statement of evaluation as follows at p 775:

With regard to the issue of misdirection aforesaid, it is not disputed that the learned trial judge in her judgment had
expressly stated that she was 'applying the Bolam test' in determining the standard of care of DW1. However, upon
perusal of the judgment as a whole, we are more than satisfied that she did not base her finding solely on professional
opinion and practice as envisaged by the Bolam principle. We observed that the learned trial judge had properly
assessed and weighed all the evidence before her, particularly the opinion of the expert witnesses on the probable
cause of the appellant's paralysis, before arriving at her decision ...' (Emphasis added.)

Similarly, prior to the decision of Hasan Datolah and Foo Fio Na, Richard Talalla J in Kamalam stated as
follows: 'Rather do I see the judicial function in this case as one to be exercised as in any other case of
negligence, unshackled, on the ordinary principles of the law of negligence and the overall evidence.'

It is clear from the decisions of Hasan Datolah, Kamalam and a host of High Court decisions39 that the
evaluation of expert professional opinion is treated equally as all other evidence for consideration before the
court in a medical negligence suit.

The treatment of expert professional opinion in Hasan Datolah and Kamalam is consistent with the treatment
of expert professional opinion in Rogers v Whitaker, where the majority judgment stated that: 'that standard
is not determined solely or even primarily by reference to the practice followed or supported by a responsible
body of opinion in the relevant profession or trade ...'
1 MLJ cvi at cxviii

The High Court decision of Lechemanavasagar was a case which turned on the issues of advice and
treatment by the doctor to the patient. The patient lost his claim on the issue of causation. On the application
of the test of standard of care in medical negligence, Rohana Yusuf J stated this at pp 847-848:

Basing on the above, I find that Dr Thomas Yau has not departed from the normal standard practice in adopting
conservative treatment in this case. Following the decision in Hunter v Hanley 1995 SC 200 and Bolitho v City and
Hackney Health Authority [1997] 2 All ER 771, which is often described as the Bolitho test, Dr Thomas Yau has treaded
on the well-worn path and there is no evidence to suggest that he deviated from the accepted practice in giving the
plaintiff a conservative treatment for is esophageal perforation. Malaysian cases have adopted a similar approach as in
Bolitho. The test in Bolitho can be simply stated as this: a compliance with reasonable, respectable and responsible
practice will more often than not absolve a doctor of liability. A similar test was adopted and followed in the Malaysian
case of Dr Chin Yoon Hiap v Ng Eu Khoon & Ors and the earlier case of Elizabeth Choo v Government of Malaysia &
Anor [1970] 2 MLJ 171. (Emphasis added.)

In Chien Tham Kong, Low Hop Bing J (as His Lordship was then) dealt with the issue of the medical aspect
of advice and diagnosis by the doctor to the patient. On the issue of the law of standard of care, His Lordship
held that following Foo Fio Na, the Bolam test was reversed and that the decision of Rogers v Whitaker was
applicable. However in coming to the latter decision, His Lordship referred to the decision of Bolitho as being
'the most authoritative exposition'40 of the Rogers v Whitaker test.

His Lordship at p 277 stated that:

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The Rogers test gained recognition in Foo Fio Na, where our Federal Court held that there is a need for members of
the medical profession to stand up to the wrong doing, if any, and in so doing. People involved in medical negligence
cases would be able to obtain better professional advice and the courts would be appraised with evidence that would
assist them in their deliberations. In the circumstances, the Federal Court preferred the Rogers test to the Bolam test
as a viable test of this millennium, and observed that the phrase 'Doctor Knows best' should now be qualified by: 'if he
acts reasonably and logically and gets his facts right': per Lord Woolfe in the inaugural lecture in the new Provest
Series, as applied by our Federal Court.

Upon my analysis of the above authorities, I would apply the Rogers rest, which has been accepted by the
Federal Court in Foo Fio Na as it is binding on me.
1 MLJ cvi at cxix
This test dictates that the court, and not the medical profession, must decide on the liability of doctors who
are defendants in medical negligence actions. In so deciding, our courts are at liberty to reject medical
evidence, which does not really stand up to logical analysis, but instead must scrutinise and evaluate the
relevant evidence in order to adjudicate on the appropriate standard of care. Due regard must be had to the
relevancy of the opinion of experts in line with s 45(1) of the Evidence Act 1950, which provides that when
the court has to form an opinion upon a point of eg science, the opinions upon that point of persons specially
skilled in that science are relevant facts. In the context of the instant case, the opinions of doctors specially
skilled in medical science, with particular speciality in spinal cords, neurology and stroke are relevant.'

The decision of Chien Tham Kong was followed by the High Courts in Chai Hoon Seong v Wong Meng
Heong41 and Mathew Scott Oakley & 2 Ors v Dr George Varughese & Anor [2010] AMR 326.42 In Abdul
Ghafur vin Mohd Ibrahim v Pengarah, Hospital Kepala Batas & Anor [2010] 6 MLJ 181,43 Chew Soo Ho JC
expressly applied Rogers v Whitaker on the seat of determination, and applied English law on the treatment
of expert professional opinion.

Since the Bolitho test is an addendum to the Bolam test, when Foo Fio Na expressly reversed the Bolam
test, the Bolitho test was impliedly reversed as well. Then, why was Bolitho applied in Lechemanavasagar
and Chien Tham Kong?

The answer to this question is in the decision of Siti Norma Yaakob FCJ at p 611 of the judgment in Foo Fio
Na, which stated that:

On this basis, we are of the view that the Rogers v Whitaker test would be more appropriate and a viable test of this
millennium then the Bolam Test. To borrow a quote from Lord Woolfe's inaugural lecture in the new Provost Series,
delivered in London in 2001, the phrase 'Doctor knows best should now be followed by the qualifying words 'if he acts
reasonably and logically and gets his facts right'.

An implied interpretation of Her Ladyship's approval of the latter phrase is that whilst the Bolam test on the
issue of the seat of determination had been reversed, the decision of Bolitho on the treatment of expert
professional opinion remained applicable in Malaysia.

The effect of the amalgamation of the decision of Rogers v Whitaker with the decision of Bolitho is that the
seat of determination in the medical aspects of
1 MLJ cvi at cxx
diagnosis, advice and treatment, is the court. On the issue of assessment of evidence on the other hand, the
evidence of the expert professional is treated as influential or decisive evidence, unless the expert
professional opinion is not in 'compliance with reasonable, respectable and responsible practice.44

The application of the combination of the decisions of Rogers v Whitaker and Bolitho can rationally be
supported on the grounds that medical standards and practices in diagnosis and treatment is based on
medical knowledge. It would make rational sense that evidence of reasonable, respectable and responsible
practice from a credible expert medical professional would be paramount in determining the issues of
breaches of standard of care. Furthermore, this treatment of expert professional opinion finds support in
Rogers v Whitaker where per curiam the joint judgment stated that '... Whether a medical practitioner carries
out a particular form of treatment in accordance with the appropriate standard of care is a question in the
 Page 9

resolution of which responsible professional opinion will have an influential, often a decisive, role to play; ...'
(Emphasis added.)

The same argument for the treatment of expert professional opinion however, cannot be made in the medical
aspect of advice by the doctor to the patient. The reason being that in the area of medical advice, patient
participation includes the patient's right to self-determination in the medical process. As the joint judgment of
the High Court of Australia states in Rogers v Whitaker, 'whether the patient has been given all the relevant
information to choose between undergoing and not undergoing the treatment is a question of a different
order. Generally speaking, it is not a question the answer to which depends upon medical standards or
practices.' Clearly, the patient's right of self-determination would not be best served by maintaining the
Bolitho test in the treatment of expert professional opinion. In this respect, the treatment of expert
professional opinion as set out in the decisions of Kamalam, Hasan Datolah and the host of High Court
decisions footnoted earlier in this article, is preferred.

CONCLUSION

At the outset, it is clear that the court is the seat of determination in the area of medical negligence law.
Whilst there is an agreed common standard of care for the medical aspects of diagnosis, advice and
treatment by a doctor to a patient, there is clearly a divide in interests involving cases of medical advice, and
cases of diagnosis and treatment.
1 MLJ cvi at cxxi

In the medical aspect of advice, the formulation of the test for the standard of care in Rogers v Whitaker
appear, for now, to be limitedly applied in this jurisdiction. The importance of the movement toward the
patient's right to self-determination in medical negligence law cannot be denied. An example of this is
reported in a local daily45 across the causeway that a doctor was suspended for failing to obtain proper
informed consent from his patient.

This divide in interests between advice on the one hand, and diagnosis and treatment on the other, is
reflective in the manner expert professional opinion should be treated by the court when evaluating the
evidence. The treatment of expert professional opinion as set out in the decisions of Kamalam and Hasan
Datolah should be applicable in cases involving medical advice. On the other hand, the treatment of expert
professional opinion as set out in the decisions of Lechemanavasagar and Chien Tham Kong should be
applicable for cases involving medical diagnosis and treatment.

The author has purposely left out the facts of all the cases in writing this article, and has done so for various
reasons. There is no avoiding the reality that this area of law is fact heavy, and like other areas of law, each
case turns on its own facts. In researching this article, the author was constantly reminded of the frailty of
human life, our unavoidable dependence on the medical profession and the importance of the court in
maintaining a just balance between all parties' interests.

The author would like to end this article by quoting Richard Talalla J in Kamalam, where His Lordship stated
at pp 686-687, that:

Swamy's case was decided in 1967 and the comment of what would be disastrous to the community was made then.
At this point, some 30 years down the tract of time, that disaster has come to bear on the communities of certain
so-called developed countries, where instead of doctors practicing medicine confidently and comfortably as they were,
won't to do in yesteryear; they in those communities do indeed cower in anticipation of being stabbed, melodramatic as
the metaphor may have been in 1967 but less so now in the light of the current situation when doctors are preoccupied
with safeguarding themselves against the potential claim for negligence. Gone are the days of giving gratuitous advice
and rendering assistance, for example, in a road accident or like during an emergency, without thought of ill
consequences of the advice or assistance. At great expense to the community, these doctors carry out an interminable
series of tests, most or a number of which are unnecessary, with the sole object of not being, at some later stage,
forensically accused of not having carried out those tests. It is sheer
1 MLJ cvi at cxxii
madness to practice medicine without a large insurance policy against malpractice across the spectrum. The financial
burden is passed on to the patient, who in turn has perforce to be insured against the doctor's fees and outgoings
which the patient can, if the pun may be excused, ill-afford to pay. In certain of these communities there are socialist,
the community passes it financial burden on to the government, which then imposes a tax on the income of the doctor
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and the latter increases his fees to absorb the tax that has to be paid to the government and the circus goes ad
infinitum. Mercifully, that scourge has not as yet descended upon our community. I consider it as being the duty of the
court to protect our society in the application of the law and not to open the flood gates to litigation against doctors
founded on negligence. The forensic dagger is to be wrested from the grip of the legal practitioner, the scalpel vested in
the confident hands of the surgeon as the stethoscope is in that of the medical practitioner. That, to my mind, should be
the position by and large. It does not mean however that doctors are at liberty to practice their profession as they think
fit, hurriedly or as a 'problem-solving quick fix facility where many patients are seen rapidly for relatively minor problems
and at low cost', yet no doubt in some cases with the till constantly ringing in the profit. Such an approach strikes me as
being casual and off-hand and in discord with the proper practice of medicine. As stated in Swamy's case, and it bears
repeating, a medical practitioner is bound to exercise the care and skill of an ordinary, competent practitioner in that
profession.

1 To aid understanding of the underlying subject-matter of this area of law, it would be advisable to have available the
assistance of a medical professional to explain the technical aspects of each case.

2 See Lord Hewart CJ in R v Bateman [1925] All ER 45, which was followed in the Federal Court in Foo Fio Na v Dr Soo Fook
Mun & Anor [2007] 1 MLJ 593 at p 601.

3 [2007]1 MLJ 593.

4 [1957] 2 All ER 118.

5 [1957] 2 All ER 118 at p 121, which was followed in the Federal Court in Foo Fio Na v Dr Soo Fook Mun & Anor [2007] 1 MLJ
593 at p 598.

6 [1957] 2 All ER 118 at p 122.

7 [1957] 2 All ER 118 at p 122. A word of caution by McNair J in Bolam v Friern Hospital Management Committee, in the
assessment of medical evidence, the evidence is assessed based on accepted practices at the point of the incident, not at the
point of giving of the evidence.

8 Per Lord Scarman in Sidaway v Bethlem Royal Hospital Governor [1985] 1 AC 871, '... I use the word 'advice' to cover
information as to risk and the options of alternative treatment ...'

9
1 MLJ cvi at cviii

See Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465, which was followed by the Federal Court in Kluang Wood
Products Sdn Bhd & Anor v Hong Leong Finance Bhd & Anor [1999] 1 MLJ 193.

10 [1985] 1 AC 871.

11 (1992) 175 CLR 479.

12 [1997] 4 All ER 771.

13 197 CLR 269.

14 The decisions of the majority of the House recognised that if a patient raised questions of a risk, this was evidence that the
patient did attach significance to the risk. The doctor in those circumstances should truthfully address the question, subject to
the defence of therapeutic privilege.

15 A case from 1968 reported in [1993] 4 Med LR 393.

16 [1984] 1 AC 296. This was a case of a solicitor's professional negligence where the Privy Council held that even though the
practice adopted by the solicitor was in accordance with a body of professional opinion, the solicitor was guilty of negligence
because there was an obvious risk which could have been guarded against. The professional opinion was therefore held to be
neither reasonable nor responsible.

17 See Sachs LJ in Hucks v Cole [1993] 4 Med LR 393, as cited by Lord Browne-Wilkinson in Bolitho.

18 [2001] HCA 18. This case was in respect of advice given by the dental surgeon to the patient.
 Page 11

19 (1983) 33 SASR 189.

20 [1967] 2 MLJ 45, wherein the Privy Council approved the application of the Bolam test by the Malaysian trial judge, Ong J on
the issue of treatment by the doctor to the patient.

21 [1970] 2 MLJ 171, which was the decision of Raja Azlan Shah J on the issue of treatment by the doctor to the patient.

22 [1982] 1 MLJ 128, which was a decision of the Federal Court on the issue of treatment by the doctor to the patient.

23 [2002] 5 MLJ 167 was a first instance decision of the High Court on the issue of treatment by the doctor to the patient.

24 [1996] 4 MLJ 674.

25 Rogers v Whitaker was also applied in the case of Tan Ah Kau v The Government of Malaysia [1997] 2 AMR 1382 which
was about the medical aspect of advice by the doctor to the patient.

26 [2007] 1 MLJ 593.

27 [2002] 2 MLJ 129 which reported the application for leave to appeal to the Federal Court.

28 Please refer to the article of Bolam, Foo Fio Na and Doctors [2008] 6 MLJ l by Dr Sarjeet Singh Sidhu for a detailed
commentary of Foo Fio Na supra.

29 [2007] 5 MLJ 552. The case was in respect of diagnosis and treatment by the doctor to the patient, and it was determined in
favour of the defendants on the issue of causation.

30 [2010] 2 MLJ 646[2010] 5 CLJ 764.

31 [2009] 2 MLJ 599. This case is also authority for the medical defence of therapeutic privilege.

32 'should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it'.

33 'a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it'.

34 See Rogers v Whitaker.

35 [2008] 1 AMR 833.

36
1 MLJ cvi at cxvii

[2009] 7 MLJ 261.

37 At p 772.

38 This case is also authority for the defence of medical emergency.

39 Arulappan Kannan v Dr Suresh Chopra & Ors [2011] 3 CLJ 662 also applied the same evaluation of expert professional
opinion. Azahar Mohamed J in Dr Ismail Abdullah v Poh Hui Lin (administrator for the estate of Tan Amoi @ Ong Ah Mauy,
deceased) [2009] 2 MLJ 599 stated that expert evidence 'is a useful guide for courts.' Supang Lian JC in Ang Yew Meng & Anor
v Dr Sashikannan a/l Arunasalam & Ors [2011] 9 MLJ 153 similarly stated that 'what the profession does in the given situation
will be an important indicator of what ought to have been done, but it should not necessarily be determinative. In the final
analysis, the courts set the standard of care in negligence drawing upon the evidence presented.'

40 [2009] 7 MLJ 261 at p 275.

41 [2010] 8 MLJ 105.

42 [2010] AMR 326.

43 [2010] 6 MLJ 181.

44 Per Rohana Yusuf J in Lechemanavasagar.

45 See The Star newspaper dated 5 June 2012.