The Standard of Care in Medical Negligence Cases: What Had Led To Where We Are Now?

Introduction

When the facts reveal that a claim was brought by a patient against his/her doctor(s) for medical negligence, what comes to mind immediately would be whether the doctor(s) breached the standard required of him/her at the material time. To determine that, one must first determine the standard in which the doctor is held against.

On this issue, we go way back to the landmark cases of Bolam v Friern Hospital Management Committee, [1957] 2 All ER 118 (“Bolam”) and Bolitho (administratrix of the estate of Bolitho (deceased)) v City and Hackney Health Authority, [1997] 4 All ER 771[1997] 4 All ER 771 (“Bolitho”), or conveniently referred to as “Bolam and Bolitho”, before coming back to our current position in Malaysia as held in the Federal Court cases of  Zulhasnimar bt Hasan Basri & Anor v Dr Kuppu Velumani P & Ors [2017] 5 MLJ 438 (“Zulhasnimar”) and Dr Hari Krishnan & Anor v Megat Noor Ishak bin Megat Ibrahim & Anor and another appeal [2018] 3 MLJ 281 (“Dr Hari Krishnan”).

In the beginning, there was Bolam and Bolitho

          It all started out with Bolam and Bolitho. These cases laid down the standards to which doctors are held against in a medical negligence claim due to the professional nature of the job. Briefly, in the case of Bolam, which revolved around the proper procedure and treatment for electro-convulsive therapy, it was decided that doctors should be held against the standards determined by their peers such that as long as the defendant doctor proves to the court that he acted per a practice accepted as proper by a responsible body of doctors, he would not have breached the professional standard as a doctor, even if there is a similar body with a contrary view.

Later, the House of Lords in Bolitho extended the test laid down in Bolam by calling upon the court to analyse the logic and reasonableness of the conflicting medical opinion advanced.

Australia: A patient-centric approach

          The year was 1992. The High Court of Australia in Canberra Rogers v Whitaker [1992] 109 ALR 625 (“Rogers v Whitaker”) decided that patients have the right to be informed of material risks involved in the proposed medical treatment or procedure. There is a material risk if 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 be reasonably aware that the particular patient when warned of the risk, would be likely to attach significance to it.

Back Home in Malaysia

The initial position

As a result of the Privy Council decision in Chin Keow v Government of Malaysia & Anor [1967] 2 MLJ 45, our courts obediently followed the position in Bolam. This was only until the decision by the Federal Court in the case of Foo Fio Na v Dr Soo Fook Mun & Anor [2007] 1 MLJ 593 (“Foo Fio Na”). In this case, the appellant became paralysed after a series of surgeries conducted to correct the closed dislocation in parts of her vertebrae initially caused by a motorcar accident. It was decided that the Bolam test has no relevance in a doctor’s duty to advise and Federal Court adopted the Rogers v Whitaker test in this respect.

After Foo Fio Na, there were conflicting decisions as to whether the Bolam test applies in the standard of care for diagnosis and treatment or if the Rogers v Whitaker test applies beyond the standard of care in advising patients. An example of this is seen in Hasan bin Datolah v Kerajaan Malaysia [2010] 2 MLJ 646.

The current position: setting things right

          The confusion as to the correct test to be applied in medical negligence claims was addressed by the Federal Court in Zulhasnimar and Dr Hari Krishnan.  In short, the Bolam test (qualified by Bolitho) applies in the standard of care for diagnosis and treatment, whilst the Rogers v Whitaker test is restricted only to the duty to advise of risks associated with any proposed treatment.

In Zulhasnimar, the plaintiffs claimed for the cerebral injury suffered by the infant plaintiff, which was alleged to have resulted from the respondents’ failure to detect, that the 1^st plaintiff was already in labour upon her arrival to the hospital. It was argued that, therefore, if an emergency caesarian section were performed sooner, it would have prevented the collapse of the 1^st plaintiff and, after that, the sudden and significant loss of oxygen to the infant, which led to the cerebral injury.

The Federal Court made a distinction as to the tests applicable to the duty to diagnose and treat and the duty to advise.  As for the duty to diagnose and treat, it was held that the Bolam test still applied (subject to the qualifications in Bolitho). As for the duty to advise, doctors are to advise and inform their patients regarding the material risks involved (subject to therapeutic privilege).

This position is echoed in Dr Hari Krishnan.       

Conclusion

The Bolam test (qualified by Bolitho) sets out the standard of care regarding the duty to diagnose and treat, meaning, a doctor would not have breached his duty and standard of care to his patients as long as he acted per a practice accepted as proper by a responsible body of doctors and that his actions can withstand logical analysis.

The Rogers v Whitaker test applies in the duty to advise the patients, meaning, a doctor will need to advise the patients on the material risks involved (risks that a patient would be likely to attach significance to).