DOES THE BOLAM PRINCIPLE STILL REIGNS IN MEDICAL NEGLIGENCE CASES IN MALAYSIA?

Dr Puteri Nemie Jahn [email protected]

ABSTRACT
Since it was introduced in 1957, the Bolam principle has been routinely applied to medical negligence cases in determining whether the doctor’s acts fell below the required standard of care. However, in its original context, the principle has been criticised as being over protective of the medical profession and allowing the standard of care of doctors to be a matter of medical judgment. In recent years, the principle has been subjected to intense discussion throughout the common law jurisdictions. The English courts through cases such as Bolitho v City & Hackney Health Authority [1997] 4 All ER 771 and Penny, Palmer and Cannon v East Kent Health Authority [2000] Lloyd’s Law Report (Medical) 41, tried to restore the principle to its proper limits and correct the misinterpretation of what was originally intended by McNair J. in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. The Australian jurisdiction on the other hand, took a more drastic step in Rogers v Whitaker [1992] 175 CLR 479 by refusing to apply the Bolam principle to doctor’s duty to warn and later on, abandoning the principle completely in Naxakis v Western General Hospital [1999] 73 ALJR 782. The Malaysian courts, however, have always been quite conservative in the area of medical negligence. Although the trend of the cases show that the Malaysian courts are much more heavily influenced by English decisions rather than the Commonwealth ones, some decisions, particularly, Hong Chuan Lay v Eddie Soo Fook Mun [1998] 5 CLJ 251 and Kamalam a/p Raman v Eastern Plantation Agency (Johore) Sdn Bhd [1996] 4 MLJ 674 showed a shift in emphasis towards the commonwealth jurisdictions. However, neither the Court of Appeal nor the Federal Court of Malaysia has made any policy statement either in support of, or against, the departure from the Bolam principle. In the judgment given by Gopal Sri Ram (Judge from the Court of Appeal) in Dr Soo Fook Mun v Foo Fio Na & Anor and Another Appeal [2001] 2 CLJ 45, His Lordship maintained that “the Bolam test places a fairly high threshold for a plaintiff to cross in an action for medical negligence…. [and] [i]f the law played too interventionist a role in the field of medical negligence, it will lead to the practice of defensive medicine [and] [t]he cost of medical care for the man on the street would become prohibitive without being necessarily beneficial”(at p. 472). This statement indicates the reluctance of the courts in following the developments in Australia and departing from the old interpretation of the Bolam principle. Further, His Lordship was of the opinion that allowing doctors to be judged by their own peers would “maintain a fair balance between law and medicine” ( at p.472).

INTRODUCTION
The standard of care, which the law demands of a person in a normal negligence case has been established to be the standard of “reasonable care”. If a person achieves the standard satisfied by the hypothetical reasonable man, then he will not be adjudged negligent at common law. However, the formulations of the standard of care required by the medical profession have been a matter of controversy for many years, particularly, with regards to the reference point for the standard. This difficulty stems from the basis that medical negligence cases are a little different from any other normal negligence cases. In normal negligence cases, the court is fully competent to lay down what the reasonable man should do in everyday circumstances as judges are aware of and understand everyday circumstances. But in cases of medical negligence, intricacies of medical science are not, generally speaking, within judicial knowledge. The judge may not be able to measure the reasonableness of medical activity of which he has no great level of understanding.

THE BOLAM PRINCIPLE
The test to determine what is the standard of care demanded of a doctor was established by McNair J. in Bolam v Friern Hospital Management Committee[1], which subsequently became known as the Bolam principle.  In Bolam, the plaintiff, John Bolam, was a psychiatric patient suffering depressive illness. He was advised by Dr deBastarrechea, a consultant psychiatrist attached to Friern Hospital, to undergo electro-convulsive therapy (E.C.T.). He signed a consent form but was not alerted to the risk of fracture that can occur because of fit-like convulsions that such treatment induces. In due course, he received this treatment but was not given any relaxant drugs. As a consequence, he suffered several injuries. These included dislocation of hip joints and fractures to the pelvis on both sides caused by the femur on both sides being driven through the cup of the pelvis. The plaintiff claimed that the doctor was negligent in not giving him relaxant drugs. By not doing so, the doctor also failed to provide adequate physical restraints to prevent the injury. He also claimed that the doctor had failed to warn him of the risks involved in the treatment. The judge, however, found the doctor not guilty of negligence as he had acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular area. Expert witness called by either side gave evidence as to the different techniques which they adopted in giving E.C.T treatment; some used relaxant drugs, some used restraining sheets and some used manual control, but all agreed that there was a firm body of medical specialists who opposed to the use of relaxant drugs.[2] Further, a number of competent practitioners considered that the less manual restraint there was, the less likely would be the risk of fracture.[3] With regards to failure to warn of the risks involved, the defendants’ doctor opined that the risk involved was a very slight risk and it was a common practice that they would not have warned their patients of such risk. In order for the plaintiff to succeed on his allegation of failure to warn, the court held that the plaintiff had to prove to the court’s satisfaction that if the plaintiff had been warned of the risk, he would not have undergone the treatment. Unfortunately, the plaintiff failed to discharge the burden of proof required of him. In his judgment, McNair J. formulated a test, known as the Bolam principle, to determine whether the doctor’s act fell below the required standard of care:

“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 law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art…. in the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time…. I myself would prefer to put it this way, that he 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 man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view. ”[4]

From the principle above, it can be seen that a doctor is not negligent if he has acted with a practice accepted as proper by a body of medical men who possess similar skills to the doctor in question. It is immaterial that there exists another body of opinion that would not have adopted the approach taken by the said doctor. As long as there exists a “responsible body of medical opinion” that approves the actions of the doctor, the doctor escapes liability. In other words, the test allows doctors to escape liability by calling experts to testify that the procedure adopted was consistent with practices accepted by a responsible body of medical opinion. Medical expert opinion, thus, plays a vital role in the determination of doctor’s liability. This test can be seen as being over protective of the medical profession and allows little opportunity for the court to assess the adequacy of the accepted practices. In Sidaway v Bethlem Royal Hospital Governors[5], Lord Scarman said: “The Bolam principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice. In short, the law imposes the duty of care; but the standard of care is a matter of medical judgment.”[6] (emphasis added)

A CHANGE OF ATTITUDE
In 1993, the case of Hucks v Cole[7] suggests a change in attitude by the English judiciary of delegating the determination of doctor’s liability to the medical profession. The judges in this case adopted a pragmatic approach to this issue and held that it was appropriate for the judge to reject medical expert evidence if it does not really stand up to analysis. In this case, the defendant was a general practitioner in Somerset who possessed a diploma in obstetrics. Mrs Hucks had been one of the patients in a maternity hospital, when after giving birth to her child, she had suffered from a fulminating septicaemia, which caused various sores and yellow spots to appear on her fingers and toes. She brought them to the attention of Dr Cole who put her on a five-day course of tetracycline. However, at the end of the five day course he took her off the antibiotics as the sores were improving. The next day Mrs Hucks contracted speticaemia, puerperal fever, a condition, which had been extremely common before the Second World War but was very rare in the 1960s. She sued Dr Cole for negligence, alleging that he should have treated her with penicillin as soon as he read the bacteriologist’s report. The defendant said he had acted in accordance with the reasonable practice of other doctor with obstetric experience. However, Lawton J. found Dr Cole to have been negligent, and the Court of Appeal upheld his finding. Although the court could understand that Dr Cole’s action was lulled into a sense of security, as other general practitioners might have been by the normal effect of antibiotics, the court was willing to apply the test of reasonable care, in the sense of taking care to adopt that method of action which would probably lead to the least danger in preference to deciding the case in accordance with expert evidence as to whether the defendant acted in accordance with approved practice. Thus, Dr Cole was negligent because he did not take “every precaution” to prevent an outbreak of puerperal fever and it mattered not if other doctors would have acted as him. Sachs LJ said: “Where the evidence shows that a lacuna in professional practice exists by which risks of grave danger are knowingly taken, then, however small the risks, the courts must anxiously examine that lacuna – particularly if the risks can be easily and inexpensively avoided. If the court finds an analysis of the reasons given for not taking the precautions that, in the light of current professional knowledge, there is no proper basis for the lacuna, and that is definitely not reasonable that those risks should have been taken, its function is to state that it constitutes negligence. In such a case the practice will no doubt thereafter be altered to the benefit of the patients.”[8]

Although the decision in Hucks was followed by a few other cases, namely, Gascoine v Ian Sheridan & Co[9] and  Joyce v Wandsworth Health Authority[10], these cases represent the minority of cases that follows such an approach. Majority of cases decided at that point of time still followed closely the principles stated in Sidaway in which the courts have effectively allowed medical judgment to determine doctor’s liability. Nevertheless, the law took a major turnabout in the House of Lords decision of Bolitho v City & Hackney Health Authority[11] where the decision in Hucks was given clear recognition and a stamp of approval. Lord Browne-Wilkinson delivering judgment in the House of Lords in  Bolitho held that the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant’s treatment and diagnosis accorded with sound medical practice.[12] His Lordship held that the word “responsible” used by McNair J. in Bolam “show[s] 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.”[13] This means that merely by showing that the defendant’s action was supported by expert medical opinion will not automatically exculpate him. The expert medical opinion in question has to have a sufficient logical basis. Lord Browne-Wilkinson then went on to explain that before a judge can accept a body of opinion as being “responsible”, the judge will have 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.”[14] Thus, a “responsible” view presupposes that the experts in forming their opinions have weighed the relative risks and benefits. His Lordship further held that “if it can be demonstrated that the expert medical opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not responsible.”[15] To this point, his Lordship relied on the judgement by Sachs J. in Hucks v Cole cited above.[16] His Lordship’s reliance on Sachs J.’s judgment shows that even though there exists a body of professional opinion sanctioning the defendant’s conduct, the defendant can still be held negligent if “it cannot be demonstrated to the judge’s satisfaction that the opinion relied on is reasonable or responsible.”[17]

The House of Lords’ decision in Bolitho appears to do away with the usual “rubber-stamping” of expert medical opinion. Expert opinion now has to withstand rigorous scrutiny from the judiciary. Previously, the well established Bolam principle had not given much scope to the judiciary to intervene and had ensured that any medical treatment that accords with a body of professional opinion is not negligent. On the surface, it appears that Bolitho has curbed the power delegated to the medical profession by Bolam as now there is no guarantee that expert medical evidence will be accepted even if provided. However, even before Bolitho, the reason for judges not to question the views of medical profession was because they themselves do not have sufficient understanding of medical matters. Bolitho has still not changed that position and judges have not been made more knowledgeable in medical matters through the outcome of the case. The decision only allows them to scrutinise medical opinions. In order to find that the expert medical opinion does not withstand logical analysis, judges have to rely on some sort of evidence. The evidence used to denounce the expert medical opinion must be of the same standard, if not, better. But where would this evidence come from? From his own thoughts or independent advisors? How is it possible for judges to question expert medical opinion when they are the experts in law and not in medical science? Even Lord Browne Wilkinson in Bolitho acknowledged that it would be a “rare” or “exceptional” case where judicial intervention will be justified: “…it will seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable. The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence.”[18]

Bolitho was cited with approval in the Court of Appeal’s decision of Penney, Palmer and Cannon v East Kent Health Authority.[19] In this case, the plaintiffs claimed damages for negligent screening of cervical smears by the defendant’s cytology department between 1989 and 1992. The plaintiffs alleged that the smears were negligently reported as negative and thus, depriving them the opportunity of obtaining early treatment which would have prevented the development of endocervical carcinoma. Screening was carried out by qualified biomedical scientists or qualified cytology screeners (cytoscreeners). Cytoscreeners were not qualified to diagnose. Their task is limited to distinguishing between smears with normal appearances and those, which were or might be abnormal. In cases of abnormality or possible abnormality, the cytoscreener was obliged to refer the smear to more highly qualified individuals such as the pathologist. On the issue of whether the cytoscreeners were negligent in reporting the tests as negative, five eminent pathologists was called to give their testimony, three of whom were called by the defendants. The defendants claimed that their witnesses constituted a respectable and responsible body of opinion, thus, providing them a defence under the Bolam principle. On this issue, Lord Woolf MR applied the Bolam test as further explained and interpreted in Bolitho. After the expert witnesses had offered their evidence, “the judge had to make his own findings on balance of probabilities on this issue of fact in order to proceed to the next step in answering the question of negligence or no negligence.”[20]

THE REJECTION OF THE BOLAM PRINCIPLE IN AUSTRALIA
Australian judges, on the other hand, have been quite determined in ensuring that expert evidence is subjected to close judicial scrutiny. In any case, they have to be vigilant in checking whether the conforming practice is reasonable or not. King C.J. explained this point in the Australian case of F v R[21] when he said that:
“…professions may adopt unreasonable practices…. The court has an obligation to scrutinise professional practices to ensure that they accord with the standard of reasonableness imposed by the law…. The ultimate question, however, is not whether the defendant’s conduct accords with the practices of his profession or some part of it, but whether it conforms to the standard of 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.”[22]

This view was approved by the High Court of Australia in Rogers v Whitaker[23], where it was accepted that the question of how much information to be departed by a doctor cannot be determined by “any profession or group in the community”[24] but it should be determined upon consideration of complex factors, namely, “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 surrounding circumstances.”[25] Thus, the High Court felt that opinions of medical witnesses should not be decisive at this point. In other words, it was for the courts, having regard to the “paramount consideration” that a person is entitled to make decisions about his own life, to set the appropriate standard of care. This point is considered the most significant aspect of the case as this means that the determination of the standard of care is a matter for judicial, not professional opinion. Applying this standard to the case, the High Court found that Mr Rogers failed in his duty by omitting to tell her of the risk of contracting sympathetic ophthalmia because of the following reasons. Firstly, Mrs Whitaker had questioned him about the possible complications involved in the procedure and secondly, she had expressed a great deal of concern about protecting her left eye, even though she had not asked specifically about whether the operation on her right eye could lead to her developing a debilitating inflammation of her left eye. Finally, the materialization of the risk had disastrous consequences for her.

Later, the ruling of the Australian High Court in Naxakis v Western General Hospital[26] settled the ongoing doubts of whether Rogers v Whitaker was only restricted to negligent duty to disclose risks cases. The decision in Naxakis has confirmed a total rejection of the application of the Bolam principle to doctor’s duty to advice, diagnose and treat in Australia. In this case, Paraskevas Naxakis, a 12 year old boy, was struck twice on the head by his schoolmate’s school bag. He collapsed and was admitted by a general practitioner to the Western General Hospital for head injury. At the hospital, the appellant fell into a deep unarousable unconsciousness for five minutes and was unresponsive to painful stimuli. There were traces of vomit around the corners of his mouth and he began to exhibit signs of opisthotonos, that is, spasm in the muscles of the neck, back and legs and backward contortions of the body. A preliminary diagnosis was made of a subarachnoid haemorrhage caused by a blow to the head. He remained in the hospital for nine days under the supervision of the second respondent, Mr Jensen, a senior neurosurgeon at the hospital. A CAT scan was carried out and the result indicated that he was suffering from a subarachnoid (traumatically caused) haemorrhage near the fourth ventricle. However, his condition gradually improved without further treatment and was later discharged from the hospital. Two days later, the appellant collapsed at home and was taken to the Royal Children’s Hospital where he was attended by Mr Klug, director of neurosurgery. An angiogram was conducted which showed that the appellant had suffered a major intracranial bleed from a burst aneurysm. An operation was performed to insert a ventricular peritoneal shunt to drain cerebrospinal fluid and a craniotomy was performed to clip the aneurysm. However, the appellant suffered serious and permanent physical and intellectual impairment as a consequence of the bursting of the aneurysm. The appellant brought an action in the Supreme Court against the hospital and the senior neurosurgeon for failure to properly diagnose and that this negligence had led to him suffering serious and permanent physical and intellectual impairment. At the trial in the Supreme Court of Victoria, the judge accepted a no case to answer submission and then directed the jury to return a verdict in favour of the defendants. The appellant appealed unsuccessfully to the Court of Appeal where the court held that there was no basis for the claim that the neurosurgeon failed to consider the possibility of an aneurysm since there was no evidence that he did not consider that possibility. The appellant appealed to the High Court.

The thrust of the case against the hospital and Mr Jensen was that alternative diagnoses should have been considered and an angiogram performed to establish the cause of the appellant’s condition. Thus, failure to order an angiogram showed a breach of duty on the part of the neurosurgeon. Three closely related claims; failure to consider alternative diagnoses, failure to conduct an angiogram and to discharge the appellant without considering other possible diagnoses. In the High Court, Gaudron J. stated that the standard of care is not to be decided using the Bolam principle and therefore, it is not a matter of medical judgment. His Lordship reiterated the ratio in Rogers where it was held that “[the standard of care] 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.”[27] It has to be decided “whether it was reasonable for one or more of the steps to be taken…. [and this] was not for expert medical witnesses to say whether those steps were or were not reasonable.[28] Furthermore, he commented that in some situations, “questions as to the reasonableness of particular precautionary measures are… matters of commonsense.”[29] From the evidence present, there was suspicion that a subarachnoid haemorrhage can result from other causes other than trauma or blow to the head. There was undisputed evidence that the appellant did not progress as hoped and experienced neck retraction, which was considered unusual. Therefore, the logical thing to do when such symptoms arise was to conduct a cerebral angiogram, which the respondent failed to do. If the angiogram had been undertaken, the appellant could have undergone surgery two days prior to the bursting of the aneurysm and his present condition would have been avoided. McHugh J. stated that even if there is a respectable body of opinion that would not have conducted an angiogram, this was not decisive that there was no negligence as [t]o allow that body of opinion to be decisive would re-introduce the Bolam test into Australian law.”[30] As long as there exists a respectable body of medical opinion that would have conducted an angiogram , “the issue is one for the jury, provided…the evidence is reasonably capable of supporting all elements of a cause of action in negligence. “[31] Therefore, although there was evidence by other practitioners that they would not have conducted an angiogram, it was reasonably open for the jury to consider and accept the evidence of Mr Klug, a neurosurgeon at the Royal Children’s Hospital that only by performing a cerebral angiogram was there “a way of defining whether or not there was another intracranial abnormality such as an aneurysm or other vascular malformation.”[32] Kirby J. agreed with McHugh J. His Honour opined that it was left to the jury to accept expert opinion of a fellow medical practitioner. Expert opinion of fellow practitioner should not be determinative on the issue of whether or not the defendant is negligent as such evidence may stem “from professional courtesy or collegial sympathy”[33] for the defendant. Kirby J. reiterated the principle decided in Rogers v Whitaker where the court pointed out that the standard of care owed by persons possessing special skills 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.”[34] Instead, whilst evidence of acceptable medical practice is a useful guide for the courts in adjudicating on the appropriate standard of care, the standard to be applied is nonetheless that of “ordinary skilled person exercising and professing to have that special skill.”[35] Therefore, the direct suggestion by Mr Klug that Mr Jensen was not negligent could not be regarded as determinative.

THE BOLAM PRINCIPLE IN MALAYSIA
The Bolam principle so formulated has been routinely applied by the Malaysian courts to the relevant cases[36] in determining the doctor’s standard of care. Amongst the earliest case in the Malaysian jurisdiction wherein the Bolam principle was applied is Swamy v Mathews[37]. The plaintiff in Swamy was an estate worker and he visited the defendant doctor for an itch on his hands. The doctor diagnosed the ailment to be either ringworm or psoriasis and injected the plaintiff with doses of “acetylarsan” which is an arsenical compound. The plaintiff’s limbs subsequently became paralysed and he claimed that this was caused by the drug. There were different opinions presented to the court as to what was supposed to be the proper treatment and the procedure in giving such treatment to the plaintiff. The majority judgment accepted the testimony of the defendant doctor and his explanation that the prescription and the dosage given to the plaintiff, although at variance with the manufacturer’s recommendation, was made based on is personal experience. The emphasis in the majority judgment in discounting the contrary evidence is the classic doctor-centric approach. The court did not examine the reasonableness of the treatment. The court found the medical practitioner not negligent because medical practitioners need not have the highest degree of skill. Mr Justice Ismail Khan cited Roe v Minister of Health[38] stating: “But we should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to think more of their own safety than of the good of their patients. Initiative would be stifled and confidence shaken. A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure.

The Privy Council had soon after that applied the Bolam principle in Chin Keow v Government of Malaysia[39]. In this case, an amah in a government venereal disease clinic spoke to the staff nurse about an ulcer on her right ankle and swollen glands in her thigh. The nurse took her to see Dr Devadason, the Medical Officer in charge of the clinic. The doctor examined her. He did not ask her about her medical history. The doctor prescribed an injection of procaine penicillin and she died within an hour of receiving the injection. The trial judge, Ong J., adopted the Bolam test of negligence and found the doctor to be negligent for prescribing a penicillin injection as a routine treatment for the patient and that he did so without asking one single perfunctory question to attempt to discover whether she was sensitive to the drug. Such is not considered as a practice accepted as proper by a responsible body of medical opinion. The Federal Court, however, rejected Ong J.’s finding of negligence but on further appeal, the Privy Council adopted Ong J.’s decision.

In Elizabeth Choo v Government of Malaysia[40], the plaintiff claimed that the anaesthetist was negligent during the pre-operative sigmoidoscopic examination, which had resulted in the perforation of the colon. One of the issue which was discussed in this case was whether it was proper for the anaesthetist to perform sigmoidoscopic examination under general anaesthesia. On this issue, several medical experts gave conflicting opinions. One expert had expressed the view that it is better to perform sigmoidoscopy without anaesthesia as the patient could be forewarn the anaesthetist of any pain. The court however, observed that the anaesthetist had previously successfully performed hundreds of sigmoidoscopic examinations under general anaesthesia. This technique is in vogue in his unit since 1956 and the technique had not earned the condemnation of medical opinion generally.[41] Thus, applying the Bolam principle to this issue, the court held that the anaesthetist is not negligent as he had followed the general and approved practice in the situation which he was facing. The technique that he adopted was approved by a responsible body of medical men since 1956. Therefore, it did not matter if there is another body of opinion that would have taken a contrary view. Raja Azlan Shah stated: “The anaesthetist had done hundreds of endoscopic examinations including sigmoisdoscopy…and had encountered no trouble except this particular mishap….There is evidence that the greatest care is required to ensure free passage when the instrument is introduced in the rectum and the procedure required a high degree of concentration. The anaesthetist said he exercised all care and caution he possessed at the time…at no time did he lift his sight from the mirror.”[42]

The judicial decision in Elizabeth Choo was further approved in Kow Nan Seng v Nagamah & Ors [43]. In this case, the doctor applied a complete plaster cast on to the leg of the plaintiff. This resulted in insufficient blood circulation, which led to gangrene setting in and later, amputation of the plaintiff’s leg. There were conflicting opinions on whether a complete plaster cast or a plaster slab is to be used. Again, applying the Bolam principle the court held that there may be differences of opinion as to the types of plaster casts to be applied in the treatment but this does not mean that choosing a type of plaster cast is in itself negligence. To be negligent, the doctor must have departed from the reasonable standard of care and skill of an ordinary competent doctor.

In Liew Sin Kiong v Dr Sharon M Paulraj[44], the plaintiff was a patient of Dr Molly Elizabeth Matthew, a government ophthalmologist. Dr Molly had been treating the plaintiff for juvenile glaucoma, including two operations under general anaesthesia on his eyes in 1990. The operations done were two trabelectomies, one for each eye. This was done in order to create the outflow of intraocular fluid so as to reduce the intraocular pressure. The operation was a success with the plaintiff retaining his vision and the intraocular pressure was controlled with medication. However about two years later, even with medication, the intraocular pressure could not be controlled. At that time Dr Molly recommended that the plaintiff go for an operation in Kuala Lumpur as the required treatment was not available in Sabah. The plaintiff did not heed to the recommendation, instead he sought treatment from the defendant who is an ophthalmologist practising in a private clinic in Sabah. After conducting an examination, the defendant prescribed some medication and further operation on both eyes. The plaintiff was asked to sign a consent form. After the operation, the plaintiff suffered severe pain in his eyes. He was admitted into the Queen Elizabeth Hospital in Kota Kinabalu but as a result of infection from the operation, he lost sight of his right eye. Ian Chin J applied Sidaway[45] and found the defendant not liable as the plaintiff had failed to prove that the defendant had not acted in accordance with the standards of a competent ophthalmologist. The learned judge said that although the consent form did not state that the defendant had informed the plaintiff of the risk of infection, it did not mean that the risk was not explained. Further, the court held that if a doctor was of the view that a patient was in need of an operation then such benefit outweighed a remote risk as the doctor should be allowed the “therapeutic privilege” in deciding whether or not to disclose the risk. However, it should be noted that even though Ian Chin J. did not follow the principles established in Rogers v Whitaker, he commented that:
“[t]he issue here is not what risks are material for disclosure and therefore it does not call for my decision as to whether to follow Sidaway or Rogers regarding deferring to medical expert evidence.”[46]

However, in 1996, the case of Hong Chuan Lay v Dr Eddie Soo Fook Mun [47]shows the court’s preference to the Australian decision in Rogers v Whitaker. In this case, the defendant doctor was found not liable for the injuries suffered by the plaintiff as there was no evidence adduced as to which aspect of the surgery the defendant was incompetent. The defendant was at all material times a qualified and experienced orthopaedic surgeon and the method and procedure adopted by him were accepted in the medical field for operations of this nature. In this case, the plaintiff, a 63 year old man, was suffering from wear and tear of the neck bone and bone growth around the vertebra. He underwent a surgical operation on his cervical spine which was performed by the defendant who was an orthopaedic surgeon attached to the Sentosa Clinic. Three weeks after the operation he experienced paralysis of both his lower and upper limbs and incontinence. As he was not prepared to continue the post-operative treatment provided by the defendant, he sought advice from other doctors and underwent three more operations conducted by three different doctors. Even after these operations, his condition only improved marginally. The plaintiff claimed that the defendant had negligently caused damage to his spinal nerve during the first operation resulting in the present residue. The court applied the Bolam test and Mr Justice James Foong found that there was no evidence to prove that the defendant had conducted the operation negligently as he had not in any way departed from the approved practice. The only detection of spinal cord injury was the clinical diagnosis of the presence of oedema. But the presence of oedema was not a conclusive pronouncement of a permanent injury to the cord as it is a common occurrence in such operations. The plaintiff also claimed that the defendant failed to inform him of the possibility of paralysis after the operation. In dealing with this claim, the court abandoned the Bolam test and applied the approach used by the Australian courts in Rogers v Whitaker.[48] Mr Justice Foong stated that: “For sometime, the Bolam test i.e., the test expounded by McNair J in Bolam v Friern Hospital Committee (supra) was accepted to be applicable to all provisions of a doctor’s duty to his patient. But by a series of cases in the United States of America, Canada and Australia, the Bolam test is rejected as regards to the doctor’s duty to disclose information and advice to the patient. In order to explain the arguments against it, and the new test proposed as its substitution, I shall follow the approach adopted by the justices in the High Court of Australia in their judgment of Christopher Rogers v Maree Lynette Whitaker (supra). I must proclaim my highest respect to the honourable Justices of this Australian High Court for their clarity, conciseness and comprehensibility in explaining the distinction of the Bolam test from the new approach.”[49]

The rejection of the Bolam principle became apparent in Kamalam a/p & Ors v Eastern Plantation Agency & Anor[50]. In Kamalam, the defendant doctor failed to diagnose the plaintiff’s ailment, which turned out to be a stroke, thereby causing his death. The court found the doctor had fallen below the standard of care required of him. The court chose to accept the opinion of experts called by the plaintiff who considered that the defendant should have referred the deceased to a hospital because he manifested symptoms of an impending stroke. The judge did not regard himself as being bound not to find medical practitioners negligent even if there is a body of medical opinion that approved the doctor’s practice. Richard Talalla J. stated: “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 had acted in accordance with that practice. In short I am not bound by the Bolam principle.”[51] (emphasis added).

Further, in Foo Fio Na v Hospital Assunta & Anor[52], the plaintiff, who suffered total paralysis of the upper and lower limbs, claimed that the defendant failed to inform her of the risk of paralysis that is inherent in a spinal cord operation. In dealing with this issue, Mokhtar Sidin JCA applied the principles in Rogers v Whitaker and considered that the risk of paralysis was considered to be a  material risk of which the plaintiff should have been warned. According to the evidence, the plaintiff did not know that she consented to a spinal cord operation and was not told it would be a major one, which might lead to paralysis. She was only assured by the defendant that the operation was a minor one. The judge commented: “The question of giving proper warning was further emphasized in the Australian case of Rogers v Whitaker…. It is clear from the … principle [in that case] that the court itself has to decide on the doctor’s negligence after weighing the standard of skill practiced by the relevant profession or trade and also the fact that a person is entitled to make his own decision on his life.”[53]

From the above cited cases, it can be seen that the decisions made by the Malaysian courts on whether the straightforward application of Bolam principle or the approach taken by the Australian courts is to be preferred has been very inconsistent.  However, the judgment given by Gopal Sri Ram JCA in Dr Soo Fook Mun v Foo Fio Na & Anor and Another Appeal[54] indicates the reluctance of the courts in following the developments in Australia and departing from the straightforward application of the Bolam principle. In Dr Soo, the judge stated that “the Bolam test places a fairly high threshold for a plaintiff to cross in an action for medical negligence…. [and] [i]f the law played too interventionist a role in the field of medical negligence, it will lead to the practice of defensive medicine [and] [t]he cost of medical care for the man on the street would become prohibitive without being necessarily beneficial.” Further, His Lordship was of the opinion that allowing doctors to be judged by their own peers would “maintain a fair balance between law and medicine”[55].

CONCLUSION
Although some decisions show a departure from the straightforward application of the Bolam principle, decisions in medical negligence cases by the Malaysian courts have been inconsistent. The common trend seems to be that the Malaysian courts much more influenced by English decisions rather than the Commonwealth ones. It can be seen that the departure from the straightforward application of the Bolam principle in Kamalam, Hong Chuan Lay and Foo Fio Na were only High Court decisions. The Court of Appeal decision of Dr Soo Fook Mun emphasized the view that medical practitioners are not negligent if they follow the common practice, regardless of the existence of contrary opinions. Further, neither the Court of Appeal nor the Federal Court of Malaysia has made any policy statement either in support of, or against, the departure from the Bolam principle. Thus, the Bolam principle in its original context still reigns in Malaysia.

@ Faculty of Laws, IIUM Gombak
[1] [1957] 1 WLR 582.
[2] Ibid., at pp. 589 – 593.
[3] Id.
[4] Ibid., at pp. 586 – 587.
[5] [1985] 1 All ER 643.
[6] Ibid., at p. 649.
[7] [1993] 4 Med LR 393.
[8] Ibid., at p. 397.
[9] [1994] 5 Med LR 437. In this case, Mitchell J. said that it was common sense that merely because a number of doctors gave evidence to the same effect, it did not automatically imply that these views formed an established and alternative “school of thought” of medical opinion.
[10] [1995] 6 Med LR 60. For discussion of facts, see below, Chapter 4 passim. In this case, Overend J. commented that the medical practice must stand up to analysis and be unreasonable in the light of medical knowledge at that time.
[11] [1997] 4 All ER 771. For discussion of facts, see below, Chapter 4, passim.
[12] Ibid., at p. 778.
[13] Id.
[14] Id.
[15] Id., at p. 779.
[16] See above, at the preceding page.
[17] [1997] 4 All ER, at p. 779.
[18] Ibid.
[19] [2000] Lloyd’s Law Rep. (Medical) 41.
[20] Ibid., at p. 46.
[21] (1982) 33 SASR 189. (S.C. of South Australia).
[22] Ibid., at p. 194.
[23] [1993] 4 Med LR 79.
[24] Ibid., at p. 194.
[25] Id., at pp. 192 – 193.
[26] (1999) 73 ALJR 782.

[27] Ibid., at p. 785; Rogers (1992) 175 CLR 479, at p. 487.
[28] Ibid.
[29] Ibid.
[30] Ibid., at p. 791.
[31] Id.
[32] Id.
[33] Id., at p. 797.
[34] Id., at p. 798. citing Rogers (1992) 175 CLR 479, at p. 487.
[35] Id.
[36] E.g.s,. Swamy v Matthews [1967] 1 MLJ 142; Mariah bte Mohamad (Administratix of the estate of Wan Salleh bin Wan Ibrahim, deceased) v Abdullah bin Daud (Dr Lim Kok Eng & Anor, Third Parties)  [1990] 1 MLJ 240 ; Inderjeet Singh a/l Piara Singh v Mazlan bin Jasman & Prs [1995] 2 MLJ 646.
[37] [1968] 1 MLJ 138.
[38] [1954] 2 WLR 915.
[39] [1967] 2 MLJ 45.
[40] [1970] 2 MLJ 171.
[41] Ibid. at p. 172.
[42] Ibid. at p.
[43] [1982] 1 MLJ 128.
[44] [1996] 2 AMR 1403.
[45] Ibid., at pp. 1418 – 1419.