Bolam Test In Malaysia

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Court punctures docs’ defence

By CHELSEA L.Y. NG

PUTRAJAYA: Doctors can no longer say that they had done their job just because they did it within the acceptable standards.

If something goes wrong, they can no longer use this reason as a defence in court when they are sued for negligence.

This was the decision of the Federal Court in a landmark decision that has raised the standards for medical professionals when carrying out their duty.

The nation’s highest court was deciding on a negligence suit by quadriplegic Foo Fio Na against As-sunta Hospital and a consultant or-thopaedic surgeon.

Doctors will now not only have to perform their jobs according to the normal acceptable standards but also to do so after seeking the best advice possible.

The three-man Bench Federal Court unanimously ruled that the Bolam test adopted from a 1957 negligence case in England could no longer be used as the yardstick to measure the degree of negligence.

(The Bolam principle, in substance, restrains the courts from scrutinising and evaluating the professional conduct of a doctor possessing a special skill and competence.

(The doctor is not negligent if he acts within a practice accepted as proper by a body of his own peers who possess similar skills and competence as the doctor in question.

(It matters not that there exists another body with a differing opinion that does not accept the action taken by the doctor.

(It is enough that he has acted in accordance with one of the bodies of opinion and the courts can never declare his action to be in any way negligent.

(This over protective and deferential approach conforms to the well-known phrase that “the doctor knows best”.)

Instead, the Bench decided that doctors here must now act within the standards of a competent professional as laid down in the 1992 Australian High Court case of Rogers vs Whitaker.

(The Whitaker case held that a doctor has a duty to warn a patient of any material risk involved in a proposed treatment.

(A risk is considered material if a reasonable person in similar circumstances will attach significance to the risk, or if the doctor is, or should be, cognizant that the particular patient will express concern about the risk.

(In that case, Maree Whitaker became essentially blind after an unsuccessful operation on her right eye caused sympathetic ophthalmia in her left eye.)

“There is a need for members of the medical profession to stand up to the wrongdoings, as is the case of professionals in other professions,” said Chief Judge of Malaya Justice Siti Norma Yaakob in her judgment.

“In so doing, people involved in medical negligence cases will be able to obtain better professional advice and the courts will be appraised with evidence that will assist them in their deliberations,” she added.

This judgment is even more significant as Siti Norma heard the appeal in 2002 together with former Chief Justice Dzaiddin Abdullah and current Chief Justice Ahmad Fairuz Sheikh Abdul Halim, who was then the Chief Judge of Malaya.

From The Star

Legal Negligence

Contributed by techeah

There is a recent Federal Court decision to invalidate the Bolam Test as means of defence for doctors in a medical negligence case, as reported in The Star.

Doctors can no longer say that they had done their job just because they did it within the acceptable standards.

If something goes wrong, they can no longer use this reason as a defence in court when they are sued for negligence.

To cast out the Bolam test completely, is to me a legal negligence. Part of the Bolam test states :-

The law distinguishes between liability flowing from acts and omissions, and liability flowing from misstatements. The Bolam principle addresses the first element and may be formulated as a rule that a doctor, nurse or other health professional is not negligent if he or she acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion, even though some other practitioners adopt a different practice.

The Federal Court is removing the ability to determine what constitutes proper medical practice from the medical bodies and placing it in the hands of patients cum lawyers. Medicine, unfortunately, is not as clear cut as law. It is evolving, multi-faceted and complex. Many medical issues remain contentious and not all treatments may be so clearly defined or acceptable. Therefore, there is bound to be conflicting opinions, with some even contravening acceptable standards. The decision is naive as it expects all medical decisions to be made with precision and backed by "best advice possible". Best advice remains as subjective as ever. Many medical decision made in a particular context may not always be the best in retrospect.

Informing a patient of all risks is not only impractical but also impossible. Risks to any treatment can involve an inexhaustible list and no matter how remote, if it were to happen, will be a reason to sue. Common and important risks should however be explained.

This decision will only increase the cases of medical litigation, much to the delight of lawyers. Throwing out the Bolum test only serves to feed the hunger of lawyers for more blood and cash, draining the medical profession of its self regulating integrity and enticing many to go for a fast buck.

Medical costs will only escalate further with this decision and will no doubt be channeled to the patients. A group of apparently "gung ho" judges have set the ball in motion for a more defensive medical practice and driving up costs in an already inflated economy.

This to me is legal negligence!

From Medicine Malaysia