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Case Facts
The appellant became paralysed after two surgeries conducted by the first respondent. The appellant sued the first and second respondent on the ground of medical negligence as they failed to conduct the surgeries cautiously and failed to inform the appellant of the inherent or material risks involved in the proposed surgeries. She would not have proceeded with the surgery, had she been informed about the risks involved.
The decision would change or perhaps the Bolam Test would once again be adopted by the Federal Court (“FC”) if: first, the nature of risk involved was not significant; second, the appellant was incapable of understanding the information of the risk; lastly, she had little or no hope of recovery.
Issue of Law
Whether the Bolam Test in the area of medical negligence should apply to all aspects of medical negligence?
Argument
The appellant argued that her paralysis was caused by the first respondent during the course of her surgeries instead of the motorcar accident. This is because despite discovering about her paralysis, he (first respondent) did nothing to remedy it. Besides, the appellant argued that the second respondent should be vicariously liable for the negligent acts of the first respondent since the first respondent was at all material times their servant.
However, the first respondent argued that the injuries suffered by the appellant were caused by accident and if left unattended would have still led to paralysis. Besides, it was argued that the appellant had expressly consented to both surgeries.
Decision of the Federal Court
The FC held that both the respondents’ negligence had contributed to the appellant’s total paralysis. Besides, the FC held that the Whitaker test would be the more appropriate and viable test of this millennium, compared to the Bolam Test. Furthermore, the FC has imposed a statutory duty on the medical practitioners to inform their patients, who are capable of understanding, the risks involved in any proposed treatment to enable the patient to make a choice of whether to proceed with the proposed treatment.
Rule of law applied and reasons:
At common law, a medical practitioner owes a duty to the patient to use due caution and reasonable skill in undertaking the treatment. The medical practitioner is expected to maintain a standard accepted by an ordinary competent practitioner.
Next, the Bolam Principle was rejected because the Whitaker Test was preferred, as the FC’s view is that the court, instead of the medical profession, should have the power to set an appropriate standard of care in medical negligence based on the evidence presented.
Moreover, the legal principle, that there is a duty to warn the patient of the inherent risk of a proposed treatment, was applied. This is because, based on the evidence adduced, it was testified that the appellant was capable of comprehending the true nature of the risks involved, if it was communicated to her, and that the risk of paralysis was present and real. Also, the expressed consent given by the appellant was questioned by the court, because one of the consent forms was not obtained fairly since by that time she had lost all sensation to her limbs.
Supporting Case
Supporting cases that were referred in relation to the duty and standard of care of a medical practitioner: Bateman1, Kow Nan Seng2, and Hucks3.
Supporting cases that were referred in order to determine the role of the court in ensuring that the medical judgment made by the medical experts is reasonable and responsible: Bolitho4, Blenkiron 5, Hajgato 6 and Best 7.
Supporting cases that were referred when reaffirming the rejection on the Bolam Test and the essential duty to warn the patients on the foreseeable risk involved in any proposed treatment: Whitaker8, Naxakis9, Kamalam10, Tan Ah Kau11 as well as the dissenting judgment in Sidaway12.
A similar significant case of Whitaker was referred again to reiterate the power of the courts, as the standard of care of a medical practitioner should not be determined by the medical profession.
Analysis
We fully agreed with the FC’s decision to choose the Whitaker Test, and accept the legal principles of the Bolitho Case. This FC’s decision could be treated as a landmark decision because: firstly, it respects the choices of the patients on whether to proceed with the proposed treatment after being warned of the inherent risk involved (as guaranteed under Art. 5 of the Federal Constitution); secondly, it challenges the mentality of “a doctor knows best” and gives the courts more powers to establish a reasonable and logical medical standard of care, by taking into consideration the professional opinions of the medical experts.
If the decision was made otherwise by implementing the Bolam Test, the first respondent would have not been held negligent, in failing to warn the appellant of the inherent risks of the proposed treatment, since he would then be acting within the scope of an accepted medical practice determined by his own medical peers. We would not agree if such a decision was made, as it would definitely cause an unfair result, in which future aggrieved parties like the appellant would have no recourse against a negligent doctor.
1 R Bateman [1925] 94 LBKB 79.
2 Kow Nam Seng v Nagamah & Ors [1982] 1 MLJ 128.
3 Hucks v Cole [1993] 4 Med LR 393.
4 Bolitho (administratix of the estate of Bolitho (deceased) v City and Hackney Health Authority [1997] 4 All ER 771.
5 Blenkiron v Great Central Gas Consumers’ Co [1860] 2 F & F 437.
6 Hajgato v London Health Association [1982] 36 OR(2d) 66.
7 Best v Wellcome Foundation Ltd [1994] 5 Med LR 81.
8 Rogers v Whitaker [1992] 175 CLR 479.
9 Naxakis v Western General Hospital & Anor [1999] 162 ALR 540.
10 Kamalam a/p Raman & Ors v Eastern Plantation Agency (Johore) Sdn Bhd Ulu Tiram Estate, Ulu Tiram, Johore & Anor [1996] 4 MLJ 674.
11 Tan Ah Kau v The Government of Malaysia [1997] 2 AMR 1382. 12 Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital & Ors [1985] 1 AC