Challenges to the Bolam Test

CHALLENGES TO THE BOLAM TEST - THE MALAYSIAN SCENARIO
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By: MADAWAN A. NAIR
BEcons(Hons)Mal, LLB(Hons)Lond, LLM(UKM), CLP
Advocate & Solicitor
HIGH COURT OF MALAYA


1. INTRODUCTION
The growing proliferation of medical negligence cases world-wide is proportionate with the increased level of awareness and education. In the USA it has reached “crisis proportions” while in UK there has been an upsurge in litigation. In Singapore and Malaysia there has been a reasonable increase.[1] Medical negligence litigation in Malaysia is fault-based (with the Plaintiff having to discharge the burden of proof on the balance of probabilities) and is fraught with practical problems like [2]:
a). Limitation Period.
For action against doctors in Government hospitals it must be brought within 3 years as per the Public Authorities Protection Act 1948. For private doctors the action in Peninsular Malaysia must be brought within 6 years and in Sabah and Sarawak within 3 years.
b).Access to medical records.
Generally, the parties have to obtain access only by subpoena to produce documents at trial at a very late stage.
c). Pleadings must be replete with sufficient particulars.
For this there has to be early discovery of documents, including relevant medical records.
d).Damages
Amendments to the Civil Law Act 1956 especially sections 7, 8 and 28A have caused personal injury damages to be low. Medical Negligence is no exception. As against this is the legal costs which tend to be very high, compared to other types of personal injury litigation.
Despite that the growing number of cases baffles the mind.

2. The Unique position of Negligence in the field of medicine.

The standard of care, which the law demands of a person in a normal case, has been established to be the standard of a “reasonable care”. If a person achieves the standard satisfied by the hypothetical reasonable man, then he will not be adjudged negligent at common law. The courts are not weighed down in understanding and applying this standard because the judges are aware of and understand everyday happenings and circumstances. As ordinary citizens, living and co-existing within the fabric of society itself, it is not difficult for them to comprehend what a hypothetical reasonable man would be like.

However, this situation cannot be equated with the standard of care in medical negligence. Medicine has always been shrouded with intricacies and technicalities, which may be beyond the comprehension of judges and jury who have not undergone the rigours of medical training.[3]

In most cases of tort, negligence alone could be attributed to the damage caused. If the defendant had not been negligent then the damage may not have been caused. However, in the field of medicine, no matter how careful a doctor has been the results are not guaranteed. As said by editors of Jackson & Powell:
“Medicine is perhaps the classic example of a profession in which results are not guaranteed and are not expected to be guaranteed.” [4]

A motor vehicle accident could be averted if the defendant driver had not been negligent as regards maintaining the correct air-pressure in the tyres. In the case, of an operation despite all the precautions taken diligently and with the best surgeon and surgical team the patient can still die during the operation from unknown causes. Commonly, we attribute fate (or divine intervention) to the reason – that the Almighty has decided to terminate the life of the patient .

3. The main elements of Negligence in the Bolam test

The determination of liability under the Bolam test is dependant upon the consideration of a number of crucial elements. The main ones in the first part of this test, inter alia, are [5]:

a). The doctor must have acted in accordance with “accepted medical practice”.

Accepted medical practice here means a practice accepted as proper by a responsible body of medical opinion. In Whitehouse v Jordan, the defendant was alleged to have been negligent in pulling too long and too hard with the forceps i.e six attempts with the forceps and taking 25 minutes. As a result, the baby was born with severe and irreparable brain damage. Upholding that the Defendant had been negligent , Lord Edmund Davies at the House of Lord approached the Bolam principle in these words:

“ To say that a surgeon committed an error of clinical judgment is wholly ambiguous, for, while some such errors may be completely consistent with due course of professional skill, other acts or omissions in the course of exercising “clinical judgment” may be so glaringly below proper standards as to make a finding of medical negligence inevitable…”

b). Accepted practice to be the current practice.

It is incumbent upon the defendant to keep abreast with the latest developments in his field of medicine. For the judge, the current practice must be the one on the date of the operation or treatment and not on the date the claim comes to trial. In Roe v Minister of Health & Anor [6] , the incident occurred in 1947 but the claim only came to trial in 1954. The risk of the incident happening was only drawn to the attention of the medical profession in 1951. Lord Denning said one cannot judge a 1947 incident using knowledge that came to light only in 1951.

Any departure from the accepted practice is not in itself a negligence provided that the defendant can justify his actions. In Hunter v Hanley [7], Clyde LP said :

“ It follows that what I have said that in regard to allegations of deviation from ordinary professional practice…such deviation would be disastrous if this were so, for all inducement to progress in medical science would then be destroyed. Even a substantial variation from normal practice may be warranted by the particular circumstances..”

In UK the above principle was applied in Clark v MacLennan, the court held that the gynaecologist had carried out an anterior colporrhaphy operation within four weeks. This deviation was not justified because the normal waiting period was three weeks to avert the risk of haemorrhage [8]. In Malaysia, in the local case of Dr.Wong Wai Ping & Anor v Wong Lin Sing & Ors [9] , where it was held that by under-estimating the loss of blood of a patient, the appellant doctor had clearly departed from the ordinary reasonable skill of a gynaecologist.

The second part of the Bolam principle embraces the following pertinent points namely :

a). The accepted practice must be regarded as proper by “ a reasonable body of medical men” skilled in that art.

In a nutshell, the accepted practice must be endorsed by a responsible body of medical opinion who should possess similar knowledge in that particular practice, specialty or sub-specialty of practice. However, to the practicing counsel the following queries baffle him :

i). Numerically how many medical practitioners’ opinion in that practice or specialty or sub-specialty ought to be considered ?

ii). What if the practice or specialty or sub-specialty only had a few registered practitioners in it Must all of them be called as expert witnesses ?
Cases like DeFrietas v O’Brien and Connolly tend to suggest that the numerical extent is unimportant. Otton LJ in the Court of Appeal of the afore-said case remarked thus:

“ There was evidence.. that a small number of tertiary specialists could constitute a responsible body of medical opinion.. the issue whether or not to operate could not be determined by counting heads .. a small number of specialists specialists (could constitute ) a responsible body ( which in found).. the defendant’s decision justified.”[10]

It is comforting to state that it is a question of fact before the courts and that not just the aspect of mere numbers that count. However, the numerical aspect is important too- particularly when both sides in a trial are flexing their muscles to show the number of expert witnesses in the form of doctors they are going to bring into the witness box. Somehow or rather, whether it is human frailty of mind or the effect of overwhelming number of expert witnesses or appreciation of the hard work of the counsel who brought in the largest number of expert witnesses the bench is bound to be moved in favour of large numbers.

Therefore, Plaintiff’s lawyer is still faced with these nagging questions - calling how many doctors of that practice or specialty or sub-specialty would be considered substantive to prove his claim and to show the court that the Defendant had not been in conformity with “ a responsible body of medical men” ? Would just calling one specialist of great repute and experience suffice ? Or must there be more witnesses of that kind to move the judge in accord with his line of argument in establishing the case ? These are salient questions baffling the lawyers out there in the courts. Compounded to this, is the aspect of cost to the Plaintiff if great numbers of doctors of a particular specialty or sub-specialty are called as witnesses – considering cost of attendance and wasted costs when there are adjournments of cases in favour of criminal trials. The plethora of cases decided in Malaysia have certainly not circumscribed the limit and nature of evidence that has to be brought into the courts to support this area of substantiality. It varies from judges to judges and from case to case with infinite latitude of non-restrictiveness.

In the Malaysian context, the words of His Lordship James Foong JCA may add a bit of comfort in this area :

“As to the numbers of such medical men to be called to testify, I noticed very often, lawyers for the claimant are more enthusiastic in emphasizing this requirement……one must lose sight of the fact that it is the quality of such opinion that matters, not the quantity.”[11] (emphasis added).

However, it is opined, that despite considering “the quality of such opinion”, the eclipse of subjectivity still shrouds the judges . How are they to ascertain the “quality of such opinion” – by the strings of professional degrees of the expert or his honorary titles like Datuk and Tan Sri ? Does a past record of extensive research some 10 years ago suffice ? Or must the research be in that field of expertise addressing current issues in medicine ?
The situation becomes even more complicated when the standard operating procedures of doctors differ from one hospital to another. For example, some hospitals have triaging procedures in the Accident & Emergency (A & E) Units where the in-coming patients are assessed first by the Medical Assistants and then directed to different rooms according to the severity of the conditions while others do not.

Therefore, while the Bolam test does give us a guideline to approach the aspect of negligence it is silent as to how this aspect of subjectivity (that the judges have to grapple with) be addressed. The Bolam test has provided us with the fishing rod and line but the hook and bait certainly are missing ! It is suggested that the judge be assisted by assistant judges who in themselves are eminent medical practitioners of repute and the counsel be advised during the case management stage as to the number of expert witnesses they are to bring.

b). Judges can reject medical expert evidence if they do not stand up to analysis.

In the case of Hucks v Cole [12], where the defendant a gyanaecologist was found negligent for stopping the administration of tetracycline after a five day course of and which resulted in the Plaintiff contracting septicemia and puerperal fever. The defendant was found guilty of negligence because he did not take ‘every precaution” (i.e did not use Penicillin) to prevent the 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 the 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.”

Cases like Gascoine v Ian Sheridan & Co[13] and Joyce v Wandsworth Health Authority[14] followed the approach held in Hucks i.e the evidence must stand up to analysis. Most of the cases still staunchly followed in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital[15] .However in the House of Lord’s decision in Bolitho v City & Hackney Health Authority [16] the decision of Hucks was upheld namely that the court is not bound to hold that a defendant doctor can escape liability for negligent 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 and diagnosis accorded with sound medical practice.[17] His Lordship, Lord Browne-Wilkinson held that the word “responsible” used by McNair J in Bolam “shows 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.”[18] While this settles the inadequacy inherent in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital, it is opined that there still remains an area that has not been made clear. It is clear beyond doubt that evidence must stand up to analysis as far as diagnosis and treatment is concerned. What about in the aspect of duty to warn ?

Inherently, while the “subject to analysis” approach seems to heighten the supremacy of the judiciary as the sole fountain of justice, there are nevertheless other practical problems that need to be considered, namely :

(i). To counter the body of medical opinion by analysis, the judges need to have as evidence the opinion of another group of medical experts who are certainly better than that of the defendant. If the evidence is as regards a sub-specialty where only two doctors, for example, are available in this country from where else can the judges garner their evidence to lend credence to their “subject to analysis” approach?

(ii). Can judicial intervention be justified when the judges themselves are not medical experts ?

(iii). Can the judges locally overburdened with work singularly handle the machinations of the “subject to analysis” approach what more in the absence of the jury as in UK ?

(iv). The effect of the uncertainty and the resultant delay to the Plaintiff who is bent on seeking justice at an affordable cost.

4. The global onslaught on the Bolam test

The Bolam test has been stretched to its limit with the international development of law on medical negligence. The test has been tested as regards its efficacy and practicality pertaining to the duty to disclose risks, diagnose and treatment. The Bolam test did not dichotomize the doctor’s duty into diagnosis, treatment and advice . The common law courts have regarded the legal duty of care in the tort of negligence as a single and indivisible duty and hence the same standard applied no matter what the stage, nature or context of medical treatment.[19] In this sense and against the growing wave of patients’ claim towards greater participation in medical-decision making, the Bolam test has been viewed as both archaic and anachronistic. It has remained only relevant for a period of time and is not accommodative of the impending growth in the medico-legal development of the law of negligence.

The UK position is best expressed by Lord Diplock in Sidaway v Board of Governors of the Bethlem Hospital and the Maudsley Hospital as follows:

“ In English jurisprudence the doctor’s relationship with his patient which gives rise to the normal duty of care to exercise his skill and judgment to improve the patient’s health…has hitherto been treated as a single and comprehensive duty…This general duty is not subject to dissection into a number of component parts to which different criteria of what satisfy the duty of care apply, such as diagnosis, treatment, advice (including warning of any risks of something going wrong however skillfully the treatment advised is carried out).”[20] (emphasis added).

While the aspect of diagnosis and treatment have remained somewhat untouched, the aspect of advice (or as now commonly called the doctrine of informed consent) has loomed large in the medico-legal fraternity. It is buttressed upon individual autonomy and is a certain breakaway from the principle of medical paternalism. The doctrine of informed consent protects the patient’s right to determine his or her destiny in medical matters; it guards against overreaching on the part of the physician; it protects his physical and psychic integrity and thus his privacy ; and it compensates him both for affronts to dignity and for the untoward consequences of medical care.[21]

a). The impending challenge in UK.

In the United Kingdom, the birth place of the Bolam test, the principle of medical paternalism seems to have a stronger hold as regards the principle of patient autonomy. In Hills v Potter [22], the plaintiff was paralysed following an operation to correct a neck deformity and asserted that the defendant had never told her that she might be worse off following the operation. All three neurosurgeons testifying as expert witnesses stated that they would have acted similar to the defendant i.e the risk of possible paralysis would not have been given to the patient. The court in making the decision rejected the North American doctrine of informed consent by which it meant using the prudent patient test formulated by Canterbury. Hills J., claimed that :

“formidable problems and potential liabilities (would) confront medical men.”

In Sidaway v Board of Governors of the Bethlem Hospital and the Maudsley Hospital, it was held that it was a matter for the doctor’s clinical judgment which risks should be disclosed to enable the patient to make a rational decision. Thus, the Plaintiff’s argument that the defendant had been negligent in not telling her of the risk of damage to the spinal cord, failed. On the issue of whether the doctrine of informed consent based on the “prudent patient” test formulated in Canterbury has any place within English law; there was a split of 4:1 in the House of Lord. Lord Diplock, Lord Bridge, Lord Keith and Lord Templeman rejected the Canterbury principle of informed consent. However, Lord Scarman dissented and did not rule out the Canterbury proposition. According to him “ the doctor’s duty arise from the patient’s rights ” and therefore the doctor has to inform to the patient of all inherent material risks.[23] Nevertheless, it would seem that the House of Lord’s decision was prompted by policy considerations, specifically the fear of escalating practice of defensive medicine. As to whether, it would relent to the global incursion into the Bolam principle is yet to be seen. Lord Scarman’s dicta that “ the doctor’s duty arise from the patient’s rights ” should not be cast aside lightly. In the present era where medical cost is escalating and there is a proliferation of health insurance companies ,the judgment in Sidaway may see a reversal after all. Juxtaposed against this is the growing enchantment towards individual autonomy and the right to choose propagated by Human Rights groups and enshrined in the constitutions of several countries.

The situation becomes more pressing for the doctor to inform the patient of all risks either material or otherwise because in the private hospitals hefty bills are paid by the patient and they expect value for money. After having received large amounts of money from the patient can it be said that the disclosure of material risks is subject to the doctor’s clinical judgment decision ? Can such doctors survive in the face of competition where the rival doctors are less stringent on the aspect of disclosure of material risks ? It is a well known fact that patients prefer doctors who are friendly, frank and competent. Added on to this, the patients these days are well informed of the risks themselves with the availability of information from the internet. Considering all these development it is not wrong to say that Lord Scarman’s dicta has some truth in it. The dicta is bound to have effect in the years ahead.

b). The challenges to the Bolam test in the USA and Australia

In the USA, the case of Canterbury v Spence echoed the dissatisfaction over medical paternalism as regards informed consent . In this case the Plaintiff suffered paralysis as a result of undergoing a laminectomy. He claimed that the doctor was negligent in failing to warn him of the risk of paralysis. Robinson J said that “respect for the patient’s right of self determination on a particular therapy demands a standard set by law for a physician rather than one which physicians may or may not impose upon themselves.” This came to be named as the “prudent patient” test. This approach was certainly a breakaway from the earlier cases of Salgo v Leland Stanford Jr University Board of Trustees and Natanson v Kline both of which held that the patient should receive information about the proposed treatment, the kind of information to be imparted would rest in the hands of the doctors involved i.e what is “material” would be matter for medical judgment.

However, it should be noted that judgments by the Supreme Courts of California and Rhode Island followed the “prudent patient” test as in Canterbury. However, the majority of the jurisdictions in the USA were content with the pre-Canterbury approach namely that is informed consent regulated by medical experts.[24] Thus, in other words, as far as the USA is concerned the essence of the Bolam test still is pervasive and medical paternalism is still much respected.

In Australia, the supreme Court in F v R [25], firmly rejected the standard of disclosure based on medical judgment. The Plaintiff in this case was not informed of a 1% chance of getting pregnant despite having a tubal ligation i.e of the operation becoming reversible. She subsequently became pregnant and sued the Defendant. The Supreme Court found the Defendant not guilty but noted that the opinions of medical witnesses on the standard of disclosure are not decisive. It was concluded that medical judgment may be relevant but not conclusive in determining the adequacy of disclosure. That is a question for the court and the duty of deciding it cannot be delegated to any professional group in the community.[26] After the F v R the Australian court was given the golden opportunity in the leading case of Rogers v Whitaker [27]to resolve the conflict between the “prudent patient” test recognized in Canterbury v Spence and the “doctor knows best” test in Sidaway v Governors of Bethlem Hospital.. In this case, the Defendant was held negligent and that he had failed in his duty of omitting to tell the Plaintiff of the risk of contracting sympathetic opthalmia following an eye operation ( though experts gave opinion that generally this occurred once in approximately 14000 such procedures). The court highlighted the following reasons namely that the Plaintiff had questioned him about possible complications involved in the procedure. Secondly, she had expressed a great deal of concern about protecting her left eye, even though she had not specifically asked about whether the operation on her right eye could lead to her developing a debilitating inflammation of her left eye and finally, the materialization of the risk had disastrous consequences for her.[28]

Thus, the emphasis here is that patients are entitled to make their own decisions about medical procedures and be given information to make an informed choice. Furthermore, the determination of liability with regards to the non-disclosure of risks or proposed medical treatment is a matter of law and not medical judgment. Another drastic blow to the Bolam test in Australia is the High Court case of Naxakis v Western General Hospital [29]. The decision in Naxakis has confirmed a total rejection of the application of Bolam principle to the doctor’s duty to advice, diagnose and treatment in Australia. The main thrust of the case concerns a schoolboy who was struck twice on the head by a fellow schoolmate. The case was against the hospital and doctor concerned whom the court found should have considered an angiogram which they did not do. Thus the negligence was imputed by the Australian. It was held that 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 reasonable or were not reasonable.” Further , his Honour Gaudron J said “ questions as the reasonableness of particular precautionary measures are…matters of common sense.”


c). The uncertainties as regards the Bolam Test in Malaysia.

As far as Malaysia is concerned, several uncertainties are revolving around the Bolam test and the general sentiment propounded by the Court of Appeal in Foo Fio Na & Anor v Dr Soo Fook Mun is that the present threshold for the Plaintiff to cross in an action for medical negligence is fairly high and lowering this threshold would encourage doctors to practice defensive medicine. Thus, impliedly the principle will still be used in determining liability of the doctor whether with regards to duty to disclose risks, diagnose and treatment.

According to Gopal Sri Ram JCA in Foo Fio Na & Anor v Dr Soo Fook Mun :

“….There may perhaps come a time when we will be compelled to lower the intervention threshold if there is a continuing slide in medical standards. But the day has not yet come.”

With much respect to His Lordship, his contention that we have to wait for the day to come before casting aside the paternalistic principle in Bolam is very disheartening. In fact, when compared to medical standards of doctors in UK, Australia and the USA we are certainly already far behind . Must we wait until the state of affairs deteriorate further and many innocent Plaintiffs are denied justice per se ? For example, as far as informed consent is concerned, the main problem in Malaysian hospitals is that their consent has rarely been “informed” in nature. The patients are merely asked to sign consent forms before any operation but in reality, they do not understand what they are signing. They are rarely informed about the risks inherent in any proposed treatment.[30] This was considered in the case of Tan Ah Kau v. Government of Malaysia [31], where the main issue before the court was whether at the time when the plaintiff signed the consent forms, he understood the nature and consequences of the consent. The court held that no consent was actually given by the plaintiff, as the content of such consent had not been fully and comprehensively explained to the plaintiff.

It is submitted that there is an additional aspect to the doctor-patient communication that has been overlooked. In the present context with an influx of foreign doctors sitting out there in government hospitals and the growing number of patients the following pointers ought not to be disregarded:

(a). Are the foreign doctors e.g the ones from Myanmar competent in putting across the inherent risks to the patients who may come from a varied range of backgrounds with different level of competency in languages ?

(b). Are the doctors capable of putting across to the laymen in the most ordinary language of the inherent risks ?

(c). Juxtaposed against the increasing number of patients do the doctors have the time to leisurely explain to the patients of the potential risks ?

(d). Is the advice given direct from the doctors who are going to perform the operation or does in come from the mouth of an intern ?

With these plethora of problems lurking in the hospital front, it is submitted that the “wait and see” attitude propounded by the Court of Appeal is far-fetched. Hence, the Bolam principle is losing its absolute relevance.
In Malaysia, the Bolam principle has nevertheless been applied extensively by the courts in medical negligent cases when determining the standard of care. Such cases include:
(1) Swamy v. Matthews [32][
(2) Chin Keow v. Government of Malaysia and Another [33]
(3) Elizabeth Choo v. Government of Malaysia [34]
(4) Kow Nam Seng v. Nagamah & Ors [35]
Following the decision of the Rogers' case in 1992, conflicting judgments have been delivered in our courts over the preference and application of the Rogers v. Whitaker test to the Bolam test.
In Liew Sin Kiong v. Dr Sharon DM Paulraj [36] the plaintiff sued the defendant for aggravated or punitive damages for negligence pertaining to the operation of his right eye which was lost to post-operative infection. The plaintiff also alleged that a Seton procedure, which the plaintiff's 1st doctor had recommended should have been carried out, and not a repeat trabeculectomy which the defendant had performed. His Lordship Ian Chin J followed Sidaway and found that the plaintiff had failed to prove that the defendant had not acted in accordance with the standards of a competent ophthalmologist.
However, in Tan Ah Kau v. The Government of Malaysia [1997][37] . Rogers v. Whitaker principle was applied. In this case, the servant and/or agent of the defendant carried out a surgical operation on the plaintiff who had a history of an injury to his back caused by a piece of wood. The provisional diagnosis was that of a prolapsed disc. An orthopedic surgeon examined the plaintiff and made a provisional diagnosis of intra spinal tumor at the level of the thoracic vertebra D11 and D12. After numerous tests the cause of the tumor was ascertained as low grade astrocytoma. He was completely paralysed waist down. The plaintiff sought damages from the defendant for the alleged negligence and/or breach of professional duties.
In applying the Rogers v. Whitaker test, Low Hop Bing, J (as he then was) arrived at the following conclusion of his judgment:
““In the instant case, where the risk of paralysis was very real, more so than the tumor was intramedullary, it was absolutely essential for the attending surgeon such as DW1 or any doctor assisting him to warn the patient of the foreseeable risk of even a finding of intramedullary.” (emphasis added).
The uncertainty of the application of the Bolam principle in Malaysia was “somewhat” put to rest with the Federal Court decision in Foo Fio Na V. Dr. Soo Fook Mun & Anor. [38]
The question of law that was posed to this appeal was couched in the following words.
“ Whether the "Bolam Test" as enunciated in Bolam v. Friern Hospital Management Committee the area of medical negligence should apply in relation to all aspects of medical negligence.”
The judgment by Her Lady Siti Norma Yaakob FCJ reads as follows :
“Therefore there is a need for members of the medical profession to stand up to the wrong doings, if any, as is the case of professionals in other professions. In so doing people involved in medical negligence cases would be able to obtain better professional advice and that the courts would be appraised with evidence that would assist them in their deliberations. On this basis we are of the view that the Rogers v. Whitaker test would be a 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 ". (emphasis added).
On that finding , the Federal Court answered the question posed to them in the negative and ordered that the appeal be allowed with costs there, in the Court of Appeal and in the High Court to be borne by the respondents and the orders of the High Court on quantum are to be restored.
Construing this decision literally against the question posed before the apex court and the glorification of Roger v Whittaker as the viable test of the millennium it could mean that the Bolam test should not apply in relation to all aspects of medical negligence i.e the advice, diagnosis and treatment stages. Thus, paternalism of doctors goes out of the proverbial window .

Yet in the same breath while glorifying Roger v Whittaker, the Federal Court decision adds thus the phrase " ‘Doctor knows best’ should now be followed by the qualifying words ‘if he acts reasonably and logically and gets his facts right’ . This has certainly created the furore in the legal fraternity. It has been taken to mean thus by many i.e the doctors’ decision is still paramount but it is subject to intervention by the courts if he does not reflect the required reasonability and logic.
While deliberating the case, the Federal Court found it incumbent to consider a weakness in the Bolam principle namely :
“…….that there is a distinction between the test of negligence based on the reasonable competent man and that of the ordinary skilled man. The former makes it clear that negligence is concerned with the departures from what ought to have been done in the circumstances which is measured by reference to a hypothetical 'reasonable doctor' and the latter places considerable emphasis on the standards which are in fact adopted by the profession. He emphasizes that the point is for the court to determine what the reasonable doctor would have done, not the profession. What the profession does in a 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 court should set the standard of care in negligence, drawing upon the evidence presented. The Bolam test fails to make this important distinction between the reasonable competent doctor and the ordinary skilled doctor.”

The above deliberation of the Bolam test and that it has failed to vividly dissect the approaches pertaining to “ordinary skilled man” and “reasonable competent man” reinforces the contention that “the doctors’ decision is still paramount but it is subject to intervention by the courts if he does not reflect the required reasonability and logic.”

Going by this interpretation, it is also not incorrect to say that the Federal Court has created a new hybrid test i.e a test that supports “medical paternalism” (or the Bolam’s test) on the one hand and court’s conditional intervention on the other. It could be the reason why the Federal Court has not followed Naxakis v Western General Hospital[39] (which absolutely casts aside the Bolam test for all aspects of Medical Negligence).

5. Conclussion

The Federal Court decision is most welcome as it has “somewhat” cleared the air of uncertainty. Major questions still need to be deliberated upon such as :

a). Is the decision suggestive of discarding the Bolam test totally ?
b). If so which aspect of medical negligence-advice, diagnosis or treatment ?
c). Is a new hybrid test created, that embodies the Bolam test but at the same time permitting court’s intervention.?

Whatever the true intention of the Federal Court is, the mist shall clear itself when new cases on medical negligence are being tested in the court’s arena and judges deliberate their decisions. It shall be interesting to note how the bench is going to apply the Federal Court’s decision.
What is undeniable is the challenge to the Bolam test is not spurious but a reality. Its very fabric is shaken and its pro-paternalistic slant is vehemently questioned. The medical profession, on the other hand, with the growing number of negligence cases, is losing its glory and lustre. Alongside this, its opinions are no more sacrosanct but subject to questions and analysis. As for the legal counsel, his uphill task is made more arduous with greater uncertainty spelt out by decisions that do not smack of precision and certainty.


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UNIVERSITI KEBANGSAAN MALAYSIA
FAKULTI UNDANG-UNDANG
UNDANG-UNDANG PERUBATAN
( UK 6194 )

THE CHALLENGES TO THE BOLAM TEST AND THE
PRACTICING COUNSEL

M.MADAWANA @ MADAWAN A/L APPUKUTTIN NAIR
SEMESTER 2 2008/2009 SESSION
(P 43948)

LECTURER : PROF.MADYA DR.ANISAH CHE NGAH

BIBLIOGRAPHY

1. Lecture Notes of Prof Dr Anisah Che Ngah
2. Medical Negligence Law in Malaysia - Dr.Puteri Nemie Jahn Kassim
3. Jackson & Powell on Professionl Negligence, 4th ed., Sweet & Maxwell London,1997
4. Medical Negligence Litigation : Time for Reform – PS Ranjan (Issues in Medical Law and Ethics).
5. Medical Negligence Claims:Evidence, Procedure,Trials & Assessment of Damages (in Medical Negligence Law in Malaysia –Dr.Puteri Nemie Jahn Kassim pg 54 )
6. F v R (1983) 33 SASR 189
7. Roe v Minister of Health & Anor (1954) 2 QB 66
8. Dr.Wong Wai Ping & Anor v Wong Lin Sing & Ors (1999) 6 CLJ 23
9. Hucks v Cole (1993) 4 Med LR 393
10. Naxakis v Western General Hospital (1999) 73 ALJR 782
11. Contemporary Issues in Law, Medicine and Ethics - Edited by Sheila A.M McLean
12, Law and Medical Ethics (Fifth Edition) – Mason & McCall Smith
13. Medical Law : Test with Materials (Second Edition) – Ian Keneddy and Andrew Grubb.
14. Foo Fio Na V. Dr. Soo Fook Mun & Anor [2007] 1 CLJ 229
15. Tan Ah Kau v. The Government of Malaysia [1997] [1] 2 CLJ Supp 168
16. Liew Sin Kiong v. Dr Sharon DM Paulraj

[1] Lecture notes of Prof.Madya Dr. Anisah Che Ngah
[2] Medical Negligence Litigation : Time for Reform – PS Ranjan (Issues in Medical Law and Ethics)
[3] Medical Negligence Law in Malaysia –Dr.Puteri Nemie Jahn Kassim pg 31
[4] Jackson & Powell on Professionl Negligence, 4th ed., Sweet & Maxwell London,1997.
[5] Medical Negligence Law in Malaysia –Dr.Puteri Nemie Jahn Kassim pg 34- 36
[6] (1954) 2 QB 66
[7] Medical Negligence Law in Malaysia –Dr.Puteri Nemie Jahn Kassim pg 35
[8] (1983) 1 All ER 416
[9] (1999) 6 CLJ 23
[10] (1995) 6 Med LR 108
[11] Medical Negligence Claims:Evidence, Procedure,Trials & Assessment of Damages (in Medical Negligence Law in Malaysia –Dr.Puteri Nemie Jahn Kassim pg 54 )
[12] (1993) 4 Med LR 393
[13] (1994) 5 Med LR 437
[14] (1996) 7 Med LR 1
[15] Medical Negligence Law in Malaysia –Dr.Puteri Nemie Jahn Kassim, pg 41
[16] (1997) 4 All ER 771
[17] Ibid at pg 778
[18] Medical Negligence Law in Malaysia –Dr.Puteri Nemie Jahn Kassim, pg 41
[19] Medical Negligence Law in Malaysia - Dr.Puteri Nemie Jahn Kassim, pg 46
[20] (1985) 1 All ER 643
[21] Medical Negligence Law in Malaysia - Dr.Puteri Nemie Jahn Kassim pg. 2
[22]
[23] Medical Negligence Law in Malaysia - Dr.Puteri Nemie Jahn Kassim pg 7
[24] The Doctrine of Informed Consent in the United States, England,Australia and Malaysia : A comaparitive Analysis – Puteri Nemie Jahn Kassim and Mohamad Akram Shair Mohammad (in
Medical Negligence Law in Malaysia - Dr.Puteri Nemie Jahn Kassim).
[25] (1983) 33 SASR 189
[26] Medical Negligence Law in Malaysia - Dr.Puteri Nemie Jahn Kassim pg 8
[27] (1992) 175 CLR 479
[28] Issues in Medical Law and ethics (Puteri Nemie Jahn Kassim and Abu Haniffa Mohamed Abdullah)
[29] Medical Negligence Law in Malaysia - Dr.Puteri Nemie Jahn Kassim pg 69
[30] Issues in Medical Law and ethics (Puteri Nemie Jahn Kassim and Abu Haniffa Mohamed Abdullah p13
[31]
[32] (1966] 1 LNS 18
[33] [1967] 1 LNS 25
[34] [1960] 1 LNS 24
[35] (1981] 1 LNS 147
[36] [1996] 2 CLJ 995
[37] 2 CLJ Supp 168
[38] [2007] 1 CLJ 229
[39] (1999) 73 ALJR 782