Professional defendant

1. Swamy v Matthews & Anor: professional are bound to exercise the care and skill of ordinary
competent practitioners in that profession.

2. Bolam v Friern Hospital Management Committee: -D did not warn P of the risks involved in an
ECT;

-D did not give P any relaxant before the shocks were given to him; and

-D did not hold down P’s body whilst the treatment was being administered.

-H- D not liable as he had conformed to a standard of reasonable doctors.

-it requires a person doing a skillful act to exercise the skill of an ordinary competent human
being of the same calling/profession.

Error of clinical judgment is not necessarily indicative of negligence:

 Whitehouse v Jordan: Using forceps for too long and had applied too much pressure, with
the result that P suffered brain damage upon birth – not liable.
 Sidaway v Bethlem Royal Hospital Governors: Risk was small but materialized, was not
informed of the risk. Applying Bolam, defendants not liable as they reached the required
standard of care, even though plaintiff was not informed of the risks involved.
 Gold v Haringey Health Authority: Failure to warn on success of operation. D not liable as
many as 50% doctors would not have given such warning in the same circumstances.
Contrast
 Chin Keow v Government of Malaysia: An amah was given a penicillin injection at a clinic
and died about an hour later – doctor negligent – (expressly written on patient’s card that
she was allergic to penicillin).
 Kow Nan Seng v Nagamah & Ors: liable –all doctors were aware that if plaster was applied
blood circulation would be affected.
Other Malaysian cases citing Bolam
 Elizabeth Choo v Government of Malaysia & Anor: A professional will not be deemed to
be negligent if he has taken steps that would normally be taken by others who are in the
same position.
 Liew Sin Kiong v Dr Sharon DM Paulraj : A professional who takes a different view from
another professional in the same profession is not necessarily in breach of his duty of care
provided that his opinion is still in accordance with what is regarded as proper by a body
of similarly skilled professionals.
 Dr Soo Fok Mun v Foo Fio Na & Anor and another appeal: affirmed Bolam test is the
applicable principle in determining the standard of care of doctors – as to change this
might lead to defensive medicine.
3. Rogers v Whitaker: -The issue is not whether D’s conduct accorded with the practice of medical
profession but whether it conformed to the standard of reasonable care demanded by the law.
That was the question for the court, and the duty of deciding it could not be delegated to any
profession or group in the community.
 Marriot v West Midlands Health Authority:- the courts have the ultimate decision as to
whether an act is negligent or not. The judge could subject medical opinion to analysis to
see if it was reasonable, and was entitled to find that it was unreasonable.
 Kamalam a/p Raman & Ors v Eastern Plantation Agency (Johore) Sdn Bhd & Anor: The
standard of care of a skilled person cannot be determined solely by reference to the
practice supported by a responsible body of opinion in the relevant profession or trade.
The ultimate question is whether it conforms to the standard of reasonable care
demanded by the law, which is a question to be decided by the court and not delegated
to any profession or group in the community. The principle laid down in Rogers v Whitaker
[1992] 175 CLR 479 was followed.
 Tan Ah Kau v The Government of Malaysia: followed Rogers v Whitaker
 Bolitho v City and Hackney Health Authority: if it can be shown that the professional
opinion relied upon was not capable of withstanding logical analysis, the judge is entitled
to hold that the body of opinion was not reasonable or responsible.
 Hong Chuan Lay v Dr Eddie Soo Fook Mun: although the standard of care required in
matters pertaining to diagnosis and treatment was still subject to Bolam test, in respect
of provision of of advise and information, it is the court rather than medical opinion that
will determine the breach of duty. Medical opinions however are still required to assist
the court in its deliberations.
 Foo Fio Na v Dr Soo Fook Mun: The Federal Court held that the Bolam test has no
relevance to the duty and standard of care of a medical practitioner in providing advice
to a patient on the inherent and material risks of the proposed treatment.
o “a practitioner is duty bound by law to inform his patient who is capable of
understanding and appreciating such information of the risks involved in any
proposed treatment so as to enable the patient to make an election of whether
to proceed with the proposed treatment with knowledge of the risks involved or
decline to be subjected to such treatment”.
o The court is at liberty to reject medical expert evidence which does not stand up
to logical analysis. The court must scrutinise and evaluate the relevant evidence
in order to adjudicate the appropriate standard of care.
o Professional opinion serves as a guidance to courts as to what constitutes
acceptable professional practice, but its reasonableness may be questioned by
the courts.
o -That was the question for the court, and the duty of deciding it could not be
delegated to any profession or group in the community.
4. Latest position in Malaysia
 Dominic Puthucheary & Ors (personal representatives of the estate of Thayalan s/o
Kanapathipillai) v Dr. Goon Siew Fong & Anor: the Rogers v Whitaker Test was applied in
relation to the claim of a misdiagnosis and wrongful treatment. On the principle of stare
decisis the Court applied the Foo Fio Na Test and rejected the Bolam Test. The case did
not succeed as negligence cannot be proved.
 Dr. Ismail Abdullah v Poh Hui Lin: failure to advice on risk. Held that the decision of the
Federal Court in Foo Fio Na represents the law on this subject as applied today. Some very
important principles (as established in Rogers v Whitaker (followed in Foo Fio Na)) were
(i) only material risks of injury arising out of treatment or surgery needed to be disclosed
to a patient; (ii) the materiality or non-materiality of a risk often requires expert evidence;
and (iii) the therapeutic privilege allowed a surgeon to withhold disclosure of a material
risk in the best interests of a patient.
 Chien Tham Kong v Excellent Strategy Sdn Bhd & Ors: People involved in medical
negligence cases would be able to obtain better professional advice and the courts would
be appraised with evidence that would assist them in their deliberations. In the
circumstances, the Federal Court preferred the Rogers test to the Bolam test as a viable
test of this millennium.
 Hasan bin Datolah v Kerajaan Malaysia:
o The Court also agreed with Counsel for the respondent that Foo Fio Na had
without doubt rejected the Bolam Test in so far as it relates to the determination
of the standard of care to be observed by a medical practitioner in a medical
negligence suit. The right or responsibility to make such a determination now
rests with the court upon evaluation of the evidence before it, including the
opinion and practices of members of that profession.
o It will be noted that in this case the Court of Appeal applied the Rogers v Whitaker
Test not only to the provision of advice but in relation to the treatment as well.
The Bolam Test was wholly rejected for all aspects of medical negligence.
 Norizan v Dr Arthur Samuel: Defendant agreed to carry out the procedure but did not
inform of the risks inherent in performing both procedures at once. During the procedure,
def perforated her uterus. Plaintiff claimed that the defendant was negligent. Court
followed Rogers v Whitaker and held the defendants liable.