There are debate as to whether the ratio of Federal Court in Foo Fiona case meant

to be restricted to cases relating to negligent advice only and not to all aspects of medical
negligence. This question can only be answered by looking into the judgement of Foo Fio
Na case.

In Foo Fio Na v. Dr Soo Fook Mun & Assunta Hospital1, the court had made
reference to several cases that applied Rogers v Whitaker test which show rejection to the
notion that the court is bound automatically by evidence as to medical profession
practices. In fact, the court is now required to ensure that the standard set by law is
achieved through questioning and scrutinizing the professional practice.

Firstly, in F v R2, King CJ stated that 2 values must be considered in order to

determine the scope of the doctor's duty to disclose, namely the doctor’s duty to act based
on what he conceives to be the best interests of his patient and the right of the patient in
controlling his own life and to have the information necessary to control his own life. The
first value which is the scope of the doctor's duty of care is always question in court. A
doctor is required to act reasonably when disclosing information to patient. In the
judgement of King CJ, he agreed to the judgement of Bristow J. in the case of
Chatterton v Gerson. In that case, Bristow J. held that in a way a responsible and
careful doctor in similar circumstances would have done, it is the doctor’s duty to give
explanation to the patient on what he intends to do to the patient and the implications of
his act. In F v R case, it was held that that the duty of a doctor extends to the disclosure of
real risks caused by the misfortune inherent in the treatment of patient and also any real
risk where the treatment may be proved ineffective. The court also held that a disclosure
made by a responsible and careful doctor will be depending on the circumstances at that
time. For example, the nature of the treatment, the nature of the matter to be disclosed,
the patient’s desire for information, the patient’s character and health, and the general
surrounding circumstances.

1
[2007] 1 MLJ 593
2
[1983] 33 SASR 189
The main reason why the court is obliged to scrutinize and question the
professional practices is to make sure that the professions act in accorddance with
the standard of reasonableness imposed by the law. This is important because the
reality nowadays is that the professions such as doctor may adopt unreasonable
practices. The development of a practice in professions nowadays, particularly the
practice related to disclosure, is not developed for the aim to serve the client’s
interest, but for the aim to protect the convenience or interests of the members in
that profession.

Secondly, in Naxakis v Western General Hospital & Another3, the High

Court of Australia applied Rogers v Whitaker test to all three duty to diagnose,
treatment and disclose risks. In this case, Gaudron J gave a statement that: “the test
for medical negligence is not what other doctors say they would or would not have
done in the same or similar circumstances.” This statement supports the Rogers v
Whitaker test and reaffirmed the rejection of the Bolam Test because Bolam Test
allows the determination of the standard of care owed by a doctor to his or her
patient as a matter of medical judgment. Therefore, it means that a finding of
medical negligence may be made even though the doctor’s act is based on a proper
practice accepted at that time by a responsible body of medical opinion.

Thirdly, in Kamalam a/p Raman & Ors v Eastern Plantation Agency

(Johore) Sdn Bhd Ulu Tiram Estate, Ulu Tiram, Johore & Anor 4, it was the
first time where Malaysian court adopted the Rogers v Whitaker test. Richard
Talalla J in this case stated that even in a situation which a doctor has acted in
accordance with a practice accepted as proper by a responsible body of medical
men who are skilled in that particular art, that doctor will not be free from liability
for negligence merely because of the restriction established by the evidence of
medical expert. In the judgement, he held that this case was not bound by Bolam
test. It was also held that evidence of medical expert will still be a reference to the
court but not conclusive in nature to make decision in a case of medical negligence.

3
[1999] 162 ALR 540
4
[1996] 4 MLJ 674
The judicial function is the key to decide whether a doctor is liable for medical
negligence. However, in this case, the court did not make it clear whether Rogers v
Whitaker test applied to negligent advice only. Foo Fio Na case seems to refer to
this case because of its ratio in adopting Rogers test.

Fourthly, in Tan Ah Kau v The Government of Malaysia5, Rogers v Whitaker

test was once again applied in Malaysia. In this case, the court found that the risk of
paralysis was very real and the tumor was intramedullary. Therefore, the court held that it
was essentially necessary for the attending surgeon or any doctor assisting the attending
surgeon to give warning or disclose to the patient of the foreseeable risk including a
finding of intramedullary tumor. In this case, the Malaysian court had applied Rogers v
Whitaker test to medical advice only.

In Michael Jones' book on Medical Negligence 1996 edition, he had suggested

the difference between the test of negligence based on the reasonable competent man and
the test of negligence based on the ordinary skilled man6. The test of negligence based on
the reasonable competent man refers to negligence that occurs due to the failure to do an
act that is ought to be done in the circumstances where a hypothetical ‘reasonable doctor’
would have acted. As to the test of negligence based on the ordinary skilled man, it
emphasized on the standards adopted by a body of profession skilled in that particular
professional field. Michael Jones emphasizes that it is not a duty of a body of profession
but a duty of the court to determine what a reasonable doctor would have done. This is
because a properly acceptable practice that is adopted by a body of profession in a given
situation should not necessarily be determinative. However, that particular proper
practice adopted by the body of profession will still be an important reference to court
about what ought to have been done. The court should by itself set the standard of care in
negligence after referring to the evidence of medical expert which are presented to it.
Rogers v Whitaker test seems to have make a distinction between the reasonable
competent doctor and the ordinary skilled doctor, but the Bolam test had failed to do so.

5
[1997] 2 AMR 1382
6
Michael A. Jones. (1996). Medical Negligence. Sweet & Maxwell. Pg95
 In Foo Fio Na v. Dr Soo Fook Mun & Assunta Hospital, Siti Noma FCJ had
referred to cases which applied Rogers v Whitaker test. However, not all of the cases she
had referred to had make a clear stand in their judgement as to whether Rogers v
Whitaker test is applied to negligent advice only or to all aspects of medical negligence7.
However, in Foo Fio Na v. Dr Soo Fook Mun & Assunta Hospital, Siti Noma FCJ came
to a conclusion and held that: “we are of the opinion 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.” From that
judgement, the decision in Foo Fio Na seems to be limited only to the giving of advice a
doctor regarding the material and inherent risks in the proposed treatments while
the Bolam Test will still be applied in relation to treatment, diagnose and management of
a patient.

In Foo Fio Na case, the Federal Court judgement has certainly applied the Rogers
v Whitaker test in relation to the giving of advice to a patient. It is also obvious that in
this case, the court has not applied Rogers v Whitaker test to diagnosis and treatment
notwithstanding it making reference to the Naxakis case8.

7
Mah Weng Kwai. Meng Weng Kwai & Associates. Advices to Medical Negligence Claims by Malaysian
Courts. Retrieved 29 August 2017 from http://www.mahwengkwai.com/approach-to-medical-negligence-
claims-by-malaysian-courts/
8
Denis A Cusack. The Standard of Care in Medical Practice and Disclosure of Treatment Risk to Patients –
An International Perspective. Retrieved 29 August 2017 from http://mdm.org.my/downloads/cusack1.pdf
Pg12