Introduction
In Zulhasnimar Hasan Basri v Dr Kuppu Velumani P, the Federal Court examined the following question of law:
“Whether the Bolam test or the test in the Australian case of Rogers v Whitaker [1993] 4 Med LR 79 in regard to the standard of care in medical negligence should apply, following conflicting decisions of the Court of Appeal in Malaysia and legislative changes in Australia, including the re-introduction there of a modified Bolam test?”
The Federal Court’s decision provides a clearer legal position with regard to the distinction between diagnosis and treatment on the one hand and the duty to advise of risks on the other hand.
Facts
The first appellant was pregnant and had chosen the first respondent as her obstetrician and gynaecologist. At 36 weeks of pregnancy, she went to the hospital complaining of abdominal pain. She was attended to by a staff nurse and admitted into the hospital after various checks. Some medications were given as ordered by the first respondent.
The first appellant subsequently collapsed due to severe bleeding. An emergency caesarean section was conducted by the first respondent, and the second appellant was delivered alive. A hysterectomy was performed on discovering that the first appellant had a ruptured blood vessel at the placenta. During the procedure, the respondents found that the blood vessels at the fundus of the uterus had ruptured, causing acute bleeding and collapse. The collapse resulted in a significant loss of oxygen to the second appellant, causing severe birth asphyxia and cerebral injury.
High court decision
Based on all evidence, the first appellant was not conclusively in labour, as there were no regular uterine contractions nor cervical dilation. The appellants’ claim that a caesarean section should have been performed earlier was hindsight wisdom and baseless.
There was sufficient evidence that the first appellant suffered from placenta percreta, a rare abnormal presentation of the uterus, undetectable without surgery. The first respondent could not have foreseen this.
The high court dismissed the appellants’ claims, holding that they failed to prove, on a balance of probabilities, that the respondents breached their duty and standard of care.
Court of Appeal decision
The Court of Appeal, by unanimous decision, affirmed the high court’s judgment.
Federal Court decision
The Federal Court addressed the leave question and examined the development of the Bolam test in Malaysia, as set out in Bolam v Friern Management Committee.
Development of Bolam test
The Bolam test became the applicable law for medical negligence following Chin Keow v Government of the Federation of Malaya. It means that while the law imposes a duty of care, the standard of care owed by a doctor is determined by the medical fraternity (i.e., the practice accepted as proper by a responsible body of medical professionals skilled in that particular art).
However, in Foo Fio Na v Dr Soo Fook Mun, the Federal Court adopted the test in Rogers v Whitaker (Australia), distinguishing between treatment/diagnosis and the duty to advise on risks. A doctor must warn patients of material risks inherent in treatment to allow informed decisions.
Present case
To resolve uncertainty, the Federal Court made these observations:
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Rogers v Whitaker concerns the duty to advise; Foo Fio Na must be limited to this duty.
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For standard of care in diagnosis and treatment, a distinction must be made, as medical experts may genuinely differ in opinion. Here, the Bolam test applies.
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The duty to advise concerns the patient’s right to self-determination; the courts decide whether a patient was properly informed.
Thus, Rogers applies to the duty to advise on risks, while Bolam applies to diagnosis and treatment standards.
This decision resolves the long-standing question in Malaysian courts regarding the appropriate test in medical negligence cases, ensuring consistent future rulings.
Comment
The decision offers a meticulous and thoughtful insight into medical negligence law by explaining the reasoning behind court precedents. Lawyers can now advise clients clearly, giving potential litigants a better understanding of their legal position before initiating a claim.
Author
Gan Khong Aik
Partner, Gan Partnership
E: khongaik@ganlaw.my
Endnotes
- [2017] 8 CLJ 605
- [1957] 2 All ER 118
- [1967] 2 MLJ 45
- [2007] 1 MLJ 593
