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Foo Fio Na v Dr.

Soo Fook Mun & Anor [2007] 1 MLJ 593

The appellant was a front seat passenger in a car that crashed into a tree on the night
of the 11th of July 1982. The accident happened near Assunta Hospital where the
appellant was brought to and warded for several injuries. The most serious injury
suffered by the appellant was a closed dislocation of C4 and C5 vertebrae with
bilaterally locked facets. It caused the appellant to suffer pain to her neck each time
she moved her head. The doctor on duty, Dr. Celine Pereira gave her initial treatment
by placing a cervical collar around it. After several initial treatments failed to reduce
the dislocation of the cervical vertebrae, Dr. Soo Fook Mun, the first respondent
performed the first operation to place the dislocated vertebrae into their original
positions by inserting a loop of wire to stabilize the spinal cord after moving the
dislocated vertebrae into the normal positions. Nevertheless, the operation failed and
the appellant became paralysed. The first respondent called Dr. Mohandas, a
neurosurgeon who confirmed that the loop of wire had put pressure on the spinal cord
and is the cause of the paralysis. A second operation was performed by the first
respondent to remove the wire loop but the appellant continued to be paralyzed until
today. The appellant sued the respondents for medical negligence.

Issue: Whether the Bolam Test should apply in relation to all aspects of medical
negligence?

Judgment: The Bolam Test is not to be applied in cases of medical negligence but the
Rogers v Whitaker test is the more appropriate test.

• Under the Bolam Test, a doctor is not guilty of negligence if he is acting
according to the practice accepted by a responsible body of medical men
skilled in that medical act. So, firstly, the doctor must exercise reasonable care
in undertaking the task associated with his professional qualifications and
secondly, the doctor will not be liable if he has complied with a responsible
professional practice although there might be different opinions on how such
practice is to be done
• Under the Rogers v Whitaker test, the standard of care is not solely determined
by the practice of an ordinary skilled person exercising and professing to have
that special skills. In other words, the opinion of a responsible body of opinion
in the medical profession is not conclusive in determining the practice of a
particular doctor. As such, this test provides that the court has to adjudicate on
what is the appropriate standard of care after giving weight to the paramount
consideration that a person is entitled to make his own decisions about his life
• By applying the principle in Rogers v Whitakers, the court is not automatically
bound by evidence as to the practice of the medical profession but the court
can question the practitioner in order to scrutinize and ensure that the standard
set by law is followed

Conclusion:
With regards to expert opinion, the court will not solely based its decision on the
opinions of the particular body of profession but the court will take into account
whether the practice done had given consideration to the patient’s discretion to
make his own decision on such practice to be done on him. So, the fact that the
practice conformed to the practice of any one of the bodies of opinions will not be
the final determinant in determining whether an act of negligent has occurred.