CIVIL LAW CONFERENCE 2022

1.7.2022 & 2.7.2022

SESSION 11 : MEDICAL NEGLIGENCE Standard of Care

YA Datuk Vazeer Alam Bin Mydin Meera
Judge of the Court of Appeal ❖ Conscientious assessment of the history, symptoms and
signs of a patient’s condition
Law & Medicine ❖ Sufficiently through professional attention, examination
and where necessary, diagnostic investigation
❖ Law and medicine are intertwined ❖ Competent and considerate professional advice and
❖ Who, where and how of modern medical practice is management
regulated by statute i.e Medical Act 1971, Medical Device ❖ Appropriate and prompt action upon evidence suggesting
Act 2012 the existence of conditions requiring urgent medical
❖ Licensing intervention
❖ Ethics and discipline ❖ Readiness, where the circumstances to warrant, to
❖ Practice Regulations consult appropriate professional colleagues
❖ Common law principles – case authorities

Breach of Duty
Medico-Legal Consequences
❖ Did the action or omission of the professional or anyone
❖ Disciplinary – Professional Misconduct dealt with by the involved in the treatment fall below a reasonable standard
regulating body MC of care?
❖ Criminal – charged for criminal offences punishable by ❖ Court to determine based on Objective Test
fine and/or imprisonment
❖ Civil liability – negligence claim for monetary
compensation The Bolam Test
Bolam v Fiern Hospital Management Committee
[1957]
Civil Liability in Negligence
❖ A medical professional isn’t negligence is he/she acts in
❖ 3-stage test accordance with a practice accepted at the time as proper
a. Is there duty of care? by a responsible body of medical opinion
b. Was there a breach? ❖ Relying on medical expert to give evidence
c. Did that breach cause damage? ❖ Applied in Malaysia – Elizabeth Choo v Government of
Malaysia [1960]
❖ The essence the principle did not permit the Court to find
Duty of care the doctor negligent in preference to one body of
distinguished professional opinion to another
❖ Arises out of relationship between doctor-patient
❖ Duty of care owes involve using of diligence, care,
knowledge in administering the treatment The Bolitho Test
❖ No contractual relation is necessary Bolitho v City and Hackney Health Authority [1197]
❖ Code of Professional Conduct
S. 11 – responsibility for standards of medical care to ❖ The responsible body of medical opinion must withstand
patients (“good standard of medical care”) logical analysis
❖ Instead of replacing the Bolam Test, Bolitho modified the
Bolam Test
❖ If the body of medical opinion does not withstand logical
analysis, the court may hold that such opinion is not
responsible and may then depart from it

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 CIVIL LAW CONFERENCE 2022
1.7.2022 & 2.7.2022
❖ No breach of care if treatment is supported by
responsible body of medical opinion, that withstands
logical analysis
❖ Thus, the standard is one of medical opinion rather than
legal opinion
The case of Foo Fio Na
Foo Fio Na v Dr Soo Fook Mun & Anor [2007]
❖ Departed from Bolam/Bolitho and followed Australian
High Court decision is Rogers v Whitaker [1992]
Rogers v Whitaker [1992]
❖ Whitaker almost blinder consulted Rogers
❖ Rogers advised operation would not only improve its
appearance but restore significant
❖ Whitaker agreed to undergo surgery but developed
inflammation and led to loss of sign
❖ HC took the view that standard of care and factors to
determine whether there was a breach of duty according
to whether it involves diagnosis/treatment OR
provision of information/advise
❖ “All medical treatment is preceded by patient’s choice to
undergo it. In legal terms, the patient’s consent to the
treatment may be valid once he or she is informed in
broad terms of the nature of the procedure which is
intended”
❖ IOW, if it is diagnosis/treatment, the standard shall be
followed. If it’s advice/provision of information, it depends
on the patient’s choice
❖ Should that advice encompass broader thing which could
have then assisted patient to make decision on his own,
then Bolam Test does not apply
Zulhasnimar Hasan Basri [2017]
❖ The Test in Rogers v Whitaker in regards to the standard
of care in medical negligence is restricted only to the duty
to advise the risks associate with any proposed treatment
and does not extend to diagnosis or treatment
❖ With regards to the standard of care for diagnosis, the
Bolam test still applied but subject to the qualifications of
the Bolitho
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The Causal Link
❖ Pf would have to prove that breach of duty causes the
damage for which the claim is filed
❖ necessary element to be proved i.e if not for the breach,
the damage would not have been caused
Vicarious Liability
❖ Hospital will be held vicariously liable for the negligence
of all staff, nurses and doctors alike, employed under a
contract of service as part of the permanent staff of the
hospital
❖ Arises from the relationship between an employer and an
employee, does not depend upon any personal fault of
the employer
❖ Case of Gun Suk Chyn [2014]
Liability is placed on the employer because of the
employee’s breach of duty owed by the employee to the
Pf claimant
Non-Delegable Duty
❖ Employers of independent contractors are strictly liable
for the contractors’ negligence
❖ where a hospital is held to owe a non-delegable duty to
its patient to ensure that reasonable care is taken in his
treatment, the hospital may be held liable to the patient if
the duty is breached regardless which the performance is
delegated.
❖ Case of Kok Choong Seng [2017]
Imposes personal liability on the defendant for the breach
of his own duty towards the Plaintiff based on the
relationship between Defendant and the Plaintiff,
regardless of whom the Defendant has engaged to
perform the task
Compensatory Damages
❖ the degree of harm suffered by the Plaintiff – special and
general damages
a. Medical expenses
b. pain and suffering
c. Loss and amenities of life
d. Loss of earnings
 CIVIL LAW CONFERENCE 2022
1.7.2022 & 2.7.2022

e. Cost of care

Aggravated Damages

❖ Defendant’s conduct in delaying the disclosures of copies

of medical records until the limitation period had expired
❖ Attempt to conceal the truth, prolonged litigation and
delayed admission of liability

Q&A

❖ Is there any way that we can overcome the difficulties

in getting expert witnesses to give evidence?
Let’s say only the Pf brings an expert and support the Pf’s
case, if you’re unable to break that testimony during
cross-examination, that evidence will stand. If the wrong
is so clear then no need to bring one.

❖ In so far as loss of earning, would it ever be awarded

to children who have suffered injury? Presumably
they will grow to be adults and had it not been for the
injury would have had earning capacity
The law is clear is that when you claim for loss of earning,
there must be earning

❖ Complications arise 1 decade after, is it difficult to

cite medical negligence?
Happened before, hence refer to the principles of those
decided cases

❖ The current limitation period for death claim is 3

years despite cause(s) of death may be known later?
I state as such because such limitation has been
extended in other countries i.e UK. What’s the
judiciary’s view?
Read YA’s decision in Kop Chai Sok So Ti Kun
(referring Boonsom Boonyanit case). Sympathetic but
Judge is bound by the time limit

❖ Can there be medical negligence in alternative

medicine?
Yes