Introduction
Medical law is a fascinating area that brings together two respected fields: law and medicine. Medicine is a science-based practice, built on research and clinical trials. In contrast, law is more about setting rules and often involves philosophical thinking. The existence of medical jurisprudence is never for the court of law to venture into the realm of medicine or scientific principle, yet it is an attempt to oversee the ‘practice’ of medicine. We are all humans, we make mistakes. Among others, the laws revolving around medical negligence have been constantly changing in the past few decades. This article aims to seek clarity in such complexity by having a comprehensive and concise review on the current law of medical negligence.
Negligence = Medical Negligence?
Yes, similar to the law of negligence, the High Court of Australia in Tabet (by her tutor Ghassan Sheiban) v Gett [2010] 3 LRC 287 reaffirmed the well established elements of a cause of action in medical negligence are (i) a duty owed by the medical practitioner to the plaintiff, (ii) a breach of that duty and (iii) that breach causes (iv) damage to the plaintiff. The law regarding the third and fourth elements above is relatively settled and non-contentious. Therefore, I do not propose to go into further detail on these (Third & Fourth) elements.
(EXPANDED) Duty of care
Just like ordinary negligence cause of action, proving duty of care is the starting point for medical negligence as well. However, the duty of care in medical negligence is no longer arguable, if not trite. Instead of adopting the Caparo 3 fold test (foreseeability, proximity and reasonableness) that was widely used in ordinary negligence cases, pursuant to R v Bateman (1925), a doctor is said to owe a duty of care to his patient who is under his care, and this duty arises once the relationship with his patient is established. This includes when the doctor undertakes the task of providing medical advice, diagnosis and/or treatment.
Notably, the UK Supreme Court recently in Paul and another v Royal Wolverhampton NHS Trust; Polmear and another v Royal Cornwall Hospitals NHS Trust; Purchase v Ahmed [2024] 2 All ER 681 recognised that there are circumstances in which the duty of care owed by a medical practitioner may extend beyond the health of their patient to include other people as doctors are considered to have a responsibility to protect public. For example, as in the Australian case of BT v Oei [1999] NSWSC 1082 where the Supreme Court recognised that there is a duty of care owed by the doctor to the sexual partner of his patient contracted HIV. The duty is to warn him of his HIV status and advise him that he had a statutory responsibility to warn prospective sexual partners of his condition.
Standard of care: Bolam test
What is the standard of care? This question is integral while determining whether a doctor has breached his duty of care. There used to be a single overarching test to establish whether a medical practitioner had breach his duty of care. This significant test was laid down in the case of Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 which was later on known as the “Bolam” test. The Bolam test underlines that a doctor is not liable for negligence if he acted in accordance with a practice accepted as proper by a responsible body of skilled medical men skilled in that particular art. To put it simply, medical evidence has the final say in determining the standard of care for a medical practitioner.
In this regard, the law has settled since then that a doctor will have a higher standard of care required (exercise reasonable care and skill expected of an ordinarily competent practitioner in their position) as compared to ordinary negligence cases where a reasonable man test is sufficient. The Bolam test received prompt approval from the higher court of law (Both UK and Malaysia) in subsequent medical negligence cases. [See Chin Keow v Government of Malaysia & Anor [1967] 2 MLJ 45, Whitehouse v Jordan (1981) 1 WLR 246]
‘The law has moved on’
The Bolam test remains the “trite” law in medical negligence cases for decades. However, in recent decades, many commonwealth jurisdictions (Australia, Malaysia and the UK) have carved out an exception, if not exceptions to the application of the Bolam test.
In 1997, the House of Lords revisited the Bolam test in Bolitho v city and hackney health authority respondents [1998] A.C. 232. The House of Lords, however, did not overrule the test, yet further ‘interpreted’ the law where the court held that the use of the adjectives – responsible, reasonable and respectable show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In other words, medical evidence is no longer conclusive and is subject to legal scrutiny; the adduced medical evidence must have a logical basis in order for the court and/or the parties to rely upon. This decision was later known as the “Bolitho Addendum”.
The Application of Bolitho Addendum in Malaysia
This Bolitho Addendum then became the current law in the UK. What about Malaysia? The Bolitho addendum was then adopted in the case of Chien Tham Kong v Excellent Strategy Sdn Bhd & Ors [2009] 7 MLJ 261. However, other than reiterating the law of Bolitho, the High Court also acknowledged that the long standing function of the court is always to acquire a just result, to apply common sense and a careful understanding of the logical and likelihood of events to conflicting opinions and conflicting theories. Such principle has been reiterated by the former Irish Chief Justice in Best v Wellcome Foundation Ltd [1994] 5 Med LR 81. This principle proves that the Bolitho Addendum is not out of nowhere, instead, it pulled back the law into the right track, making it aligned with the said long-standing principle.
Is the Bolam test then a bad law?
In principle, it is arguable to say that the Bolam test is a completely bad law. As earlier mentioned, medicine is undoubtedly a subject that is scientific in nature while the practice of law is broadly regulatory, if not philosophical in nature. Respectfully speaking, it will be absurd to have the court of law to venture into the realm of medicine particularly to determine whether the EXPERT evidence is ‘logical’.
However, there is clearly a reason(s) why the Bolam test has been criticised for decades. The reasons are, inter alia, as such: (i) court should not be bound to allow the medical practitioner to escape liability by merely adducing numbers of “expert (medical) evidence” even if it is illogical and unreasonable in nature [See Bolitho v City and Hackney Health Authority [1997] 4 AER 771] and (ii) the Bolam test is overly deferential to the medical profession, which is grounded in rule of law concerns about the proper role of the judiciary. Noteworthy yet unstated, the Australian court in Rogers v Whitaker [1992] 175 CLR 479 had already rejected the use of Bolam test in determining a medical practitioner’s duty to advise or warn a patient. The Australian apex court held that medical evidence is not conclusive but just a guidance for the courts, it is for the courts 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”. This principle was then adopted by the Federal Court in Foo Fio Na v Dr Soo Fook Mun [2007] 1 AMR 621.
The Evolving Yet Enduring Bolam Principle
The Australian High Court in Naxakis v Western General Hospital & Another [1999] 162 ALR 540 conclusively held that the Bolam rule, which allows that the standard of care owed by a doctor to his or her patient is a matter of medical judgement, was rejected by the High Court in Rogers v Whitaker. This Naxakis case was adopted also in Foo Fio Na. Does it mean that the Bolam principle will no longer be applicable in both Malaysia and Australia?
Notwithstanding the said criticism, further “enhancement” or even the binding common law (Foo Fio Na), Bolam test remains highly relevant in many medical negligence cases. For example, in cases revolving around alleged false diagnosis and/or treatment, the Federal Court in Dr Hari Krishnan & Anor v Megat Noor Ishak bin Megat Ibrahim & Anor and another appeal [2018] 3 MLJ 281, while determining the standard of care, confirmed the application of Bolam test but subject to the Bolith Addendum. In other words, if there are two conflicting pieces of medical evidence presented to the judge, the judge has the discretion to decide which evidence to be accepted. Indeed, such discretion must be done “logically” and reasonably”.
Conclusion
Over time, legal developments like the Bolitho Addendum have refined Bolam test’s application, allowing courts to assess the logic and reasonableness of medical opinions rather than accepting them unconditionally. Although Malaysia has modified its stance, Bolam continues to hold relevance in medical jurisprudence. This enduring principle reflects an evolving balance between medical expertise and judicial oversight, ensuring accountability within the medical profession.
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