TORT OF MEDICAL NEGLIGENCE
An overview over the last decade
A decade ago – Year 2007, was remarkably the most eventful year for the area of Medical Negligence in Malaysia.
That year, a remarkable milestone was achieved in the area of Medical Negligence in Malaysia where the Federal Court in the landmark decision in Foo Fio Na v Dr. Soo Fook Mun & Anor [2007] 1 MLJ 593 (“Foo Fio Na”) ruled that the Bolam Test in Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 is no longer a good law and further made two important rulings as follows:-
- The famous Bolam Test established in the case of Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 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. The practitioner is duty bound by law to inform his patient who is capable of understanding and appreciating such information of the risks involved in any proposed treatment so as to enable the patient to make an election of whether to proceed with the proposed settlement with knowledge of the risks involved or decline to be subjected to such treatment; and
- There is a need for members of the medical profession to stand up to the wrong doings, if any, as is the case of professionals in other professions. In so doing, people involved in medical negligence cases would be able to obtain better professional advice and that the courts would be appraised with evidence that would assist them in their deliberations. On this basis, the court ruled that the test in the case of Rogers v Whitaker [1992] 175 CLR 479 would be a more appropriate and viable test of this millennium than the Bolam Test.
Baby Yok Shan tragedy
In that very same year, about 7 months after the landmark case of Foo Fio Na, Malaysia dealt with possibly the most unforgettable incident of Medical Negligence – the heart-wrenching Baby Yok Shan tragedy. A glimpse of the newspapers headlines back then on the highly publicised Baby Yok Shan tragedy reminds Malaysia of this painful episode.
“Yok Shan to lose her arm”, The Star, 31st August 2007
“Baby’s blackened arm removed”, The Star, 2nd September 2007
“Baby to lose arm, hospital says sorry”, The Star, 9th August 2007
For many of us Malaysians who followed the news on Baby Yok Shan, we eventually became her fans. The media too, reported her progress in life throughout the entire decade and we could all breathe a big sigh of relief upon the headlines which followed after the episode.
“One-armed girl copes well in pre-kindie class”, The Star, 5th January 2011
“Milestone for girl who lost arm”, The Star, 2nd January 2014
“Baby who lost arm at birth now a spunky girl”, The Star, 10th September 2016
The unfortunate incident which happened to Baby Yok Shan still lingers in the memory of many Malaysians.
Yok Shan was born two months premature on 23.7.2007 and was kept in incubator. As her health weakened and condition deteriorated, it was decided that a strong antibiotics must be given to her and the said antibiotics could only be administered to Baby Yok Shan through intravenous injection.
Instructions for the said intravenous injection were given by a specialist doctor via telephone to a trainee doctor, and the trainee doctor then mistakenly inserted the needle into the muscles and tissues of her arm, instead of the blood vessels, resulting in severe infection on Baby Yok Shan’s arm. Despite the severity of the situation, it was reported that there was a six-day delay by the authorities, particularly the hospital, in taking urgent remedial action.
More than a month later, Yok Shan’s parents were informed that their daughter had to undergo an operation expected to last from two to four hours to amputate her infected left arm, but in actual fact, the “operation” was over in 10 minutes – the then blackened left arm just fell off when lifted and turned by the orthopaedic surgeon – and no amputation was even required.
A chain of question of culpability then arose – the unmistakable chain of irresponsibility and negligence involving the trainee doctor who made the negligent intravenous injection which costs Yok Shan her left arm, the specialist doctor who had given instructions over the phone instead of attending to the case personally, the delay by the authorities in taking urgent remedial action and the panel of specialists who were completely unaware of the condition of Baby Yok Shan, expecting a two-to-four hour amputation operation when it just fell off when lifted and turned.
Fast forward to ten years later, we are still hearing similar news across the media.
In June 2017, a brain damaged girl wins a RM2.78 million medical negligence suit and it is possibly the highest award granted to an individual for brain injury to date. The 9-year-old girl suffered brain damage during childbirth as a result of the failure of the doctors in advising her mother on her delivery options and the risks of undergoing vaginal delivery in view of her mother’s previous history of undergoing emergency lower segment Caesarean section. The little girl filed the suit through her parents. Her mother, however, was not able to claim for medical expenses as she was a government servant. A total of 21 doctors, eight medical staffs and the government were named as Defendants in the suit.
Despite several notable developments in the area of Medical Negligence over the last decade, the uncertainty in this area of law still leaves both the medical profession and defence counsel facing many difficulties.
Overcoming the obstacles[1]
The deficiencies of the tort system in handling medical negligence claims have been apparent for a number of years. Most of the criticisms are directed at whether the action of negligence is a suitable means to compensate the victims of medical injury. For a medical negligence claim to succeed, the patient has to overcome the substantive law as well as the procedural law inherent in the tort system. Often, both the substantive and procedural law tend to work against the interest of the patient. The inaccessibility of the litigation system and particular difficulties of proving medical negligence deter many potential litigants from pursuing their claim. This means that those cases that are pursued are unrepresentative of the number of medical mishaps that have occurred.
Litigation has never been a haven for either the doctor or the patient. Although at present, Malaysia is not experiencing the kind of “malpractice crisis”[2] as in the United States and possibly, in the United Kingdom, there is certainly a rise in the number of negligence claims and the size of awards[3]. These factors are sufficient to cause alarm for future implications and generate serious thoughts for reform of the present system. Rising number of medical negligence claims is not considered healthy for a country as it leads to a reduction in the amount of money available for patient care. A single large award can distort the amount government or private hospitals can use to enhance healthcare.
Perhaps we shall take a look and evaluate the development in the area of Medical Negligence in the last decade.
Development in the last decade
The decision of the apex court in Foo Fio Na in 2007 answered one very significant question, and the said question is quoted in verbatim as follows:-
“Whether the Bolam Test as enunciated in Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 in the area of medical negligence should apply in relation to all aspects of medical negligece”.
The Bolam Test is the touchstone of liability for medical negligence in England and therefore it is necessary for us to consider the facts briefly herein.
In the Bolam’s case, a consultant psychiatrist at the Friern Hospital advised the claimant, John Hector Bolam to undergo an electro-convulsive therapy for the type of depression from which he was suffering. The said psychiatrist however, did not warn Bolam of the risks involved in the treatment of such nature which usually involved convulsion of a fit.
Whilst the first treatment was smooth-sailing, something untoward happened during the second treatment, when a senior Registrar of the hospital administered the said treatment on Bolam. During this treatment, Bolam was not restrained in any way and no relaxant drug was given to him prior to that. Bolam flailed violently during the treatment as the voltage in the current with frequency of fifty cycles per second was administered onto him, resulting in serious injuries, including fractures, particularly at the acetabula, the concave surface of the pelvis.
Bolam then brought an action against the hospital, and contended primarily that relaxant drug should be given to him prior to the treatment and in failing to do so, Bolam claimed that the hospital was vicariously negligent. The administration of relaxant drug prior to the treatment, was said to be able to reduce the risks of injuries. It was also contended by Bolam that he should be restrained during the course of the treatment and that the doctor had failed to warn him of all the risks involved in such treatment.
Medical evidence which were tendered during the course of the trial showed that there was a divided opinion among the medical experts on the desirability of the administration of relaxant drugs and restraining the patient during such treatment. More notably, evidence was also tendered to point that the risk of fracture in such treatments is so remote that such chances are only 1 in 10,000 cases.
In the course of his summing up to the jury, the trial judge, McNair J, made the following remarks on the standard of proof in a medical negligence suit:
“But where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill.”
Later when analysing that standard of proof the learned judge made the following conclusive statement regarding a doctor’s duty of care:
“A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that medical act… Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such practice, merely because there is a body of opinion that takes a contrary view.”
In conclusion, the apex court in the Foo Fio Na case departed from the Bolam Test.
Cases which follow thereafter
- Dominic Puthucheary & Ors (personal representatives of the estate of Thayalan s/o Kanapathipillai v Goon Siew Fong & Anor [2007] 5 MLJ 552
The relevant facts are these. On 3 April 1984, at about 5.30am, a security guard found the deceased in a drain at the Lake Gardens. The deceased had a pain in his neck and his arms. He told the security guard about it. He was unable to climb out of the drain. He was unable to move his legs. The security guard, with the help of some of his friends carried the deceased out of the drain. They placed him on the ground near the drain. An ambulance was sent for. It arrived. It took the deceased to the Kuala Lumpur General Hospital. He arrived on a stretcher and was taken to the Casualty Department. A doctor examined him there. This was at about 6.45am. An intravenous drip was administered, the wound on the deceased’s head was bandaged and he was sent to have x-rays taken. There was considerable delay in the taking of the x-rays. By about 8.30am, the deceased’s pulse could not be felt. He was then taken to the neurology department where, despite efforts by the attending doctors, he died at about 10am, that is to say, less than three hours after he arrived at Casualty.
In this case, the Court of Appeal in dismissing the appeal held that the correct test is the test in Roger v Whitetaker. The test therein states this : except in the case of an emergency or where disclosure would prove damaging to the patient, a medical practitioner has a duty to warn the patient of a material risk inherent in the proposed treatment. A risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. The fact that a body of reputable medical practitioners would have given the same advice as the medical practitioner gave does not preclude a finding of negligence. Generally speaking, whether the patient has been given all the relevant information to choose between undergoing and not undergoing the proposed treatment is not a question the answer to which depends upon medical standards or practice.
- Hasan Datolah v Kerajaan Malaysia [2010] 5 CLJ 764
The Appellant was paraylsed after two surgical procedures (respectively a fenestration and a laminectomy) performed by the doctor. He sued the respondent alleging, inter alia, negligence on the part of the doctor in performing the procedures. The High Court dismissed the appellant’s action on, inter alia, the basis that he had failed to show the causative link between the resultant damage or injury and the act of the doctor; and that the doctor had exercised the requisite degree of skill and care as required of him by law. The court also found that the doctor had properly explained to the appellant the risks of the surgical procedures. The appellant appealed to the Court of Appeal and submitted therein: (i) the trial judge had misdirected herself in adopting the Bolam test in determining whether the doctor had breached his duty of care to the appellant; (ii) the trial judge erred in failing to find the doctor negligent in performing the ‘fenestration’ first rather than the ‘laminectomy’; and (iii) the appellant had not been properly informed of the risks associated with the procedures.
Upon appeal, the Court of Appeal, in dismissing the appeal states as follows:-
(i) The Federal Court decision of Foo Fio Na v Dr Soo Fook Mun & Anor [2007] 1 MLJ 593 had indeed rejected the Bolam test in favour of the test adopted in the Australian case of Rogers v Whitaker (1992) 175 CLR 479. The determination of the standard of care to be observed by a medical practitioner in a medical negligence suit rests with the court. The court may make such a determination upon evaluation of the evidence before it, including the opinion and practices of members of the medical profession (see paras 7 & 13); Dr Soo Fook Mun v Foo Fio Na & Anor and another appeal [2001] 2 MLJ 193 followed; Rogers v Whitaker (1992) 175 CLR 479 followed; Rosenberg v Percival (2001) 178 ALR 577 followed; Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 not followed.
(ii) In the instant case, although the trial judge had expressly stated that she was applying the Bolam test, a perusal of the judgment showed that she had not based her finding solely on the professional opinion and practice as envisaged by the Bolam principle. She had properly assessed and weighed all the evidence before her, particularly the opinion of the expert witnesses on the probable cause of the appellant’s paralysis, before arriving at her own decision. She had not misdirected herself on the evaluation of the evidence, although she had made reference to the Bolam test.
Conclusion
The question remains as such; whether the decision of the Federal Court in Foo Fio Na is only applicable in the aspect of the medical advice given or in all aspects of medical negligence cases as a whole?
The decision in Foo Fio Na has not been reconsidered or revisited by the apex Court since it was decided in December 2006. Till then, the uncertainty in this area of law remains. It is now only a question of time before this doubt could be resolved.
For further enquiries, please contact:
HAROLD TAN (harold@hlplawyers.com)
[1] Extracts taken from Medical Negligence Litigation in Malaysia : Whither Should we Travel? By Dr. Puteri Nemie bt. Jahn Kassim, Assistant Professor, International Islamic University Malaysia
[2] A country is said to be experiencing ‘malpractice crisis’ if the number of malpractice cases has risen dramatically in the last 10 to 15 years in terms of medical malpractice suits by the patients. Other symptoms include dramatic rise in medical malpractice insurance premiums, rise in the amount of courts’ awards and settlements whether for economic or non-economic damages and greater availability of punitive damages –see MCQuade, J.S., ‘The medical malpractice crisis – reflections on the alleged causes and the proposed cures’ (1991) Journal of the Royal Society of Medicine, at pp 408-411
[3] In the year 1998, the Attorney General Chambers Malaysia recorded a total number of 16 medical negligence cases and the amount of compensation paid for that year was RM23,288. In the year 1999, the total number of cases recorded was 31 and the amount of compensation paid for that year was RM72,000.
