We’ve all heard the “surgeon left a pair of surgical scissors/bandages/foreign object in your body” horror story before, and we know that we can definitely sue for that.
What if you go see a doctor one day because you feel feverish, and and he tells you you have dengue. You spend a week in the hospital, getting that sweet sweet saline solution into your bloodstream. Before getting discharged, the doctor sheepishly comes over to tell you that you did not in fact have dengue. Can you sue?
What about if you were recommended by a doctor to get surgery on your back for a slipped backbone disc, but he didn’t tell you that there’s a chance of being paralyzed from the neck down? Imagine if you woke up after the surgery and you couldn’t move your body. Can you sue?
Well, it turns out you can do just that. The Malaysian courts refer to an English case and an Australian case for different scenarios. The English case, Bolam v Friern Hospital gave us the Bolam test, and the Australian case, Rogers v Whitaker, has it’s own set of criteria as well. Before going into the Bolam case though, there is a little thing called “standard of care” to talk about.
The standard of care expected of a doctor
The law imposes a duty of care in certain scenarios. How it works is for example, if you visit a doctor, the law says that he must comply with certain standards. This is known as the “standard of care”.
What does “standard of care” mean? In tort law, the standard of care is the degree of prudence and caution a person under a duty of care must have. For example:
Your local shopping center just had their toilets cleaned, and the floor is wet. To fulfill their standard of care, the management only has to put up signs to warn people of the wet floor, but not make sure the floor is dry ALL THE TIME.
The requirements of the standard are closely dependent on circumstances.
[READ MORE: What is a tort?]
In medical negligence cases, the criteria is somewhat different from your usual negligence claims. The expectations set for doctors and other professionals (and people who claim to be professionals) are different from your everyday guy. Without getting too much into it, the standard of care for doctors is higher than the one used to judge the Regular Joe.
Now that we have an idea of what “standard of care” is, here we have the classic English case of Bolam v Friern Hospital Management Committee.
Brief facts of the case:
- Mr. Bolam was suffering from side effects of having a mental illness
- His doctor suggested that he undergo electroconvulsive therapy
- The therapy can be done with, or without relaxant drugs. If done without, there is a risk that he will suffer fractures
- The therapy was done on Mr. Bolam without relaxant drugs, and he ended up suffering fractures
- His doctor did not warn him of the risk of fractures
Mr. Bolam sued, and the court held that the doctor and hospital were not liable.
How the courts decided whether the doctor and hospital were liable or not was later dubbed as the Bolam test. What is the Bolam test?
So the Bolam Test sets out the standard of care for doctors. There are 2 parts to this test.
- The first is the requirement of a professional person, in this case a doctor, to exercise reasonable care in undertaking the task associated with his particular professional calling. This means that a doctor should be careful as far as a normal doctor would be.
- The second is that said doctor will NOT be liable for the first part if he or she has complied with responsible professional practice. The thing is that there may be more than one way to do a procedure, resulting in multiple schools of thought (different ways of thinking) for that one procedure. Lets say a patient goes to two GPs with a fever, one doctor might prescribe antibiotics, and the other might not, and both are valid medical opinions.
All in all the doctor must have acted in accordance to an accepted medical practice, and this practice must be regarded as proper by a responsible body of medical professionals.
Now that you have an idea of what the Bolam test is, the case of Rogers v Whitaker must also be examined to make sense of the current position of the Malaysian courts in context of medical negligence.
Here are brief facts of Roger v Whitaker:
- Mrs. Maree Lynette Whitaker had lost vision in her right eye when she was a child.
- She later underwent an eye surgery, but her doctor did not inform her that there was a risk that she would lose almost all of her vision
- She lost almost all of her vision
She went on to sue her doctor and hospital.
If the Australian High Court had followed the Bolam test, Rogers would’ve been found not liable. They disapproved of the Bolam test, and came up with 2 important points.
The first is that judges now decide on whether or not the doctor was negligent. This is different from the Bolam Test which relied on medical experts to determine if the doctor was negligent.
The second is that the doctors now have a duty to disclose material risk in proposed treatments. What is material risk? It’s when the risk is risk with grave consequences regardless of the frequency of it happening.
For example, if the surgery you have to get has the risk of full-body paralysis, that is considered a material risk.
Why is this case important? This case brought a new test for standard of care for doctors in exercising their profession.
Wait, does this mean Malaysia has two tests for the same thing?
Actually, our courts use the tests according to the situation
In 2017, the case of Zulhasnimar binte Hasan Basri and Another v Dr Kuppu Velumani P and 2 Ors cleared the air a little..
- Diagnosis and treatment, and advice on risk should be treated separately
- The courts are not equipped to decide on matters of diagnosis and treatment, there should be experts weighing in
- The courts can and will decide whether a patient is properly advised of the risks associated with a proposed treatment
- Bolam test applies for diagnosis and treatment, Rogers v Whitaker applies for advice of risks
What does this mean? You now have a separate avenue to sue, whether it is for a doctor who failed to advise you on the risks of a proposed treatment, or for straight up negligence in making a diagnosis or dispensing treatment.
If your doctor recommends a course of treatment, maybe surgery, and he or she doesn’t explain the risks to you, especially if it’s relevant to your lifestyle, then they can be liable following Rogers v Whitaker. On the other hand, if they mess up making a diagnosis or they mess up the treatment, they can be liable following the Bolam test.
That being said, it’s really best to seek out legal advice from a lawyer regarding medical negligence cases, if you or someone you care about, have a possible case.