The Federal Court in this case had rejected the Bolam test and applied Roger v Whitaker.
Note: The test in Rogers v. Whitaker followed by this case in regard to the standard of care in medical negligence is restricted to only to the duty to advise the risks associated with any proposed treatment and does not extend to diagnosis or treatment. (see Zulhasnimar Hasan Basri & Anor v Dr. Kuppu Velumani P & Ors [2017] 8 CLJ 605)
See also: Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 & Rogers v Whitaker [1992] 175 CLR 479
Facts of the Case
On 11 July 1982, the appellant and her companions had a car accident near Assunta Hospital (second respondent). They were then brought to the hospital and appellant was admitted. She was prescribed with initial treatment by the doctor on duty and the advised of the orthopaedic surgeon on duty, the first respondent was followed. On the following day, the first respondent examined and treated her. The treatment was unsuccessful and first respondent performed a manipulation or closed reduction procedure under general anaesthetic. After three failed attempts, first respondent performed an operation to surgically open the back of the neck and moved the dislocated vertebrae back and securing it with bone grafting and a loop of wire was inserted to stabilise the spinal cord.
Unfortunately, the procedure failed and appellant became paralysed. On suspicion that the bold supply to the spinal cord was interrupted, the first respondent then prescribed a course of medication for the appellant over four days. A myelogram test was carried out on the appellant when her condition did not improve. The test shows that the wire loop placed during the operation was pressuring the spinal cord and was the cause of total paralysis. As a result, a second operation was performed by the first respondent to remove the wire loop but it did not remove the paralysis.
The appellant alleged that the paralysis was caused by the treatment procedure adopted by the first respondent at the hospital. The respondents sued the respondents for medical negligence in January 1987. At the trial, the High Court judge found that, while the appellant might have consented to the operation, she was not told of the risk of paralysis coming from the operation and that the first respondent was negligent in performing the operation on the appellant. To correct the dislocation, first respondent had put in place a wire loop which had compressed the spinal cord and caused the paralysis. The first respondent was also negligent in not acting immediately after discovering the paralysis and to remedy it. First respondent was proven to be a servant or agent of the hospital, the second respondent. Thus, second respondent was held vicariously liable for the negligence.
On the issue to determine the scope of a doctor’s duty of care, the learned Judge declined to apply the “Bolam Test” and concluded that the first respondent was negligent. The Court of Appeal allowed the respondent’s appeal on the ground that there was no evidence to establish that the surgery performed by the first respondent caused the paralysis. The appellant then appeals to the Federal Court.
Issue of the Case
Whether the Bolam test should apply in relation to all aspects of medical negligence?
Judgment of the Case
At common law the duty of care owed by a doctor arises out of his relationship with his patient. Without the doctor and patient relationship, there is no duty on the part of the doctor to diagnose, advice and treat his patient. That duty was described in R. Bateman [1925] 94 LBKB 79 as follows:
“If a person holds himself out as possessing special skill and knowledge and he is consulted, as possessing such skill and knowledge by or on behalf of a patient, he owes a duty to the patient to use due caution in undertaking the treatment and the patient submits to his direction and treatment accordingly, he owes a duty to the patient to use diligence, care, knowledge, skill and caution in administering the treatment. No contractual relation is necessary, nor is it necessary that the service be rendered for
reward.”
In the exercise of the doctor’s duty of care, case law has redefined to the standard of Bolam principle which restrains the courts from evaluating the professional conduct of a doctor. A doctor is not negligent if he acted in accordance with the practice of one of the bodies of opinion.
It is not disputed that the first respondent was under the duty to advice the appellant on the course of treatment to be undertaken and the risks involved and the issue is whether there has been a breach of that duty. The first respondent contended that the neck injuries suffered by the appellant if left unattended would lead to paralysis sooner or later. Under these circumstances, when conservative treatment proved to be unsuccessful, the first operation was performed and when that proved unsuccessful the second operation was undertaken and, on both occasions, the first respondent had the expressed consents of the appellant to perform both operations. The expressed consents refer to two consent forms executed by the appellant. The first consent form was signed by her at the time of her admission when it was not even contemplated that surgery was necessary. The second consent form showed her thumb print on the form and bearing a date after the first operation. The trial judge questioned the voluntariness of the thumb print as it was not executed in the presence of a witness as by that time, she had lost all sensation to her limbs.
The issue is on the risks involved and whether the appellant was warned of such risks. She had testified that if she had been warned of the risks involved, she would not have readily agreed to undergo the first operation. The trial judge found that appellant was told that the first operation was a minor operation and she was not told of the risk of the risk of paralysis. Trial judge also observed that after the first operation, appellant suffered total paralysis. After the second operation was performed to remove the wire loop, the appellant was able to move her upper limbs. However, there was negligent when no step to remedy the paralysis was taken immediately. The remedial operation was only carried out by the first respondent after two weeks.
The Court held that the facts in this appeal differ vastly with the facts in the Bolam case. First, the appellant is a bright young lady who was in a position to give consent to treatment to be given to her. Secondly, she is able to understand the nature of the risk involved if warning of risk had been communicated. Thirdly, the risk of paralysis was present and real. Lastly, there was no conflicting medical opinion to establish whether appellant should or should not be warned of the risks of paralysis.
Furthermore, the Court held that the Bolam test 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 treatment with knowledge of the risks involved or decline to be subjected to such treatment. Case law on this aspect of medical negligence has not been consistent in the application of the Bolam principle by the English courts.
In Bolitho (administratix of the estate of Bolitho (deceased) v. City and Hackney Health Authority [1997] 4 All ER 771, it was decided that if it can be shown that the professional opinion relied upon was not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion was not reasonable or responsible. Commonwealth jurisdictions have also declined to follow Bolam test. One such case is Rogers v. Whitaker [1992] 175 CLR 479 which states that the court has an obligation to question and scrutinize the professional practice to ensure that the standard set by law is attained. In Naxakis v. Western General Hospital & Another [1999] HCA 22, the Court determine the duty of care by asking whether it conformed to the standard of reasonable care demanded by the law. Court held that the duty of deciding it could not be delegated to any profession or group in the community.
The Courts in Malaysia had extensively applied Bolam test when determining the standard of care. After the decision of Rogers v. Whitaker, conflicting judgment had been delivered over the preference of the Rogers v. Whitaker test. The Rogers v. Whitaker test was fully endorsed in Malaysia for the first time in the case of Kamalam a/p Raman & Ors v. Eastern Plantation Agency (Johore) Sdn Bhd Ulu Tiram Estate, Ulu Tiram, Johore & Anor [1997] 5 CLJ 250.
It was held that 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 are of the view that the Rogers v. Whitaker test would be a more appropriate and a viable test compared to the Bolam test. Thus, the Court answered that Bolam test should not apply in relation to all aspects of medical negligence and allowed the appeal with costs.
Principle of the Case
Bolam test should not apply in relation to all aspects of medical negligence. Rogers v Whitaker test should be applied in relation to the duty to warn and advice.
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