INTRODUCTION
- WHAT IS NEGLIGENCE?
Ordinary meaning-
The breach of a legal duty of care that causes the plaintiff to suffer harm that the defendant does not want.
Case law-
- Blyth v. Birmingham Waterworks Co[1]
Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do; or doing something which a prudent and reasonable man would not do.
- Lochgelly Iron and Coal Co v. McMullan[2]
“Negligence means more than heedless or careless conduct … it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing.”.
- PRINCIPAL ELEMENTS OF NEGLIGENCE
From the definitions above, it can be seen that to establish negligence, the plaintiff has to prove the following elements:
- Duty of care or an existing legal duty on the part of the defendant to the plaintiff to exercise care in such conduct of the defendant as falls within the scope of the duty;
- Breach of duty or failure to conform to the standard of care which the defendant owes the plaintiff;
- Causation or consequential damage to the plaintiff, that is, the plaintiff suffers damage as a result of the defendant’s breach of duty.
MEDICAL NEGLIGENCE
- WHAT IS MEDICAL NEGLIGENCE?
Medical negligence is a subset of professional negligence. It is concerned with the tort of negligence in the context of provision of healthcare. Medical negligence happens when a medical professional fails to follow the acknowledged medical standard of care when performing his or her duties.
- STANDARD OF CARE
The Bolam Principle
The test to determine the standard of care demanded of a doctor was established in Bolam v. Friern Hospital Management Committee[3]. The test is commonly known as the Bolam Test.
In Bolam, the plaintiff’s pelvis was broken during an electro-convulsive treatment (ECT) and the plaintiff alleged negligence on three grounds-
- because the defendant did not warn the plaintiff of the risks involved in an ECT;
- because the defendant did not give the plaintiff any relaxant before the shocks were given to him; and
- because the defendant did not hold down the plaintiff’s body whilst the treatment was being administered.
In relation to the third ground, there were two conflicting views. One view holding that during an ECT, the patient’s body must be held down, the other view was that that was not necessary.
McNair J stated-
“… in the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time … there may be one or more perfectly proper standards; and if (he) conforms with one of those proper standards, then he is not negligent.”.
The defendant was found not liable as he had conformed to the standard of reasonable doctors and his not holding down the plaintiff’s body was not an improper course of action.
The Malaysian courts have frequently used the Bolam Test to determine the standard of care owed by a medical practitioner to his or her patient. According to the Bolam Test, if a doctor acts in conformity with proper practice as defined by a body of medical practitioners possessing similar skills to that of the doctor in question, he cannot be held liable for negligence.
This effectively means that the standard of care will be determined by medical practitioners’ standards rather than by the courts. In other words, the Bolam Test permits doctors to avoid culpability by having specialists testify that the method they used was in line with what a reputable body of medical opinion had recommended.
The law took a major turnabout in the House of Lords’ decision of Bolitho (administratrix of the estate of Bolitho (decesased)) v. City and Hackney Health Authority[4] where the Bolam Test was qualified in such a way that the court had a slim chance to deviate from it.
In this case, a two year old boy, Patrick Bolitho was admitted to the hospital with a history of heart surgery and croup-like symptoms. On one particular day, he suffered three episodes of acute shortness of breath. During the first two episodes, Dr Horn was summoned to attend to him but she was occupied and thus unavailable to do so and sent Dr Rodgers to attend in her place. Unbeknown to Dr Horn, Dr Rodgers did not receive the message due to her bleeper having flat batteries.
Initially, Patrick recovered from these two episodes and seemed well again. However, half an hour later Patrick became agitated and started to cry during which the third episode occurred. He collapsed and suffered a respiratory and cardiac arrest. Although the medical staff managed to resuscitate him, he nonetheless suffered severe brain damage as a consequence of the cardiac arrest and subsequently died.
The plaintiff’s mother, as administratrix of her son’s estate, brought an action against the defendants’ authority claiming that failure to attend to him whilst he was suffering from breathing difficulties amounted to actionable negligence. It was however argued by the defendants that Dr Horn claimed that even if she had attended, she would not have intubated the plaintiff and thereby avoided the injury.
Eight medical experts testified during the trial in which five said that any competent doctor would have intubated after the second episode whereas three said the opposite, of whom the judge was agreeable with the opinion of Dr Dinwiddie. According to Dr Dinwiddie, Patrick’s symptoms did not indicate a progressive respiratory collapse, and the risk of total respiratory failure was low. Therefore, the invasive procedure of intubation was unnecessary. The judge ruled that the view held by Dr Dinwiddie could not be held to be illogical. The judge in referring to Bolam, held that the court had to be convinced that the expert opinion had a logical basis. The judge found against the plaintiff and this decision was upheld in the Court of Appeal as well as in the House of Lords.
Briefly, the qualification to the Bolam Test made in Bolitho was that, the court may hold that the body of medical opinion is not reasonable or responsible if such opinion is incapable to withstand logical analysis in which case the court may then depart from it. In terms of medical negligence, Bolitho effectively kept the Bolam Test, but added the requirement that the expert opinion be capable of withstanding logical analysis for such opinion to be acceptable to the courts.
This means that the doctor will not be automatically exculpated by merely showing that his action was supported by expert medical opinion. The expert medical opinion in question must have a sufficient logical basis.
The Bolam Test however makes no distinction between the standard of care for diagnosis and treatment and the duty to advise patients about the risks involved with a medical treatment, making it a broad test that encompasses all aspects of medical practice.
The Bolam Test was first applied in Malaysia in 1964 by Ong J in the case of Chin Keow v. Government of the Federation of Malaya & Anor[5]. In this case, an amah was given a penicillin shot at a clinic. She died about an hour later.
The Federal Court overturned the High Court’s decision, but the Privy Council upheld it in Chin Keow v. Government of Malaysia & Anor[6] (by then the Federation of Malaya had become Malaysia), where the Privy Council agreed with the High Court that the doctor was negligent because the patient’s card stated that she was allergic to penicillin. Sir Hugh Wooding stated-
“It was not in dispute that before prescribing or authorising the injection to be given Dr Devadason did not inquire into the deceased’s medical history. On the contrary, he frankly admitted this himself. So the sole question which Ong J had to determine was whether any duty lay on the doctor to make such inquiry. For this purpose he adopted the test, in Their Lordships’ opinion quite rightly, which was propounded by McNair J in Bolam v Friern Hospital Management Committee…”.
Until the Federal Court’s decision in Foo Fio Na v. Dr Soo Fook Mun & Anor[7], the Bolam Test was the relevant authority in the domain of medical negligence.
Foo Fio Na v. Dr Soo Fook Mun & Anor
In Foo Fio Na, the plaintiff was injured when the car she was travelling in was involved in a collision. She was taken to the Assunta Hospital which was the closest hospital. The plaintiff’s cervical vertebrae had dislocated, causing significant pain in her neck, and a cervical collar was fitted around it to prevent unwanted movement. The defendant surgeon performed the first of two surgeries after a few days of conservative treatment. The plaintiff was paralysed after the first surgery, and when medication failed to improve her condition, the defendant performed the second surgery.
There was a slight improvement afterwards but the plaintiff’s paralysis was permanent when she was discharged from the hospital some nine months later. The plaintiff’s claim was-
- that her paralysis was caused by the first surgery and not the motor accident;
- that the defendant had been negligent in the surgical procedure adopted during the surgery which caused a compression on her spinal cord leading to the paralysis; and
- that the defendant was negligent in his failure to rectify the situation immediately after the first surgery.
The plaintiff also alleged that the defendant failed to communicate the risk of paralysis associated with the first surgery but instead informed her that it was a minor procedure to which she consented. The second surgery was carried out without her consent being obtained. The plaintiff argued that if she had been warned about the possibility of paralysis, she would not have agreed to the first surgery.
The trial judge in Foo Fio Na refused to apply the Bolam Test when deciding on the scope of a doctor’s duty of care. The High Court ruled in favour of the appellant and held that-
- while the appellant may have consented to the procedure, she was not informed of the possibility of paralysis; and
- the first respondent was negligent in placing a wire loop in order to correct the dislocation which compressed the spinal cord and caused the paralysis.
The Court of Appeal, although avoiding a discussion of the Bolam principle, allowed the appeal on the grounds that there was no evidence to proof that the paralysis was caused by the first respondent’s surgery.
Leave to appeal to the Federal Court was sought and obtained on a point of law which reads-
“Whether the Bolam Test as enunciated in Bolam v. Friern Hospital Management Committee, in the area of medical negligence should apply in relation to all aspects of medical negligence.”.
The Federal Court answered the question in the negative. The Federal Court did so by applying the test established in the Australian case of Rogers v. Whitaker and ruling that-
“[36] …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…”.
In essence, the Federal Court in Foo Fio Na has decided that the Bolam Test is no longer to be applied to a doctor’s duty to disclose risks. The medical practitioner is required by law to inform his patient, who is capable of understanding and appreciating such information, of the risks associated with any proposed treatment, so that the patient can choose whether to proceed with the treatment knowing the risks or decline to be subjected to such treatment.
Two lines of Malaysian court rulings on the principles to be applied in medical negligence have emerged since the Federal Court’s decision in Foo Fio Na. On the one hand, there have been judgments by the High Court and Court od Appeal holding that the Bolam Test no longer applies and that it is now up to the court to decide whether a medical practitioner has breached the standard of care.
On the other hand, there are decisions of the High Court and the Court of Appeal which emphasised that the test in Foo Fio Na and Rogers v. Whitaker applies only to a medical practitioner’s duty to advise or provide information to a patient and this does not apply to the standard of care that is expected of a medical practitioner in relation to the duty to diagnose and treat.
In the Federal Court case of Zulhasnimar bt Hasan Basri & Anor v. Dr Kuppu Velumani P & Ors[8], such contradiction was finally resolved.
Zulhasnimar bt Hasan Basri & Anor v. Dr Kuppu Velumani P & Ors
In this case, the first appellant was the mother of the second appellant who was an infant. The first appellant had chosen the first respondent to be her obstetrician and gynecologist. The second respondent was the assistant of the first respondent during the operation. The respondents were at the material time consultant obstetricians and gynecologists with a practice at Ampang Puteri Specialist Hospital.
The first appellant went to the hospital with abdominal pain when she was 36 months pregnant. She was attended to by a staff nurse, admitted in the hospital and prescribed oral medication. The first appellant collapsed later that morning, prompting a ‘Code Blue’ emergency alert. The first appellant was resuscitated in the ward and transported to the operating room, where the first respondent performed an emergency caesarean section (‘CS’).
The CS was successful and the baby was born alive. The first respondent discovered that the first appellant’s uterus had ruptured during the procedure resulting in the first appellant’s abrupt acute bleeding and collapse on the ward. The infant had suffered a quick and considerable loss of oxygen as a result which in turn led to the infant suffering from cerebral injury.
The respondents were sued by the appellants for medical negligence. The appellants claimed that the collapse could have been averted if the CS had been done sooner, and that the respondents had thereby breached their duty and standard of care to the appellants.
The High Court held that the appellants had failed to prove that the respondents had breached their duty and standard of care to them and the decision was upheld by the Court of Appeal. The appellants were subsequently granted leave to appeal to the Federal Court on two questions of law. Question 1 reads as follows:
“Whether the Bolam test or the test in the Australian case of Rogers v Whitaker (1993) 4 Med LR 79 in regard to the standard of care in medical negligence should apply, following conflicting decisions of the Court of Appeal in Malaysia and legislative changes in Australia, including the re-introduction there of a modified Bolam test.”.
The Federal Court had to decide whether the Bolam Test or the test used in the Australian case of Rogers v. Whitaker for determining the standard of care in medical negligence should be applied. The Federal Court ruled in this regard-
“[94] Thus, it is our judgment that in respect of the standard of care in medical negligence cases, a distinction must be made between diagnosis and treatment on the one hand and the duty to advise risks on the other. This is because diagnosis and treatment are purely in the realm of medicine and that in the field of medicine, there are genuine differences of professional opinion in respect of diagnosis and treatment. Although as a discipline, medicine involves specific knowledge, its practice, however, often does not admit to scientific precision. It is not always the case that there is a definite answer one way or the other. In fact, medical experts do genuinely and frequently differ in opinion on diagnosis and treatment.
…
[96] On the other hand, different consideration ought to apply to the duty to advise of risks as opposed to diagnosis and treatment. That duty is said to be noted in the right of self-determination. As decided by the Australian High Court in Rogers v Whitaker and followed by this court in Foo Fio Na, it is now the courts’ (rather than a body of respected medical practitioners) which will decide whether a patient has been properly advised of the risks associated with a proposed treatment. The courts no longer look to what a body of respectable members of the medical profession would do as the yardstick to govern the standard of care expected of the duty to advise.”.
(emphasis added)
The Federal Court then concluded-
“[97] Based on the foregoing, we will answer question 1 in the following manner. The test propounded by the Australian case in Rogers v Whitaker and followed by this court in Foo Fio Na in regard to standard of care in medical negligence is restricted only to the duty to advise of risks associated with any proposed treatment and does not extend to diagnosis or treatment. With regard to the standard of care for diagnosis or treatment, the Bolam test still applies, subject to qualifications as decided by the House of Lords in Bolitho.”.
(emphasis added)
The Federal Court ruled against the appellants since the CS was performed within 30 minutes which is acceptable and within the established time range.
Based on this recent decision, it is without doubt now that both the Bolam Test and the test in Rogers v. Whitaker which was followed by Foo Fio Na are good law. The distinction is on their application wherein the Bolam Test, subject to qualifications made in Bolitho, applies to the standard of care for diagnosis or treatment while the test in Rogers v. Whitaker applies to the duty to advise of risks associated with a proposed treatment.
CONTRACEPTION FAILURE NEGLIGENCE
- OVERVIEW
Contraception is a method of controlling fertility or birth and preventing pregnancy for couples who are keen on family planning. Although there are numerous types of contraceptives available, this article shall focus on contraception by way of sterilisation.
- CONTRACEPTIVES IN MALAYSIA
In Malaysia, there are no laws prohibiting or restricting the use of contraceptives. The National Essential Pharmaceuticals List, published by the Ministry of Health’s Pharmaceutical Services Division, lists approved drugs for marketing in Malaysia, including contraceptives.[9] This is largely due to the fact that the prohibition of contraceptives would be contravening the Convention of Elimination of All Forms of Discrimination against Women (CEDAW) which Malaysia is bound by.
Despite the lack of legislation prohibiting sterilisation in Malaysia, the National Council for Islamic Affairs issued a fatwa (opinion based on points of law in religious matters) in 1997 probiting the sterilisation of men and women on the grounds that any type of permanent contraception is haram (illegal). This fatwa, on the other hand, allows for temporary contraception for health and financial reasons.[10] In states that adopt such opinions through state legislation, fatwas may become legally binding.[11] In essence, the only contraceptive method allowed in Islam is the reversible contraception and such usage must be due to health and economic reasons.
- CONTRACEPTIVE METHODS
Reversible Contraception
Condom
A condom is a sheath made of latex or rubber that covers the penis and gathers sperm. It prevents sperm from entering the vaginal canal during sexual contact, hence preventing pregnancy.
Intrauterine device (IUD)
A little T-shaped instrument inserted through the cervix and implanted within the uterine cavity is known as an intrauterine device. The IUD has a thin thread that hangs down into the top region of the vagina and can be felt by the lady. Copper or hormonal rods can be used to attach it. The IUD decreases the lifespan and mobility of sperm by occupying the uterine cavity for years (three to five years). The addition of a hormone rod to the device alters the uterine lining, preventing a fertilised ovum a fertilized ovum (egg) from implanting to the uterine wall.
Contraceptive pill
A contraceptive pill is typically made up of two hormones: oestrogen and progestin. A woman usually takes the pill for 21 days at approximately the same time every day, then stops for seven days to get her period. The pill prevents pregnancy by stopping the release of ovum (ovulation).
Contraceptive implant
A contraceptive implant is a hormone (progestin)-containing implant implanted beneath the skin on the inside side of the forearm. It prevents ovulation, thickens the mucus at the uterine entrance, and thins down the uterine lining by releasing a little quantity of hormone over three or five years. works by releasing a small amount of hormone over three or five years.
Irreversible Contraception
Sterilisation
Sterilisation is a form of contraception in which the body’s ability to reproduce is removed through open or minimally invasive surgery. In other words, sterilisation is a long-term method of contraception for people who are certain they will never desire children or do not want any more. The common types of sterilisation are vasectomy for male sterilisation and tubal occlusion for female sterilisation.
Despite sterilisation being a permanent method of contraception, there were incidents where sterilisation failed and thus resulting in unwanted pregnancy due to contraception’s incorrect administration. Contraception failure negligence compensation is commonly awarded based on loss of income and emotional distress.
Compensation for loss of income is awarded on the basis that the earnings of the pregnant mother may have been affected due to the unwanted pregnancy. This includes having to take up sick leave and/or maternity leave. Compensation for emotional distress on the other hand takes into account the emotional impact caused on the mother that is associated with the unwanted pregnancy. This includes the feeling of guilt having to contemplate to have an abortion as well as pain and suffering in delivering the child should the mother decide not to terminate the pregnancy.
However, there were instances where the claims include damages for the costs of upbringing of the unwanted child.
- CASE STUDY
Newell v. Goldenberg[12]
In this case, the plaintiff’s wife became pregnant after the plaintiff’s vasectomy reversed itself naturally reversed, which only happens around once every 2000 cases. The plaintiff filed a lawsuit against the defendant surgeon for failing to warn of this risk. The defendant said that he generally issued such a warning but he had failed to do so on this occasion due to a mistake. However, because many surgeons failed to warn of this danger, he had unwittingly followed the advice of a large body of reputable medical opinion.
The court ruled in favour of the plaintiff, holding that the Bolam Test may provide a defence for individuals who are behind the times, but it is ineffective against those who are aware of the situation. The court further held that no competent body of medical opinion would have omitted to inform a patient of the small risk of recanalization following a vasectomy. Thus, failure to give an appropriate warning amounted to negligence.
Udale v. Bloomsbury Area Health Authority[13]
A healthy child was born as a result of a failed sterilisation in this case. The court granted damages for pain and suffering, as well as loss of earnings and financial disruption during the pregnancy.
The claim for the child’s care and support, however, was denied by the court. The court decided that the costs of maintaining a healthy child were not recoverable due to public policy. He was swayed by public policy considerations such as the possibility that a child would learn that their life had been declared a mistake by a court, and the risk that doctors would be persuaded to promote abortion in order to avoid medical malpractice claims.
Emeh v.Kensington and Chelsea Area Health Authority[14]
A sterilising procedure had failed in this case, and the child was born with congenital defects that necessitated regular medical and parental supervision.
The court overturned and overruled Udale’s ruling, holding that there was no rule of public interest prohibiting recovery of damages for pain and suffering as well as for the child’s upkeep.
McFarlane v. Tayside Health Board[15]
In this case, the House of Lords decided on the issue of obtaining damages for the costs of a healthy child’s upbringing.
In this case, Mr. McFarlane agreed to have a vasectomy. Six months after the operation, the consultant surgeon advised Mr. McFarlane that his sperm counts were negative, and that he could dispense with contraceptive precaution during sexual intercourse. Mr. and Mrs. McFarlane relied on the advice but subsequently Mrs. McFarlane became pregnant and gave birth to a healthy daughter, Catherine. Mr. an Mrs. McFarlane then brought proceedings against the health board, seeking damages for the cost of rearing the child and for the pain and distress suffered by Mrs. McFarlane in caring and giving birth to Catherine.
The trial judge ruled that such damages were irrecoverable while the Court of Appeal held that Mr. and Mrs. McFarlane should be given the opportunity to prove their loss and damages under both heads of claim.
The House of Lords held that if the operation failed and the husband was negligently advised that contraceptive measures were unnecessary, his wife was likely to become pregnant. Mrs. McFarlane was thus entitled to compensation for the agony and suffering she endured during her pregnancy and childbirth, as well as for the financial losses she incurred as a result of the pregnancy. However, in relation to expenses needed for the rearing of the child, the House of Lords unanimously held that such expenses were not claimable on the basis that the birth of a healthy baby is always a blessing and an occasion for joy. The House of Lords considered that the joy and pleasure that any child brings to his or her parents will automatically outweigh the disadvantages of unwanted parenthood.
Parkinson v. St James and Seacroft University Hospital[16]
In this case, the court departed from the decision in McFarlane as it involved a child that was born disabled.
Angela Parkinson filed a claim for the cost of raising her fifth child, who was born after a laparoscopic sterilisation that was conducted incorrectly. The child had serious disabilities, and the child’s birth had placed significant demands on the family, resulting in the breakup of her marriage and detriment to her other four children. The Court of Appeal found that because McFarlane failed to respond to the disabled child’s questions, damages might be recovered for the cost of the child’s special requirements and care related to his disabilities, but not for the cost of basic upkeep.
CONCLUSION
The Federal Court in Zulhasnimar made a clear distinction of the tests applicable in relation to medical negligence. Briefly, the Bolam Test applies to the standard of care expected of medical practitioners while performing diagnosis or treatment, subject to qualification as determined by the House of Lords in Bolitho. The criterion in Bolitho is that the medical opinion must stand up to logical scrutiny.
Meanwhile, the test in Rogers v. Whitaker, which was the Federal Court applied in Foo Fio Na, applies exclusively to a medical practitioner’s duty to inform patients of the risks involved with any proposed treatment and does not apply to diagnosis or treatment.
In respect of contraception failure negligence, to date there is no decided case law pertaining to such negligence in Malaysia. For this reason, reference was made to decided cases in other jurisdictions. In this regard, the abundance of cases cited above dealt directly on the issue of claim for damages for the costs of upbringing of a healthy and unhealthy child as a result of a failed sterilisation while no specific rulings were made on the liability for breach of standard of care or duty to advise.
Applying the Bolam Test and the test enunciated in Foo Fio Na in the context of administration of contraception, medical practitioners have a duty to inform their patients of the possibility that the sterilisation might fail regardless of how slim the chances of such incident from occurring. This practice is in line with the duty and standard of care imposed on medical practitioners and could potentially be a defence in the event they are faced with a medical negligence claim.
Prepared by-
Misyail binti Othman
Messrs Misyail Othman & Co.
[1] (1856) 11 Ex 781 at 784
[2] [1934] AC 1 at 25, HL
[3] [1957] 2 All ER 118
[4] [1997] 4 All ER 771
[5] [1964] 1 MLJ 322B
[6] [1967] 2 MLJ 45
[7] [2007] 1 MLJ 593
[8] [2017] 5 MLJ 438
[9] See Pharmaceutical Services Division, Ministry of Health Malaysia, National Drugs List, https://www.pharmacy.gov.my/v2/en/news/23-dec-2019/national-essential-medicines-list-neml-5th-edition.html. The approved drugs follow the WHO’s definition of “essential drugs” as drugs that meet the healthcare needs of the majority of the population, and should thus be easily available in adequate quantities and in suitable dosages.
[10] See Pejabat Mufti Wilayah Persekutuan, Irsyad Al-Fatwa Ke-146 : Hukum Merancang Keluarga Kerana Berpendapatan Rendah, https://muftiwp.gov.my/artikel/irsyad-fatwa/irsyad-fatwa-umum/1847-irsyad-al-fatwa-ke-146-hukum-merancang-keluarga-kerana-berpendapatan-rendah
[11] Section 34 of the Administration of Islamic Law (Federal Territories) Act 1993 (Act 505)
[12] [1995] 6 Med LR
[13] [1983] 2 All ER 522
[14] [1985] 2 WLR 233
[15] [1999] 3 WLR 1301
[16] [2001] 3 All ER 97
