Foo Fio Na v Dr Soo Mun & Anor [2007] 1 MLJ 593

Foo Fio Na v Dr Soo Mun & Anor [2007] 1 MLJ 593

Federal Court

Medical Negligence

Facts 1.     On 11 July 1982, the appellant was involved in an accident and suffered several injuries.

2.     The first respondent who was the orthopaedic surgeon performed the first two operations involving procedures to place the dislocated vertebrae back to the original positions.

3.     However, this procedure failed and the appellant became paralysed.

Issue 1.     Whether the Bolam Test applied in the case of Bolam v Friem Hospital Management Committee [1957] 2 All ER 118 shall apply to all areas of medical negligence.

 

Ratios 1.     The duty of care

 

(a)  The aspect of medical negligence is that it applies to the duty and standard of care of  medical practitioner in advising a patient about the risks of the treatment.

 

(b)  Under common law, the duty of care arises when there is a relationship between a doctor and his patient and the standard of care of a doctor is a standard of reasonable man.

 

2.     Bolam Principle

 

(a)  The professional conduct of a doctor is evaluated through the opinion of the medical profession that if the doctor acted accordingly, he is not negligent.

 

(b)  Thus, if the doctor can prove that other medical professionals would have acted in the same way, he may be able to escape the negligence lawsuit.

 

(c)  However, the Bolam Test has no bearing on a medical practitioner’s responsibility and standard of care in advising a patient about the inherent and significant risks of a recommended treatment.

 

(d)   The practitioner is required by law to inform his patient, who is capable of understanding and acknowledging 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 such treatment.

 

3.     Rogers v Whitaker test

 

(a)  The standard of care of a medical practitioner is not solely determine by the act or conduct supported by the opinion of the medical profession.

 

(b)  The standard of care extends to the duty to disclose or warn the patient about the risk of the treatment.

 

Decision 1.     The Court applied the test in Rogers v Whitaker and discarded the Bolam Test.

 

2.     The appeal was allowed with costs in the Federal Court, Court of Appeal and High Court in which such costs to be borne by the respondents and the orders of the High Court on quantum are to be restored.

 

Key Take Away 1.     The measure on standard of care of a medical practitioner has been evolving from time to time.

 

2.     It is to be noted that the legal standard for medical practitioner’s skills extends to the duty to disclose any risk of such diagnosis to the patient.

 

3.     Every patient has the right to be informed and warned about the risk of the medical procedures and treatments before such procedures and treatments are performed by the doctors.

 

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