‘I will follow that system of regimen which, according to my ability and judgment, I consider for the benefit of my patients, and abstain from whatever is deleterious and mischievous.’ – Hippocrates Oath
In recent years, there has been an increasing awareness amongst members of the public towards the quality of healthcare services provided. This has led to an increase in a number of complaints lodged with the Malaysian Medical Council and/or legal actions against the healthcare provider.
Medical malpractice is a term commonly used by many. It is a misconception that a medical practitioner could be successfully sued for any outcome deemed less satisfactory. In actual fact, medical malpractice is the negligent act, omission or breach by medical practitioners in providing treatment and care in the exercise of their duties. In the case of Roe v Ministry of Health  2 All ER 131, Denning LJ had stated that there should not be a presumption of negligence against the doctors each time a medical mishap occurs.
This was further explained in several Malaysian cases for instance in Elizabeth Choo v Government of Malaysia  2 MLJ 171 and the recent Court of Appeal decision in Dr Wan Himratul Azna binti Wan Harun v Dato’ Dr Rohan Malek Johan & Ors  MLJU 16, where the Courts held that although different doctors may adopt different management strategies and have differing medical opinions, so long as it follows the ‘well-worn path’, i.e. ‘the general and approved practice’, the medical practitioner would not be held liable for negligence.
Standard of Care
Hence, the question which would arise is – in what circumstances would a medical practitioner be held negligent? The emphasis is placed on the standard of care, rather than the result of care, which relates to the degree of care and skill that a reasonable man in such circumstances is expected to exercise.
In the leading case of Bolam v Friern Hospital Management Committee  1 WLR 582, the trial judge, McNair J, emphasized that the test applicable for the standard of care is not the test of the man on the top of a Clapham omnibus, but that of an ordinary skilled man exercising and professing to have that special skill.
However, the Federal Court in Foo Fio Na v Dr Soo Fook Mun & Anor  1 MLJ 593 was of the view that the test in the Australian case of Rogers v Whitaker  175 CLR 479 would be a more appropriate and relevant test as compared to the Bolam Test. The Court was of the view that a medical practitioner may not be negligent if he had followed the established medical practice, although the body of opinion of his peers differs.
In the recent case of Zulhasnimar Hasan Basri & Anor v Dr Kuppu Velumani P & 2 Ors  1 LNS 1057 the Federal Court adopted a different view. The Court emphasised the need to differentiate between the standard of care in diagnosis and treatment and the duty to advise the patient. Furthermore, the Court had recognized that there were legitimate differences in professional opinion regarding diagnosis and treatment and so the Bolam test is still applicable whereby the Court would accept the views of both the medical experts having the expertise and skill in that particular discipline thus removing the Courts from the responsibility of resolving a dispute that it is not equipped to resolve.
However, as far as the duty to advise a patient is concerned, it is for the Courts to determine whether a patient has been correctly advised as decided in Rogers v Whitaker and followed in Foo Fio Na. This would mean that there is no necessity for the Courts to consider what a body of medical practitioners would have done in the circumstances in order to determine if there is a breach in the duty to advise.
A different approach was taken by the Singapore Court of Appeal in the case of Hii Chii Kok v Ooi Peng Jin London Lucien and another  SGCA 38. Prior to this decision, the Bolam test was used in Singapore whereby a doctor would not be held liable provided his actions were in line with the common practice by his peers which must be logically defensible. However, in this case, notwithstanding common practice, the Court introduced the need for a ‘patient-centric’ test in determining the standard of care required of a doctor in providing the necessary information and advise to a patient so that the patient could make an informed decision on the proposed medical treatment he or she is to receive. This differs from the Bolam-Bolitho test in that it recognises greater patient autonomy. The Court of Appeal went on to state that the appropriate standard of care is one that strikes the balance between the interest of the doctor and the patient.
Is medicine science or arts?
An essential feature to establish liability is the element of causation. The claimant would be required to prove that the treatment he received was below the accepted standard of care of a prudent, qualified medical practitioner and the harm he suffered was a direct consequence as a result thereof.
However, the field of medical science is unique in its own way, in that, there is no single contributory factor to an outcome. It is not rigid but an art which combines the theory of medical sciences with experience, skills and clinical judgment.
In the case of Dato’ Dr V Thuraisingam & Anor v Sanmarkan a/l Ganapathy & Anor  3 MLJ 227, the Court stated the following: –
“The concept of ‘test’ is much rigid and attempts to suggest judicial decision making process into science, though law falls into the category relating to arts. For example, litmus test, blood test, urine test, etc are in fact scientific tests and upon application of specific formula and methodology, it will give results expected of the test. The same rigidity cannot be made applicable to doctors in the pretext of medical science in the field of diagnosis, treatment and advice to say it will give the expected result.”
This would denote that the art of medicine is not a precise science and the outcome would depend on a variety of variables including not only the medical practitioners’ skills and experiences but also the facilities available (both logistics and human resources) as well as the patient factor.
The tort of negligence imposes a duty of care on a person who could reasonably foresee the harm resulting from his actions. The difficulty lies in determining the foreseeability of the risk of harm as it is multifactorial. The Courts will have to decide whether the medical practitioner should have foreseen the possibility of risk or harm based on the circumstances he had faced.
The nature of the medical field is such that one has to expect the unexpected exigencies that need to be attended to immediately and decisions have to be made in a split second based on the medical practitioner’s judgment, as the situation demands.
The ancient Hippocrates Oath recognizes the uncertainty in the practice of medicine and gives medical practitioners the discretion to decide in the best interest of the patient, in any given circumstances. However, it has to be borne in mind that, that does not mean the medical practitioners are free from blame in any event, whatever the circumstances. If at any point it is evident that the medical practitioner had acted below the accepted standard of care, he may be liable in negligence.
The statement made by Lord Woolf in 2001 ‘doctor knows best’ should now be followed by the qualifying words ‘if he acts reasonably and logically and gets his facts right‘.
Given the complexities in this area of legal practice, the question is to determine the ‘decision-maker’ in medical malpractice. In Foo Fio Na, the Federal Court held that it was for the Courts to determine the standard of care rather than it being based on medical judgment. The Federal Court in Zulhasnimar Hasan Basri (as discussed above) was of the same view with regard to the duty to advice on the risks involved in the proposed treatment.
This view is further supported by the decision of the Singapore Court of Appeal in the case of Hii Chii Kok (discussed above) where the Court of Appeal held it was for the Court to assess the evidence adduced by the medical practitioner and arrive at a decision. The role of a medical expert, on the other hand, was to render his opinion on whether the medical practitioner’s treatment was logical and acceptable.
Although the final decision in determining the standard of care lies with the Courts, in arriving at a just decision, the views of the medical experts who are more capable of analyzing such complex issues should also be considered. The Courts seem to have placed great weight on the opinion of expert medical witness. However, the Courts are not bound to accept their opinion because the decision on whether a medical practitioner is negligent would depend on a mixed questions of law and facts.
Negligence may not be presumed against the medical practitioner but rather negligence has to be established. To bring a successful claim against a medical practitioner, a patient must establish the existence of a doctor-patient relationship (duty of care), breach of duty of care based on the established standard of care, the causal link between the breach of duty of care and injury/harm to the patient and the injury/harm suffered are not too remote from the medical practitioner’s actions.