Approach To Medical Negligence Claims By Malaysian Courts

• Published date: 28 July 2020
• Subject Matter: Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Disclosure & Electronic Discovery & Privilege, Professional Negligence, Food and Drugs Law
• Law Firm: MahWengKwai & Associates
• Author: Mr Dato' Mah Weng Kwai

Prior to 29/12/06 the test for medical negligence accepted by the Courts in Malaysia was generally known as the Bolam Test or the Bolam Principle. This test was applied to determine the doctor's standard of care in relation to the treatment and information given to the patient.

Justice McNair in his directions to the jury in the case of Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 said that a doctor is not negligent, if he is acting in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, merely because there is a body of such opinion that takes a contrary view.

His Lordship went on to explain the meaning of "negligence" in law in an ordinary case and negligence which involves the use of professional skill. The learned judge said and I quote:

"In the ordinary case which does not involve any special skill, negligence in law means this: some failure to do some act which a reasonable man in the circumstances would do, or doing some act which a reasonable man in the circumstances would not do ; and if that failure or doing of that act results in injury, then there is a cause of action. How do you test whether this act or failure is negligent? In an ordinary case it is generally said, that you judge that by the action of the man in the street. He is the ordinary man.

In one case it has been said that you judge it by the conduct of the man on the top of a Clapham omnibus. He is the ordinary man But where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art."

Bolam v Friern Hospital Management Committee

To appreciate the Bolam Test which is the locus classicus to determine liability for medical negligence in England, it is necessary to first consider the facts of the case itself.

The plaintiff in Bolam's case, one John Hector Bolam, a salesman, was admitted to Friern Hospital suffering from the after effects of a mental illness of the depressive type. He was examined by the consultant psychiatrist attached to the hospital and was advised to undergo electro-convulsive therapy which was carried out by placing electrodes on the head to allow an electric current from a machine to pass through the brain. One of the results of the treatment was to cause convulsion in the nature of a fit. The consultant psychiatrist did not warn Bolam of the risks involved one of which was the risk of fracture.

Bolam signed a form consenting to the treatment and nothing untoward happened to him when he received the treatment for the first time. However on the second occasion the treatment was administered by Dr C Allfrey, a senior registrar at the hospital An initial shock was passed through Bolam's brain for approximately one second and was followed within approximately four seconds by a succession of five momentary shocks administered for the purpose of damping the amplitude of the jerking movements of Bolam's body. No further shocks were administered and the convulsion was not unusually violent. The voltage of the current was 150 volts and the frequency was fifty cycles per second.

During this treatment, Bolam lay in a supine position with a pillow placed under his back and his lower jaw was supported by a mouth gag. Otherwise he was not restrained in any way, although a male nurse stood at each side of him in case he should fall from his bed. No relaxant drugs were administered to Bolam prior to the treatment.

In the course of this treatment, Bolam sustained severe physical injuries consisting in the dislocation of both hip joints with fractures of the pelvis on each side which were caused by the head of the femur on each side being driven through the acetabulum or cup of the pelvis.

In claiming damages for his injuries against the management of the hospital, Bolam contended that the hospital was vicariously negligent in permitting Dr Allfrey to administer electro-convulsive therapy without the previous administration of a relaxant drug which would have excluded the risk of fracture altogether or without restraining his convulsive movements by manual control and in failing to warn him of the risk he was taking in consenting to have the treatment.

The medical evidence at the trial showed that competent doctors held divergent views on the desirability of using relaxant drugs and restraining the patient's body by manual control and also on the question of warning a patient of the risks of electro-convulsive therapy. The other medical evidence that was most significant was that the risk of fracture was 1 in 10,000.

The jury found that the hospital was not negligent.

The 2 limbs to the Bolam Test

There are 2 limbs to the Bolam 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. The second being commonly invoked, is the assertion that a defendant doctor will not be liable under the first limb if he has complied with a responsible professional practice, allowing for the possibility that there may be more than one such practice.

The legal position is that the doctor must have acted in accordance with an accepted medical practice, and that the accepted practice must be regarded as proper by a responsible body of medical men in that art.

Friern Hospital's alleged negligence can be summarised into the following three categories:

1. Failure to give Bolam a warning of the risks involved in electro-convulsive therapy so that he might have had a chance to decide whether he was going to take those risks or not;
2. Failure to use any relevant drugs which, if used, could have excluded the risk of fracture altogether;
3. That if relevant drugs were not used then at least some form of manual control beyond shoulder control, support of the chin and placing a pillow under the back should have been used.

Bolam testified that he was not given any warning as to risks, nor asked whether he would not undergo treatment as there is a one in 10,000 risk involved.

The Bolam Test has been approved by the House of Lords in a number of cases including Whitehouse v Jordan (1981) and Maynard v West Midlands Regional Health Authority (1985) on the issue of diagnosis and...