So two important outcomes of the Bolam test are, first, that the doctor is judged against a standard that is confirmed by his/her colleagues. The universal application of the Bolam test has made it the litmus test for the standard of care in all cases involving medical negligence lawsuits, including ethical issues. Furthermore, one of the most damning criticisms of the Bolam test was that it allowed dangerous medical practices to continue.[39]
Many of the above criticisms of the Bolam test were addressed in the case of Bolitho v. City & Hackney Health Authority.[40] The possibility of the court playing a more active role can be seen in the Bolitho case.[41] Lanarkshire Health Board[48], where the UK Supreme Court rejected the use of the Bolam test on the duty to consult in Montgomery v.
The Privy Council upheld the High Court's decision and approved the use of the Bolam test, which became the prescribed test for determining the standard of care in medical negligence cases in Malaysia. The only mention of the Bolam test can be traced back to the High Court judgment of Ismail Khan. Dr. J. Chin appealed the findings of negligence by the High Court in the Court of.
Three members of the Court of Appeal considered this issue using the Bolam test.
DEPARTURE FROM BOLAM TEST IN MALAYSIA
Whitaker,[102] believed that any information communicated to patients by physicians could not be decided by the physicians alone, but rather multiple factors should be considered.[103] These factors included. Whitaker, the first part was that, through evidence of acceptable medical practice, it was for the judiciary to determine the appropriate standard of care on the advice and information given by the doctor to the patient. The second part was that the law recognized that doctors had a duty to warn a patient of significant risks associated with the proposed treatment (the "Rogers v. Whitaker test"). As such, the significance of the High Court of Australia's decision is that the emphasis shifts from medical opinion to legal opinion.[106]
Whitaker[107] was a question of disclosure of risk, as such it was not until the High Court of Australia's decision in Naxakis v Western General Hospital[108] that the Bolam test was completely rejected in Australia in all areas of medical negligence. While there was still heavy reliance on expert opinion from the Australian judiciary, the principles laid down in Rogers v.
Whitaker, [109] in addition to the duty to advise on risk, was also extended to all aspects of the doctor's duty, including diagnosis, treatment and care.[110] It is worth noting that the health insurance crisis in 2001 led to legislative changes that had an impact. Joseph Lee explains that there are two main distinctions between the Bolam test and the test used in Rogers v. WHITAKER TEST IN MALAYSIA In Malaysia, the Bolam test is still applied in medicine.
When addressing the issue of negligence, trial judge Richard Talalla J did not apply the Bolam test and referred to the Federal Court's judgment in Kow Nan Seng, which confirmed that the judges in Kow Nan Seng did not apply the Bolam -test or not applied it. [121] Richard Talalla J further followed the dicta of the majority judges in the Australian High Court case of Rogers v. Whitaker endorsed the departure of the Bolam test in cases of medical diagnosis and treatment. She also alleged that the second defendant failed to inform her of the risks of paralysis in the first open operation, despite her inquiring about the dangers and possible adverse effects.
Additionally, the federal court stated that judges, not doctors, should have the final say on whether the standard of care has been breached, taking into account not only medical opinion, but also other factors related to the patient's condition. The federal court held that doctors, like other professionals, must take responsibility for their mistakes, thereby eliminating dependence on the medical community.[125] While the decision in Foo Fia Na involved the adoption of the test used in Rogers v.
Whitaker, this unfortunately also resulted in uncertainty about the continued use of the Bolam test. The Foo Fia Na Federal Court judgment was quite unclear as to whether the Federal Court intended to decide the application of the Bolam test for medical negligence in general (the original question) or only in relation to the duty to disclose risks.[126] ] In fact, the issue of risk disclosure has not been raised in the Federal Court. Whitaker would replace the Bolam test in diagnosis and treatment. There were decisions of the Supreme Court and the Court of Appeal which held that the Bolam test applied, and it was for the courts to decide whether there had been a breach of the standard of care by doctors, and then there were decisions of the Supreme Court and the Court of Appeals who only believed the test in Rogers v.
Whitaker applied for advice on the disclosure of risk and did not apply in respect of the duty to diagnose and treat.[128] The difference in approaches by the courts unfortunately does not reflect well on our courts, which highlights the court's disregard for the doctrine of precedent.[129] Whitaker as a result of the Federal Court judgment of Foo Fia Na, finally came to an end with the Federal Court decision of Zulhasnimar bt Hasan Basri & Anor v. During the emergency hysterectomy, the first and second respondents discovered that the blood vessels at the fundus of the first appellant's uterus had burst, thus causing the first respondent's sudden acute bleeding and eventual collapse.
There was sufficient evidence to show that the first appellant suffered from an abnormal presentation of the uterus of the rarest kind known as placenta percreta, which could not be detected without surgery. Whitaker [1993] 4 Med LR 79 as 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 reintroduction there of a modified Bolam test. [132]. To date, the Bolam test is subject to qualification by the Bolitho Amendment and continues to be applied to the issue of the standard of care in medical negligence and treatment, and the test in Rogers v.
As such, the test in Rogers is limited only to the duty to advise of risks, while the Bolam test relates to the standard of care for diagnosis or treatment. In the ten cases reported before Foo Fio Na, there were 4 cases where the courts had not fully applied the Bolam test accurately. This approach conflicted with the approach under the Bolam test, where courts must accept expert evidence even if it is the minority opinion.
The higher court here did not agree with the expert's point of view, but instead agreed with the defendant's approach. Interestingly, however, among these 45 cases, there were a handful of cases where a reading of the judgments indicated that there was potentially no reference to expert evidence. Kuppu Velumani P & Ors. [151], while not only reaffirming the position and reaffirming the continued application of the Bolam test in the Malaysian context, also provided clarity on the application of the Bolam test going forward.
It may indicate that since the confirmation of the Bolam test in Chin Keow, the Federal Court in Zulhasnimar had to not only qualify but also clarify the application of the Bolam test in Malaysia. The judicial decisions and the correct application of the Bolam test were vague and created ambiguity regarding the standard of care in medical cases regarding diagnosis, treatment and the duty to disclose risks in Malaysia, as reflected in the cases analyzed. Medical negligence: coverage of the profession, duties, ethics, case law and enlightened defense - a legal perspective'.
50] Test of materiality – In the circumstances of the case, a reasonable person in the patient's position would be likely to attach importance to the risk, or the doctor is aware or should reasonably be aware that a particular patient is likely to attach importance to it . 66] The majority of the Federal Court in Swamy consisted of Barakbah LP and Azmi J. 72] A procedure in which a tube called a sigmoidoscope is inserted through the rectum to examine the lining of the colon.
75] A condition in which there is a malformation of the female genitalia where two "horns" form the upper part of the uterus. Eddie Soo Fook Mun [2005] 4 CLJ MLJ the Court of Appeal upheld the High Court's use of the Bolam test (alleged misdiagnosis of the claimant's numbness in his fingers which led to subsequent cervical spine surgery which resulted in partial paralysis of the claimant's legs and his inability maintaining control over urination and bowel movements); Udhaya. Government of Malaysia [2000] 7 CLJ MLJ 35, 44 (High Court) (internal fixation of claimant's broken leg which later resulted in leg amputation), as noted by Joseph Ming Yong Lee in Standard of Medical Care in Malaysia : The Case for Legislative Reform' dissertation submitted for Master of Laws University of Tasmania, November 2012 at page 113.
103] Puteri Nemie Jahn Kassim, 'Abandoning the Bolam Principle in Doctors' Duty to Disclose Risk in Malaysia: Are We Going in the Right Direction?' [2007] LR 1. Puteri Nemie bt Jahn Kassim, (2007) ' Abandoning the Bolam Principle in Doctors' Duty to Disclose Risk in Malaysia: Are We Going in the Right Direction?' [2007].
