FOO FIO NA V. DR SOO FOOK MUN & ANOR FEDERAL COURT, PUTRAJAYA [CIVIL APPEAL NO: 02-20-2001(W !

MO"AMED D#AIDDIN CJ, A"MAD FAIRU# CJ (MALAYA , SITI NORMA YAAKO$ FCJ 2% DECEM$ER 200& Case History : Federal Court :[2002] 2 CLJ 11 Court Of Appeal :[2001] 2 CLJ 457 JUD'MENT S()( N*+,- Y--.*/ FCJ: [1! The question of law that is posed to us in this appeal is couched in the following words. Whether the "BolamTest" as enunciated in Bola !" Frier#Hospital $a#a%e e#t Co ittee [1957] in the area of medical negligence should appl% in relation to all aspects of medical negligence. !ll "# 11$

[2! To appreciate the "Bolam Test" which is the touchstone of lia&ilit% for medical negligence in "ngland' it is necessar% that we first consider the facts of the case itself. [0! The plaintiff in Bola (s case' one )ohn *ector Bolam' a salesman' was admitted to +riern *ospital suffering from the after effects of a mental illness of the depressi,e t%pe. *e was e-amined &% the consultant ps%chiatrist attached to the hospital and was ad,ised to undergo electro.con,ulsi,e therap% which was carried out &% placing electrodes on the head to allow an electric current from a machine to pass through the &rain. /ne of the results of the treatment was to cause con,ulsion in the nature of a fit. The consultant ps%chiatrist did not warn Bolam of the ris0s in,ol,ed' one of which was the ris0 of fracture. [1! Bolam signed a form consenting to the treatment and nothing untoward happened to him when he recei,ed the treatment for the first time. *owe,er on the second occasion the treatment was administered &% 1r. 2. !llfre%' a senior registrar at the hospital. !n initial shoc0 was passed through Bolam(s &rain for appro-imatel% one second and was followed within appro-imatel% four seconds &% a succession of fi,e momentar% shoc0s administered for the purpose of damping the amplitude of the 3er0ing mo,ements of Bolam(s &od%. 4o further shoc0s were administered and the con,ulsion was not unusuall% ,iolent. The ,oltage of the current was 155 ,olts' the frequenc% fift% c%cles per second. [2! 1uring this treatment Bolam la% in a supine position with a pillow placed under his &ac0 and his lower 3aw was supported &% a mouth gag. /therwise he was not restrained in an% wa%' although a male nurse stood at each side of him in case he should fall from his &ed. 4o rela-ant drugs were administered to Bolam prior to the treatment. [&! 6n the course of this treatment' Bolam sustained se,ere ph%sical in3uries consisting in the dislocation of &oth hip 3oints with fractures of the pel,is on each side which were caused &% the head of the femur on each side &eing dri,en through the aceta&ulum or cup of the pel,is. [3! 6n claiming damages for his in3uries against the management of the *ospital' Bolam contended that the hospital was ,icariousl% negligent in permitting 1r. !llfre% to administer electro.con,ulsi,e therap% without the pre,ious administration of a rela-ant drug which would ha,e e-cluded the ris0 of fracture altogether or without restaining his con,ulsi,e mo,ements &% manual control and in failing to warn him of the ris0 he was ta0ing in consenting to ha,e the treatment.

[4! The medical e,idence at the trial showed that competent doctors held di,ergent ,iews on the desira&ilit% of using rela-ant drugs and restraining the patient(s &od% &% manual control and also on the question of warning a patient of the ris0s of electro.con,ulsi,e therap%. The other medical e,idence that was most significant was that the ris0 of fracture was 1 in 15'555. [%! 6n the course of his summing up to the 3ur%' the trial 3udge' 7c4air )' made the following remar0s on the standard of proof in a medical negligence suit. But where %ou get a situation which in,ol,es the use of some special s0ill or competence' then the test whether there has &een negligence or not is not the the test of the man on the top of a 2lapham omni&us' &ecause he has not got this special s0ill. The test is the standard of the ordinar% s0illed man e-ercising and professing to ha,e that special s0ill. [10! 8ater when anal%9ing that standard of proof the learned 3udge made the following conclusi,e statement regarding a doctor(s dut% of care. ! doctor is not guilt% of negligence if he has acted in accordance with a practice accepted as proper &% a responsi&le &od% of medical men s0illed in that medical act ... :utting it the other wa% round' a doctor is not negligent' if he is acting in accordance with such practice' merel% &ecause there is a &od% of opinion that ta0es a contrar% ,iew. #el%ing on that direction which is now accepted as the Bolam test or Bolam principle and the di,ergent medical e,idence' the 3ur% found that the hospital was not negligent. [11! There are two lim&s to the Bolam test. The first is the requirement of a professional person in this case a doctor' to e-ercise reasona&le care in underta0ing the tas0 associated with his particular professional calling. The second &eing commonl% in,o0ed' is the assertion that a defendant doctor will not &e lia&le under the first lim& if he has complied with a responsi&le professional practice' allowing for the possi&ilit% that there ma% &e more than one such practice. [12! The legal position as enunciated &% 7c4air ) therefore contains the important elements that the doctor must ha,e acted in accordance with an "accepted medical practice"; and that the accepted practice must &e regarded as proper &% "a responsi&le &od% of medical men" in that art. [10!Bola (s case is distinguisha&le from the following factors. <1= The medical e,idence showed that the ris0 of fracture was 1 in 15'555. < = "lectro.con,ulsi,e therap% was a &rea0 through in the treatment of a person suffering from a particular t%pe of disorder where &efore such a person had little or no hope of reco,er% whatsoe,er. Toda% he has a real chance of reco,er%. <>= The hospital(s alleged negligence can &e summari9ed into the following > categories. <i= +ailure to gi,e Bolam a warning of the ris0s in,ol,ed in electro.con,ulsi,e therap% so that he might ha,e had a chance to decide whether he was going to ta0e those ris0s or not. <ii= +ailure to use an% rele,ant drugs which' if used' could ha,e e-cluded the ris0 of fracture altogether.

<iii= That if rele,ant drugs were not used then at least some form of manual control &e%ond shoulder control' support of the chin and placing a pillow under the &ac0 should ha,e &een used. [11! Bolam testified he was not gi,en an% warning as to ris0s' nor as0ed whether he would not undergo treatment as there is a one in 15'555 ris0 in,ol,ed. [12! 6n the instant appeal the facts insofar as the% were not disputed happened in the following manner. [1&! The appellant was a front seat passenger in a motor car that crashed into a tree on the night of 11 )ul% 19$ . The car was dri,en &% her &o%friend and there were two other passengers in the &ac0 seat. The accident happened near !ssunta *ospital <"the hospital"= where the appellant and her two companions were &rought to and where the appellant was su&sequentl% warded for the following in3uries. <1= Bruises on the lower a&dominal wall. < = Bruises on the right &reast. <>= Bruises on &oth anterior iliac spine areas. <?= 2losed dislocation 2? and 25 ,ete&rae with &ilaterall% loc0ed facets. [13! 6n3ur% 4o. <?=' the most serious of her in3uries caused much pain to her nec0 each time she mo,ed her head. 1r. 2eline :ereira' the doctor on dut%' prescri&ed the initial treatment &% ha,ing @.ra%s ta0en of her nec0 and placing a cer,ical collar around it. 1r. 2eline :ereira then contacted the orthopaedic surgeon on dut% 1r. Aoo +oo0 7un' the 1st respondent' who was at home at that time and she was ad,ised that the collar should remain and the appellant sta&lised &% 0eeping her in &ed and placing sand.&ags on either side of her head to pre,ent her from mo,ing her head and to reduce the ris0 of paral%sis. This was accordingl% done. [14! The 1st respondent saw the appellant for the first time the following morning and after e-amining her' prescri&ed the first treatment &% placing her on traction with weights in a further attempt to reduce the dislocated cer,ical ,erte&rae. This pro,ed to &e unsuccessful and on 1? )ul% 19$ ' the 1st respondent performed a manipulation or closed reduction procedure under general anaesthetic to unloc0 the loc0ed facet 3oint. 1espite three attempts the 1st respondent failed to reduce the dislocated cer,ical ,erte&rae and on 19 )ul% 19$ ' the 1st respondent performed the first of two operations to place the dislocated ,erte&rae into their original positions. This in,ol,ed an open reduction where&% the nape of the appellant(s nec0 was surgicall% opened and the dislocated ,erte&rae mo,ed to their normal positions and secured &% &one grafting and the insertion of a loop of wire to sta&ilise the spinal cord. @.ra%s were ta0en after the surger%. [1%! Bnfortunatel% this procedure too failed as the appellant &ecame paral%sed the da% after the operation. Auspecting that the paral%sis might &e due to ,ascular infarction ie' when &lood suppl% to the spinal cord is interrupted and cutoff' the 1st respondent prescri&ed a course of medication to the appellant &% the in3ection of 1e-amethasone for o,er four da%s. When the appellant(s condition showed no signs of impro,ement the 1st respondent called in a neurosurgeon' 1r. 7ohandas' to e-amine the appellant. +ollowing his e-amination' 1r. 7ohandas did a m%elogram test on her on 5 !ugust 19$ and he found that the wire loop which was placed to correct the dislocation of 2? and 25 ,erte&rae during the first operation was pressuring the spinal cord and that was the cause of the total paral%sis. !s a result of this the 1st respondent performed a second operation on the appellant on the same da% where&% he remo,ed the wire loop. But this treatment too did not remo,e the paral%sis and the appellant continued to &e confined to a wheel chair to this ,er% da%. [20! 6n her medical negligence suit filed against the 1st and nd respondents in )anuar% 19$7' the appellant succeded in pro,ing thatC

<1= her paral%sis was caused &% the first operation performed &% the 1st respondent and was not due to the motor car accident. < = the 1st respondent was negligent in t%ing the wire loop which compressed the spinal cord and which led to the paral%sis. <>= the 1st respondent was also negligent in not doing an%thing immediatel% after the disco,er% of the paral%sis to remed% it. <?= that the 1st respondent was negligent when he performed the second operation in the a&sence of 1r. 7ohandas who pointed out the cause of the paral%sis. [21! !s for the nd respondent' since it was pro,en that the 1st respondent was at all material times its ser,ant or agent' the nd respondent was held ,icariousl% lia&le for the negligent acts of the 1st respondent. [22! :ursuant to the finding of fault on the part of &oth respondents and the award of damages against them separate notices of appeal were filed &% the 1st respondent against the appellant and nd respondent and &% the nd respondent against the appellant and 1st respondent to the 2ourt of !ppeal. [20! Both appeals were heard together at the end of which the 2ourt of !ppeal allowed &oth appeals' set aside the orders of the *igh 2ourt and ordered that appellant &ear the costs of &oth appeals as well as the trial. [21! +ollowing this' the appellant successfull% applied for and o&tained lea,e to appeal to this court to determine the question of law which is alread% stated at the &eginning of this 3udgment. [22! 6n granting such lea,e' Ate,e Ahim 2) <Aa&ah D Aarawa0=' !&dul 7ale0 and 7o0htar !&ullah' +2))' ha,e in their unanimous 3udgment reported at [ 55 ] 28) 11' confined that question of law to the "particular aspect of medical negligence [that] relates more specificall% to the dut% and standard of care of a medical practitioner in pro,iding ad,ice to a patient on the inherent or material ris0s of the proposed treatment." [2&! !t common law the dut% of care owed &% a doctor arises out of his relationship with his patient. Without the doctor and patient relationship' there is no dut% on the part of the doctor to diagnose' ad,ice and treat his patient. [23! That dut% of care has &een aptl% descri&ed &% 8ord *ewart 2) in &" Bate a# [19 5] 9? 8BEB 79 to &e as follows. 6f a person holds himself out as possessing special s0ill and 0nowledge and he is consulted' as possessing such s0ill and 0nowledge &% or on &ehalf of a patient' he owes a dut% to the patient to use due caution in underta0ing the treatment and the patient su&mits to his direction and treatment accordingl%' he owes a dut% to the patient to use diligence' care' 0nowledge' s0ill and caution in administering the treatment. 4o contractual relation is necessar%' nor is it necessar% that the ser,ice &e rendered for reward. [24! *owe,er in the e-ercise of his dut% of care' the doctor is e-pected to maintain a standard which under the common law is achie,ed &% the standard satisfied &% the h%pothetical reasona&le man. *owe,er case law has redefined that standard to &e that of the Bolam principle which in su&stance restrains the courts from scrutini9ing and e,aluating the professional conduct of a doctor possessed of a special s0ill and competence and that he is not negligent if he has acted within a practice accepted as proper &% a &od% of his own peers who possess similar s0ill and competence as the doctor in question. 6t matters not that there e-ists another &od% with a differing opinion that does not accept the action ta0en &% the doctor. 6t is enough that he had acted in accordance with one of the &odies of opinion and the courts can ne,er declare his action to &e in an% wa% negligent. This o,er protecti,e and deferential approach perhaps conform to the well 0nown phrase that "! doctor 0nows &est."

[2%! 6n the instant appeal' the trial 3udge did not appl% the Bolam principle' preferring instead to question' anal%9e and conclude that on the e,idence &efore him' the 1st respondent was negligent in administering a cause of treatment that led to the appellant(s paral%sis. The 2ourt of !ppeal whilst steering clear of ma0ing an% pronouncement on the Bolam principle nonetheless disagreed with the *igh 2ourt and concluded there was no e,idence to esta&lish with certaint% that it was the first surger% performed &% the 1st respondent that caused the paral%sis and freed the 1st respondent of an% lia&ilit% for the appellant(s misfortunes. [00! 6t cannot &e disputed that the 1st respondent was under a dut% to ad,ise the appellant on the course of treatment to &e underta0en and the ris0s in,ol,ed and the issue is whether there has &een a &reach of that dut%. [01! 6t is the 1st respondent(s case that the nec0 in3uries suffered &% the appellant were as a result of the motor car accident and if left unattended would lead to paral%sis sooner or later. 6t was under these circumstances that when the conser,ati,e treatment pro,ed to &e negati,e that the first operation was performed and when that pro,ed unsuccessful the second operation was underta0en and on &oth occasions the 1st respondent had the e-pressed consents of the appellant to perform &oth operations. [02! The e-pressed consents refer to two consent forms e-ecuted &% the appellant. The first was signed &% her at the time of her admission when it was not e,en contemplated that surger% was necessar%. The second consent form showed her thum& print on the form and &earing a date after the first operation. The trial 3udge questioned the ,oluntariness of the thum& print as it was not e-ecuted in the presence of a witness as &% that time she had lost all sensation to her lim&s. [00! But the issue here is not so much on the consents gi,en for the two operations &ut on the ris0s in,ol,ed and whether the appellant was warned of such ris0s. Ahe had testified that had she &een warned of the ris0s in,ol,ed she would not ha,e readil% agreed to undergo the first operation. [01! There was conflicting e,idence on this and the trial 3udge made the following finding when dealing with the appellant(s first e-pressed consent. 6t would also &e concluded that at the time when that consent was signed &oth defendants did not 0now whether the plaintiff reall% needed the operation. !s such 6 am of the ,iew that it would not &e possi&le for the nd defendant to e-plain the procedure and the ris0s of the operation when the consent in the a&o,e.stated form was gi,en or signed. +or that reason 6 &elie,e the plaintiff when she said that the nd defendant told her that the 1st operation <open reduction= which too0 place on 19.7.19$ was a minor operation to correct the little pro&lem of the nec0 that she was suffering. 6n other words she was not told of the ris0 of paral%sis coming from that operation. [02! 6t must also &e remem&ered that the appellant suffered total paral%sis after the first operation and it was to correct this situation that the second operation was performed. 6n this respect the trial 3udge made the following o&ser,ations. !s to the 1st operation' it is clear to me that the nd defendant had done something which caused the paral%sis. 6 am satisfied that the paral%sis was caused &% the wire loop compressing the spinal cord and when the wire loop was remo,ed during the nd operation the plaintiff was a&le to mo,e her upper lim&s. 6t does not matter what e-planation the nd defendant ga,e for remo,ing the wire loop &ecause the fact remained that the plaintiff reco,ered the use of her upper lim&s after the remo,al of the wire loop. The wire loop inserted &% the nd defendant during the 1st operation was the cause of the paral%sis. The nd defendant was again negligent when he did not ta0e an% step to remed% the paral%sis immediatel%. 6nstead he waited for two wee0s to do the remedial operation and all that time he 0ept on assuring the plaintiff that she would reco,er from the paral%sis which was onl% temporar% in nature. 6n m% ,iew the a&o,e shows that the nd defendant failed to e-ercise the care and s0ill of an ordinar% competent practitioner in that profession as stated &% the +ederal 2ourt in the case of 'o( )a# *e#% !" )a%a a+ , Ors" [19$1] 1 84A 1?7; [19$ ] 1 78) 1 $. [0&! The nd defendant referred to &% the *igh 2ourt is the 1st respondent &efore us.

[03! This is a finding of fact and the law on appellate interference against findings of facts is well settled as to deter us from upsetting such a finding. 7oreo,er there is sufficient e,idence &efore the court to 3ustif% it in concluding as it did. Aee the cases of <1= &e#al Li#- .'L/ *d#" B+d" !" 0ato1 0r Har#a *i#%+ [1997] > 28) 5' < = C+i#a Airli#es Ltd" !" $altra# Air Corp *d#" B+d" a#d A#ot+er Appeal [199F] > 28) 1F> and <>= $ay#ard !" 2est $idla#ds &e%io#al Healt+ Aut+ority [19$5] 1 !ll "# F>5. [04! 7ore importantl%' the facts of the instant appeal differ ,astl% with the facts in Bolam case in thatC <1= Bolam was a mental patient' and unli0e the appellant' who has &een descri&ed as "a &right %oung lad%" &% the 2ourt of !ppeal' it is dou&tful whether he was in a position to gi,e an% consent to an% treatment to &e gi,en to him. < = had a warning of ris0 &een communicated to him' it is also dou&tful whether he was in a position to comprehend the true nature of the ris0s in,ol,ed. <>= the ris0 of in3ur% in the nature of a fracture to Bolam was one in ten thousand. The same cannot &e attri&uted to the appellant as the ris0 of paral%sis was present and real. <?= unli0e Bolam(s case there is no conflicting &od% of medical opinion adduced in the instant appeal to esta&lish whether the appellant should or should not &e warned of the ris0s of paral%sis. [0%! That said' we are of the opinion that the Bolam test has no rele,ance to the dut% and standard of care of a medical practitioner in pro,iding ad,ice to a patient on the inherent and material ris0s of the proposed treatment. The practitioner is dut% &ound &% law to inform his patient who is capa&le of understanding and appreciating such information of the ris0s in,ol,ed in an% proposed treatment so as to ena&le the patient to ma0e an election of whether to proceed with the proposed treatment with 0nowledge of the ris0s in,ol,ed or decline to &e su&3ected to such treatment. [10! 2ase law on this aspect of medical negligence has not &een consistent in the application of the Bolam principle &% the "nglish courts. [11! /ne such case relates to the *ouse of 8ords( dissenting 3udgment of 8ord Acarman in *ida(ay !" Board of 3o!er#ors of t+e Bet+le &oyal Hospital a#d t+e $audsley Hospital a#d Ot+ers [19$5] 1 !2 $71. The learned 3udge e-pressed his o&ser,ations in the following manner. 6n m% ,iew the question whether or not the omission to warn constitutes a &reach of the doctor(s dut% of care towards his patient is to &e determined not e-clusi,el% &% reference to the current state of responsi&le and competent professional opinion and practice at the time' though &oth are' of course' rele,ant considerations' &ut &% the court(s ,iew as to whether the doctor in ad,ising his patient ga,e the consideration which the law requires him to gi,e to the right of the patient to ma0e up her own mind in the light of the rele,ant information whether or not she will accept the treatment which he proposes. [12! 6n that case' 7rs. Aidawa% suffered personal in3uries as a result of a surgical operation done &% a neuro. surgeon' 7r. +alconer who died fi,e %ears &efore the trial of her action. Ahe did not allege negligence on the performance of the operation &ut rested her case on the failure of 7r. +alconer to inform her of the ris0 inherent on the operation for had she &een so warned she would not ha,e consented to the operation. [10! The case of Hu4-s !" Cole [199>] ? 7"1 8# >9>' suggests a shift in attitude when determining a doctor(s lia&ilit% in a gi,en case. The 3udges in that case adopted a pragmatic approach to this issue and held that it was appropriate for the 3udges to re3ect medical e-pert e,idence if the% do not reall% stand up to anal%sis. The defendant in that case was a general practitioner in Aomerset who possessed a diploma in o&stetrics. 7rs. *uc0s had &een one of the patients in a maternit% hospital and after gi,ing &irth to her child' suffered from fulminating septicaemia' which caused ,arious sores and %ellow sports on her fingers and toes. 1r 2ole put the patient on a

fi,e.da% course of anti&iotics 0nown as tetrac%cline and it was ta0en off as the sores were impro,ing. The ne-t da% 7rs *uc0 contracted septicemia' puerperal fe,er. Ahe sued 1r 2ole for negligence' alleging that he should ha,e treated her with penicillin. The defendant contended that he had acted in accordance with the reasona&le practice of other doctors with o&stetric e-perience. [11! !t the trial' 8awton ) found 1r 2ole to ha,e &een negligent and the 2ourt of !ppeal upheld his finding. Though the court understood 1r 2ole(s action couched with a sense of securit%' the court was willing to appl% the test of reasona&le care' as to whether the defendant had acted in accordance with appro,ed practice. Based on the e,idence' 1r 2ole was found to &e negligent &ecause he did not ta0e "e,er% precaution" to pre,ent the out&rea0 of puerperal fe,er and it mattered not if other doctors would ha,e acted as he did. [12! /n appeal Aach 8) opined that "when ris0s of greater danger are 0nowingl% ta0en as a matter of professional practice then' howe,er small the ris0s' the court must carefull% e-amine the practice' particularl% where the ris0s can &e easil% and ine-pensi,el% a,oided". [1&! The decision in *uc0s was followed in 3as4oi#e !" 5a# *+erida# , Co [199?] 5 7ed 8# ?>7 and in another case' Joy4e !" 2a#d(ort+ Healt+ Aut+ority [1995] F 7ed 8# F5 where /,erend ) commented that "the medical practice must stand up to anal%sis and &e unreasona&le in the light of medical 0nowledge at that time". [13! *owe,er' a ma3orit% of the cases followed the principles set out in Aidawa% in which the courts ha,e effecti,el% allowed a doctor(s lia&ilit% to &e determined &% medical 3udgment. 4e,ertheless the legal position has somewhat changed with the *ouse of 8ords( decision in Bolit+o .ad i#istrati6 of t+e estate of Bolit+o .de4eased/ !" City a#d Ha4-#ey Healt+ Aut+ority [1997] ? !ll "# 771. [14! 6n that case' the plaintiff a two %ear old &o%' who has a past histor% of hospital treatment for croup' was readmitted to hospital under the case of 1r * and 1r #. /n the following da% the plaintiff had two episodes during which he turned white and clearl% had difficult% in &reathing. 1r * was called in the first instance and she delegated 1r # to attend in the second instance &ut neither attended the plaintiff. !t a&out .>5pm' the plaintiff suffered total respirator% failure and a cardiac arrest resulting in se,ere &rain damage and su&sequentl% died. The mother continued his proceedings for medical negligence as the administratri- of his estate. The defendant accepted that 1r * had acted in &reach of her dut% of care to the plaintiff &ut contended that the cardiac arrest would not ha,e &een a,oided if 1r * or some other suita&le deput% had attended. [1%! 8ord Browne.Wil0inson deli,ering the 3udgment of the *ouse of 8ords e-pressed his findings at p. 77$ of the report as follows. ... 6n m% ,iew the court is not &ound to hold that a defendant doctor escapes lia&ilit% for negligent treatment or diagnosis 3ust &ecause he leads e,idence from a num&er of medical e-perts who are genuinel% of opinion that the defendant(s treatment or diagnosis accorded with sound medical practice. ... 6n particular' in cases in,ol,ing' as the% so often do' the weighing of ris0s against &enefits' the 3udge &efore accepting a &od% of opinion as &eing responsi&le' reasona&le or respecta&le' will need to &e satisfied that' in forming their ,iews' the e-perts ha,e directed their minds to the question of comparati,e ris0s and &enefits and ha,e reached a defensi&le conclusion on the matter. [20! 6n the course of his speech and after discussing some decided cases' the learned 3udge also made the following pertinent remar0s. These decisions demonstrate that in cases of diagnosis and treatment there are cases where' despite a &od% of professional opinion sanctioning the defendant(s conduct' the defendant can properl% &e held lia&le for negligence <6 am not here considering questions of disclosure of ris0=. 6n m% 3udgment that is &ecause' in some cases' it cannot &e demonstrated to the 3udge(s satisfaction that the &od% of opinion relied on is reasona&le or responsi&le.

6n the ,ast ma3orit% of cases the fact that distinguished e-perts in the field are of a particular opinion will demonstrate the reasona&leness of that opinion. 6n particular' where there are questions of assessment of the relati,e ris0s and &enefits of adopting a particular medical practice' a reasona&le ,iew necessaril% presupposes that the relati,e ris0s and &enefits ha,e &een weighed &% the e-perts in forming their opinions. But if' in a rare case' it can &e demonstrated that the professional opinion is not capa&le of withstanding logical anal%sis' the 3udge is entitled to hold that the &od% of opinion is not reasona&le or responsi&le. [21! 6t would appear that Bolit+o decided that if it can &e shown that the professional opinion relied upon was not capa&le of withstanding logical anal%sis' the 3udge is entitled to hold that the &od% of opinion was not reasona&le or responsi&le. [22! 2ommonwealth 3urisdictions ha,e also declined to follow the Bolam test. /ne such case is the !ustralian case of &o%ers !" 2+ita-er [199 ] 175 28# ?79' where the facts disclose that Whita0er who was almost totall% &lind in the right e%e consulted #ogers' an ophthalmic surgeon. The latter ad,ised her that an operation on her right e%e would not onl% impro,e its appearance &ut would pro&a&l% restore significant sight to it. Whita0er agreed to undergo surger% &ut it did nothing to her right e%e &ut de,eloped inflammation to her left e%e and this led to the loss of sight of that good e%e. 6n the Aupreme 2ourt of 4ew Aouth Wales #ogers was held lia&le in that he had failed to warn Whita0er that as a result of the surger%' she might de,elop a condition 0nown as s%mpathetic opthalmia in her left e%e. #ogers( appeal to the 2ourt of !ppeal was dismissed and in affirming that decision and following 8ord Acarman(s ruling in Aidawa%' the *igh 2ourt made the following pronouncements. 6n !ustralia' it has &een accepted that the standard of care to &e o&ser,ed &% a person with some special s0ill or competence is that of the ordinar% s0illed person e-ercising and professing to ha,e that special s0ill. But' that standard is not determined solel% or e,en primaril% &% reference to the practice followed or supported &% a responsi&le &od% of opinion in the rele,ant profession or trade. ",en in the sphere of diagnosis and treatment' the heartland of the s0illed medical practitioner' the Bolam principle has not alwa%s &een applied. +urther' and more importantl%' particularl% in the field of non.disclosure of ris0 and the pro,ision of ad,ice and information' the Bolam principle has &een discarded and' instead' the courts ha,e adopted the principle that' while e,idence of accepta&le medical practice is a useful guide for the courts' it is for the courts to ad3udicate on what is the appropriate standard of care after gi,ing weight to "the paramount consideration that a person is entitled to ma0e his own decisions a&out his life." [20! The decision in &o%ers was followed &% the Aupreme 2ourt of Aouth !ustralia in the case of F !" & [19$>] >> A.!.A.#. 1$9 and Batters7y !" 8ott a# [19$?] >5 A.!.A.#. 577' 5$ which re3ected the notion that the court is automaticall% &ound &% e,idence as to the practice of the medical profession. The court has an o&ligation to question and scrutini9e the professional practice' to ensure that the standard set &% law is attained. 6n F !" & [19$>] >> A.!.A.#. 1$9 at p. 191 Eing 2) outlined the scope of the dut% to disclose in the following manner. 1etermination of the scope of the doctor(s dut% to disclose in,ol,es consideration of two ,alues which are sometimes in conflict' namel% the dut% of the doctor to act in what he concei,es to &e the &est interests of his patient and the right of the patient to control his own life and to ha,e the information necessar% to do so. What is in question is the scope of the doctor(s dut% of care. *e is required to act reasona&l%' not onl% in his actual treatment of the patient' &ut also in relation to the disclosure of information. 6n C+atterto# !" 3erso# Bristow ). held that it is "the dut% of a doctor to e-plain what he intends to do' and its implications' in the wa% a careful and responsi&le doctor in similar circumstances would ha,e done". 6t is m% opinion that that is a correct statement of the law' and that the dut% e-tends' not onl% to the disclosure of real ris0s of misfortune inherent in the treatment' &ut also an% real ris0 that the treatment' especiall% if it in,ol,es ma3or surger%' ma% pro,e ineffecti,e. What a careful and responsi&le doctor would disclose depends upon the circumstances. The rele,ant circumstances include the nature of the matter to &e disclosed' the nature of the treatment' the desire of the patient for information' the temperament and health of the patient' and the general surrounding circumstances. [21! This is followed &% the following warning from the learned 3udge as to the realit% of the situation.

But professions ma% adopt unreasona&le practices. :ractices ma% de,elop in professions' particularl% as to disclosure' not &ecause the% ser,e the interest of the clients' &ut &ecause the% protect the interests or con,enience of mem&ers of the profession. The court has an o&ligation to scrutinise professional practices to ensure that the% accord with the standard of reasona&leness imposed &% the law. [22! 6n the realm of diagnosis' treatment and the dut% to warn' the ruling of the *igh 2ourt of !ustralia in )a6a-is !" 2ester# 3e#eral Hospital , A#ot+er [1999] *2! 1 was a&le to settle the ongoing dou&t which e-isted in &o%ers !" 2+ita-er' as to' whether &o%ers was restricted to cases relating to negligent ad,ice onl%. [2&! 6n )a6a-is' a 1 %ear old &o%' :aras0e,as 4a-a0is was struc0 on the head &% his schoolmate(s school &ag. *e collapsed and was admitted &% a general practitioner to the Western General *ospital for head in3ur%. !t the hospital the appellant fell into unarousa&le unconsciousness for fi,e minutes and was unresponsi,e to painful stimuli. ! preliminar% diagnosis was made of a su&arachnoid <traumaticall% caused= haemorrhage caused &% the &low to the head. *e remained in hospital for nine da%s under the super,ision of the second respondent' 7r. )ensen' a senior neurosurgeon at the hospital. ! 2!T scan was carried out which indicated that he was suffering from su&arachnoid <traumaticall% caused= haemorrhage. *owe,er his condition impro,ed and the appellant was discharged. Two da%s later the appellant collapsed and was ta0en to the #o%al 2hildren(s *ospital where he was attended to &% 7r Elug' director of neurosurger%. !n angiogram conducted re,ealed that the appellant suffered a ma3or intracranial &leed from a &urst aneur%sm. !n operation was performed to insert a ,entricular peritoneal shunt to drain cere&rospinal fluid and a craniotom% was performed to clip the aneur%sm. The appellant &rought an action in the Aupreme 2ourt of Hictoria against the Aenior neurosurgeon and the hospital for failure to properl% diagnose and that his negligence had led him to suffer serious and permanent ph%sical and intellectual impairment. The trial 3udge accepted a no case to answer. The appellant(s appeal was unsuccessful when the 2ourt of !ppeal held that there was no &asis for the claim that the neurosurgeon failed to consider the possi&ilit% of an aneur%sm. [23! Gaudron )' spea0ing for the *igh 2ourt of !ustralia reaffirmed the re3ection of the Bolam test with the following remar0s at p. ? of the report. ... it is important to &ear in mind that the test for medical negligence is not what other doctors sa% the% would or would not ha,e done in the same or similar circumstances ... To treat what other doctors do or do not do as decisi,e is to adopt a ,ariant to the direction gi,en to the 3ur% in Bola !" Frier# Hospital $a#a%e e#t Co ittee <"the Bolam rule"= ... The Bolam rule' which allows that the standard of care owed &% a doctor to his or her patient is "a matter of medical 3udgment"' was re3ected &% this 2ourt in &o%ers !" 2+ita-er". [24! 7c*ugh )' another mem&er of the panel e-pressed the same sentiments at p. 1 of the report. 6n m% opinion' that e,idence of 7r Elug was sufficient to get the plaintiff(s case to the 3ur%' irrespecti,e of whether 7r. )ensen did or did not consider performing an angiogram. ... 6f there is e,idence upon which the 3ur% could reasona&l% find negligence on the part of a doctor' the issue is for them to decide irrespecti,e of how man% doctors thin0 that the defendant was not negligent or careless. 4or is it to the point that this e,idence of 7r. Elug also shows that a respecta&le &od% of medical opinion would not ha,e performed an angiogram in the circumstances of this case. To allow that &od% of opinion to &e decisi,e would re.introduce the Bolam test into !ustralian law. 6n &o%ers !" 2+ita-er' this 2ourt re3ected the Bolam test and held that a finding of medical negligence ma% &e made e,en though the conduct of the defendant was in accord with a practice accepted at that time as proper &% a responsi&le &od% of medical opinion. [2%! The question &efore the *igh 2ourt of !ustralia was not whether the defendant(s conduct accorded with the practice of the medical profession or some parts of it' &ut whether it conformed to the standard of reasona&le care demanded &% the law. That was the question for the court' and the dut% of deciding it could not &e delegated to an% profession or group in the communit%.

[&0! 6n 7ala%sia' the Bolam principle has &een applied e-tensi,el% &% the courts in medical negligent cases when determining the standard of care. Auch cases includeC <1= *(a y !" $att+e(s[19FF] 1 84A 1$9; [19F7] 1 78) 1? and [19F7] 1 84A 17?[19F$] 1 78) 1>$. < = C+i# 'eo( !" 3o!er# e#t of $alaysia a#d A#ot+er [19F7] 1 84A 5; [19F7] <>= 9li:a7et+ C+oo !" 3o!er# e#t of $alaysia [19F5] 1 84A ?; [1975] <?= 'o( )a 78) ?5.

78) 171.

*e#% !" )a%a a+ , Ors [19$1] 1 84A 1?7; [19$ ] 1 78) 1 $.

[&1! 6n the last mentioned case' the appellant applied a complete plaster case to the leg of the nd respondent and due to lac0 of proper s0ill and care in the application of the cast' caused inadequate &lood circulation to the leg' that led to gangrene' necessitating the amputation of the nd respondent(s leg. The nd respondent claimed damages against the appellant' >rd respondent and the Go,ernment. The appellant admitted lia&ilit% as regards the road accident &ut denied it as regards the amputation. The trial 3udge a&sol,ed the medical officer and the Go,ernment from an% &lame and held the appellant solel% to &lame. Aalleh !&as +) in deli,ering 3udgment for the +ederal 2ourt said at p. 1>5C There ma% &e differences of opinion as to the t%pes of plaster casts to &e applied in the treatment of the t%pe of in3uries sustained &% the respondent' &ut the choice of a treatment which is the standard medical practice is not &% itself a negligence' Bola !" Frier# Hospital $a#a%e e#t Co ittee [1957] !ll "# 11$ and 9li:a7et+ C+oo !" 3o!er# e#t of $alaysia [19F5] 1 84A ?; [1975] 78) 171. [&2! 6n Asia+ 7te 'a sa+ !" 0r &a;i#der *i#%+ , Ors [ 551] ? 28) F9' the plaintiff deli,ered her second child on 15 /cto&er 19$$ at the Telo0 6ntan 1istrict *ospital. 1ue to suspicion of foetus distress' she underwent a lower section caesarian operation done under general anaesthesia. Bnfortunatel% she did not reco,er from the operation and suffered permanent irre,ersi&le &rain damage. The plaintiff claimed damages against the defendants. 6n deciding whether the doctor and the anaesthetist were negligent' the court relied on the Bolam principle. )ames +oong ) <as he then was= concluded as follows at p. 7 of the report. ... 6 find no e,idence to support a finding that this doctor was negligent in this surger% going &% the test set out in the esta&lished case of Bola !" Frier# Hospital $a#a%e e#t Co ittee [1957] !ll "# 11$. ... [&0! 8ater at p. 7$ of the same report' the learned 3udge made the following finding as against the second doctor sued in that action. ... 6 find the second defendant is guilt% of negligence since he did not act in accordance with the practice accepted as proper &% a responsi&le &od% of medical men s0illed in this particular art . a test as set forth in Bolam(s case. [&1! 8ater in the same %ear' the court in Har *ai Ho#% , A#or !" <#i!ersity Hospital , A#or [ 551] $ 28) 5$' applied the Bolam principle in deciding whether the doctor was negligent in handling the &irth of the nd plaintiff(s child. [&2! +ollowing the decision of the &o%ers( case in 199 ' conflicting 3udgments ha,e &een deli,ered in our courts o,er the preference and application of the &o%ers !" 2+ita-er test to the Bolam test. [&&! 6n Lie( *i# 'io#% !" 0r *+aro# 0$ =aulra; [199F] 28) 995 the plaintiff sued the defendant for aggra,ated or puniti,e damages for negligence pertaining to the operation of his right e%e which was lost to post.operati,e

infection. The plaintiff also alleged that a Aeton procedure' which the plaintiff(s 1st doctor had recommended should ha,e &een carried out' and not a repeat tra&eculectom% which the defendant had performed. [&3! 6an 2hin ) followed *ida(ay and found that the plaintiff had failed to pro,e that the defendant had not acted in accordance with the standards of a competent ophthalmologist. The defendant was held not lia&le and in so deciding' the learned 3udge made the following remar0s at pp. 1511.151 of the report. 6 am of the ,iew that the defendant had treaded on well trodden path and she cannot &e said to &e guilt% of negligence <Bola !" Frier# Hospital $a#a%e e#t Co ittee [1957] !ll "# 11$' *8=. :ut in another wa%' the plaintiff has failed to pro,e that the defendant did what no s0illed ophthalmologist would do < Hu#ter !" Ha#ley [1955] A2 5' 9li:a7et+ C+oo !" 3o!er# e#t of $alaysia , A#or [19F5] 1 84A ?; [1975] 78) 171. [&4! The &o%ers !" 2+ita-er test was full% endorsed in 7ala%sia for the first time in the case of 'a ala a>p &a a# , Ors !" 9aster# =la#tatio# A%e#4y .Jo+ore/ *d# B+d <lu 8ira 9state? <lu 8ira ? Jo+ore , A#or [1997] 5 28) 55. The &rief facts in this case are that the the late 7r 1inasan aIl :adman&athan' the deceased' who was emplo%ed &% the 1st defendant at the time of his death' was suffering from h%pertension. *e complained of giddiness and fits and fainted at wor0. *e was then attended &% the defendant(s doctor who e-amined him and prescri&ed medication and su&sequentl% discharged him. *e was further e-amined &% the defendant(s doctor on two other occasions. ! da% after his last e-amination the deceased was admitted to the Eluang *ospital as a result of giddiness and fits. The deceased died at the Eluang *ospital the da% after. [&%! #ichard Talalla )' at p. F1 of his 3udgment had this to sa%. The law applica&le in this case and which &inds me is to &e found in the ma3orit% decision of Bara0&ah 8: in the +ederal 2ourt case of *(a y !" $att+e(s , A#or [19F$] 1 78) 1>$ at pp 1>9 and 1?5 where it was statedC ! man or a woman who practices a profession is &ound to e-ercise the care and s0ill of an ordinar% competent practitioner in that profession . &e it the profession of an accountant' a &an0er' a doctor' a solicitor or otherwise. [30! +urther at p. F> *is 8ordship went on to sa%C ... that the current state of the law' &% wa% of ela&oration ma% &e found in the decision of the *igh 2ourt of !ustralia gi,en in C+ristoper &o%ers !" 2+ita-er [199 ] 175 28# ?79. [31! +inall% at p. F7 *is 8ordship concluded as follows. +or m% part 6 see Bola (s case and that of "li9a&eth 2hoo &eing referred to &% the learned 3udge not for a proposition that there &eing differences of opinion as to treatment' choice of a treatment which is the standard medical practice is not itself negligence. 6 do not see the learned 3udge as ha,ing addressed himself to the Bolam principle and upon doing so appl%ing it. !ccordingl% 6 do not find m%self &% reference to 'o((s case &eing fettered &% the Bolam principle &ut on the contrar% &ound &% the ruling of Aalleh !&as +)' set out a&o,e which ruling corresponds with the ruling &% the then 8ord :resident in *(a y(s case and 6 propose to adopt &% wa% of ela&oration of those rulings the a&o,ementioned di4ta e-tracted from the decision in the &o%ers( case. 6 should empha9ise that while due regards will &e had to the e,idence of medical e-perts' 6 do not accept m%self as &eing restricted &% the esta&lishment in e,idence of a practice accepted as proper &% a responsi&le &od% of medical men s0illed in that particular art to finding a doctor is not guilt% of negligence if he has acted in accordance with that practice. 6n short 6 am not &ound &% the Bolam principle. #ather do 6 see the 3udicial function in this case as one to &e e-ercised as in an% other case of negligence' unshac0led' on the ordinar% principles of the law of negligence and the o,erall e,idence.

[32!&o%ers !" 2+ita-er was again applied in the case of 8a# A+ 'au !" 8+e 3o!er# e#t of $alaysia [1997] 28) Aupp 1F$. 6n this case' the ser,ant andIor agent of the defendant carried out a surgical operation on the plaintiff who had a histor% of an in3ur% to his &ac0 caused &% a piece of wood. The pro,isional diagnosis was that of a prolapsed disc. !n orthopedic surgeon e-amined the plaintiff and made a pro,isional diagnosis of intra spinal tumor at the le,el of the thoracic ,erte&ra 111 and 11 . !fter numerous tests the cause of the tumor was ascertained as low grade astroc%toma. *e was completel% paral%sed waist down. The plaintiff sought damages from the defendant for the alleged negligence andIor &reach of professional duties. [30! 6n appl%ing the &o%ers !" 2+ita-er test' 8ow *op Bing' ) <as he then was= arri,ed at the following conclusion at p. 1$7 of his 3udgment. 6n the instant case' where the ris0 of paral%sis was ,er% real' more so than the tumor was intramedullar%' it was a&solutel% essential for the attending surgeon such as 1W1 or an% doctor assisting him to warn the patient of the foreseea&le ris0 of e,en a finding of intramedullar% tumor. [31! +inall% we ma0e reference to 7ichael )ones( &oo0 on $edi4al )e%li%e#4e [199F] edition at p. 95 that seems to suggest that there is a distinction &etween the test of negligence &ased on the reasona&le competent man and that of the ordinar% s0illed man. The former ma0es it clear that negligence is concerned with the departures from what ought to ha,e &een done in the circumstances which is measured &% reference to a h%pothetical (reasona&le doctor( and the latter places considera&le emphasis on the standards which are in fact adopted &% the profession. *e emphasi9es that the point is for the court to determine what the reasona&le doctor would ha,e done' not the profession. What the profession does in a gi,en situation will &e an important indicator of what ought to ha,e &een done' &ut it should not necessaril% &e determinati,e. 6n the final anal%sis the court should set the standard of care in negligence' drawing upon the e,idence presented. The Bolam test fails to ma0e this important distinction &etween the reasona&le competent doctor and the ordinar% s0illed doctor. [32! 6n Ble#-iro# !" 3reat Ce#tral 3as Co#su ers1 Co [1$F5] + D + ?>7' 2oc0&urn 2)' said.

General practice has alwa%s &een ta0en into account in determining the standard of care' &ut it is not conclusi,e &ecause (no one can claim to &e e-cused for want of care &ecause others are careless as himself(. ... 6ndeed it is not so much the uni,ersal &eha,iour of man0ind in a particular field to which the law gi,es weight' as the standard of conduct whether uniforml% followed or not' which is generall% accepted as correct. [3&! 6n Ha;%ato !" Lo#do# Healt+ Asso4iatio# [19$ ] >F /# < d= FF9' an action in negligence in respect of personal in3uries sustained during post.operati,e case' 2allaghan )' at p. F9> of his 3udgment e-pressed his concern in the following manner. 6n m% ,iew howe,er' a court has a right to stri0e down su&standard appro,ed practices when common sense dictates such a result. 4o profession is a&o,e the law and the courts on &ehalf of the pu&lic ha,e a critical role to pla% in monitoring and precipitating changes where required in professional standards. [33! 6n the 6rish case of Best !" 2ell4o e Fou#datio# Ltd [199?] 5 7ed 8# $1' +inla% 2) e-pressed the same concern and defined the "function which a 2ourt can and must perform in the trial of a case in order to acquire a 3ust result' is to appl% common sense and a careful understanding of the logical and li0elihood of e,ents to conflicting opinions and conflicting theories concerning a matter of this 0ind". [34! Therefore there is a need for mem&ers of the medical profession to stand up to the wrong doings' if an%' as is the case of professionals in other professions. 6n so doing people in,ol,ed in medical negligence cases would &e a&le to o&tain &etter professional ad,ice and that the courts would &e appraised with e,idence that would assist them in their deli&erations. /n this &asis we are of the ,iew that the &o%ers !" 2+ita-er test would &e a more appropriate and a ,ia&le test of this millennium then the Bolam test. To &orrow a quote from 8ord Woolfe(s

inaugural lecture in the new :ro,ost Aeries' deli,ered in 8ondon in 551' the phrase "1octor 0nows &est" should now &e followed &% the qualif%ing words "if he acts reasona&l% and logicall% and gets his facts right". [3%! /n that finding we answer the question posed to us in the negati,e and order that this appeal is allowed with costs here' in the 2ourt of !ppeal and in the *igh 2ourt to &e &orne &% the respondents and the orders of the *igh 2ourt on quantum are to &e restored. The deposit is to &e refunded to the appellant. [40! +inall% we wish to add that this 3udgment is deli,ered pursuant to s. 7$<1= of the 2ourts of )udicature !ct 19F? as the 2hairman of the panel has since retired.