LAW 591 – EVIDENCE II

Fatimah Zahirah Mohd Damanhuri

EXAMINE THE APPROACH TAKEN BY THE Isabilla Najah Zaini
COURTS WITH REGARD TO MEDICAL EXPERT Khairul Idzwan Kamarudzaman
Siti Nurzafirah Mohd Padzil
OPINION IN MEDICAL NEGLIGENCE CASES Siti Safura Ab Rahman
 OUTLINE
MEDICAL EXPERT OPINION IN NEGLIGENCE CASE

INTRODUCTION

THE BOLAM TEST

DEPARTURE FROM THE BOLAM TEST

POSITION IN MALAYSIA

CONCLUSION
 INTRODUCTION

Section 45 of the EA 1950 provides for

the relevancy of expert opinion on a
point of law, science or art, or as to
identity or genuineness of handwriting
and finger impressions.
Our scope : Medical Expert Opinion in Negligence case – point of science
 INTRODUCTION
2. RETENTION OF DISTINCTION OF LOE AND LOEC

While examining court’s approach in several landmark

cases, ask these;–
 
 Whether the court will generally accept and adopt an
expert opinion without much reservation,

or;

 Whether the court will still retain their power to judge

based on the standard they hold to be reasonable,
with expert opinion serving as assistance to the
decision
 INTRODUCTION
2. RETENTION OF DISTINCTION OF LOE AND LOEC

The trend in medical negligence;

 
“Previously, in determining whether a doctor was negligent in
diagnosis, treatment and advice, the court had shown a
deferential attitude towards medical judgment. This is in
contrast to the attitude of the court towards other professions …
where the court does not hesitate in questioning the
appropriateness and reasoning of the standard practice adopted
by those professionals. However, this deferential attitude which
is encapsulated in the phrase “a doctor knows best” is slowly
dissipating” (emphasis added)”

FS Shuaib and IL Shuaib, “Does doctor always knows best? The recent trend in medical
negligence”, available at http://www.biij.org/2009/1/e12, accessed on 24 July 2010.
 BOLAM V FRIERN HOSPITAL (1957): A DOCTOR KNOWS BEST

FACTS: In the course of an electro-convulsive therapy, the patient

was not administered with any relaxant drugs or any manual
restraints except a support the chin and shoulder. Because of
this, he suffered serious fractures - the 1:10,000 risk not being
informed.

There were two recognised school of thought on method of

treatment, one favoured the use of relaxant drugs or manual
control as a general practice, and the other, confined the use of
relaxant drugs only on particular cases. Similarly, there were two
bodies of competent opinion on whether, if relaxant drugs were
not used, manual control should be used. There were also
different views whether a patient should be expressly warned
about risk of fracture before being treated, or should be left to
inquire what the risk was.
 BOLAM V FRIERN HOSPITAL (1957): A DOCTOR KNOWS BEST

HELD: So long that the practice was supported by a body of

competent medical opinion, it is not the business of the court to
question its appropriateness. It will not be negligent for a
practitioner to follow one in preference of the other.

***

 Court hardly interfere and impose standard on medical

profession. Court generally accept and adopt expert opinion
without much reservation.

 The negligence in the medical profession is not for the judges

to determine, but by fellow medical practitioners. It is the
medical profession which will decide on the standard of
treatment.
 ROGERS V WHITAKER (1992): A JUDGE’S RESPONSIBILITY
TO DETERMINE A STANDARD

FACTS: A woman with her right eye becoming almost

blind, consulted an ophthalmic surgeon. She was advised
to undergo the operation to restore her sight. Her sight
was not improved and she developed sympathetic
ophthalmia in her left eye, causing her to lose all sight.
This recognised risk was not informed to her despite her
inquiries to the side effect on her good eye.

The issue is on the failure of the surgeon to inform her on

the risk. There are different body of medical opinion on
this matter, one supporting and one against informing the
risk on patient.
 ROGERS V WHITAKER (1992): A JUDGE’S RESPONSIBILITY
TO DETERMINE A STANDARD

HELD: the Court found the surgeon to be negligent

in failing to inform the risk. The court stressed the
importance of autonomous decision making of
patients to decide on being informed of the risk.

***

Had the court apply Bolam, the doctor will not be

found negligent for following one body of opinion
over the other.
 ROGERS V WHITAKER (1992): A JUDGE’S RESPONSIBILITY
TO DETERMINE A STANDARD

Departing from the Bolam test, the court has the

ultimate responsibility to determine whether a
practice conforms to the standard of reasonable care
demanded by law. This responsibility should not simply
be delegated to the profession. Merely following a body
of opinion will not save a practitioner from being held
negligent.
 
The court will still retain their power to judge based on
the standard they hold to be reasonable, with expert
opinion serving as assistance to the decision.
 BOLITHO V CITY AND HACKNEY HEALTH AUTHORITY (1997):
JUDGES ALSO CAN THINK

The principle in Rogers v Whitaker repeated.

FACTS: A two year old boy, having a past history of hospital

treatment for croup (loud cough and breathing difficulty), was
readmitted to the hospital. In the hospital, he suffered few
episodes of breathing difficulty. In spite of calls by the nurses, no
doctors came to attend the boy. On one point of time, P suffered
total respiratory failure and a cardiac arrest, resulting in severe
brain damage. P subsequently died.

The defendant health authority accepted that the doctors had

acted in breach of her duty of care to the boy but contended that
the cardiac arrest would not have been avoided if the boy had
been attended earlier and intubated.
 BOLITHO V CITY AND HACKNEY HEALTH AUTHORITY (1997):
JUDGES ALSO CAN THINK

An intubation would have ensured that respiratory failure did not

lead to cardiac arrest and that such intubation would have had to
have been carried out before the final episode.

One question the court had to answer: “Had the doctors come,
should the doctors have intubated the patient which could have
saved him?”

There were conflicting expert opinions to this. It was argued that

if the doctor had attended and not intubated, would have come
up to a proper level of skill and competence according to the
standard represented by Dr Dinwiddie's views (expert witness for
defendant) and that it had not been proved that the admitted
breach of duty by the defendants had caused the injury which
occurred to P.
 BOLITHO V CITY AND HACKNEY HEALTH AUTHORITY (1997):
JUDGES ALSO CAN THINK

The trial judge stated - even if the view not to intubate was
unreasonable and illogical, she souldn’t substitute her own views
for those of the medical experts. The House of Lords disagreed
with the reservations. It was HELD that a doctor could be liable
for negligence despite a body of professional opinion sanctioning
his conduct where it had not been demonstrated to the judge's
satisfaction that the body of opinion relied on was reasonable
or responsible.
***
Again, the standard here is not for the profession to determine,
but what the judge is convinced that the standard conform to the
standard demanded by law. A judge ought to see the reasoning
behind the standard argued by the expert.
 
DR KHOO JAMES & ANOR V GUNAPATHY D/O MUNIANDY AND ANOTHER
APPEAL (2002) : THE BOLAM TEST APPLIED

FACTS: Gunapathy was diagnosed with a tumour in

the left ventricle of her brain. craniotomy to resect
the tumour was performed. Subsequent tests
revealed that it was a neurocytoma with a benign
histology.

She received postoperative radiotherapy treatment

to eradicate any remnants of the tumour and to
prevent its relapse. An MRI scan in February 1996
revealed a small nodule hanging from the roof of
the left ventricle of her brain.
DR KHOO JAMES & ANOR V GUNAPATHY D/O MUNIANDY AND ANOTHER
APPEAL (2002) : THE BOLAM TEST APPLIED

Doctor advised a ‘wait and see’ approach as it was

uncertain if the nodule represented scar tissue or a
tumour. The said nodule was still present in the next
scan done on December 1996. A view taken that it
had not enlarged significantly and was more likely a
scar than a tumour.

Another doctor disagreed and thought it was likely

to be a tumour. Gunapathy was then advised to
undergo XKnife radiosurgery treatment.
 
DR KHOO JAMES & ANOR V GUNAPATHY D/O MUNIANDY AND ANOTHER
APPEAL (2002) : THE BOLAM TEST APPLIED

She sought a second opinion from other doctor,

who likewise concluded that the nodule was a
tumour. the risks of radiosurgery was informed
to Gunapathy before she undergo it on January
1997. This led to very serious side-effect of
radionecrosis. Gunapathy then underwent a
second craniotomy to remove the dead tissue
and halt the radionecrosis.
 
DR KHOO JAMES & ANOR V GUNAPATHY D/O MUNIANDY AND ANOTHER
APPEAL (2002) : THE BOLAM TEST APPLIED

The operation was successful but she suffered

permanent serious disabilities. Gunapathy sued
her doctors and the clinic, Neurological Surgery
Pte Ltd, alleging negligence in the process of
diagnosis, treatment and advice.
 
DR KHOO JAMES & ANOR V GUNAPATHY D/O MUNIANDY AND ANOTHER
APPEAL (2002) : THE BOLAM TEST APPLIED

High Court Level : judge ruled that the defendant doctors were
negligent. The trial judge disagreed with the unanimous view of
the defendants’ experts that the nodule had grown and
concluded that it was proper to find that the nodule was only
scar tissue and not a tumour.

He accordingly found the doctors liable in their diagnosis and

reasoned that no responsible medical expert could have
recommend radiosurgery for a non-existent tumour. The judge
also found that the doctors had negligently used a too large
collimator and had applied an excessive dosage of 20GY to the
tumour. The trial judge also found that the doctors had given
negligent advice to Gunapathy by failing to explain the inherent
risks of radiosurgery or that its use on neurocytoma was
experimental.
DR KHOO JAMES & ANOR V GUNAPATHY D/O MUNIANDY AND ANOTHER
APPEAL (2002) : THE BOLAM TEST APPLIED

judge’s decision appealed on contention that the

trial judge had wrongly applied the Bolam test by
relying on his own finding
 
In determining whether a doctor has breached
the duty of care owed to his patient, a judge will
not find him negligent provided there is a
respectable body of medical opinion, logically
held, that supports his actions.
 
DR KHOO JAMES & ANOR V GUNAPATHY D/O MUNIANDY AND ANOTHER
APPEAL (2002) : THE BOLAM TEST APPLIED

The Court of Appeal held that the testimony of the

experts from both parties was on the whole competent
and professional. The case was whether the doctor’s
diagnosis that the nodule was a tumour was founded on
the basis of cogent logic. The defence experts had
satisfied the threshold test of logic under the Bolam
test.

The Court of Appeal then held that the Bolam test is

applicable to the giving of advice, and also emphasised
that the medical standard of care relating to advice
was to be determined by the medical profession, not
the court as in the interest of the patient.
 THE POSITION IN MALAYSIA: THE ADHERENCE AND
THE DEPARTURE TO AND FROM THE BOLAM TEST.

Application of Bolam test:

• Chin Keow v Government of Malaysia

and Another (1967)

• Dr. Chin Yoon Hiap v NG Nen Khoon

(1998)
 THE POSITION IN MALAYSIA: THE ADHERENCE AND
THE DEPARTURE TO AND FROM THE BOLAM TEST.

Departures from the Bolam test

• Kamalam a/p Raman and Others v Eastern Plantation
Agency (Johore) Stn Bhg ULU Tiram Estate Ulu Tiram,
Johore and Another(1996)
• Hong Chuan Lay v Dr. Eddie Soo Fook Mun (1998)
“thus in considering whether a doctor has breached
his duty in respect of the provision on information
and advice, the Court rather than a body of medical
opinion shall be the judge of this issue”.
• Landmark case (FC) Foo Fio Na v Dr. Soo Fook Mun
(2007)
 FOO FIO NA V DR. SOO FOOK MUN (2007): THE STANDARD
IS NOT FOR THE PROFESSION TO DETERMINE.

FACTS: the appellant was a front seat passenger in a car that

crashed into a tree on a night. appellant was warded for several
injuries. The most serious injury was a closed dislocation of C4
and C5 vertebrae with bilaterally locked facets. It caused the
appellant to suffer pain to her neck each time she moved her
head.

The doctor on duty, Dr. Celine Pereira gave her initial treatment
by placing a cervical collar around it. After several initial
treatments failed to reduce the dislocation of the cervical
vertebrae, Dr. Soo Fook Mun, the first respondent performed the
first operation to place the dislocated vertebrae into their original
positions by inserting a loop of wire to stabilize the spinal cord
after moving the dislocated vertebrae into the normal positions.
 
 FOO FIO NA V DR. SOO FOOK MUN (2007): THE STANDARD
IS NOT FOR THE PROFESSION TO DETERMINE.

Nevertheless, the operation failed and the appellant became

paralysed. The first respondent called Dr. Mohandas, a
neurosurgeon who confirmed that the loop of wire had put
pressure on the spinal cord and is the cause of the paralysis. A
second operation was performed by the first respondent to
remove the wire loop but the appellant continued to be
paralyzed until today. The appellant sued the respondents for
medical negligence.

The issue is whether the Bolam Test should apply in relation to all
aspects of medical negligence?
 FOO FIO NA V DR. SOO FOOK MUN (2007): THE STANDARD
IS NOT FOR THE PROFESSION TO DETERMINE.

Court of Appeal applied Bolam test.

However at the Federal Court level, it was held that

the Bolam Test is not to be applied in cases of medical
negligence but the Rogers v Whitaker test is the more
appropriate test. The court also put an emphasis on
the Bolitho case.

The court is not automatically bound by evidence as to

the practice of the medical profession but the court
can question the practitioner in order to scrutinize and
ensure that the standard set by law is followed.
 LECHEMANAVASAGAR)A/L S KARUPPIAH V
DR THOMAS YAU PAK CHENK & ANOR (2008)

FACTS: plaintiff accidentally swallowed a fish bone. He went to

see the first defendant and an operation to remove the fish
bone was performed. The plaintiff then was admitted and was
supposedly put on Nil Orally after the operation. The plaintiff
however was given tablets orally and a drink of Milo by the
nursing staff of the hospital.
 
Later it was discovered that the plaintiff had esophageal
perforation on the upper part of his esophagus. His lung
became infected. He suffered serious complication led to his
right lung pleural thorax cavity almost collapsing. He was given
conservative treatment for 8 days for the esophageal
perforation. This treatment failed and an emergency chest
operation was performed on the plaintiff to control the
infection and to prevent total lung collapse.
 LECHEMANAVASAGAR)A/L S KARUPPIAH V
DR THOMAS YAU PAK CHENK & ANOR (2008)

Through expert witnesses, there appears to be no

alternative open to the plaintiff except to remove the fish
bone by way of surgery.
The expert witnesses also testified that the fish bone cannot
be removed by medication as alleged by the plaintiff in the
statement of claim.
The plaintiff has failed to produce any evidence to support
such contention or to suggest that the operation conducted
by the first defendant was unnecessary and alternative
treatment was available. The standard of practice taken
here is generally a well-worn standard by the medical
practice.
 LECHEMANAVASAGAR)A/L S KARUPPIAH V
DR THOMAS YAU PAK CHENK & ANOR (2008)

HELD that Dr Thomas Yau has not departed from the normal
standard practice in adopting conservative treatment in this
case. Following the Bolitho test, Dr Thomas Yau has treaded
on the well-worn path and there is no evidence to suggest
that he deviated from the accepted practice in giving the
plaintiff a conservative treatment for his esophageal
perforation.

The test in Bolitho can be simply stated as this: a

compliance with reasonable, respectable and responsible
practice will more often than not absolve a doctor of
liability. So long as the court is satisfied that the well-worn
path is reasonable and conforms to the standard demanded
by law.
 )
CONCLUSION

The phrase ‘Doctors Knows Best’ is now a thing of the

past. The standard is no longer for the medical
profession to set. On setting the standard of reasonable
care, the recent cases have made it clear that the court
could substitute its judgment for those of medical
experts if such expert opinions fail under the court’s
logical analysis. Thus, simply producing an expert
opinion that agrees with the practice in question may
not be enough.
 
 )
CONCLUSION

However, the court should not be hasty in challenging

opinions of distinguished experts. The court may have to
assert that it has the ultimate responsibility in determining a
reasonable standard only in rare cases where such expert
opinions is unreasonable and fail under the court’s logical
analysis.

Expert opinion is still an important when the court has to

decide on a point of science. But it is not conclusive opinion
and be forced on the judges, but the judges will retain the
responsibility to look into the reasoning behind such
standard and opinion before deciding to use that certain
opinion to assist him in adopting the standard required.
 
 )
CONCLUSION

The responsibility to determine a standard is on

the judge, but with the basis of assistance by
reasonable body of medical opinion.

The responsibility is not delegated to the

profession, but the profession’s reasonable
expert opinion will be the one a standard of
medical care will be based on, subject to the
approval of the court that it conforms to the
standard required by law.
THANK Fatimah Zahirah Mohd Damanhuri
Isabilla Najah Zaini

YOU Khairul Idzwan Kamarudzaman

Siti Nurzafirah Mohd Padzil
Siti Safura Ab Rahman