Materia Medica Malaysiana

December 30, 2006

Now easier to win suits against specialists

Filed under: Uncategorized — malaysianmedicine @ 9:39 am

NST: PUTRAJAYA: The Federal Court has made it easier for litigants to prove negligence against persons professing a specialised skill.
A landmark ruling yesterday raised the benchmark of service specialists owed to their clients.
The court made the ruling in allowing a medical negligence appeal by Foo Fio Na, who was paralysed following an operation performed by a consultant orthopaedic surgeon 24 years ago.
It said medical specialists were held to a higher standard of care when dealing with patients.
This means that specialists are no longer in the same league as ordinary medical doctors when they are slapped with medical negligence suits by their patients.
The decision is seen as departing from a 50-year English legal principle set out in the Bolam case where the standard of proof in medical negligence suits was that of a reasonable man, regardless of whether one was a medical specialist or general practitioner, and which was of a lower benchmark.
The apex court now appeared to favour the Australian case of Rogers vs Whitaker which imposed a higher standard of care on medical experts.

Foo, 47, whose cervical vertebrae were dislocated after a motor accident in Petaling Jaya on July 11, 1982, contended that as a result of the operation by consultant orthopaedic surgeon Dr Soo Fook Mun, her spinal cord was damaged, causing her to become paralysed.
She had also named Assunta Hospital in Petaling Jaya as defendants.
The then High Court judge Datuk Mokhtar Sidin, in his judgment on April 8, 1999, held that Dr Soo and Assunta Hospital were 100 per cent liable for Foo’s condition.
Mokhtar said that since Dr Soo was at the material time employed by Assunta Hospital, the hospital was vicariously liable for his negligence.
He had awarded more than RM500,000 to Foo in damages, interest and costs.
However, on April 15, 2001, the Court of Appeal reversed the High Court decision. The Federal Court reinstated the High Court’s award.

Chief judge of Malaya Tan Sri Siti Norma Yaakob, who wrote the judgment, said the facts of the case in the appeal differed vastly from the Bolam case.
“We are of the opinion that the Bolam test has no relevance to the duty and standard of care of a medical practitioner in providing advice to a patient on the inherent and material risks of the proposed treatment,” she said.
She said it was for the court to set the standard of care in negligence, based on evidence presented.
“The Bolam test fails to make this important distinction between the reasonable competent doctor and the ordinary skilled doctor,” she said.
Siti Norma said there was a need for members of the medical profession to stand up to the wrongdoings, if any, as in the case of professionals in other professions.
In so doing, she said people involved in medical negligence cases would be able to obtain better professional advice and that courts would be in a position to evaluate evidence to make their findings.
“On this basis, we are of the view that the Rogers vs Whitaker test would be more appropriate and viable test of the millennium than the Bolam test,” she said.
Siti Norma said the well-known phrase that “doctor knows best” should now be followed by the qualifying words “if he acts reasonably, logically and gets his facts right”.

This appeal was heard by then Chief Justice of the Federal Court Tun Mohamed Dzaiddin Abdullah, former Chief Judge of Malaya Tan Sri Ahmad Fairuz Sheikh Abdul Halim and Siti Norma in her capacity as Federal Court judge.
Siti Norma said this judgment was delivered pursuant to Section 78(1) of the Court of Judicature Act 1964 as Dzaiddin had retired.
Meanwhile, lawyer and lecturer Surdev Singh Gill said the ruling would have a far-reaching impact on individuals professing to be specialists.
“The expectation is now higher because clients want value for their money,” he said, adding that the decision had made it easier for aggrieved parties to prove negligence.
He said doctors could resort to defensive medicine because of the risk factor or impose a higher fee to pay for their insurance premiums.

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