Professionals
After proving defendant owe plaintiff a duty of care, plaintiff must further prove, on a balance of probabilities that the conduct of the defendant fell below the required standard of care. The standard of care, which the law demands of a person in a normal case, has been established to be the standard of “reasonable care” – standard satisfied by the hypothetical reasonable man.
The legal standard of care for professionals surpasses that expected of an ordinary individual. If someone belongs to a profession or presents themselves as possessing specific expertise, they are required to demonstrate a level of skill typical of others in that profession. The standard of care imposed on a reasonable professional reflects the skill and expertise they claim to possess or what is deemed reasonable in the given situation. In the latter scenario, the defendant must demonstrate the level of skill anticipated by the general public for someone in their position.
The Test Bolam Principle
The assessment aimed at defining the level of care expected from a physician was implemented.
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
“He cannot be deemed negligent if his actions align with a practice considered appropriate by a reputable group of medical professionals knowledgeable in that specific field.”
Essential Elements
- The doctor must have acted in accordance with “accepted medical practice”
- The accepted practice must be regarded as proper by “ a responsible body of medical men” skilled in that art
Accepted medical practice
The acknowledged standard of practice must align with the present practice. This necessitates the defendant to stay updated with the latest advancements in their medical field. – Roe v Minister of Health & Anor [1954] 2 QB 66
A responsible body of medical men
“Evidence suggested that a select few tertiary specialists could represent a credible medical opinion. The decision on whether or not to proceed with surgery couldn’t be solely determined by numerical count. Instead, a small group of specialists, recognized as a responsible body, concluded that the defendant’s decision was justified.” De Freitas v O’ Brien and Connolly [1993] 4 Med LR 281
Medical Practitioners
Pre-treatment advice
A medical professional is not considered negligent if the treatment administered aligns with an opinion commonly upheld by a substantial portion of esteemed practitioners in the field, unless the court deems the opinion to be illogical.
Foo Fio Na v Dr Soo Fook
“We believe that the Bolam test doesn’t apply to a doctor’s duty in advising patients about treatment risks. It’s the doctor’s legal obligation to inform capable patients of treatment risks so they can decide whether to proceed. The determination of whether the doctor breached their duty isn’t solely based on professional opinion, but also on whether the doctor considered the patient’s right to make an informed decision about treatment.”
Extent Of Disclosure
The duty extend to all material risks:
- Therapeutic privilege
With valid reasoning, a medical practitioner may choose not to disclose information if they believe, reasonably, that revealing it wouldn’t benefit the patient.
- Causation
The connection between the alleged breach and the resulting harm must be proven. Regarding undisclosed risks, establishing causation, when such a risk becomes apparent, is closely linked to identifying the specific risk that should have been disclosed.
- Diagnosis and treatment
Here’s the basic rule: A medical professional isn’t negligent if their treatment aligns with what a typical, careful professional of similar experience and status would provide, as long as the treatment isn’t unreasonable. Deciding whether there was negligence is up to the court, not the medical profession. The court isn’t obligated to accept a doctor’s defense solely based on expert opinions; those opinions must be logical, responsible, and reasonable. Experts must consider risks and benefits and reach a defensible conclusion. Usually, the court trusts a consensus among medical experts, but in rare cases, it may reject it if the opinion lacks logical support and isn’t reasonable.
Breach Of Standard Of Care
Chin Keow v Govt of Msia [1967]
Neglecting to ask about the patient’s medical history, including any drug allergies. In situations requiring special skill or expertise, negligence isn’t judged by the standard of an average person. Instead, it’s evaluated based on the standard of a competent individual possessing that specific skill or expertise.
Chelliah Manickam v Govt of Msia [1997]
Misdiagnosis of appendicitis versus pancreatitis leading to incorrect treatment. The parents of a 10-year-old girl sued Penang General Hospital after their daughter died following treatment. Initially diagnosed with appendicitis, she underwent surgery, only for doctors to later realize she had pancreatitis, not appendicitis. Despite efforts, she passed away the next day. The trial court ruled in favor of the doctors, but the parents appealed, highlighting negligence:
- Doctors didn’t review x-rays timely.
- They didn’t use available diagnostic tests to confirm the condition.
- They didn’t consider pancreatitis during surgery for appendicitis.
Therefore, the High Court upheld the appeal, acknowledging these failures.
Malaysia