Proving Liability for Medical Negligence (2) – Breaching the Duty of Care

Once it is settled that the defendant healthcare professional owed the plaintiff patient a duty of care, it must then be shown that the defendant had breached his duty of care to the plaintiff.

A healthcare professional breaches his duty of care when his actions fall below the standard of care expected of him (i.e., sub-standard care).

The questions which must be resolved at this stage are: (1) what was the standard of care that was expected of the defendant; and (2) whether his actions or clinical decisions had fallen below that standard.

2 Categories of Standards of Care

In Malaysia, there are currently 2 “broad categories” of subjects in medical negligence claims. They are: (1) diagnosis & treatment; and (2) advice & disclosure of material risks of a proposed treatment. Each category has its own distinct legal test for determining the applicable standard of care and whether the defendant had fallen below that standard (Zulhasnimar bt Hasan Basri & Anor v Dr Kuppu Velumani P & Ors [2017] 5 MLJ 438).

For the first category, the standard of care is that of the ordinary man skilled in that particular art (i.e., the standard of a fellow healthcare professional). The test for such cases is known as the “Bolam Test” as set out in Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 which is subject to the “Bolitho Qualification” set out in Bolitho v City and Hackney Health Authority [1998] AC 232.

For the second category, the standard is that of the patient and what he considers to be a material risk of a proposed treatment. This test is known as the “Prudent Patient Test” as set out in Rogers v Whitaker (1992) 109 ALR 625.

Diagnosis & Treatment – The Bolam-Bolitho Test

The Bolam Test is as follows:  –

“The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.
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A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.
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as long as it is remembered that there may be one or more perfectly proper standards; and if a medical man conforms with one of those proper standards then he is not negligent.”

To fulfil the Bolam Test, the Court must be satisfied that that whatever the defendant healthcare professional had done for the patient was not in accordance with the practice accepted as proper by someone like him – a medical peer from the same speciality who knows the prevailing standards and practice of that discipline.

In practice, they are known as “Independent Experts”. In practice, each party in a medical negligence claim will commission their own independent expert to give opinion evidence in Court in support of their cases. It is common to see conflicting expert opinions in medical negligence claims. On rare occasions, the parties or Court may appoint a joint expert.

The Bolitho Qualification is as follows: –

“A doctor could be liable for negligence in respect of diagnosis and treatment 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 … However, in a rare case, if it could be demonstrated that the professional opinion was not capable of withstanding logical analysis, the judge would be entitled to hold that the body of opinion was not reasonable or responsible … the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter.”

To resolve a conflict of expert opinions, the Court will examine them to see whether they are “responsible, reasonable or respectable” and whether they can “withstand logical analysis” to decide which one would prevail over the other and in some cases, which one ought to be rejected.

Advice & Disclosure of Material Risks of Treatment – The Prudent Patient Test

The Prudent Patient Test is as follows: –

“The practitioner is duty bound by law to inform his patient who is capable of understanding and appreciating such information of the risks involved in any proposed treatment so as to enable the patient to make an election of whether to proceed with the proposed treatment with knowledge of the risks involved or decline to be subjected to such treatment. This duty is subject to therapeutic privilege.
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Because the choice to be made calls for a decision by the patient on information known to the medical practitioner but not to the patient, it would be illogical to hold that the amount of information to be provided by the medical practitioner can be determined from the perspective of the practitioner alone or, for that matter, of the medical profession.“

The duty to advise on material risks is to be measured according to the patient’s standard and not the medical profession’s standard. It is what the patient, not the medical profession, would consider a material risk of the proposed treatment.

The test is whether a reasonable person in the patient’s position would attach significance to the risk such that it would affect his decision to accept the proposed treatment or whether the healthcare professional knew, or ought to have known that the patient would find the risk significant. The duty is however subject to the healthcare professional’s therapeutic privilege who may withhold disclosure of the risks of a treatment if doing otherwise would harm the patient.

Conclusion

When it comes to the subject of diagnosis and treatment, the Court will defer to an independent expert’s opinion on the prevailing standard of medical care and whether the defendant had fallen below that standard.

While the duty to provide advice and information on the material risks of treatment is not subject to the Bolam Test, the Court will usually still require an expert’s opinion on the advice that should have been given to the patient. It is therefore usually important for all parties in a medical negligence claim to commission independent expert opinion to minimise the chances of their claim or defence failing.

Written by: –

Evan Lee Sian Wen
Advocate & Solicitor (Malaya)
Principal of Evan Lee Advocates & Solicitors

Shannon Khoo Wen Yee
LL.B. (Hons.) University of Leeds (Class of 24′)

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