Interpretation of the Bolam Test in the Standard of Medical Care: Impact of the Gunapathy case and Beyond

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1 Interpretation of the Bolam Test in the Standard of Medical Care: Impact of the Gunapathy case and Beyond Catherine Tay Swee Kian Introduction In recent times, there has been much judicial activity in the field of professional negligence for physicians on the standard of medical care in England, Australia, Singapore and Malaysia. Until the latest and most authoritative Court of Appeal decision in Singapore on medical negligence Dr Khoo James & Anor v Gunapathy 1 ( Gunapathy case ) there were inconsistencies in the application of the Bolam test in the courts below. Its judgment raises a number of pertinent issues. The Gunapathy case has finally explicitly explained the working of the Bolam test as well as indicating the policy considerations of the Singapore courts visà-vis the medical profession. It also sets the yardstick by which medical expert witnesses will now be measured. This article will address the important questions of: (1) what are the roles of the judges and the court? (2) how is the Bolam test to be interpreted in issues of diagnosis, treatment, consent and disclosure? It will also examine the implications and impact of the Gunapathy case in medical negligence litigation. Before setting out the Gunapathy case, the article will first examine the law and thinking before the Gunapathy case. It will then consider the unreported judgment of the High Court, and in particular the Ten Commandments, and then deal with the Court of Appeal judgment on the interpretation of the Bolam test. The central issue in this medical negligence action for the Court of Appeal, was whether the High Court judge had wrongly applied the Bolam test by relying on his own finding of fact in establishing liability. Pre-Gunapathy Cases Before the Court of Appeal s decision in the Gunapathy case, several cases have occasionally shown that there has been a movement away from Bolam, and evidence that the English courts will not rigidly apply the Bolam standard in disputes over information disclosure were seen in Newell and Newell v Goldenberg, 2 Williamson v East London and City Health Authority 3, Lybert v Warrington Health Authority. 4 Then came the House of Lords decision in Bolitho v Hackney Health Authority, 5 regarded by some commentators as representing a significant nail in Bolam s coffin. 6 The ability of the courts in Bolitho to consider the correctness of a 1. [2002] 2 SLR (1995) 6 Med LR (1997) 41 BMLR [1996] 7 Med LR [1998] AC See Mason & McCall Smith, Law and Medical Ethics (5 th ed.) p

2 Interpretation of the Bolam Test in the Standard of Medical Care professional view extended beyond information disclosure and into treatment. Under the Bolam test, a doctor is not negligent if what he has done is accepted by a responsible body of medical opinion. However, according to Lord Browne-Wilkinson in the Bolitho case, the court must be satisfied that the body of opinion rests on a logical basis: But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible I emphasise that in my view it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable. 7 Then in Penney v East Kent Health Authority, 8 the Court of Appeal held that the Bolam test applied, subject to the qualification that expert evidence of the defendants conduct accorded with sound medical practice and was capable of withstanding logical analysis, and in areas of factual conflict between two competent experts holding genuinely different opinions, the judge can decide which evidence to prefer. Interestingly, in the Malaysian case of Kamalam v Eastern Plantation Agency, 9 the Bolam test was not followed. The Malaysian court followed the Australian case of Rogers v Whittaker, 10 where the patient sued the doctor for failure to warn of the risk of developing a rare condition known as sympathetic ophthalmia which had a 1:14,000 probability of developing. The Australian High Court held that a doctor had a duty to warn of this material risk. The Bolam test and the case of Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital 11 were rejected by the Australian High Court with regard to the information disclosure by doctors. In yet another Malaysian case, Hong Chuan Lay v Dr Eddie Soo Fook Mun, 12 the court held that it is for the court, and not a body of medical opinion, to judge the adequacy of information disclosure for an informed consent, though medical opinion would still be required to assist the court in its deliberations. In the subsequent case of Dr K S Sivananthan v The Government of Malaysia & Anor, 13 the Malaysian court applied the Bolam test in the context of negligent treatment, but applied Rogers v Whittaker on the question of information disclosure. However, there was no proper consideration of this issue as there was no argument on the question of the conflict between the Bolam test and Rogers v Whittaker. The Malaysian Appellate Court in the case of Dr Soo Fook Mun v Foo Fio Na 14 had the first opportunity to consider the Bolam/Rogers debate. It re-affirmed the Bolam test. Unless the Malaysian Federal Court rules otherwise in Foo Fio Na, Bolam will continue to apply in the context of information and advice. With respect, the decisions of the Malaysian High Court in Kamalan, Hong Chuan Lay and Dr K S Sivananthan flew in the face of the doctrine of stare decisis, as their application of Rogers implied the rejection of the Bolam test, which test had been accepted with approval by the Privy Council in Chin Keow v Government of Malaysia. 15 It is rightly for the appellate court and not the High Court to alter the law. 7. Bolitho v Hackney Health Authority [1998] AC [2000] Lloyd s Rep. Med [1996] 4 MLJ (1992) 175 CLR [1985] AC [1998] 3 AMR [2001] 1 MLJ [2001] 2 MLJ [1967] 1 WLR

3 Facts of Gunapathy Case In 1995, Gunapathy was diagnosed with a tumour in the left ventricle of her brain. She consulted Dr James Khoo, a neurosurgeon who then performed a craniotomy to resect the tumour in November Subsequent tests revealed that it was a neurocytoma with a benign histology. From December 1995 to January 1996, Gunapathy received postoperative radiotherapy treatment by Dr Khor Tong Hong, a radiation oncologist, to eradicate any remnants of the tumour and to prevent its relapse. An MRI scan done in February 1996 by Dr Esther Tan, a radiologist, revealed a small nodule hanging from the roof of the left ventricle of her brain. Accordingly, Dr Khoo 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 27 December 1996 by Dr Esther Tan measuring approximately 11 by 12 by 6 mm in size. Dr Tan took the view that it had not enlarged significantly and was more likely a scar than a tumour. Dr Khoo disagreed and thought it was likely to be a tumour. Gunapathy was then advised to undergo XKnife radiosurgery treatment. She sought a second opinion from Dr Ho Kee Pang, neurosurgeon, who likewise concluded that the nodule was a tumour. Dr Khoo, Dr Khor and Dr Ho claimed they had discussed the risks of radiosurgery with Gunapathy before she decided to undergo radiosurgery treatment on 31 January This radiosurgery led to the very serious side-effect of radionecrosis. Gunapathy then underwent a second craniotomy done by a neurosurgeon Dr Prem Pillay in March 1998 to remove the dead tissue and halt the radionecrosis. The operation was successful but she suffered permanent serious disabilities. She remained crippled with severe dysphasia and right-sided hemiparesis. She also suffered from amnesia, depression and was also afflicted with aphasia. Gunapathy sued her doctors (Dr James Khoo and Dr Khor Tong Hong) and the clinic, Neurological Surgery Pte Ltd, alleging negligence in the process of diagnosis, treatment and advice. The High Court judge in his 354-page judgment, which is the longest written in Singapore, ruled that the defendant doctors were negligent. The doctors and clinic appealed against the entirety of the judge s decision on liability and alternately against the quantum of damages awarded. They sought to challenge the creditworthiness and skill of the medical experts testifying on the opposing side. The High Court Decision During the trial, the defendant doctors advanced two explanations why they believed the nodule to be a tumour. First, it could have been a remnant tumour left behind or detached in the first craniotomy. The trial judge rejected this line of defence as it was unpleaded and only raised at trial, and additionally found it to be a fabrication which destroyed the credibility of Dr Khoo and the other defence experts who supported it. Secondly, the doctors explained that the nodule could have been a recurrent tumour that had resisted radiotherapy and grown to form the nodule. The trial judge considered the question of whether the nodule was a scar or a tumour to be a finding of fact (and not governed by the Bolam test), as opposed to an opinion on medical standards, which he was entitled to arrive at by weighing the soundness and credibility of expert testimony. The Court of Appeal noted that a certain degree of liberty had been taken by the judge in the application of the Bolam test to the facts of the case below. On the totality of the evidence, 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 386

4 Interpretation of the Bolam Test in the Standard of Medical Care 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. With regard to the duty of care owed to Gunapathy, the accepted practice and knowledge in 1997 was that to justify the performance of radiosurgery, which was a radical and potent treatment, there must be a recurrent glioma or other high-grade aggressive brain tumour. The original tumour excised from Gunapathy s brain was histologically determined to be a benign neurocytoma. In his judgment, the High Court judge concluded that all the credible expert evidence established that there was no aggressive growth and there was no recurrent tumour. He decided that the administration of radiosurgery to a previously irradiated site of an intraventricular neurocytoma after it had been resected was unprecedented, unpractised and unproven in 1997, with the result that the radiosurgery done to Gunapathy was without medical justification and a clear breach of medical duty of care. It is worth noting the summary of the essence of the law of medical negligence which the High Court judge had set out as the Ten Commandments in his judgment. 1. A medical practitioner who holds himself out as ready to give medical advice or treatment or is consulted by a patient, impliedly undertakes that he possesses the requisite skill, experience, training and knowledge for the purpose. 2. He owes his patient a duty of care in diagnosing the disease, advising on the therapy and in the administering of the treatment. 3. The practitioner must bring to his task a reasonable degree of skill, knowledge and competence. He must also exercise a reasonable degree of care in the diagnosis, advice and treatment. 4. The very highest degree of competence and care is not required of him. He will not be permitted a very low degree of care and competence. The test is the standard of the ordinary competent specialist practitioner. 5. Where medical opinions diverge or where there is no usual and normal practice in place yet, the reasonable standard means that a medical practitioner must act in accordance with a practice accepted as proper by a responsible, competent and respected body of medical men ordinarily skilled in that particular art, even though a body of contrary opinion also exists among medical men. In doing so, he must ensure that the practice he has adopted stands on the ground of logic and sense and that he has the support of reputable and responsible experts. 6. If there is a special requirement or accepted practice with regard to the diagnosis, advice or treatment, he must comply with it. This is over and above the ordinary reasonable standard and depends on the particular circumstances of the case. 7. If a proposed treatment carries with it a high magnitude of risks and adverse side effects, he must ensure that the disease is serious enough to warrant that such high-risk 387

5 treatment or procedure be undertaken. The law in all cases exacts a degree of care commensurate with the risk. 8. Where high-risk measures are to be undertaken, the medical practitioner, when circumstances permit, must give adequate and unambiguous information, explanation and warning to the patient and give the patient ample opportunity to give his informed consent. 9. When a treatment or surgical procedure involves a team, someone must take responsibility as the team leader and ensure that everyone in the team understands his function and responsibility and the precautions each is required to take. 10. The practitioner must make and preserve adequate, accurate and unambiguous notes as circumstances warrant. This is particularly so in high-risk and novel treatment cases. Noting that the Xknife procedure involved the teamwork of three specialists, namely a neurosurgeon, a radiation oncologist and a medical physicist, the High Court judge decided there was no doubt that the severe brain damage suffered by Gunapathy was the direct result of the high-dose radiosurgery administered to her brain, in combination with the radiation effects of the previous radiation therapy. The judge also noted that much of the permanent damage had already been done by the time Dr Pillay did a necessary second craniotomy to remove the necrotic tissue to relieve the suffering and pain Gunapathy was under. The trial judge awarded damages of Singapore Dollars $2,555, to Gunapathy largely for her loss of future earnings, medical costs, domestic care and for the pain and suffering which could be attributed to the negligence of her doctors. Judgment of the Court of Appeal The Court of Appeal overturned the High Court decision, making some important observations on the meaning and application of Bolam. A. Ambit of Bolam Test The question before the Court of Appeal was solely whether the court was in a position to hold that injuries to Gunapathy were attributable to her doctors negligence. The Court of Appeal politely declined the invitation of both counsel to enter the fray, that is, the arena of divided medical opinion. It explained why the legal principle in Bolam restrains the judiciary from treating medical experts as they would any other expert in that: a lawyer-judge undertakes such an enterprise at his own peril no two doctors seem to agree on the thorny issues that inhabit the frontiers of medical science The lawyer-judge, while eminently equipped to follow such arguments, finds himself quite out of his depth when called upon to adjudicate over them. 16 Thus 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. The Court reiterated that beyond this time- 16. Dr Khoo James v Gunapathy d/o Muniandy [2002] 2 SLR 415 at

6 Interpretation of the Bolam Test in the Standard of Medical Care honoured test of liability, this Court or any other should not have any business vindicating or vilifying the acts of medical practitioners and that: it would be pure humbug for a judge, in the rarified atmosphere of the courtroom and with the benefit of hindsight, to substitute his opinion for that of the doctor in the consultation room We often enough tell doctors not to play god; it seems only fair, similarly, judges and lawyers should not play at being doctors. 17 (i) A Preliminary Finding of Fact What are the roles of the judges and the court? The Court of Appeal commented on the right of the High Court judge to make a finding of fact preliminary to the application of the Bolam test. It illustrated, through the case of Penney v East Kent Health Authority, 18 that it is a well-settled principle that a question of fact, as opposed to a question of the standards of medical practice, does not fall within the province of the Bolam test, and is capable of adjudication by the judge. The Court of Appeal then held that the touchstone of liability is what the medical practitioner, and not the judge, would have diagnosed under the circumstances. It does not follow that the doctor would be negligent simply because his conclusion was different from that of the judge. The Court of Appeal pointed out that this salient point was crucial as it undermined the High Court judge s reasoning. Having found the nodule to be a scar, the judge went on to discredit all the experts who disagreed with him. We found ourselves unable to agree with this method of reasoning. To follow it would be to surreptitiously import into Bolam by the back door a practice of adjudicating between medical experts on a balance of probabilities. We do not think Bolam should be thus emasculated in content and application. The judge s finding of fact should accordingly have had little direct influence on the question of medical standards. 19 (ii) A Medical Test? The Court of Appeal has clarified that although Bolam represents the starting point for the standard of care for all professionals, its specific test refers only to the medical profession; and the willingness of the court to adjudicate over differing opinions in other professions should not be transposed to the medical context. It held that the fact that the Privy Council case of Edward Wong Finance Co v Johnson Stokes & Master, 20 (which was later followed in Singapore in the case of Yeo Yoke Mui v Ng Liang Poh 21 ) was cited in Bolitho should not be treated as an invitation to merge the treatment of expert medical evidence with that of other expert evidence. (iii) How is the Bolam test to be Interpreted in Issues of Diagnosis, Treatment, Consent and Disclosure? The Court of Appeal affirmed that the Bolam test as the locus classicus for the standard of medical care. It is the mantra of English and Singapore medical defence lawyers alike. This 17. Ibid., emphasis added. 18. [2000] Lloyd s Rep Med Dr Khoo James v Gunapathy d/o Muniandy [2002] 2 SLR [1984] AC [1999] 3 SLR 529 at

7 Bolam principle which took root in English jurisprudence when McNair J relied on Hunter v Hanley 22 as the basis for his now famous Bolam test applies to diagnosis, treatment and advice. Bolam was approved later by the House of Lords in Whitehouse v Jordan, 23 Maynard v West Midlands Regional Health Authority 24 and Sidaway v Bethlem Royal Hospital Governors. 25 Diagnosis The Court of Appeal held that the testimony of the experts from both parties was on the whole competent and professional. The divergence in their views reflected the innate and genuine intractability of the medical issues and did not impinge on their honesty or integrity. The crux of the case was whether the doctor s diagnosis that the nodule was a tumour was founded on the basis of cogent logic. Taken in totality, the defence experts had satisfied the threshold test of logic under the Bolam test. The Court of Appeal concluded that it was not necessary to re-examine the High Court judge s own finding of fact as to the nature of the nodule, which was very much a red herring as far as the Bolam test was concerned. Treatment The Court of Appeal also considered that the defence experts opinion that radiosurgery was a valid treatment option for neurocytoma was logically supported. In particular, the appellant doctors had applied radiosurgery as a second line of attack against the tumour after surgical resection and radio-therapy had failed. Moreover, the doctors had already adopted a wait and see approach for about a year. The treatment plan satisfied the Bolam threshold of logic. Advice With regard to the applicability of the Bolam test in advising patients, the Court of Appeal noted that the High Court judge had challenged the application of Bolam to information disclosure, finding support from the comments of Lord Bridge in the Sidaway case: the issue whether non-disclosure in a particular case should be condemned as a breach of the doctor s duty of care is an issue to be decided primarily on the basis of expert medical evidence, applying the Bolam test. But I do not see that this approach involves the necessity to hand over to the medical profession the entire question of the scope of the duty of disclosure, including the question whether there has been a breach of that duty. Even in a case where, as here, no expert witness in the relevant medical field condemns the nondisclosure as being in conflict with accepted and responsible medical practice, I am of the opinion that the judge might in certain circumstances come to the conclusion that disclosure of a particular risk was so obviously necessary to an informed choice on the part of the patient that no reasonably prudent medical mean would fail to make it. The kind of case I have in mind would be an operation involving a substantial risk of grave adverse consequences, as, for example, the ten per cent. risk of a stroke from the operation which was the subject of the Canadian case of Reibl v Hughes 114 DLR (3d). In such a case, in SLT [1981] 1 All ER 267 at [1984] 1 All ER [1985] AC 871 at

8 Interpretation of the Bolam Test in the Standard of Medical Care the absence of some cogent clinical reason why the patient should not be informed, a doctor, recognizing and respecting his patient s right of decision, could hardly fail to appreciate the necessity for an appropriate warning. 26 The judge held that where negligence is alleged in relation to failure to provide adequate and accurate information before obtaining consent of the patient, a court can reach its own view, independent of expert medical witnesses, as to what is reasonable and responsible medical practice. The Court of Appeal observed that this reference to Lord Bridge s comment was an inaccurate representation of the ratio decidendi of the majority view of the House of Lords in Sidaway, leading the Court of Appeal to comment that the judge had made a bold and totally unwarranted restatement of the law of negligence relating to medical advice. The Court of Appeal then held firmly 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, in the patient s interests. As neither counsel brought this issue up in their submissions, the Court of Appeal did not delve on this doctrine of informed consent, which has a very important bearing on medical ethics. Understandably, Lord Bridge s concern was that the issue of information disclosure should not be given over entirely to the medical profession when his Lordship said that: a doctor could be negligent for failing to disclose a substantial risk of grave adverse consequences, even though his advice was supported by a body of medical opinion. However, it is submitted, that the qualification carved into the Bolam test by Lord Bridge could be reconciled by subsuming it under the Bolitho ruling. 27 The Court of Appeal held that the appellant doctors had not given negligent advice to Gunapathy, as the doctors disclosure of the relevant percentage risks of radiosurgery was supported by a respectable body of medical opinion. B. Meaning of the Bolam Test as Supplemented by Bolitho Ruling Referring to the House of Lord s decision in Bolitho, the Court of Appeal made it clear that the Bolam test did not represent immunity from judicial inquiry over the medical process. An expert view, in order to qualify as representative of a responsible body of medical opinion, had to satisfy the threshold test of logic. The Bolam test is thus supplemented by the Bolitho ruling. Lord Browne-Wilkinson in Bolitho emphasised that the court was not bound to find for a defendant doctor simply because a body of experts testified in his favour. The testimony must have a logical basis, which meant that the experts had to have directed their minds to the comparative risks and benefits and have reached a defensible conclusion on the matter. But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence it would be wrong to allow such assessment to deteriorate into seeking to persuade the judge to prefer one of two views both of which are capable of being logically supported. It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the benchmark by reference to which the defendant s conduct falls to be answered Ibid. 27. See the Court of Appeal s judgment of Gunapathy case [2002] 2 SLR 415 at 453H. 28. Bolitho v City and Hackney Health Authority [1998] AC 232 at

9 The Court of Appeal respectfully adopted Lord Brown-Wilkinson s analysis of the threshold test of logic as an essentially two-stage inquiry. The first inquiry is whether the medical expert had directed his mind to the comparative risks and benefits. Bare and unsupported assertions would fail the test. The second inquiry is whether the expert had arrived at a defensible conclusion as a result of the balancing process. The Court of Appeal expressed some concern at the open-textured nature of this phrase because if interpreted liberally, the Bolam test would only be honoured in name only, with the result that a doctor would then be liable when his view (as represented by the defendant experts) was found by the court to be unreasonable. The Court of Appeal then indicated that essentially two concepts have to be satisfied for a defensible conclusion. First, the medical opinion must be internally consistent on its face, making cogent sense as a whole, such that no part of the opinion contradicts with another. Second, the opinion should not fly in the face of proven extrinsic facts, by ignoring known medical facts or advances in medical knowledge. The Court of Appeal affirmed that the Bolitho ruling was a timely addendum to the Bolam test giving it a commonsense understanding which was hitherto unexpressed. The jurisprudence of Bolam and Bolitho have found affirmation in Singapore courts subsequently in the cases of Yeo Peng Hock Henry v Pai Lily 29 and Vasuhi d/o Ramasamypillai v Tan Tock Seng Hospital, 30 but its application and ambit has never been discussed in detail. The Impact of Gunapathy on Professional Negligence The implications and impact of the Court of Appeal s decision in the Gunapathy case on physicians and health care professionals are examined here. 1. Applicability of the Bolam Test Advancing Medical Technologies The Gunapathy case has confirmed that the Bolam test, as supplemented by the Bolitho ruling, is still alive and applicable in the Singapore jurisdiction. The Singapore Court of Appeal decision has resolved with clarity the meaning and ambit of the Bolam test. In particular, when a court is considering a question of law as to whether a physician s conduct is negligent on the basis of opinion evidence, the Bolam test applies across the board to the diagnosis, treatment and advice of the patient. This has an impact on the promotion of life sciences and medical advancement in technology in the genomic era, in that even a minority respectable view from a reputable expert will be sufficient to satisfy the threshold of logic in the Bolam test. Consequently, the courts are required to examine whether the views of the medical experts are logical and not to consider the medical skill of the expert nor whether one expert opinion is superior to another. It should limit itself to those aspects of expert evidence relevant to the threshold test of logic. The Court of Appeal has acknowledged that, although Bolam reigned supreme to confer near-immunity on the medical profession from negligence actions, in a deserving case, liability could still be established, as seen in the Privy Council case of Chin Keow [2001] 4 SLR [2001] 2 SLR [1967] 1 WLR

10 Interpretation of the Bolam Test in the Standard of Medical Care 2. Doctrine of Informed Consent in relation to Biomedical Ethics Noting the High Court judge s inexplicable assumption that Bolam had been unceremoniously evicted from the issue of medical advice, the Court of Appeal made it clear that were this argument ever to arise in our jurisdiction, it would find Sidaway to be somewhat shaky ground on which to stand. With respect, it is submitted that good medical law stems from biomedical ethics of autonomy, beneficence, non-maleficence and justice. In recent years, informed consent has emerged as a significant ethical and legal standard of medical practice. With certain exceptions, such as emergency and life-threatening situations, informed consent is expected and required to varying measures worldwide. Two standards have emerged in the last few decades. One, is the reasonable professional standard ( peer disclosure in similar circumstances). Second, is the reasonable patient standard, recognizing the active participation and autonomy of individual patients which is commonly practised in jurisdictions such as America, Canada and Australia. With the trend toward patient s rights and self-determination, a more paternalistic relationship between physician and patients has given way to a partnership relationship between physician and patients. It is submitted that logically as part of the patient s contributions to a shared clinical decision, a patient should make his own informed consent or refusal to the physician s information disclosure and medical recommendations. This process of informed consent will truly reflect the fundamental medical ethics of autonomy or self-determination thereby respecting the individual patient s choice of medical interventions. It surely has greater ethical support for a good medical law on informed consent. Thus, it is submitted, that although there are merits in the application of the Bolam jurisprudence on medical advice to patients, the approach in Rogers v Whittaker is to be preferred. 3. A Policy Consideration? More importantly, the Court of Appeal pointed out that judicial wisdom has its limits. At the very heart of the Bolam test lies the principle that a judge, unschooled and unskilled in the art of medicine, has no business adjudicating on matters over which medical experts themselves cannot come to an agreement. This is especially so where complex medical disputes are resolvable by empirical observation and long-term research. The Court of Appeal went on to say: furthermore, the lawyer-judge in playing doctor at the frontiers of medical science might distort or even hamper its proper development. Excessive judicial interference raises the spectre of defensive medicine, with the attendant evils of higher medical costs and wastage of precious medical resources. 32 A policy decision? It is submitted that concerns over defensive medicine can be taken care of by the Bolam jurisprudence. Although the Bolam test is the mantra and defence for medical practitioners, it can be used as a sword in that if it is not the accepted current and logical practice to order a battery of unnecessary diagnostic tests for the patient, the defendant may be held liable for any harm resulting from an unnecessary procedure. With respect to the concern of the Court of Appeal with regard to the escalating costs of medical care, it is submitted that as long as good clinical practice is observed satisfying the Bolam test, concerns over higher medical and insurance premium costs should not be an 32. Dr Khoo James v Gunapathy d/o Muniandy [2002] 2 SLR 415 at

11 important issue. It is also submitted that the Bolam test will take care of this, as it establishes an appropriate standard to deter poor medical practice. This is like a vicious cycle. Although Bolam reigned supreme to confer near-immunity on the medical profession from negligence actions, in deserving cases, liability could still be established The Ten Commandments of the High Court Ruling It is suggested that the essence of the law of medical negligence propounded by the High Court judge is good law, although there was no specific approval by the Court of Appeal. The only reference was to point number 8: Where high-risk measures are to be undertaken, the medical practitioner must give adequate and unambiguous information to the patient and give the patient ample opportunity to make the decision and give his informed consent in response to the advice. The Court of Appeal disapproved this restatement of the law of negligence on medical advice. With respect to these circumstances, it is difficult to reconcile the Court s view with medical ethics on autonomy or self-determination which respects the patient s choice of medical intervention. The applied medical ethics of autonomy is clearly expressed in the doctrine of informed consent which is well-established in some jurisdictions in the United States and Canada. Conclusion The Bolam test has been given resounding approval by the Court of Appeal. It is the locus classicus for the standard of medical care required by the medical practitioner. It is the mantra of English and Singapore medical defence lawyers alike. The Court of Appeal in Gunapathy has finally resolved the meaning and ambit of Bolam with clarity. The Gunapathy case, and its approval of the Bolam test, does not necessarily mean that there will be fewer medical negligence claims. On a proper application of the Bolam test, an expert view from a responsible body of medical opinion, must satisfy the threshold test of logic. Even a minority respectable view of a medical expert that satisfies the logic test will suffice. The Bolam test did not give the medical profession a total immunity from judicial inquiry. Ultimately, it is submitted that accountability and compensation are still the key issues involved in a medical negligence suit. Catherine Tay Swee Kian * 33. See Dr Khoo James v Gunapathy d/o Mudiandy [2002] 2 SLR 415 at 431 and the Privy Council case of Chin Keow v Government of Malaysia [1967] 1 WLR 813. * LL.B (Hons.) (London); LLM (London); Associate Professor, National University of Singapore; Barrister-at-Law, of Lincoln s Inn, England; and Advocate & Solicitor, Singapore. I wish to thank Dr. Myint Soe, Ph.D, (Camb); Barrister (UK) for his valuable comments on a draft of this article. 394

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