UN! VERSITI TEKNOLOGI MARA MEDICAL NEGLIGENCE: JUDICIAL PROCESS AFFECTING BOLAM PRINCIPLE MEJ (B) KU ABDUL RAHMAN BIN KU ISMAIL PJK

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1 UN! VERSITI TEKNOLOGI MARA MEDICAL NEGLIGENCE: JUDICIAL PROCESS AFFECTING BOLAM PRINCIPLE MEJ (B) KU ABDUL RAHMAN BIN KU ISMAIL PJK Thesis submitted in fulfilment of the requirements for the degree of Master of Law Faculty of Law January 2010

2 Candidate's Declaration I declare that the work in this thesis was carried out in accordance with the regulation of UniversitiTeknologi MARA. It is original and is the result of my OWfl work, unless otherwise indicated or acknowledged as referenced work. This topic has not been subiiiiitecl to any oilier academic institution or non-academic institution for any other degree or quali iication. In the event that my thesis be 1und to violate the conditions mentioned above, I voluntarily waive the right of contennent of my degree and agree be subjected to the disciplinary rules and regulations of Universiti Teknologi MARA. Name of Candidate Candidate's ID NO Programme Faculty Thesis Title Mel (B) Ku Abdul Rahman Bin Ku Ismail PJ S Master ol Law Law Medical Ncnliuencc Signature o I Candidate Date January 2() 10 I

3 ABSTRACT This dissertation is about the judicial process by various jurisdictions affecting Bolam principle, the traditional pillars of medical law which responds to the growing interest in medical negligence, a common form of medical malpractice. It is about medical practitioner's standard of care and the patient's autonomy. Medical practitioners are increasingly confronted by ethical issues involving the issues arising t-om the provisions of inthrmation, diagnosis and treatment in relation to duty and standard of care expected from the medical practitioners in administering patients while in their care. The first part of the Bolani principle mentions that the doctor is not negligent if he has acted according to an accepted medical practice. A practice accepted as proper by a responsible body of medical opinion. If the doctor has complied with this practice, there is strong evidence that the doctor is not negligent, regardless of whether there is more than one accepted practice by other bodies of responsible medical opinion. Medical ethics stress the autonomy of the patient or recipient of' health care. Often known as self-determination which sees human beings as having unconditional intrinsic value and having the capacity for rational choice where in order to he autonomous, a person must be free of external control as well as be in control of his afthirs with exception of some persons who cannot act autonomously because they are incapacitated, ignorant, immature or coerced. From time in memorial, medical practices had been regarded as a noble pi'ofssioii in United Kingdom and other jurisdictions. Since then, it is evidenced that the courts had demonstrated its judicial attitude in protecting this noble profession and indirectly discouraging medical claims or litigations against the doctors in the event of negligence or mishaps. The issue of doctors' negligence in treating their patients became a great concern of the public. The common law developed and it is accepted that doctors owe a duty of care to their patients. The controversial issues in this area of law is particularly oil standard of care expected from the doctors in treating their patients while in their care is unavoidable. The judges in court of laws then developed principles and approaches in confronting or resolving this thorny issue. In 1957 McNair J in Bolam v Friern Hospital Management Committee (1957) 1 WLR 582 profounded a test commonly known as the Bolam test to resolve the issue of standard of care expected from a doctor. This test seems to strengthen the shield that protected the medical practitioners against medical litigation whereby total reliance oil opinion of' the medical experts is the deciding factor oil issue. it

4 The doctrine of informed consent of the American jurisdiction which originates from the case of Schloendorff v Society of New York Hospital 105 ME 92 (N.Y 1914) where Benjamin C'ordazo.1 stated that every human being of adult years and sound mind has a right to determine what shall be (lone with his own body and a surgeon who performs all without his patient's t's consent coits m an assault for which he is liable for damages. However, Robinson J objective approach in determining the scope of the doctor's duty to disclose all material risks to the patient in Canterbury v Spence 464 F. 2d 772 (D.C. Cir.1972) reflects it shill of law towards greater respect for patient's autonomy where he said that the patient's right of self determination on a particular therapy demands it standard set by law for a physicians may or may not impose upon themselves. This is known as 'the prudent patient test.' The leading case of Chattcrson v Gerson (1980) 3 WLR seems to be the first reported case of the English jurisdiction to hold that a doctor ought to warn of what may happen by misfortune, however well the operation is done, if there is a real risk of misfortune inherent in the procedure. Later, Hirst J in Hill v Potter (1984) I WLR 64 gave his unqualified approval to the Bolam Principle and held that in every case, the court must be satisfied that the doctor's standard of care, whether in relation to diagnosis, treatment or disclosure of risks, is upheld by it substantial body of responsible medical Opinion. Lord Diplock in Sidaway v Board ol' Governors of Bethlem Royal Ilospital and Maudsicy Hospital ( 1985) 1 AC 87 I however rejected the doctrine of informed consent and adopted it test known as doctor knows best test.' However, lord Sarman dissented where he supported a moderate doctrine of informed consent and of the view that the English law should recognize a duty of a doctor to warn his patient of' material risk inherent in the treatment he proposed. 1-lowever, in the later years, the patients centred judges of' the English jurisdiction seems to disagree with the approach of the doctor-centred judges. The sentiment that the Bolani principle had been misunderstood and applied and that such it change in the judicial attitude oil reliance of the expert medical opinion in this area of law had grown convincingly that the issue on the standard of care had to be decided by the court and not by the body of' responsible and respected medical practitioners advocated by the doctor-centred judges. Duty to inform of the risks to the patients had been debated, discussed and later judicially formulated by the judges in Rogers v Whitaker (1992) 175 CLR 479 that in the event of conflicting medical opinion of the medical experts that finding of' negligence requires a finding that the doctor failed to exercise the ordinary skill of' a medical practitioner practicing in the relevant field and the standard of care is to be decided by the court. It is a judicial judgment and no lv

5 more a medical judgment as in Bolam principle. The coffin of Bolam principle then was finally nailed by Naxakis v Western General Hospital (1999) 73 ALJR 782. In Hucks v Cole (1993) 4 Med LR 393 the Court reflected its attitude and suggested the changes in attitude by the English judiciary of delegating the determination of doctor's liability to the medical profession where the judges held that it was in appropriate for the judge to reject medical expert evidence if it does not really stand up to logical analysis. In the later development Lord Brown-Wilkinson then with his 'scrutiny test' in the Ilouse of Lords case of Bolitho v City and Hackney I lospital & Ors (1997) 4 ER 77 held that a medical practitioner will not escape liability just because he leads evidence from a responsible body of medical experts who demonstrate that such opinion has a logical basis which appears to do away with the rubber stamping of expert medical opinion. The I3olam test has been challenged in jurisdictions such as the USA, Canada, Australia, South Africa and Malaysia. With the modern trend towards patient's rights and self determination, there is now a much greater evidence of a shift in the patient-doctor relationship from a traditionally paternalistic philosophy' to a 'partnership relationship' between medical practitioner and the patient. In October 2004, the English Ilouse of Lords ruling in Chester v Aishar (2004) UKI-1 L 41 changes the law of informed consent. This ruling afflcts jurisdictions, especially Commonwealth countries that.base their legal systems on English law. On 29th December 2006 the Federal Court, the highest apex court of' the Malaysian's jurisdiction in Foo Fio Na v Dr Soo Fook Mun & Assunta Hospital rejected Bolam principle and imposed a high standard of care to the medical practitioner in treating the patients while in their care. The medical practitioners could no more protect themselves behind the shield of Bolam test. The standard of care expected from the medical practitioners and to be applied enunciated by the Federal Court is the same as that applicable to the other pmfessionals. The 20th century is the century that has been the greatest change and advancement in the science and art of medicine, the last 30 years has seen the most rapid development in the science of medicine. The explosion of scientific knowledge in medicine far exceeds that of the centuries beibre it. It is recognized that for the court and the Law Department to function effi.ctively that is, to protect the medical practitioners against any liability and to avoid a practice of defensive medicine to the patients on one side and to upheld the patients interest on the other side, the relevant authorities must keep abreast of social, technological and scientific developments which may have an impact on the role and rule of law The new knowledge relevant to developments in the law which also touch on the life sciences. information technology and behavioural sciences or any subject affecting legal rights and liabilities are now v

6 become a growing Concern and calls for lifelong learning for the medical practitioners and for those involve and concern in this area of law. The battle of mind and philosophy of law between doctor-centred judges and patient-centred judges will proceed on for as long as there are medical claims contested in the courts. The quest for the true definition of medical standard of' care shall live as a controversial issue save to the extent of' the application of the historic decision of Foo Fio Na v Dr Soo Fook Mun & Assunta Ilospital in Malaysia and to other jurisdictions the issues in this area of law will remain unsettled. This dissertation considerably and reasonably seeks to submit a compromise test of the millenium which would be a solution to the issue in this area of law that a medical practitioner is not negligent it ' the court is Satislie(l that the treatment provided is in accordance with an opinion widely held by a significant number of respected practitioners to the relevant field unless the court consider the opinion was irrational. VI

7 ACKNOWLEDGEMENTS Bismillah bin-oh manirrohim. In the name of Allah the Great. Most Gracious and Most Merciful. Assal amualaikurn warahmatul I ah hi wabarokatuh. This dissertation is dedicated to my late parents Allahyarham Ku Ismail bin Ku Mat and Allahyarham Dhaharah binti Mat, my wif le Wan Siti Nurizah binti Wan Yusolf, my children Ku Nur Farah Zahirah, Ku Nur Diana Zulaikha, Ku Mohd Noor Hishamuddin, Ku Nur [lina Shaheeda, Ku Mohd Amirul Akmar, Ku Mohd Rahmat, Ku Mohd Suli Arid and Ku Mohd Suti Amin, my son in law Muhammad Nur 1-lakimi Bin 1-lanapi and Mohd Khairul Rizal Bin Mohd Shukor, and the virtue of contemplation and wisdom of interpretation in search for the meanings of professional acme, judgment and integrity. The dissertation would never have been possible without the guidance of Allah and the help of sincere persons. I owe my legal knowledge to all the lecturers of Universiti Teknologi MARA (UiTM) Shah Alam (formerly known as Institut Teknologi MARA), all of whom had given me con hdence when I was very green. The same holds true of my supervisor Pro I l)ato' ilussin Ab Rahman, the rector of Universiti Teknologi MARA, Machang. Kelantan who first persuaded me to take up a research in this area of law relating to the never ending controversial issue affectin g medical negligence : The Bolam Test. As fur as this dissertation goes couple with my handicap due to stroke which I had suffered since 25th March 2002, 1 never could have gotten it off the ground without the invaluable help and guidance of my wonderful learned supervisor \'l I

8 whose patience and legal skills helped me out immensely when I was stuck at the beginning of my research. I would not be able to complete this dissertation without the patience of my wife, Wan Siti Nurizah hinti Wan Yusoft and my children who are always with me during my bad time oil lonely journey to the final destiny of this dissertation. Uncountable of heartiest thanks are specially dedicated to every person who had directly or indirectly assisted and guided me throughout the journey in completing this dissertation. The usual caveat: the mistakes that remain in this dissertation are mine, and mine alone. May Allah bless us. N4ej (B) Ku Abdul Rabman bin Ku Ismail P.1K January 2010,i ii

9 TABLE OF CONTENTS Page TITLE PAGE AUTHOR'S DECLARATION ABSTRACT ACKNOWLEDGEMENTS TABLE OF CONTENTS LIST OF CASES II III "ii ix xiv CHAPTER 1: INTRODUCTION 1. 1 The Framework 1.2 The Juridical Ethos in Medical Practice Patient's Autonomy in Medical 1.4 The Reasonable Care Foundation The Changin g Judicial Discourse 12 CHAPTE R 2: JUDICIAL ELEMENTS UNDERLYING TIlE EVOLUTION TRANSITION AND DEVELOPMENT OF MEDICAL JURISPRUDENCE 2.1 Introduction Negligence's Conceptual Framework '7 2.3 Professional Liability and Third Parts' Jurisprudence of Unpardonable Mistake The Rudimentary Legal Regime Professional Responsibility and Accountability Professional Warranty Lord Neill's Formulation on Patient's Expectation Lord Nourse's Jurisprudence on U nq ual i lied Warranty The Reliance Model of Liability Lord Scarman 's Liability Test Lord Diplock's Notion on Comprehensive Duty 36 Ix

10 2.13 Lord Scaiinan's Methodology on Patient's Autonomy The Prolssional Standard Conclusiveness Approach Jurisprudence on Patient's Right Legal Fabric Towards Medical Negligence The Core Foundation of Medical Profession The Atkinian's Discourse Aflcting Medical Negligence Jurisprudence Affecting Medical Negligence The Loss of Chance Test The Elements Affecting Medical Negligence 'Clinical Practice' Jurisprudence Medical Development Affecting Negligence Lord Denning's Legal Scholarship Affecting Medical Negligence 66 CHAPTER 3: THE BOLAM PRINCIPLE POLICY APPROACH 3.1 Introduction Lord Denning's Framework The Policy Framework McNair 's Policy Methodology McNair's Direction Lord Davies's.1 urisprudence on Error of.1 udgment Lord Tindal's Notion Affecting Medical Negligence Lord Clyde's Jurisprudence A fleeting Medical Negligence Essential Elements Affecting Medical Negligence Expert Opinion The Application of Section 45: a New Paradigm Foundation of' Expert Evidence Affecting Medical Negligence The Judicial Approach on Evidence The Bolitho's Framework: a New Dimension Farquharson 's Pragmatic Analytical Approach Lord Browne- Wilkinson's Logical Basis Opinion Test The Judicial Approach on Suppressed Evidence Ill 3.18 The Logical Analytical Approach- on Evidence 114 x

11 3. 19 Judicial Discretion Affecting Medical Negligence I I 5 CHAPTER 4: THE JUDICIAL DEVELOPMENT: POLICY AND PRINCIPLE APPROACH 4.1 Introduction Debolamisation the Turning Point Judicial Policy Towards Deholamisation Judicial Departure Lord Sach's Lacuna on Professional Practice Lord Dillon's Notion on Unreasonable Medical Opinion Doctor-Patient Relationship and Disclosure of Risks Richard Tallala's Jurisprudence : a Deviation Causation and Disclosure of Risks 13$ 4. IC) Bolitho's Modelity on Causation Test I The Judicial Rationalisation in Chappel v II art Gleeson's Jurisprudence in Roscrnberg v Percival 14$ 4.13 The Doctrine of Infbrmed Consent The Development of the Policy Regime Disclosure of Risks and Prudent Patient's Test Lord Bridge's Declining Notion on Informed Consent Lord Scarman's Judicial Notion on Prudent ]'est Lord Hirst 's Notion on In lormed Consent King CJ's Judicial Discourse on Standard Professional Practice Jurisprudence on Patient-Cent red Approach 16$ 4.21 Judicial Emphasis on Disclosure of In formation Malaysian Jurisprudence on Consent 175 CHAPTER 5: MALAYSIAN.JURISPRUDENCE : THE COMPETING POLICY AND PRINCIPLE JUDICIAL ANALYSIS 5.1 Introduction The.ludicial Process Affecting Bin in Malaysia 179 XI

12 CHAPTER 6: THE, EMERGING DYNAMISM IN JUDICIAL PROCESS 6.1 Introduction The Analysis The Reasonable Man Test The Issue Of Consent The Patient's Best Interest Test Dunne's Test I(earns' Jurisprudence on Non- Disclosure Test Patient's Right and Logical Basis Scrutin y Test Profssional Practice and Question & Answer Approach The Prudent Patient's Test The Logical Analysis Test Singapore's Jurisprudence on Bolam-an Analysis Foo No Na 'Best Advice Possible Test' The Ruling of Foo Fio Na v Dr Foo Sook Muii The Foo Fio Na Regimes Refirred Followed and Adopted Jurisprudence in Naxakis v Western General Hospital Sedley Li's Evidential Approach 32$ 6.18 Innovative Theory And The Bolam Test 328 ChAPTER 7: TOWARDS TUE FUTURE DIRECTION OF THE THEORY OF MEI)ICAL NEGLIGENCE 7.1 The Theory of Reasonable Care Towards the Future Paradigm The lest of the Mellinium 33$ 7.4 The Theory of Patient's Right An Advancement of Patient's Right 34$ 7.6 The Code of Patient's Right The Theory of Human Right The Practicalities of Doctrine of Informed Consent The Theory of Clinical Practice Guideline The personal liberty and Equality before the Law 366 xli

13 7. 11 Statutes of Medical Law 367 CHAPTER 8: CONCLUSION 8.1 Conclusion 371 BIBLIOGRAPHY 377 xl"

14 LIST OF CASES A v Burne (25 w June 2006) Achutrao l-iaribhan Khoniwa v State of' Maharasta (1996) 2 Supreme 75 1 Anderson v Chasney (1949) 4 DLR 71 A Ibri ghton v Royal Alfred Hospital (1 980) 2 SW L R 542 Associated Provincial Pictures Homes Limited v Wednesbury Corporation (1948) 1 KR 223 Abdul Rahman b. Abdul Karim v Abdul Wahab b. Abdul Hamid (1996) 4 N4LJ 646 An,, Tiong Seng v Gob Chuan Cliii' (1970) 2 JVI LI 271 Antis v Merton LBC (1978) AC 72$ Avedale NI-IS Trust v Bland (1993) I All FR $21 Aw Ngoh Leang V Insp Gen ol Police (1993) I N/ILJ 65 Baker v Market Ilarborough Industrial Coperative Society (1953) 1 WLR 172 Barnett, Chelsea & Kensington v Management Committee (1969) 1 QB 42$ Bank of Montreal v Dominion Gresham Guarantee & Casualty Co. (1930) AC 659 Rennet v Minister oicommuiiity Welthre (1992) 176 CLR 408 Blyth v Birmingham Waterworks Co (1856) 11 Ex 781 Bolarn v Friern Hospital Management Committee (1957) 1 \VLR 582 Breen v William (1996) 186 CLR 714 Bolitho v City & Hackney Health Authority (1997) 4 All ER 77 Canterbury v Spence 464 F 2(1 772 (DC Cii' 1972) Caparo Industries v Dickman (1990) 2 \VUR 35$ Cassidy v MinisteroiHealth (1951)2 KB 343 Caswell] v Powel DuffI'yn Associated Collories Ltd (1940) AC 152 Chappel v Hart (1998) 156 ALR 517 Chatterson v Gerson (198 1) QB 432 Chester v Afshar (2004) UK HL 41 Chelliah all Manickam v Kerajaan Malaysia (1997) 2 AMR 1856 Chin Keow v Government of' Malaysia (1967) 2 MLJ 45 Curran v Northern Island Co. Ownership I-lousing Association (1978) AC 718 Cook v Cook (1986) 162 CLR 376 xlv

15 Daniel v lleskin (1954) IR 73 Degreitas v Obrien (1995)6 Med 3(1 1 Dr Chin Yoon Hiap v Ng Eu Khoon & Or (1998) 1 MIJ 57 Dr Jayadeva s/o Aravan & Anor v Sharon Simon & Anor (2000) 3 MLJ 657 Dr Khoo James & Anor v Gunapathy (I/o Muniandy (2002) 2 SLR 414 Dr KS Sivanathan a/i Veerapan v the Government of Malaysia (2000) M Li U 42$ Dr KS Sivanathan a/i Veerapan v Government ol Malaysia (2001) 1 MLJ 35 Dr Soo Fook Mun v foo Flo Na (2001) '? MLJ 293 Dr TT Thomas v Elisa (1987) AIR Ker 52 Dr \Vong \Vai Ping v Woo Lim Selig & Ors (1999) 2 AMR Dwyer v Roderick (1983) 127 SJ SOS CA Donaghue v Stevenson (1932) AC 562 Dowdie v Camberwell I Icalth Authority (1997) 8 Mcd LIZ 368 Dunne v National Maternity I lospi tal (1989) 1 R G I E v Australian red cross (1991) 27 FCR 3 10 Edward Wong Finance Co. Ltd v Johnson. Stokes & Masters (1984) 1 AC 296 Elizabeth Choo v Government of Malaysia (1970) 2 MLJ 128 Esso Co. Petroleum Ltd (1976) QB 801 Eyre v Measday (1986) 1 All ER 488 F v R (1983)33 SASR 189 F v West Berkshire Health Authority (1989) 2 All ER 541 Florida I lotels Pty Ltd v Mayo (1 965) 113 CLR 588 Foo Fio Na v Assunta Hospital & Dr Soo Fook Mun (1999) 6 MU 738 CA Foo Fio Na v Assunta Hospital & Dr Soo Fook Muii (29 w December 2006) FC French v Thames Valley Strategic I lealth Authority (2005) All ER (D) 368 Gascoine v fail (1997) 5 Med LIZ 437 Geohegan v Hans (21 June2000 lic) Goodwill v British Pregnancy Advisory Service (1996) 2 All ER 161 Grant v Australia Knitting Mills Ltd (1936) AC 103 Greaves & Co (Contractors) v Barynham Meikie & Partners (1975) 3 All FR 99 Hatcher v Black (The Times 2II1 July 1954) 1-leaven V Pender (1883) 11 QBD 503 x V

16 Hedley Byrne Co. Ltd v Hellers & Partners Ltd (1964) AC 645 Hepworth v Kerr (1995)6 Mccl LR 139 Fulls v Potter (1984) 1 LR lucks v Cole (1993)4 Mccl LR u11 v Lord Advocate (1963) AC $37 Hughes v Walihan Forest Health Authorit y (The Times 9" November 1999) Home Officer v Dorset Yactch (1970) AC long Chuan Lay v Eddie Soo Fook Mun (1998) 5 CLJ 251 Hope v Lej)1) (1980) 112 DLR 3d 6 Hor Sol Ilong v University Ilospital & Anor (2001) 5 M Li 167 Hotson v East Berkshire Area Health Authority (1987) 2 All ER 909 I lunter v I lanley (1955) SLT 213, SC 200 In re T (Adult Refusal of Treatment) 1992) 1 WLR 782 Indeiject Sing a/i Pritam v Mazian b. Jasman (1995) 2 MLJ 646 James McNaughton Paper Group v I-licks Anderson (1991) 1 WUR 23 1 Jason Carlos Francisco v Dr Thng & Singapore General Hospital Pte Ltd (573/98).Jones v Livox Quarters Ltd (1952) QB 60$ Joseph Papachan &Ors v Dr George Mooley & Anor (1994) AIR Ker 289 Joyce V Wendoorth Health Authority (1995) 6 Mccl LR 60 Kathavaravan v NO Sup Moi & Anor (1987) 1 MLJ 246 Kamalam a/p P. Raman v Eastern Plantation Agency (Johore) Sdn Bhd (1996) 4 M U 674 King v Phillips (1953) 1 QB 429 Kow Nan Seng v Nagamah & Anor (1982) 1 M LI 12$ Kumph v Home Office (1990)3 All ER 237 Lanphier v Phipos ( ) All FR 421 La Fleu v Cornelis (1979) N 1 Latèrscre V Lawson (1991) 78 DLR 609 Lewis v Carmarthensive County Council (1953) AC 449 Lie' Sin Kong v Dr Sharon 1)M Paulraj (1996) 5 MU 1 93 Lewis v Carmarthensive County Council (1953) 1 WLR 1439 Lewis Tressida Andrews Associates Pty Ltd (1987) 2 OcI R 553 x \' I

17 Loghelly Iron & Coal Co. v McMullan (1934) AC 1 Loveday v Renton (1990) 1 Mcd LP 11 7 Lowns v Woods (1995)36 NSWLR 344 M Shoba v Dr Rajakumari Unnithan & Ors (1999) AIR Kerala 149 MA v VP Shanta (1996) SC 550 Mariah bt Mohamad v Abdullah b. Daud & Dr Lim Kok Eng (1990) 1 MLJ 240 March v E & Ml Stramac Pty Ltd (1991)1 71 CLR 506 Marshall v Lindsay County Council (1935) 1 KB 516 Maynard v West Midlands Regional Health Authority (1984) 1 WLR 634 Meyer Estate v Rogers (1991) 78 1)LR 4Ih 307 Midland Bank Trust Co. Ltd v Hett, Stuhh & Kemp (1979) Ch 384 Mr X v Hospital (1998) 8 SCC 296 Naraindra v State of Madhya Pradash (1974) AIR SC 232 Natanson v Kline (1960) 186 Kan 393 2d 1093 Naxakis v Western General Hospital (1999) 73 ALJR 782 Newell & Newell v Goldcrnberg (1995) 6 MD IR 371 Onnasis & Calogeroponios v Vergottis (1968) 2 Llyod's Rep 403 Pang Koi Pa v Lim Djoe Ping 91993) 3 SLR 31 7 Paramad Kotara v Union of India (1959) AIR SC 2039 Page v Smith (1995) 2 All ER 736 Paparonakis v Australian Communication Commission (1985)156 CLR 7 Payranielu a/i Veerapan v Dr Amarjcet Kaur & Ors (2000) MLJLJ 42$ Penny.Palmer & Cannon v East Kent Health Authority (2000) Llyod's Law Rep Med 41 Pippin v Sheppard (1822) 147 ER 512 Poonam Verma V Ashwin Patel (1996) 4 SCC 332 R V Bateman (1953)92 LKJB 791 CA ReC(l990) I CLR 475 Re Polemis (1921)3 K Re the Herald of Free Enterprise Appeal by Captain I cwry (18' 11 December 1987) Reihl v Hughes (1980) 114 CLR 3(1 1 Rich v Pierpont (1862) 176 ER 16 xvii

18 Roe v Minister of Health (1954) 2 All NR 131 Rogers v Whitaker (1992) 175 CLR 479 Rosernbcrg v Percival (51h April 2001) Salgo v Leland Starftrd Jr University Board of Trustee (1960) d 1093 Scarce v Prentice (1807) 8 East Schlocndoerff v Society of New York Hospital (1914) 105 NE 92 Sidaway v Governors of Bethiem Royal Hospital & Ors (1985) AC 871 Sion v I Iamstead Health Authority (1994) 4 Med R 170 Simms v Simms & an NI-IS Trust (2002) EWHC 2734 Shea Yuan Pai v Dato'WeeHood Teck & Ors (1976) 1 ML! 16 Smith v L & SW Railway Co. (1883)12 QBD 70 Spring Meadows Hospital v l-lal]ot Ahhiwalia (1998) 4 SCC 39 Stansbie v Troman Ltd (1948) 2 KB 4$ Stapleton (1988) 104 LQR 389 Stapley v Crypsum Mines Ltd (195' ) AC 449 Sutherland Shire Council v Heyman (1985) 60 ALR I Swamy v Matthews & Anor (1968) 1 MU 13$ Tan Ali Kau v Govrnrnent of Malaysia (1997) 2 CU Supp 168 Taylor v Sommersct Health Authority (1993) 4 Med LR 34 Thake v Maurice (1986) 2 WLR 337 Thurgood v Van Der Berghs & Jurgens Ltd (1951) 2 KB 537 Thomas v Quartermaine (1887) 18 QBI) 685 Treclget v Bexley Health Authority (1994)4 Mcd LR 148 Vancouver General Hospital v McDaniel (1934) 152 Li' 56 PC Vasukis d/o Ramasamy v Tan Hock Seng Hospital (2001) 2 SLR 165 Videto v Kennedy (1981) 125 DLR 3d 127 Wakelin v L & SW Railway Co. (1886) 12 AC 47 Walsh v Family Planning Services Ltd (1992) 1 IR 496 Whitehouse v Jordan (1981) 1 All ER 267 Wilsher v Essex Area Authority (1988)1 All ER 371 Williamson v East Kent I lealth Authority (1997) 41 BMLR 85 Wong Dai Ping V Woo Lin Seng (1999)2 AMR 1693 x\riii

19 Wyoiig Shire Council v Shirt (1980) 146 CIA 4() Yco Yoke Mai v Ng Liang Poh (1999)3 SLR 529 XIX

20 CHAPTER 1 INTRODUCTION 1.1 The Framework thesis submitted that the legal principles surrounding medical negligence are more complex than those in other areas of personal injury law because of the nature of the subject. For example, the duty of care. the standard of care and the causation of an injury is usually very obvious in a case centering on a car accident, whilst the correctness of the decision to ti-eat a patient in a certain way is much less clear cut. One of the most important legal principles that affect medical negligence is that of the Bolam pinciple, which has been judicially interpreted in medical negligence claims for more than fitly years. When proving a case of medical ne gli gence, it must he shoii that there is a duty of care between the medical practitioners and the patients. Successfully proving this point is usually very straight fon'ard because medical professionals always have a duty of care arguably in contract or in tort towards the patients while in their care for medical vetrcatment. However, what must next he proven is whether the act or omission of the doctor or nurse breached this duty of care. This is more a complex point, which was examined in Bo/aiii i IriL'rn hospital Management Committee It was decided in this medical negligence case that there is no breached of standard of care ii a responsible body of similar professionals Supurt the practice that caused the injury. (1957) 1 WLR 582

21 When making a decision as to how to ( or whether to) ti-eat a patient. a doctor often has more than one choice. The result in the Bolam v Filerii hospital A'Ianageiieiii Committee 2 stated that even if the doctor chose the least popular of these choices, it was did not necessarily amount to medical negligence if support could he found for it. However, this ruling meant that a doctor accused of medical negligence needed only to find an expert who would testify to having done the same thing. Over the year. the Bolam principle sustained significant criticism for being overly reliant on medical testimony. The decision in Bolitho v City and flackiwv Health Authorit y & Ors created a modification to the ruling in Bolam v Frie;-n hospital tfanageineizt Coi,iinittee where Lord Browne- Wilkinson in his statements somewhat restrict the boundaries of the Bolam principle that the court should not accept a defence argument as being reasonable, respectable or responsible without first assessing whether such opinion is susceptible to logical analysis and secondly where there is a body of medical opinion which represents itself as reasonable. responsible or respectable' it will be rare for the court to be able to bold such opinion to he other than represented. This Boliiho i- Cm- & Hackney Hospital & 0111; ruling means that testimony for the medical professional who is alleged to have caned out the medical treatment or procedure can he found to be unreasonable, although this will only happen in a very small number of cases. The interpretation of Bolam principle and all its stands for is said to he what sets medical ligence apart from negligence cases involving other professions. This case is credited with judicial recoirnition that in medical matters relating to diagnosis and treatment, there is oflen scope for a genuine difference of opinion. and that a doctor is not negligent merely because his view is different from that of others in his profession, nor because he has shown less skill or knowledge as others would have shon. 2 (1957) 1 \VLR ) 4 All ER 77 (1957)1 WLR 582 (199 7 )4 All ER 77 1