21st century patients end era of ‘doctor knows best’

Source: here.

March 12, 2012

FMT LETTER: From M Saravanabavan, via e-mail

There has been a sharp increase in the number of medical negligence claims mounted in the courts in Malaysia throughout the years and as a result, the Courts have granted sizeable awards to victims of medical negligence.

In 2011, the High Court in Penang awarded RM150,000 in damages to a former salesman who had been wrongly diagnosed as being HIV positive by a private hospital. In the same year, on another instance, the High Court awarded RM100,000 in damages to a deceased woman’s family for failure of a private hospital to investigate and diagnose that the deceased suffered from colon cancer.

Recently, on Jan 21, 2012, the High Court in Johor awarded a couple a total of RM870,000 due to medical negligence by two hospitals and the Government during the child’s birth.

These cases do not indicate a healthy trend for the country. Neither the doctor nor the patient would want to undergo the painful process of litigation. Large awards will probably deter future omissions and negligence but it will also damage the reputation of the healthcare system.

Perhaps a greater understanding of the law in relation to medical negligence may do some good. Given the growing demands of accountability by the society, it is imperative that medical service providers are made knowledgeable about the legal issues affecting them in their daily practice.

A good starting point would be to define negligence. Negligence is defined in law as the breach of a duty to use reasonable care as a result of which there is damage to another. In simple terms, this means fault.

Indeed it is trite law that a doctor owes a duty of care to his patients. Therefore, medical negligence will occur if a medical practitioner has in some way harmed a patient or caused harmed to patient due to the fault of his own. He will be considered to be in breach of his duty of care and in turn as negligent.

Of course, the law does not simply attach negligent liability to a medical practitioner by default, proof of negligent conduct is required and it will not be easy to show that a particular medical practitioner had been negligent. Who proves the negligent act? Under the law, the person claiming that he had been negligently treated bears the burden of proving medical negligence. There are two stages to prove this, firstly, the plaintiff must establish that there was a professional standard of care owed to him by the doctor and secondly, the plaintiff must prove the fact that the doctor has abandoned that professional standard.

The most commonly accepted manner of proof of the professional standard of care is another doctor’s testimony. This is where the Bolam principle is applied. This principle was established in the 1957 case of Bolam v Friern Hospital Management Committee. According to this authority, if the doctor manages to prove that what he did is accepted as a standard practice by even one responsible body of medical opinion, he will not be held liable for negligence. This is even so when there are other responsible bodies of medical opinion that take a stand to the contrary.

The Bolam principle allows the doctor to rely upon a body of responsible peer professional opinion to absolve him of professional medical negligence. The popular idiom ‘One man’s meat is another man’s poison’ is of relevance here in that whilst doctors are relieved that the law allows them to be judged by their own peers, the Bolam principle had clearly made it difficult for the patient to prove that the doctor had positively breached a standard of care owed in the circumstances. As a result, for the patients, the existence of the Bolam principle hinders them from getting justice and the fair trial that they deserve.

The Bolam principle was then subject to considerable scrutiny in the 1997 decision of Bolitho v City and Hackney H.A. In this case, the courts qualified the Bolam principle and formed a view that a doctor could be held negligent notwithstanding peer professional opinion which purportedly represents evidence of responsible medical practice if that opinion is determined by the court to be “not capable of withstanding logical analysis”, or is otherwise “unreasonable” or “irresponsible”.

Professor Rachael Mulheron explains the impact of the Bolitho case in her 2010 paper ‘Trumping Bolam: A critical legal analysis of Bolitho’. She states that the judiciary has pointed out that Bolithoturned Bolam on its axis, in that the court, and not the medical profession, became the final arbiter of medical breach. Since then, it has become a challenging legal question as to what features particularly characterise a peer professional opinion as one that is “illogical”, “irresponsible”, and “indefensible”.

Apart from Bolam principle and its subsequent qualification in Bolitho, there is another principle commonly applied in medical negligence cases. This principle is derived from the Australian case ofRogers v Whitaker. In this case, it was accepted that the doctor’s negligent act cannot be conclusively determined by “any profession or group in the community” but it should be determined upon consideration of complex factors, namely, “the nature of the negligent act; the nature of the treatment; the desire of the patient for information; the temperament and health of the patient; and the general surrounding circumstances.”

This is an obvious departure from the Bolam principle explained above. Under the Rogers principle, the Courts had the license to scrutinise professional practices to ensure that they accord with the standard of reasonableness imposed by the law. The ultimate question is not whether the defendant’s conduct accords with the practices of his profession or some part of it, but whether it conforms to the standard of care demanded by the law.  In short, the Courts will decide whether the doctors’ have been negligent or not. This will not depend wholly on the practices of the profession or opinion of the doctors’ peers.

Which of these approaches have been followed in Malaysia? Since the 1960s, the Bolam principle has been routinely applied by the Malaysian courts to medical negligence cases . Traditionally Malaysia has taken the classic doctor-centric approach. The court will not examine the reasonableness of the treatment. Malaysian Courts have uncompromisingly followed Lord Denning’s words in the 1954 case ofRoe v Minister of Health where he states:

“But we should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to think more of their own safety than of the good of their patients. Initiative would be stifled and confidence shaken. A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure.”

However, a 2007 Federal Court decision, Foo Fio Na v Hospital Assunta & Anor expunged the Bolamprinciple. The Courts applied the Rogers principle in preference to the Bolam principle to decide whether a doctor was negligent in failing to inform the patient of the risk of paralysis that is inherent in a spinal cord operation.

The Courts held that the test enunciated in Rogers would be “a more appropriate and a viable test of this millennium.” They concluded that the Bolam principle has no relevance in the determination of medical negligence.

The Federal Court has clearly made a policy statement in regard to the Bolam principle and put a potentially onerous task for the medical practitioners. The rejection of the Bolam principle means that evidence of medical practice is just another factor that the courts should take into account in determining medical negligence. Professor Dr Puteri Nemie in her paper Medical Negligence Litigation in Malaysia argues that professional practice and opinion will still be relevant and not denied in setting the standard of care. What will be denied is its conclusiveness.

It appears from the above that the traditional approach of “doctors know best” has been discarded. It is not the medical men but the courts who decide whether a doctor was negligent towards the patient.

Such is the position of the law in relation to medical negligence in Malaysia today. Professor Dr Puteri Nieme argues that this position can be attributed to the trend nowadays that patients no longer want to be treated as passive recipients of medical care. Instead, they want to be treated as co-producers or partners able to manage their illnesses.

This sentiment is not new. It was already echoed two decades ago by the Honourable Justice Michael Kirby, the former President of New South Wales Court of Appeal in his 1983 paper Informed Consent: What does it mean. In his concluding remarks, he states:

“… the days of paternalistic medicine are numbered. The days of unquestioning trust of the patient also appear numbered. The days of complete consent to anything a doctor cared to do appear numbered. Nowadays, doctors out of respect for themselves and their patients must increasingly face the obligation of securing informed consent from the patient for the kind of therapeutic treatment proposed…”

To state the obvious, 21st century patients expect more from their doctors. Patients are better informed and more aware of their legal rights.

Therefore, it is pertinent for medical practitioners to have a strong grasp of the law in relation to medical negligence and conduct themselves in ways to ensure the highest standards of medical practice.

The writer is an advocate and solicit