Does doctor always knows best? The recent trend in medical negligence
1 Ahmad Ibrahim Kulliyyah of Laws, International
Islamic University Malaysia, Kuala Lumpur, Malaysia
2 Institut Perubatan dan Pergigian Termaju,
Universiti Sains Malaysia, Pulau Pinang, Malaysia
Presently, the tort system is used to regulate medical
negligence litigation in Malaysia. Generally, this system provides for
compensation only when a doctor or any other medical personnel assisting in the
treatment of a patient is negligent. Previously, in determining whether a
doctor was negligent in diagnosis, treatment and advice, the court had shown a
deferential attitude towards medical judgment. This is in contrast to the
attitude of the court towards other professions such as engineers and
architectures where the court does not hesitate in questioning the
appropriateness and reasoning of the standard practice adopted by those
professionals. However, this deferential attitude which is encapsulated in the
phrase �a doctor knows best� is slowly dissipating.
This article will look at this development of the law by
highlighting selected landmark cases that enumerate this change in court�s
attitude . It is important for radiologists, in Malaysia in particular, to
understand the implication in everyday practice.
Bolam v Friern Hospital (1957): A Doctor Knows Best
During this period, the general view was that the doctor
knows best and even judges should not question the doctor�s opinions. The test
of determining negligence in Bolam�s case was not to state doctors could
not be negligent, but if the doctor had followed one of the responsible
divergent opinions, he could not be faulted. Judges were not at liberty to
question the validity or appropriateness of the opinion followed. In other
words, the negligence of a medical practice should be determined by fellow
medical practitioners, not judges.
In the case of Bolam v Friern Hospital Management
Committee , a voluntary psychiatric patient at Friern Hospital suffered
bilateral �stove-in� fractures of the acetabula during a course of
electro-convulsive therapy (ECT) treatment administered to him in August 1954.
The ECT treatment was administered without a relaxant drug or any form of
manual restraint other than to support the plaintiff's chin and hold his
shoulders. Nurses were present on either side of the couch in case the
plaintiff fell off. The plaintiff claimed damages, alleging that the doctor was
negligent in failing to administer any relaxant drug or to provide at least
some form of manual restraint and in failing to warn him of the 1:10,000 risk
of fracture associated with the treatment.
Although the doctor admitted that he knew that some
doctors adopted other procedures such as providing a relaxant drug to patients,
his training informed him otherwise. The patient produced an expert witness � a
distinguished psychiatrist � who described the failure to administer manual
control over the patient as foolhardy. It was also the expert witness� standard
practice to warn patients of the relevant risks of ECT. The hospital involved,
on the other hand, produced other expert witnesses who concurred with the
procedure adopted by the defending doctor and who considered informing the
patient of risk of fracture as unnecessary. Since the practice of doctors was
supported by a body of medical opinions, the standard of the defending doctor�s
practice could not be questioned and as such the doctor was acquitted by the
The principle enunciated in Bolam�s case
discourages second guessing any medical judgment even by fellow doctors. Thus,
as long as the practice of a doctor is supported by a body of medical opinion,
it is not the business of the court to question the appropriateness of that
body of opinion. Perhaps such judicial attitudes could be explained by the
general attitude of the time where paternalism in all forms was the norm. Those
in authority or possessing repository of professional knowledge should be given
the privilege to decide for others. This paradigm was set to change.
Rogers v Whitaker (1992): A Patient can Decide for Himself
Rogers v Whitaker , an Australian case, has been
widely earmarked as a departure point in which the blatant paternalism in the
previous era was jettisoned. Rather than allowing medical opinion to prevail
even on patients� decision making, the court is willing to re-examine the
appropriateness of the standard adopted by doctors.
In this case, Maree Lynette Whitaker consulted an
ophthalmic surgeon regarding her right eye, which was becoming almost blind.
The surgeon advised her that an operation on that eye would probably restore
significant sight to it. She agreed to undergo the operation, but unfortunately
the operation did not improve her sight. Unfortunately, she developed
sympathetic ophthalmia in her left eye (a recognised risk of 1 in 14,000),
which caused her to lose all sight in the left eye. There was no allegation of
negligent in the performance of the surgery itself. What was in question was
the failure of the surgeon to inform her of the danger of sympathetic
ophthalmia in her other eye. The Court found the surgeon to be negligent in
failing to inform her of the said risk, despite the incessant inquiries of the
patient on any side-effects of the surgery over her �good� eye.
For the surgeon, the risk of sympathetic ophthalmia �was
not something that came to [his] mind to mention to her� . Expert opinions
were produced both supporting and against the practice of informing of such
risk. However, had the court decided to follow Bolam�s case, the court
could not evaluate the contradictory medical opinions and thus a doctor would
not have been negligent as long as his practice is in accord with at least one
body of medical opinion.
The Australian court stressed the importance of autonomous
decision making of patients. In this regard, perhaps the human rights discourse
of self determination and autonomy of an individual had some influence in this
shift. Thus, the court has the ultimate responsibility to determine whether a
practice conforms to the standard of reasonable care demanded by law. More
importantly, this responsibility could not be delegated to the profession.
Bolitho v City and Hackney Health Authority (1997): Judges also can
The weight given in Rogers v Whitaker where medical
profession should not have the final say in determining the standard of
reasonable care was repeated in Bolitho�s case.
In this case , a two-year-old patient suffered brain
damage as a result of cardiac arrest induced by respiratory failure. He was
admitted for croup and had episodes of breathing difficulty during his stay at
the St. Bartholomew's Hospital. In spite of calls made by the nurses to doctors
regarding the patient�s breathing difficulty, none came. One of the questions
that the court had to answer was: �Had the doctors come, should the doctors
have intubated the patient which could have saved him?� The expert witnesses
called to testify provided conflicting opinions. The trial judge surmised that
even if the view not to intubate was unreasonable and illogical, she could not
substitute her own views for those of the medical experts. This is in line with
the Bolam�s test where a doctor is not negligent as long as there is a
body of opinion that supported his practice.
However, the House of Lords, the court of final appeal in
England, disagreed with the reservations of the trial judge to substitute her
opinion for those of the medical experts. The opinion of the House of Lords
that the court can evaluate has logical basis of medical opinions. In weighing
risks against benefits, a judge must be satisfied that medical experts �have
directed their minds to the question of comparative risks and benefits and have
reached a defensible conclusion.� 
Bolitho�s case made it clear that a judge could
pierce through the medical opinions and determine the reasoning of such
opinions. Although in most cases, �distinguished experts in the field are of a
particular opinion and will demonstrate the reasoning of that opinion.�
However, similar to standard of care for other professions, the court now has
the ultimate responsibility to determine the reasoning of such standard.
Foo Fio Na v Dr. Soo Fook Mun (2007): The New Millennium Approach
This trend in departing away from medicalism is followed
in Malaysia in the case of Foo Fio Na v Dr. Soo Fook Mun . Fifty years
after Bolam�s case, the Federal Court, the final court of appeal in
Malaysia, decided that indeed judges could disagree with medical opinions.
The patient in this case suffered closed dislocation C4
and C5 vertebrae with bilaterally locket facets after being involved in a car
accident. An orthopaedic surgeon performed a surgery where the dislocated
vertebrae were moved to their normal positions and secured by bone grafting and
insertion of a loop of wire. The wire loop was found to cause total paralysis
of the patient by pressing on the spinal cord. Although the patient signed a
general consent form during admission, the patient claimed that she was not
informed of the risk of paralysis from the particular surgery. The court found
that the doctor was negligent in failing to inform her of the risk.
The Court viewed the Bolam�s approach as being
�over protective and deferential� to the medical profession . It is the
court that determines reasoning of doctors� conduct, and not the profession.
The Federal Court opined that �the Rogers v Whitaker test would be a
more appropriate and a viable test of this millennium.� 
Conclusion and General Principles
The four cases cited above show that there is a shift in
determining a reasonable standard of medical care. The deferential approach in
yesteryears is taken over by a neutral, albeit still tentative, approach as in
other professions. Below, are some principles that can be gleaned from the
On setting the standard of reasonable care, the recent
cases have made it clear that the court could substitute its judgment for those
of medical experts if such expert opinions fail under the court�s logical
analysis. Thus, simply producing an expert opinion that agrees with the
practice in question may not be enough. However, Bolitho�s case reminded
everyone that the court will not be hasty in challenging the opinions of
distinguished experts. Only in rare cases that the court may have to assert
that it is the court that has the ultimate responsibility in determining a
Secondly, the principle of informed consent is here in
Malaysia. A general consent form is meaningless if the patient is not informed
of relevant risks of the procedure. For example, a radiologist not informing
the patient the possibility of developing an anaphylactic shock after iodine
contrast intravenous injection . The important consideration is on the
ability of the patient to make his own decision after receiving relevant
information from the doctors. Whether a particular information is relevant
depends also from the point of view of the patient, and not necessarily the
opinions of the doctors.
Thirdly, the court may no longer give the benefit of doubt
to doctors in cases of missing X-ray films. The court will make adverse inference
as allowed by law if doctors or hospitals fail to produce X-ray films or
documents in the court . As in other cases, the court may make adverse
inference against doctors.
Fourthly, the court subscribed to prevailing perception
that compared with other professions that the medical profession in some
instances failed �to stand up to the wrong doings� of their brethren . The
impact of the effect of this perception to the approach taken by the court is
not clear. Perhaps it may lend credence to the need for the court to form its
own opinion about a reasonable standard of care in diagnosis, treatment and
Thus, although there were differences of expert opinions
with regard to a reasonable decision of a vascular interventional radiologist
to proceed with a renal angioplasty after being aware of an anatomical
variation, a court found that the radiologist had taken all the reasonable
steps necessary to ensure proper placement of the balloon .
Sufian Shuaib F. Rogers v Whitaker: The end of the Bolam�s Saga in Medical Negligence in Malaysia. Professional Negligence 2000; 16(1):25-30.
Bolam v Friern Hospital management Committee. (1957) 1, 582. Weekly Law Report, Queen�s Bench division.
Rogers v Whitaker. (1992) 175, 479. Commonwealth Law Report.
Bolitho v City and Hackney Health Authority. (1998) 232. Appeal Cases.
Foo Fio Na v Dr Soo Fook Mun and Anor. (2007) 1, 593. Malayan Law Journal.
Salvatore Di Carlo v Dr Philip James Dubois. (2004) 150. Queensland Court of Appeal.
Foo Fio Na v Hospital Asunta and Anor. (1999) 6, 738. Malayan Law Journal.
Kristina Ann Brics v Dr Peter Michael Stroz. (2002) 171. OTC.
|Received 13 November 2008; received in revised form 15 March
2009, accepted 4 June 2009
Correspondence: Institut Perubatan dan Pergigian Termaju, Universiti Sains Malaysia, 1-8, Persiaran Seksyen 4/1, Bandar Putra Bertam, 13200 Kepala Batas, Pulau Pinang, Malaysia. Tel.: +604 5793762; Fax: +604 5742099; E-mail: firstname.lastname@example.org (Ibrahim Lutfi Shuaib).
Please cite as: Shuaib FS, Shuaib IL,
Does doctor always knows best? The recent trend in medical negligence, Biomed Imaging Interv J 2009; 5(1):e12