LXEB1121 Tort

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LXEB1121 Tort

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LXEB1121 Tort

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Course Code: LXEB1121
University: University Of Malaya

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Country: Malaysia


Explain the Bolam test and its application in the tort of negligence.  Is the test still relevant today? Give reasons and criticisms on the latest position in the light of the Federal Court’s decision in the case of Foo Fio Na v Dr Eddie Sook Fook Mun & Assunta Hospital on the 29th of December 2006.

Tort Law in Malaysia
A central question arising in medical litigation is whether or not a physician attained the legally requisite standard of care. Indeed, the expected standard is the ‘reasonable care’ standard. Courts adjudge this by considering all the circumstances in a given scenario, and by balancing patient interests against the inherent diversity of medical practice (Samanta and Samanta, 2003). Accordingly, the courts utilize the Bolam test in determining the above standard. This paper discusses the Bolam test and its application in the Tort of Negligence in parts one and two respectively. The third part examines the relevance of the tort today. The final portion of the essay gives reasons and criticisms of the test in light of the decision of the Federal Court in the authoritative deciding of Foo Fio Na v Dr Eddie Sook Fook Mun & Assunta Hospital. The article then finalizes with a conclusion.
The Bolam Test
The test is a classical and renowned statement of the law. The legal test stems from the case of Bolam v Friern Hospital Management Committee (1957). It is a universal test utilized in professional negligence determinations, and in certain instances, non-professional contexts. Essentially, it is where a defendant relies on professional opinion from responsible peers (Mulheron, 2010). To understand the test, it is important to underscore the facts of the case that gave rise to the judicial pronouncement.
A patient, John Bolam, was admitted voluntarily in Friern hospital for intractable depression in 1954. He underwent an Electroconvulsive Therapy, the recognized treatment, which was administered without muscle relaxing drugs and without restraints. During the therapy, the patient underwent violent spasms that he sustained fractures in both hips. Mr. Bolam sued for negligence on the grounds of non-disclosure of the risks and non-administration of the muscle relaxing drugs.
Experts adduced evidence revealing numerous professional opinions as to how ECT was to be administered and the need to manually restrain patients for reduction of potential fractures to bones. The defence averred that there was no disclosure requirement of the associated risks unless the patient specifically asked. In his decision, McNair quoted the case of Hunter v Hanley (1955). In that case, the court highlighted that a man in the realm of diagnosis is not negligent merely because his opinion differs from that of other professional men. The true test, the court noted, is where a doctor is adjudged as guilty of failure as another doctor exercising ordinary care and skill would not be. McNair added his opinion and stated that a doctor is not negligent if he acted according to the acceptable practice of a responsible body of skilled medical men. A contrary view adopted by a body of opinion does not render a doctor negligent.  
Accordingly, the Bolam test benchmarked the negligence medical scene by placing upon plaintiffs the burden of proof (Stone, 2011). Hence, according to the test, it is upon a claimant to demonstrate that a treatment method and risk disclosure (or any course of action) would not be endorsed by a professional body of opinion that is responsible. In summary, Bolam has for many years offered protections to doctors in clinical litigation relating to negligence.
Application of the Bolam Test in the Tort of Negligence
The Bolam test is used by courts to determine liability in cases of clinical professional negligence. Before discussing the application of the test in the tort of negligence, it is imperative to underscore liability in negligence tort law. The cardinal rule in tort law is that a party owes another a duty of care breach of which entitles the other to a claim. The aggrieved party must show that he suffered injury or loss as a result of the defendant’s actions. This was the essence of the case of Donoghue v Stevenson (1932). In general tort law, the duty of care is one of a legal nature and not social, moral or even professional, and the breach results in liability (Agar v Hyde (2000)). In the case of Hedley Byrne (1964), the court noted that the question of standard of care is a matter of law – for judges to decide – and not a matter of fact. The question that follows, therefore, is what is the standard of care expected of a professional? ‘Reasonable professional standard’ is the standard of care expected of a professional person. In tort law, hence, the general test of the standard of care that a professional person owes is one of ‘an ordinary competent practitioner exercising ordinary professional skill’ (Bolam –v – Friern Hospital Management Committee [1957]).  
However, recent jurisprudence has seen a shift from the Bolam test with various criticisms cited for the same. As discussed in detail below, the Bolam test shifts the standard of care from the legally required ‘what ought to be done’ to ‘what is done’. The essence of the Bolam test is denying the court judicial discretion in setting the standards of care in professional practice and placing it on a ‘body of responsible medical men’.
Is the Bolam Test Still Relevant Today?
In the age of the ascendency of rights that are patient-based, and considering the rights of the medical profession too, it is important to assess the relevance of the Bolam test today. The case of Bolitho v City and Hackney (1998) debated the applicability of the Bolam test in the chain of causation. There were two issues before the court. The Court of Appeal felt a compulsion to apply the Bolam test in determining the first question and found that failure to intubate was an action that was in consonance with the opinion of a body of professional medical men. However, Farquaharson, LJ, highlighted that the applicability of the Bolam test does not extend to justification of actions that place patients in harm’s way or at a risky position. The learned judge averred that it was insufficient to call witnesses to establish that an action is within acceptable medical practice. A judge must assess the evidence to make a determination as to whether the action placed a patient at risk.
Although a subsequent appeal lodged in the House of Lords was dismissed, it gave a chance at clipping the wings of the Bolam test by introducing a reasonableness perspective (Stone, 2011). Lord Brown-Wilkinson restated the Bolam test but added that the existence of a practice is not a conclusive determinant of standard of care or breach. The expert evidence must necessarily be subjected to the court’s scrutiny for a decision on the reasonableness of the practice. With that appeal, the court developed two caveats to the Bolam test. The first is meticulously considering the benefits and risks of a course of action and the second is determining the logical basis of the same.
Accordingly, the Bolitho case built upon the Bolam case by requiring reasonableness of the Bolam defence with respect to logic and a careful assessment of the risks and benefits attendant thereto (Stone, 2011). Although reticence was initially experienced in the implementation of the Bolitho standard, courts eventually have adopted the test (Wisniewski 1998). The case of Reynolds (2002) used the Bolitho test in determining that a midwife was negligent in failing to conduct a vaginal examination at the correct time. That failure resulted in breach presentation and other complications. The learned judge necessarily found a lacuna in clinical practice for which there was no logical basis.
Consequently, for a case relying on the Bolam test, the judge’s decision must be buttressed and qualified by a comprehensive consideration of professional opinion. The import of the above is that the Bolam test is relevant today to the extent that it is qualified by a careful investigation of the facts to establish the reasonableness of a course of action. However, in light of a more recent decision in the Foo Fio case, what is the latest position of liability in medical negligence litigation? The following section evaluates the most recent development in the determination of liability in cases of clinical negligence in light of the above recent case.      
The Latest Position in Light of the Case of Foo Fio Na v Dr Eddie Sook Fook Mun & Assunta Hospital: Reasons and Criticisms
After more than 30 years of applying the Bolam test in the Malaysian courts, the Federal Court departed from that test. The court altered the applicable test in the evaluation of expert evidence in cases of medical negligence allegations. The facts of the Foo case were that an orthopaedic surgeon treated the patient who had two dislocated vertebrae. To stabilise the spinal cord, the doctor inserted a loop wire. After the operation, the patient became paralysed and the second operation to remove the same did not remedy the situation to date. The patient sued the doctor and the hospital. The case moved to the High Court, the Court of Appeal and finally to the Federal Court. The issue for determination before that court was restricted to the standard of care that medical practitioners owe to patients to provide advice on the risks of a particular course of action.
The Federal Court highlighted the fact that the Bolam case was determined by jury and that had it been decided in the current environment, the decision would have been different. The court distinguished the two cases on three accounts. First, medical evidence indicated that the ratio of fracture risk was 1: 10,000 to Bolam. Secondly, the ECT treatment administered in Bolam was a breakthrough treatment in its time. There was little to no hope of recovery from the ailment in Bolam but today, the chances are high. Thirdly, the failure by the hospital to inform Bolam of the ECT therapy associated risks was negligent and deprived him of the right of deciding whether to undergo those risks.
The Federal Court defined the duty owed by a doctor to his patient as threefold: diagnosis, advising and treating. In comparing the facts of the two cases, the court highlighted the vast differences. For instance, the court doubted whether a mental patient had the capacity of consenting to any form of treatment. Bolam’s ability of comprehension was hence limited had the risks been conveyed. The court ruled that the Bolam test was not applicable in the standard of care of a doctor in provision of advice on the risks of a proposed treatment. The court instead held that a doctor is legally duty bound to provide information of risks involved to a patient who is capable of understanding and appreciating the same. The patient then elects, based on such information, whether to proceed. Impliedly, the Bolam test may no longer be applicable in Malaysia in cases of medical negligence.
To reiterate, a doctor will be absolved of negligence if he adduces expert evidence showing that he acted according to the dictates of a body of responsible men. Although a close reading of Judge McNair’s decision may reveal that his intention was not to adjudge expert opinion as conclusive as to breach, it nevertheless came to be interpreted as such (Mulheron, 2010). Consequently the decision has received judicial criticism on several accounts.
The main criticism of the Bolam test is with regard to its failure of drawing a divide between ‘what ought to be done’ and ‘what is done’. The standard of adjudging if an action is negligent should necessarily be ‘what ought to be done’. An action can potentially be negligent provided it falls below the ‘what ought to be done’ threshold, even if it is done by most people. The Bolam test appears to be setting ‘what is done’ as the standard of care. This, in essence gives medical practitioners the power to set their legal standard by citing ‘a responsible body of medical men’ for their support (Samanta and Samanta, 2003). This can and should not be allowed in clinical practice since it is not so in other realms of professional liability. A defendant’s standard of professional liability is and should be an issue that the court sets. This was the holding in the case of Edward Wong Finance Co Ltd v Johnson, Stokes & Masters (1984).
Another criticism was that the decision was differential to doctors and overprotective of their cause (Foo Fio Na v. Dr. Soo Fook Mun [2007]). It is so simple for a doctor to invoke the Bolam test at the testimony of a single expert. Conversely, it is very difficult for a claimant to show that a different doctor would have acted differently. The test was subject to the danger of being influenced by dubious expert opinion that disregarded professional medical practice and counsciousness (Khoo v. Gunapathy d/o Muniandy [2002]). Professions have the capability of adopting practices that may be unreasonable. The Bolam test, accordingly, was seen to deprive the courts the power to precipitate changes in the standards of professionalism (Hajgato v. London Health Assn (1982)). In the case of Burne v A (2006), the Honourable Court was of the opinion that the Bolam test dictated upon the courts instead of allowing for judicial discretion in judgement.  
Summarily, the test is a clumsy instrument that originated as a result of medical nepotism, enhanced via a process of peer review – doctors defending each other through testimonies (Stone, 2011).
This paper has discussed the Bolam test, its application in the tort of negligence, its criticisms and the latest position in light of the case of Foo Fio. Although anachronistic to the medical paternalism of the 1950’s, the test remains a formidable clinical negligence litigation comparator. However, the recent trajectory of litigation tends toward eroding the medical protectionalism entrenched in the 1957 case. Overall, the Bolam test endures as a tough nut to crack, maybe due to the difficulty of a court to critically evaluate medical evidence.
Agar v Hyde (2000) 201 CLR 552
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
Bolitho v City and Hackney H.A. [1998] AC
Burne v A [2006] EWCA Civ 24
Donoghue v Stevenson [1932] AC 562
Edward Wong Finance Co Ltd v Johnson, Stokes & Masters [1984] AC 296
Foo Fio Na v Dr. Soo Fook Mun [2007] 1 MLJ 593
Hajgato v London Health Assn (1982), 36 O.R. (2d)
Hedley Byrne & Co Ltd v Heller [1964] AC 465
Hunter v Hanley (1955) SC 200
Khoo v Gunapathy d/o Muniandy [2002] 2 SLR 414
Mulheron, R., 2010. Trumping Bolam: A Critical Legal Analysis of Bolitho’s Gloss. Cambridge LJ, 69, p.609
Reynolds v North Tyneside Health Authority [2002] Lloyd’s Rep. Med 459 
Samanta, A. and Samanta, J., 2003. Legal standard of care: a shift from the traditional Bolam test. Clinical Medicine, 3(5), pp.443-446
Stone, C 2011, From Bolam to Bolitho: unravelling medical protectionism, Medical and Legal Limited, viewed 21 April 2017, https://www. medicalandlegal. co. uk
Wisniewski v Central Manchester Health Authority [1998] PIQR P324

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