CRITERIO DE LA SEGUNDA DERIVADA PARA DETERMINAR EXTREMOS RELATIVOS

MALAYSIAN WAY

In some instances efforts were made by Malaysian judges to place certain qualifications on the Bolam test, particularly on the extent to which judges could make findings of liability for medical negligence. The High Court case of Elizabeth Choo v Government of Malaysia46 and the subsequent Federal Court decision in Kow Nam Seng v Nagamah47 are two examples that illustrate how the Bolam test was adapted in Malaysia.

6.3.1 Elizabeth Choo v Government of Malaysia

The High Court case of Elizabeth Choo was concerned with the issue of medical diagnosis. This decision is significant because its reasoning laid a foundation for the subsequent ruling

44 _Ibid.

45 _{Hong Chuan Lay v Dr Eddie Soo Fook Mun [2006] 2 MLJ 218, 220 (Court of Appeal) affirmed the}

application of the Bolam test by the High Court in Hong Chuan Lay v Dr Eddie Soo Fook Mun [1998] 7 MLJ 481, 496 (an alleged misdiagnosis of the plaintiff’s numbness in his fingers. This led to subsequent surgical operations on cervical spine that brought about partial paralysis of the plaintiff’s legs and his failure to maintain urinary and bowel control); Udaya Kumar A/L Karuppusamy v Penguasa Hospital Daerah Pontian [2004] 2 MLJ 661, 685 (High Court) (delayed treatment of a fever and as a result of which the first plaintiff was mentally retarded); Asiah Bte Kamsah v Dr Rajinder Singh [2002] 1 MLJ 484, 492 (High Court) (a caesarean operation on the plaintiff which eventually led

to brain damage) and Dr K S Sivananthan v Government of Malaysia [2001] 1 MLJ 35, 44 (High Court)

(internal fixation of the plaintiff’s fractured leg which later resulted in leg amputation); Abdul Rahman Bin Abdul Karim v Abdul Wahab Bin Abdul Hamid [1996] 4 MLJ 623, 634 (High Court) (a surgery conducted by a traditional eye healer which resulted in loss of vision in the plaintiff’s right eye);

Mariah Bte Mohamad (Administratrix of the Estate of Wan Salleh Bin Wan Ibrahim, Deceased) v Abdullah Bin Daud (Dr Lim Kok Eng, Third Parties) [1990] 1 MLJ 240, 243 (High Court) (failure to conduct a computer axial tomogram (CAT) scan to examine the extent of the deceased’s brain injury).

46 _{[1970] 2 MLJ 171 (Elizabeth Choo).}

114 in the Federal Court decision in Kow Nam Seng. The plaintiff in Elizabeth Choo suffered from piles and was admitted to hospital to remove them. The second defendant doctor performed sigmoidoscopic48 under a general anaesthesia with the intention of examining the lining of the plaintiff’s colon. During the course of the diagnostic procedure, the plaintiff sustained a perforation of her colon. The plaintiff suffered nervous shock as a result of the perforation and did not undergo piles operation. She commenced legal action for medical negligence against the second defendant doctor.

The main issue in the High Court was whether the second defendant doctor was negligent when performing the sigmoidoscopy examination. The second defendant adduced several bodies of medical opinion in support of the view that sigmoidoscopy performed under anaesthesia was the recognised practice at the material time. This overwhelming medical evidence was in stark contrast to only one medical opinion adduced by the plaintiff. The plaintiff’s expert stated that the diagnostic procedure should be carried out without anaesthesia because this would enable the patient to forewarn the doctor of any pain. The trial judge Raja Azlan Shah J49 applied the Bolam test and stated that the practice conducted by the second defendant doctor was not in itself negligent. His Honour stated that:

‘... The principle of law is well established that a practitioner cannot be held negligent if he treads the well-worn path; he cannot be held negligent if he follows what is the general and approved practice in the situation with which he is faced...’.50

Nonetheless, his Honour further qualified this statement of law:

‘... It was stated by [counsel] for the plaintiff that the courts are always reluctant to find negligence against a medical man. With respect that proposition cannot be true. To say the least, I am no advocate of the right of medical men occupying

48 _{Sigmoidoscopic is a minimal invasive diagnostic test where a flexible tube is inserted into a patient’s}

rectum and slowly guides it into the colon. The tube is called a sigmoidoscope. The scope transmits an image of the inner part of the colon so the doctor can carefully examine the lining of the colon.

49 _{Raja Azlan Shah J was elevated to the Federal Court in 1973, three years after the decision in Elizabeth}

Choo. In 1979, his Honour was made the youngest ever Lord President of the Federal Court of Malaysia.

50

Elizabeth Choo [1970] 2 MLJ 171, 172. In stating this principle, Raja Azlan Shah J did not refer to the Privy Council decision in Chin Keow. Rather, his Honour relied on the cases of Bolam, Hunter and

115 a position of privilege. They stand in the same position as any other man. Their acts cannot be free from restraint; where they are wrongfully exercised by commission or default, it becomes the duty of the courts to intervene...’.51

Following this statement, Raja Azlan Shah J went on to consider whether the second defendant doctor had wrongfully conducted the sigmoidoscopy examination. On this issue, his Honour accepted the evidence of the doctor’s expert that the plaintiff had had bicornuate uterus.52 This medical condition, the expert testified, may have contributed to the ‘slight perforation’ that the plaintiff sustained.53

In conclusion, the High Court held that the second defendant doctor was not negligent although it was not disputed that the plaintiff’s perforation of her colon was sustained during the pre-operative examination.

6.3.2 Kow Nam Seng v Nagamah

The reasoning in Elizabeth Choo later found favour in the subsequent Federal Court decision in Kow Nam Seng.54 However, the Courtfurther extended the authority of the courts to make findings of negligence without relying on expert medical opinion, but only in limited circumstances. The case of Kow Nam Seng related to the issue of negligent medical treatment. The second respondent in this case sustained minor fractures to his leg in a road accident and was admitted to hospital. Two doctors in the hospital, the third and fourth respondents,55 applied a complete plaster cast to the second respondent’s leg. The application of the plaster caused inadequate blood circulation in the affected leg and led to gangrene, necessitating the amputation of the leg.

The key issue in the Federal Court was whether the third and fourth respondent doctors was negligent in providing medical treatment to the second respondent. Different medical opinions were adduced on the types of plaster that should have been applied to the second respondent’s leg. The experts for both doctors stated that the standard medical practice in Malaysia was to apply a complete cast. In contrast, the second respondent’s expert

51 _{Elizabeth Choo [1970] 2 MLJ 171, 172. Raja Azlan Shah J relied on the English case of Rich (1862)}

176 ER 16, 19; [1862] 3 F & F 35, 40 where Erle CJ held that it was the jury, not the medical profession, which had the final say in the issue of the standard of care in medical negligence cases.

52 _{Bicornuate uterus is a female genital malformation where two ‘horns’ form at the upper part of the}

uterus.

53

Elizabeth Choo [1970] 2 MLJ 171, 173.

54 _{[1982] 1 MLJ 128.}

116 was of the opinion that a partial plaster cast could have been applied in the circumstances because a complete plaster carried a high risk of inadequate blood circulation. In determining this issue, the Court approved the cases of Bolam and Elizabeth Choo but referred neither to

Chin Keow nor Swamy. Applying the Bolam test, the Court ruled that since a complete cast was a widely accepted medical practice in Malaysia, the choice of the treatment was not in itself negligent.

The Federal Court,56 however, took the issue of liability further by considering whether the third respondent doctor had wrongfully applied the complete plaster cast to the second respondent’s leg. The Court accepted the medical opinion of the second respondent’s expert that if a patient suffered from pain after a complete plaster cast had been applied, the cast must be split. This was because, this expert testified, the inability of the patient to move his or her toe was an indication of an advanced state of inadequate blood circulation. On the facts, there was evidence that the second respondent did complain to both doctors of ‘severe pain’ in his leg; the complete plaster cast ‘became too tight’ and his toe ‘became immobile’ and ‘turned cold’.57

Having evaluated all this evidence, the Court stated that ‘even a layman could appreciate’ the direct correlation between the injury suffered by the second respondent in the hospital and the complete cast that was applied by both doctors.58 The Federal Court therefore held that the third and fourth respondent doctors had failed to discharge their duty in the application of the complete cast on the second respondent’s leg.

Finally, the Court considered whether the failure of both doctors to give post- operative treatment shortly after realising the second respondent’s leg injury which was brought about by the application of the complete cast was also negligent. There was no direct medical evidence on this issue. The Court instead took into account a number of items of circumstantial evidence and arrived at the conclusion that both medical practitioners were negligent. This evidence included: the omission of both doctors to monitor the second respondent’s response to the application of a complete cast, the delay in the administration of

56 _{The Court consisted of Lee Hun Hoe CJ, Sulaiman FCJ and Salleh Abas FCJ. The unanimous judgment}

of the Court was delivered by Salleh Abas FCJ.

57 _{Kow Nam Seng [1982] 1 MLJ 128, 131.}

117 remedial medical treatment to repair the damage done to the second respondent’s leg and the weak excuse given by the doctor that this delay was due to his busy working schedule.59

6.3.3 Conclusion

The Federal Court decision in Kow Nam Seng is the only appellate court decision which has notably ‘cut away the offshoots’ of the Bolam test to enable judges to make findings of negligence. This, however, gave the Bolam test in Malaysia certain characteristics that are distinctive from its original English version. Following Kow Nam Seng, judges could avoid the strict application of the Bolam test by rejecting standard medical diagnostic and treatment procedures if indirect expert medical opinion indicated that they were wrongfully exercised by default or omission.60 Findings of negligence may also be made by the courts in the absence of expert medical opinion where the issues involved are straightforward or within the comprehension of a layperson.61

In spite of the existence of the qualifications that were placed on the Bolam test by the Federal Court in Kow Nam Seng,they were rarely taken up by subsequent lower court cases. Some cases did not refer to Kow Nam Seng, preferring instead to rely either on Chin Keow,

Bolam or a series of English decisions prior to Bolam.62 Even if Kow Nam Seng was cited, lower court judges merely treated it as affirming the Bolam test.63 As is shown in the following section of this chapter, of the few trial judges who analysed Kow Nam Seng

differently, they used this Federal Court decision as the basis for not applying the Bolam test.