The standard of medical care in Malaysia : the case for legislative reform

This thesis analyses the law relating to the standard of care expected of doctors in the areas of diagnosis and treatment in Malaysia. The analysis does not deal with issues concerning disclosure of risk. The central argument in this thesis is that the law for determining the standard of care of doctors in the areas of diagnosis and treatment in Malaysia is ambiguous and uncertain, and that legislation is the most effective reform method to resolve these problems. A clear and predictable legal framework is recommended for legislative enactment in Malaysia. One of the main objectives of this proposed legal framework is to strike a balance between the interests of defendant doctors and that of injured patients in medical negligence litigation concerning issues of diagnosis and treatment. This thesis traces the historical development of the law in Malaysia, from the application of the original English Bolam test in the 1960s to the current legal position as decided by the highest Malaysian court decision in Foo Fio Na v Dr Soo Fook Mun (2007) 1 MLJ 593. It takes a cross-jurisdictional approach to examine the corresponding legal development in the United Kingdom, Singapore and the Australian states. A consistent trend in these jurisdictions is the adoption of the original Bolam test with modifications, albeit in different forms. It is argued that the decision in Foo Fio Na was a lost opportunity for the highest Malaysian court to give a definitive statement for determining the standard of care in the areas of medical diagnosis and treatment. The basis for this argument is the ambiguity in Foo Fio Na on the issue of negligent treatment and the conflicting interpretations of this decision by academic scholars and judges in subsequent Malaysian lower court cases. It is proposed that Malaysia should codify the qualified version of the Bolam test in legislation as a means of resolving the uncertainty and ambiguity in the current state of the law. It is also suggested that the proposed legislation should implement the procedural rules on the use of expert witnesses similar to those under the Uniform Civil Procedure Rules 1999 (Qld), although with slight modifications. The proposed procedural framework requires the appointment of a single agreed or a single court-appointed expert prior to the commencement of legal proceedings. Litigants may also appoint an additional agreed or court-appointed expert or experts after legal proceedings have started. Under the proposal, the courts are also given the authority to allow litigants to engage their own medical experts provided that certain conditions are satisfied. These recommendations aim to save costs, facilitate a speedy resolution of medical disputes and provide flexibility in the adjudication of the standard of care in medical diagnosis and treatment.