Borins, Cronk, Armstrong JJ.A. The Court also agreed with Counsel for the respondent that Foo Fio Na had without doubt rejected the Bolam Test in so far as it relates to the determination of the standard of care to be observed by a medical practitioner in a medical negligence suit. The trial judge found for the respondents on both questions and dismissed the appellants’ claim. The first is the requirement of a professional person in this case a doctor, to exercise reasonable care in undertaking the task associated with his particular professional calling. Why do I need a will? Medical negligence lawsuits are becoming more prevalent as people seek to protect their rights in regards to medical malpractice. A malpractice claim may be grounded in either contract and/or in delict and is governed by the law of obligations. [14] On 4 October 2019, this court allowed the plaintiffs’ claim of medical negligence against D1 but dismissed their claim against D2. In Rogers v Whitaker the High Court, the apex court in Australia, reconsidered the application of the Bolam Principle under Australian law and held that “except in the case of an emergency or where disclosure would prove damaging to the patient, a medical practitioner has a duty to warn the patient of a material risk inherent in the proposed treatment. 1.2. The court went on to emphasise that it would be a rare case where professional opinion would fall foul of the threshold test of logic. The opinions of the medical experts were divided. Should the Foo Fio Na Test apply to the treatment as well as the providing of advice? The Bolam Principle was reviewed in the case of Dr. Khoo James & Anor v Gunapathy d/o Muniandy (2002) when in a strongly worded judgment the then Chief Justice Yong Pung How had this to say: “This is why the legal principle in Bolam v Friern Hospital Management Committee restrains the judiciary from treating medical experts as they would any other. X-rays were taken after the surgery. The appellants were the personal representatives of the estate of the deceased. 1. Gopal Sri Ram JCA (as he then was) when reserving his comments on the correctness of the decision on the actual facts of Foo Fio Na, held that it is one that is plainly binding on this Court. 30120�a`$�����@� X�( The claim for damages is based upon the alleged negligence of the hospital staff, both doctors and nurses, on behalf of the plaintiff acting for herself and for her child . Doctors no longer defending medical negligence cases because of legal costs involved Master of maternity hospital says 65% of €1.6 billion liability was for obstetrics cases Mon, Apr 30, 2018, 15:43 The quantum of general damages to be awarded to the Plaintiff; and. There are four elements to tort law: duty, breach of duty, causation, and injury. KUALA LUMPUR - The husband of the former assistant director of Hospital Kuala Lumpur (HKL) has been awarded RM735,596 (S$246,392) damages for the death by negligence … liability and quantum. The medical profession in Malaysia consisting of more than 17,000 medical practitioners has expressed serious concern in respect of the decision of the Federal Court. The trial judge found that the orthopaedic surgeon of Hospital Kuala Lumpur had acted properly and adequately according to competent medical practice, and that he had properly explained to the appellant the risk of the surgery and dismissed the appellant’s claim. The present article deals with the various methods which are employed to do the same, their justification and whether there is any room for further improvements. Legislation, as was enacted in Australia after the Naxakis v Western General Hospital may be necessary to address the concerns of the medical profession and its. Such transgressions can have severe consequences – in 2007 an elderly woman was given 1,000 times the correct dose of radioactive iodine due to the negligence of her doctor. Due to the perceived uncertainty the medical profession and defence counsel face many difficulties. There is a clear link between the defendant's behavior and the plaintiff's injury. Whether Malaysia will extend the Rogers v Whitaker Test to diagnosis and treatment or whether it will, as Australia has done following the Naxakis case, restrict the Rogers v Whitaker Test by legislation to the giving of advice only, is an important decision for the future of healthcare in Malaysia. On the effect of therapeutic privilege on non disclosure of a material risk, the learned Judge went on to say:-, “If there was in fact a material risk as a result of the operation, the first defendant’s therapeutic privilege justified the non-disclosure of it because of her severe medical problems. To which aspects of medical negligence should the Foo Fio Na Test apply or to put it in another way which remaining aspects of medical negligence should the Bolam Test apply? Apart from the updating of figures to reflect the prevailing level of damages in respect of various injuries, the new Guidelines publication has been expanded. Suspecting that the paralysis might be due to vascular infarction, ie when blood supply to the spinal cord is interrupted and cut-off, the first respondent prescribed a course of medication to the appellant by the injection of dexamethasone for over four days. In so doing people involved in medical negligence cases would be able to obtain better professional advice and that the courts would be appraised with evidence that would assist them in their deliberations. Court awards Myanmar refugee RM1.7 mil in medical negligence suit ... 7 million in damages in a negligence suit today. We often enough tell doctors not to play god; it seems only fair that, similarly, judges and lawyers should not play at being  doctors”. The Bolam Test was not applied. There is no particular act for medical negligence in Malaysia (Islam, 2013). Generally, this system provides for compensation only when a doctor or any other medical personnel assisting in the treatment of a patient is negligent. Anxiety arising from medical negligence claims represent a disturbing aspect of the current medical practice1. Court awards Myanmar refugee RM1.7 mil in medical negligence suit. Introduction . in order for the defendant to be held liable. JOHOR BARU: A businessman who was awarded almost RM300,000 in a medical negligence suit, says he sued the specialist and private hospital to ensure medical practitioners take their jobs seriously. Such a solicitor will have received specialist training and will practice either exclusively or largely within this area. The Defendant has admitted that the arrest and detention was unlawful and this court is called upon to determine: 1.1. The appellant appealed against the decision of the High Court judge in dismissing his claim against the respondent, the Government of Malaysia, for the negligence of their agents or servants in the performance of two surgical procedures on him. Where the claimant’s harm is brought about partly by the defendant’s negligence and partly the claimant’s own fault, the defence of contributory negligence may come into operation. Unfortunately, this procedure too failed as the appellant became paralysed the day after the operation. [1] This is an action for damages consequent upon an unlawful arrest and detention. Foo Fio Na has not been revisited or reconsidered in any Federal Court decision on medical negligence post December 2006. hޜUmo�0�+��i��Ǒ*$`�"�5}�V����S���s}�:���{��w�s�C1&! Dr. Soo saw the appellant for the first time the following morning and after examining her, prescribed the first treatment by placing her on traction with weights in a further attempt to reduce the dislocated cervical vertebrae. No further shocks were administered and the convulsion was not unusually violent. Dr Celine Pereira, the doctor on duty, prescribed the initial treatment by having X-rays taken of her neck and placing a cervical collar around it. ... 7 million in damages in a negligence suit. PUTRAJAYA: The Court of Appeal here today awarded a Myanmar refugee almost RM1.7 million in damages in a medical negligence lawsuit.. A three-member … Medical diagrams and a glossary of medical terms assist in researching injuries; Quantum conversion tables to assist in finding comparative awards in the Quantum of Damages in Bodily and Fatal Injury Cases; Quick referencing system for tables point the user to the volume and page of each case, providing quantum figures updated to 2019 Death due to medical negligence can leave the family members with a feeling of betrayal and mistrust. The question of law which was posed for the determination of the Federal Court was whether the Bolam Test in the area of medical negligence should apply in relation to all aspects of medical negligence. This flowchart explains the figures in the General Damages (PSLA) Today’s Value field. The legal position is that the doctor must have acted in accordance with an accepted medical practice, and that the accepted practice must be regarded as proper by aresponsible body of medical men in that art. medical negligence and other delicts quickly come to mind, there are many laws where the application of actuarial criteria could add value. One should note that in some states, the amount of damages that the plaintiff can recover can sometimes be limited in a medical malpractice or medical negligence claim. But this treatment too did not remove the paralysis and the appellant continued to be confined to a wheelchair to this very day. Dr Celine Pereira then contacted the orthopaedic surgeon on duty Dr Soo  Fook Mun, the first respondent, who was at home at that time and she was advised that the collar should remain and the appellant stabilized by keeping her in bed and placing sandbags on either side of her head to prevent her from moving her head and to reduce the risk of paralysis. 3. The right or responsibility to make such a determination now rests with the court upon evaluation of the evidence before it, including the opinion and practices of members of that profession. Damages for Personal Injuries and Causing Death: A Critical Survey. In most cases, the ability of the defendant to anticipate the injury (or the severity of the harm) does not bar the plaintiff from receiving full compensation for his or her general damages. In the last 20 years the … As well as inflation, this field takes into account the Heil v Rankin ([2000] 3 All ER 138) uplift and/or the Simmons v Castle ([2012] EWCA Civ 1288) uplift, where they are relevant. endstream endobj startxref In any personal injury case, whether arising from a traffic, e-scooter or workplace accident, or one caused by the negligent act of another party, there are 2 main categories of damages that are generally available to the claimant, or injured party – special damages and general damages.. Special Damages. In Foo Fio Na’s appeal the facts insofar as they were not disputed happened in the following manner. That was my first question to our Company-client intending to file an action for damages against their employee for breach of duties and negligence. clarkewillmott.com A medical negligence solicitor is someone who specialises in claims for damages brought against the medical profession. [2] Article:  Application of the Bolam Test in Malaysia by Raja Eileen Suraya, Advocate & Solicitor, High Court of Malaya. bruises on both anterior iliac spine areas; closed dislocation C4 and C5 vertebrae with bilaterally locked facets. No relaxant drugs were administered to Bolam prior to the treatment. There the court stated that the court was not bound to find for a defendant doctor simply because a body of experts testified in his favour. The respondent/plaintiff is the administrator of the deceased’s estate. On this basis the Rogers v Whitaker (1992) Test would be a more appropriate and viable test of this millennium than the Bolam Test. Rogers v Whitaker concerned a woman who had lost sight of her right eye when she was a child. INTRODUCTION: Last year, a case – Kunal Saha 1 – which had been dragging on in the courts for almost fifteen years for award of adequate and just compensation was finally decided by the Supreme Court on October 24, 2013, and it awarded a little more than Rs. Why Choose us as your Claims Service for a Death due to Medical Negligence Claim. Retention sum is a…, “Prestige Malaysia 40 Under 40 2020: Meet the all-female honour roll Prestige Malaysia rings in…, Since the announcement by the Prime Minister of Malaysia, Tan Sri Muhyiddin Yassin on 16.3.2020…, The importance of preparing a will could not be overemphasised. Instead, the plaintiffs had attacked the theory advanced by the defendants’ as to the likely cause of the deceased’s death seeking thereby to show that their charge of negligence must be correct. In one case it has been said that you judge it by the conduct of the man on the top of a Clapham omnibus. [2003] O. J. Some very important principles (as established in Rogers v Whitaker (followed in Foo Fio Na)) were (i) only material risks of injury arising out of treatment or surgery needed to be disclosed to a patient; (ii) the materiality or non-materiality of a risk often requires expert evidence; and (iii) the therapeutic privilege  allowed a surgeon to withhold disclosure of a material risk in the best  interests of a patient. PUTRAJAYA: The Court of Appeal here has awarded a Myanmar refugee almost RM1.7mil in damages in a medical negligence lawsuit. 2 ORDER On appeal from: Gauteng Local Division, Johannesburg (Mashile J sitting as court of first instance): 1 The appeal is upheld, with costs, including the costs of two counsel. Medical malpractice liability is incurred when patients suffer damages, which may be attributed to sub-standard care provided by health practitioners or hospital personnel involved in their treatment. For general guidance on damages, see Practice Note: The remedy of damages—general principles. Friern Hospital’s alleged negligence can be summarised into the following three categories: Bolam testified that he was not given any warning as to risks, nor asked whether he would not undergo treatment as there is a one in 10,000 risk involved. But there was not a jot of evidence that established the point. name: 'Trademark Protection in Malaysia' Has the swing been too extreme giving rise to the danger of “defensive medicine” being practiced by a litigation-nervous medical profession? 872 0 obj <> endobj The Federal Court answered the question in the negative. This article looks at how the courts have decided upon the issues of liability and quantum in cases of medical malpractice and / or medical negligence. Two questions were presented for the decision of the High Court: (i) whether either or both respondents were negligent; and (ii) even if either or both were negligent whether their negligence caused his death. }); Quantum has for 28 years been advising, investigating and pursuing medical negligence claims, or as they are also known clinical negligence claims. Manmohan said last Sept 3, the government, hospital and all the defendants admitted to liability for negligence. General damages flow naturally from the defendant's wrongful action. Failure to give Bolam a warning of the risks involved in electro-convulsive therapy so that he might have had a chance to decide whether he was going to take those risks or not; Failure to use any relevant drugs which, if used, could have excluded the risk of fracture altogether; That if relevant drugs were not used then at least some form of manual control beyond shoulder control, support of the chin and placing a pillow under the back should have been used. PUTRAJAYA, Jan 28 — The Court of Appeal here today awarded a Myanmar refugee almost RM1.7 million in damages in a medical negligence lawsuit. Prior to 29/12/06 the test for medical negligence accepted by the Courts in Malaysia was generally known as the Bolam Test or the BolamPrinciple. What is “retention sum” commonly referred to in construction contracts? Gopal Sri Ram JCA (as he then was) delivering the judgment of the Court held that the plaintiffs quite rightly relied on the recent decision of the Federal Court in Foo Fio Na. Special damages cover the more quantifiable expenses caused by the medical malpractice, including medical bills and past missed work. The res ipsa rule can seldom, if ever, be applied to establish alleged medical negligence, as Brand JA said in Buthelezi v Ndaba 2013 (5) SA 437 (SCA) ‘ To me that seems reminiscent of an application of the res ipsa loquitur maxim, which the court a quo quite rightly found inappropriate in this case. Under the Foo Fio Na Test patients must be informed of material risks prior to a procedure much as under the Rogers v Whitaker Test. This is an important SCA judgment for members practicing in the areas of medical negligence and personal injury claims. What is unclear and therefore uncertain is whether the Courts will in the future apply the Rogers v Whitaker Test todiagnosis and treatment as well. It governs claims by victims seeking compensation against the person that caused them to suffer. In Veitch v Avery [2007] EWCA Civ 711, the Court of Appeal considered issues of causation and quantum in the context of professional negligence. Tim Newman, clinical negligence barrister at No5 Chambers, explores how the report will affect legal practitioners. The House of Lords in Sidaway v Bethlem Royal  Hospital Governors (1985) also approved the  BolamPrinciple to cover the issue of advice to the patients. Generally, in a medical malpractice action in Ontario, damages are meant to compensate a person for the injuries suffered as a result of medical negligence, attempting to put them back into the position they would have been in had the negligence not occurred. The report quotes Simelane-Zulu as saying that the department was also in the process of establishing a panel of … We, more than most, can appreciate how devastating it can be when a medical procedure or indeed when medical treatment over a period of time has a detrimental effect on an individual. It was accepted on the basis of medical evidence that this was a rare complication with a chance of approximately one in 14,000 cases. He said the court awarded the amount after hearing testimonies on the quantum of damages from the parents and three medical experts. 3. He is the ordinary man. What happens if I die without a will? The second being commonly invoked, is the assertion that a defendant doctor will not be liable under the first limb if he has complied with a responsible professional practice, allowing for the possibility that there may be more than one such practice. 27/01, Coo J would not have been held responsible for the time. 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