30 November, 2018
Ahmad Zubir Bin Zahid (suing by himself and as the administrator of the estate of Fatimah Binti Samad, deceased) v Datuk Dr Zainal Abidin Abdul Hamid[1]
This is an appeal by Ahmad Zubir Bin Zahid (husband of the deceased) against the High Court decision dismissing his action. Ahmad Zubir Bin Zahidsued Datuk Dr Zainal Abidin Abdul Hamid for professional negligence resulting in the deceased’s death. The deceased had not strictly followed medical advice nor attended appointments and only admitted herself into hospital at a late stage. The family of the deceased also refused to conduct a post-mortem on the deceased thereby depriving Ahmad Zubir Bin Zahid of the best primary evidence of the cause of death.
With regard to the standard of care in medical negligence cases in Malaysia, a distinction is made between diagnosis and treatment and the duty to advise of risks. The Bolam test applies in all medical negligence cases; however, in cases involving medical practitioners’ duty to advise of risks, the medical expert opinion is subjected to logical analysis and judicial determination, following the English case of Bolitho (administratrix of the estate of Bolitho (deceased)) v City and Hackney Health Authority[2].
This means that in cases involving allegations of negligence in advising risks associated with proposed treatment, the courts (rather than a body of respected medical practitioners) will decide whether a patient has been properly advised of the risks associated with a proposed treatment. The courts will no longer look to what a body of respectable members of the medical profession would do as the yardstick to govern the standard of care expected in respect of the duty to advise (see the Federal Court cases of Foo Fio Na v Dr Soo Fook Mun[3], Zulhasnimar bt Hasan Basri v Dr Kuppu Velumani P[4] and Dr Hari Krishnan & Anor v Megat Noor Ishak Megat Ibrahim[5]).
The Court of Appeal in Ahmad Zubir took cognisance of the legal developments in the United Kingdom, Australia and Singapore; however, the Court of Appeal declined the invitation to extend the scope of doctors’ responsibility in requiring a doctor to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments (known as the “Broad Test” enunciated by the English Supreme Court in Montgomery v Lanarkshire Health Board[6] and adopted with modification by the Singapore Court of Appeal in Hii Chii Kok v Ooi Peng Jin London Lucien[7] and referred to as the “Patient Autonomy Test”), without appropriate legislative intervention.
The Court of Appeal took the view that the adoption of these tests would result in a protracted trial, harsh cross-examination tactics against the medical practitioners and institutions. The law of medical negligence, it was felt, needed appropriate legislative intervention to provide proper safeguards for patients as well as for doctors.
In affirming the High Court decision, the Court of Appeal (obiter), took the position that Ahmad Zubir Bin Zahid’s refusal to conduct a post-mortem and the absence of a post-mortem report may attract an adverse inference under section 114(g) of the Evidence Act 1950 to be drawn against Ahmad Zubir Bin Zahid in view of the fact that the cause of death and medical negligence were highly contested.
For further information, please contact:
Datin Jeyanthini Kannaperan, Partner, Shearn Delamore & Co
jeyanthini@shearndelamore.com
[1] [Civil Appeal No: W-02(NCVC) (W)-1087-06/2017] (Court of Appeal)
[2] [1997] 4 All ER 771
[3] [2007] 1 MLJ 593
[4] [2017] 5 MLJ 438
[5] [2018] 3 MLJ 281
[6] [2015] UKSC 11
[7] [2017] SGCA 38
