Obtaining a patient’s consent is not merely procedural, it is both an ethical and a legal requirement. Doctors are expected to inform patients of the specific risks associated with the proposed treatment, be it a rare or small risk, so long as it constitutes a material risk — that is, a risk that the patient would likely attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned, would be likely to attach significance to it (see Foo Fio Na v Dr Soo Fook Mun [2007] 1 MLJ 593).
In the recent case of Tan Sri Datuk Seri Mohd Hussein Bin Abd Hamid v Gleneagles Hospital [2025] 4 MLJ 381, the Appellant underwent an arthroscopy on his right knee capsule performed by the 2nd Respondent, a Consultant Orthopaedic and Trauma Surgeon. Following the procedure, the Appellant experienced excruciating joint pain. Tests revealed a tear in the popliteal artery, which was surgically repaired. Despite this, the Appellant continues to suffer residual disabilities in his right leg.
The Appellant claimed that the 2nd Respondent failed to warn him of the risk of popliteal artery injury and negligently caused the injury.
The High Court dismissed the claim, holding that the risk of popliteal artery injury was encompassed by the warning of the risk of bleeding and other surgical complications as advised by the 2nd Respondent and documented in the consent form.
The Court of Appeal, however, held that the mere warning of the risk of “bleeding” did not encompass the specific risk of popliteal artery injury. The expert witnesses confirmed that these are distinct risks. The Court emphasised that the duty to advise on surgical risk is specific in nature. Although the risk of popliteal artery injury was extremely rare, the Court held that it was nonetheless a material risk that should have been informed to the Appellant. Accordingly, the 2nd Respondent breached his duty to advise, thereby depriving the Appellant of the opportunity to make an informed decision.
This decision underscores that a doctor’s duty to advise on surgical risk is specific. Any material risk inherent in the proposed treatment, regardless of its rarity, must be informed to the patient.
Links to Malaysia Medical Council (“MMC”) Guidelines:
- https://mmc.gov.my/wp-content/uploads/2022/04/Good-Medical-Practice-2019.pdf.
- https://mmc.gov.my/wp-content/uploads/2025/09/Consent-for-Treatment-of-Patients-by-Registered-Medical-Practitioners.pdf.
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