SUMMARY OF CONCLUSIONS OF EACH CHAPTER

The analysis in the foregoing chapters of this thesis has prompted a number of conclusions. Chapter 2 reviewed the historical development of the Bolam test in the United Kingdom leading up to the English House of Lords decision in Bolitho v City and Hackney Health Authority.2 It was concluded that Bolitho did not significantly alter judicial deference to the medical profession in the United Kingdom on two grounds. One of them is the statement of Lord Browne-Wilkinson in Bolitho that the opinion of medical experts of high standing and

1 _{[2007] 1 MLJ 593 (Foo Fio Na).}

179 seniority is presupposed to satisfy the ‘logical basis’ test. The other limitation is the restrictive authority of the courts to reject expert medical opinion for want of ‘logical basis’ in ‘rare cases’. Chapter 2 also compared the English and Singaporean versions of the Bolitho

principles. The analysis identified two major distinctions between the two versions. One was that judicial evaluation of the defensibility of expert medical opinion in Singapore is restricted by a two-stage inquiry. In the first stage of the inquiry, judges must ensure that the opinion of medical experts relating to the risk and benefit analysis is internally consistent. The second stage of the inquiry requires judges to be satisfied that this opinion is supported by extrinsic proven facts or advancement in medical science. In comparison, English judges are not restricted by this process of inquiry. Another distinction is that unlike its original English version, the Singaporean Bolitho principle does not impose undue judicial deference to the opinion of medical experts of high standing. Singaporean judges may reject any opinion which does not satisfy the ‘logical basis’ test. On the basis of these two distinctions, Chapter 2 concluded that the Singaporean version of the Bolitho principle is preferable to its English original version as the former allows a more systematic and fairer evaluation of expert medical opinion.

Chapters 3, 4 and 5 examined the legal developments on the standard of care in medical diagnosis and treatment in Australia. Chapter 3 examined the common law position as established by the Australian High Court decision in Naxakis v Western General Hospital.3 The Court in Naxakis extended the principle in the Australian High Court decision in Rogers v Whitaker4 to the areas of medical diagnosis and treatment, and held that the required standard of care in both branches of the doctors’ duty of care is determined by all available evidence, not just expert medical opinion. Chapter 3 concluded that the decision in Naxakis

lacks a definitive testing mechanism to assist judges to evaluate expert medical opinion. More significantly, the High Court in Naxakis has gone too far in allowing the courts to determine the issue of standard of care when there is no direct medical evidence to support an injured patient’s case. It was argued in Chapter 2 that the decision in Naxakis may enable injured patients to more easily establish liability for negligence against defendant doctors and hence, expose Australian doctors to high risk of medical negligence claims.

3 _{(1999) 197 CLR 269 (Naxakis).}

180 Chapter 4 gave a detailed analysis of the medical indemnity crisis that led to legislative changes in Australia. The analysis found a lack of cogent empirical study in Australia establishing a causal link between the decision in Naxakis and the occurrence of the crisis. It was argued that the Australian Commonwealth Government had failed to adopt a wide-ranging analysis into the real causes behind the crisis, such as conducting an in-depth investigation into the financial management of medical defence organisations in Australia. Although it had been argued in Chapter 3 that the common law position on the standard of care in medical diagnosis and treatment in Australia is flawed, Chapter 4 concluded that the establishment of the Ipp Review Committee to review, among others, the common law of medical negligence, did not in actual fact address the possible causes of the crisis.

In Chapter 5 the substantive legislative changes in Australia following the recommendations by the Ipp Review Committee were examined. Materials extrinsic to the legislative reform reveal that the Australian modified Bolam test is based on the principle in the House of Lords decision in Bolitho, albeit with some modifications. Chapter 5 found that the implementation of the Australian modified Bolam test lacks uniformity as the test carries different language in most of the state jurisdictions. The more significant shortcoming in the Australian modified Bolam test, Chapter 5 concluded, was the lack of practical guidance with regard to interpreting some of the important wording of its statutory provisions.

Chapter 5 also analysed the application of the Australian modified Bolam test. Examination of a number important Australian Court of Appeal and Supreme Court decisions found that judges in these cases configured the modified Bolam test as a defence rather than a complete revamp of the decision in Naxakis. The principle in Naxakis, as these cases held, is still relevant in determining whether a plaintiff has discharged his or her burden of proving negligence. The modified Bolam test is only applicable in deciding whether a defendant doctor has disproved negligence. Although the modified Bolam test ultimately decides the standard of care in a medical dispute, it was argued in Chapter 5 that the reintroduction of the common law principle is inconsistent with the legislative intent of the modified Bolam test. The more appropriate approach, Chapter 5 suggested, is to state that a plaintiff discharges his or her burden of proof by solely relying on expert medical opinion. Accordingly, the role of the court is to determine whether expert medical opinion adduced by the plaintiff or the defendant satisfies the requirements of the modified Bolam test.

181 The law on the standard of care in medical diagnosis and treatment in Malaysia, both past and present, was examined in Chapters 6 and 7 respectively. Chapter 6 analysed the transplantation of the English common law principle, the Bolam test, into Malaysian courts between the 1960s and 2006. It concluded that the application of the Bolam test during this period was uncertain. There were three discernible ways in which the Bolam test was applied in Malaysian courts. In the majority of appellate court decisions, Malaysian judges adopted the interpretation of the test by the House of Lords in the 1980s. A small number of appellate and lower courts cases modified the test, enabling judges to make findings of medical negligence where the issues involved were straightforward. A minority of lower court decisions that emerged in the 1990s simply did not apply the Bolam test; judges in these cases determined the required standard of care based on an evaluation of all available evidence, not on expert medical opinion alone.

Chapter 7 analysed the current legal position on the standard of care in medical diagnosis and treatment in Malaysia following the Federal Court decision in Foo Fio Na.A main argument was that the Court in Foo Fio Na did not provide a clear legal principle for determining the standard of care in medical diagnosis and treatment. This ambiguity is evident in the ruling of the Court with regard to the issue of medical treatment and conflicting interpretations by academic scholars and judges in subsequent Malaysian lower court cases. Chapter 7 found that this state of the law in Malaysia is unsatisfactory and legislative reform is called for. It further examined the advantages and disadvantages of reforming the law by way of legislation. Codification of the applicable principle in legislation would curtail the due development of the common law, introduce the elements of political interests in law reform and minimise the coherency which its application under the common law could otherwise provide. Chapter 7, however, concluded that the balance of advantages lies with legislative changes as case law development is inflexible, dependent upon unplanned litigation and less comprehensive in its analysis than a review by the legislatures. There is also the likelihood that the Malaysian judiciary could not provide a satisfactory solution to the problems in the law. Chapter 7 also recommended that Malaysia should adopt the Bolitho-type Bolam test so as to bring the law in this jurisdiction into line with the developments in the United Kingdom, the Australian states and Singapore.

Finally, Chapter 8 provided substantive reform recommendations with respect to the law on the standard of care in medical diagnosis and treatment and its application in

182 Malaysian courts, to be preferably codified in a new Act of Parliament. These recommendations consist of two aspects: the substantive principle for the Bolitho-type Bolam

test as the proposed Malaysian reform model; and procedural rules on the use of expert witnesses in medical negligence litigation. The proposed Malaysian reform model is based on the Bolitho principle that was interpreted by the Singaporean Court of Appeal decision in Dr Khoo James v Gunapathy d/o Muniandy.5 The justifications for this proposal are that the Singaporean Bolitho principle is clear, allows a systematic evaluation of expert medical opinion and does not impose undue judicial deference to the medical profession. Chapter 8 also proposed the appointment of a single agreed or a single court-appointed expert prior to the commencement of medical negligence litigation. Under the proposed procedural framework, litigants may also appoint an additional agreed or court-appointed expert or experts at any stage of legal proceedings should the need arise. The court may also exercise discretion to allow litigants to instruct their own experts in exceptional circumstances and this issue would be decided by the court at the early stage of legal proceedings. These proposals, which are based on the modification of the Queensland model under the Uniform Civil Procedure Rules 1999 (Qld), aims to promote a more independent expert medical opinion in the adjudication of the standard of care in diagnosis and treatment, provide a flexible way of resolving medical disputes, save costs and time of litigants; and resolve the issue of inordinate delay in the resolution of medical disputes concerning issues of diagnosis and treatment in Malaysian courts.