Medical Negligence – Wrongful Treatment and/or Failure to Disclose Material Risks

By Bryan Boo

Medical negligence – a phrase that many people know but not everyone really understands what exactly that phrase means. Often heard when a medical procedure or treatment does not result in the desired outcome, the common perception of “medical negligence” is typically when a patient’s condition gets worse despite undergoing or receiving treatment. While blaming the doctors is not a typical response of the public, there are times in which patients or their families do blame doctors for the worsening of the patient’s health. But what exactly is “medical negligence” in the eyes of the law?

A medical negligence suit can generally be instituted on 2 grounds:

1. Wrongful diagnosis and/or treatment

It must first be noted that not all “worsening conditions” or “seemingly wrongful medical decisions” are negligence. Broadly speaking, for a medical practitioner to be negligent, the decision, act or omission must first fall short of the standard of care expected of such a medical practitioner. In other words, would a competent medical practitioner with the same expertise have come to the same conclusion? In other words, if a responsible body of medical opinion is of the opinion that the medical practitioner had acted reasonably regardless of the differing medical opinion, then that medical practitioner is not negligent.

Where the question is whether the medical practitioner had adhered to the standard of care in relation to diagnosis and treatment, the Bolam Test is employed. Simply put, the Bolam Test is whether or not that medical practitioner had acted in a manner in which a responsible body of medical professionals of the same expertise would deem to be acceptable. Bluntly, the Bolam Test is essentially a peer review test.

Even if the answer to the Bolam Test was in the negative, it must also be established that the “negligent decision” must have caused a worsening to the patient’s health, without which there such deterioration would not have occurred.

2. Failure to Disclose Material Risks

The Malaysian Courts have viewed decisions pertaining to the disclosure of risks as separate from decisions on diagnosis and treatments. It is without doubt that the field of medicine is one that is very technical with medical terms and jargons – including the fact that the practice of medicine is constantly evolving. As such, the Court is unable to decide on its own matters regarding diagnosis and treatment and would require the guidance of industry professionals; hence the Bolam Test.

However, when it comes to disclosure of risks, the test then becomes and objective test and the Courts are more than equipped to decide on this. A medical practitioner is required to disclose the material risks inherent in the proposed treatment to the patient in order for the patient to make an informed decision. The question then is what is “material risks”?

For this, a 2-limb test is employed:

  1. What risks would a reasonable patient likely attach significance to; and
  2. What risks would that particular patient, bearing in mind the individual traits of that patient such as age, occupation etc., likely attach significance to

A medical practitioner who fails to disclose material risks to the patient and as a result, the patient does indeed suffer a risk of which is inherent in that medical procedure, of which, if the patient had known of such risk, the patient would likely not have proceeded with that course of treatment, then that medical practitioner may be found negligent.

Conclusion

It is undoubtedly difficult to go through or even see a loved one suffer through illnesses, especially if the patient’s health takes a turn for the worse. It is certainly not easy for a lay person to know if a medical practitioner had adhered to the standard of care expected of such a medical practitioner.

In any case, it may be prudent for a patient to inquire as to the risks of any proposed treatment and/or if there are any alternative treatments available. Patients should not be afraid to ask questions or even seek a second opinion. As for medical practitioners, while there may be situations in which a withholding of material risks might be allowed, generally, it is always prudent to be transparent with the patient.