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FEDERAL COURT PUTRAJAYA
ZULHASNIMAR HASAN BASRI & ANOR – Appellant
Versus
DR KUPPU VELUMANI P & ORS – Respondent
[Civil Appeal No: 02(f)-10-02-2015(W)]
Certainly. Based on the provided legal document, here are the key points summarized:
The case concerns allegations of medical negligence involving the standard of care owed by medical practitioners and the hospital (!) (!) .
The court examined whether the hospital had a non-delegable duty and whether there was sufficient evidence to establish negligence. The findings indicated that the hospital was not directly negligent and that the respondents met their duty of care (!) (!) .
The legal standards applied include the Bolam test for diagnosis and treatment, which considers whether the practitioner's conduct aligns with a responsible body of medical opinion, and the Rogers v. Whitaker standard for advising patients on risks, which emphasizes the court's role in determining if a patient was properly advised of material risks (!) (!) .
The case discusses the distinction between the standard of care for diagnosis and treatment versus the duty to advise on risks. The Bolam test remains applicable for diagnosis and treatment, while the Rogers v. Whitaker standard applies specifically to the duty to inform and advise patients about risks associated with proposed treatments (!) (!) .
The court reaffirmed that the duty to advise involves a materiality test, where the court assesses whether a reasonable patient would find the risk significant, and this test is applied independently of medical opinion (!) (!) .
The decision emphasizes that the courts do not substitute their judgment for medical expertise in diagnosis and treatment but do so in assessing whether the medical practitioners adhered to responsible standards. Conversely, the courts determine the adequacy of advice given to patients based on whether material risks were disclosed (!) .
The court clarified that the application of the Bolam test is subject to qualifications, including the possibility for courts to depart from it if the responsible medical opinion is shown to be unreasonable or illogical (!) .
The ruling confirms that the standard of care for diagnosis and treatment continues to be governed by the Bolam test, with its qualifications, whereas the duty to advise on risks is governed by the materiality standard, which is a matter for the court to decide (!) .
Overall, the court dismissed the appeals, finding that the evidence did not establish negligence or breach of duty by the respondents, and that the courts below correctly applied the relevant standards of care (!) (!) .
Please let me know if you need a more detailed analysis or specific legal advice related to this case.
| Table of Content |
|---|
| 1. appeal context and the basis for the claims (Para 1 , 2 , 4) |
| 2. what is the context of the appeal in the judgment? (Para 3) |
| 3. what legal questions are raised in the appeal? (Para 5 , 17 , 18) |
| 4. what are the factual foundations of the negligence claim? (Para 6 , 7 , 8) |
| 5. what are the findings of the high court in response to the claims? (Para 10 , 11) |
| 6. medical negligence claims and details of the allegations (Para 12 , 16) |
| 7. what is the conclusion regarding the standards applied? (Para 19 , 97) |
| 8. application of the bolam test and its relevance (Para 54 , 94) |
| 9. what was the ultimate decision of the court regarding patient treatment? (Para 92 , 96) |
Introduction
[1] This is an appeal against the decision of the Court of Appeal given on 8 May 2014 which affirmed the decision of the High Court dismissing the appellants' claims against the respondents.
[2] In this appeal, the 1st appellant, Zulhasminar binte Hasan Basri is the mother of the 2nd appellant. The 2nd appellant, Khairina Puteri binte Sariman is an infant who is suing by her father and next friend, Sariman bin Saad.
[3] The 1st respondent, Dr Kuppu Velumani and the 2nd respondent, Dr Marlik Abu at the material time were consultant obstetricians and gynecologists with a practice at Ampang Puteri Specialist Hospital which is owned and operated by the 3rd respondent, a private hospital providing public healthcare services (the Hospital).
[4] The appellants' claim against the respondents were for medical negligence. The High Court found that the appellants failed to prove on a balance of probabilities that the 1st and 2nd respondents had breached their duty and standard of care to them. Consequently, the 3rd respondent was found not to be vicariously liable, as liability had not been attributed to the 1st and 2nd respondents.
[5] Leave to appeal was granted by this Court on 29 January 2015 on two questions of law which read:
Question 1 Whether the Bolam test or the test in the Australian case of Rogers v. Whitaker [1993] 4 Med LR 79 in regard to the standard of care in medical negligence should apply, following conflicting decisions of the Court of Appeal in Malaysia and legislative changes in Australia, including the re-introduction there of a modified Bolam test.
Question 2 Whether in negligence a hospital authority may, by reason of a "non-delegable duty of care", be directly liable for "organizational and system failures" as decided by the Supreme Court of England in Woodland v. Essex County Council [2014] 1 All ER 482.
Material Facts
[6] The 1st appellant was pregnant and had chosen the 1st respondent to be her obstetrician and gynecologist since she was the doctor who had delivered her first baby by caesarian section (CS). The 1st appellant had seen the 1st respondent at least four times during the course of her pregnancy.
[7] In the early morning of 3 May 2002 at 36 weeks of her pregnancy, the 1st appellant presented herself at the Hospital complaining of abdominal pain. She was attended to by a staff nurse and after having performed various checks on her, she was admitted into the Hospital. The 1st appellant's pulse was high at 108 and her blood pressure was 122/68. After the medications of Pethedine and Phernegan, ordered by the 1st respondent, were given, the 1st appellant's pulse came down to 80 and her blood pressure was 110/70. Later in the morning the 1st respondent visited her in the ward.
[8] Sometime between 10.50am to 11.00am that morning, the 1st appellant suddenly collapsed as the result of severe bleeding. Her blood pressure could not be recorded. A 'Code Blue' alarm for emergency was sounded. The 1st appellant was resuscitated in the ward and was rushed to the operation theatre (OT) for an emergency CS conducted by the 1st respondent. This was successful and the 2nd appellant was delivered alive. A hysterectomy to remove the 1st appellant's uterus was performed subsequently with the assistance of the 2nd respondent upon discoverin
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