Searching Case Laws & Precedent on Legal Query.....!
Scanned Judgements…!
Searching Case Laws & Precedent on Legal Query.....!
Scanned Judgements…!
Analysis and ConclusionMalaysia's standard for risk disclosure rejects Bolam (peer medical judgment) per Foo Fio Na, mandating objective judicial assessment of material risks disclosure for informed consent; courts evaluate if doctors informed patients of inherent risks in comprehensible terms, distinct from treatment standards. Breach occurs without such disclosure, risking liability even if procedure is standard. ["DR CHANDRAN GNANAPPAH vs GAN SEE JOE & ANOR AND ANOTHER APPEAL - Court Of Appeal"] ["JUWARIYAH SAL HAMID @ AHMAD vs DATO DR SHAHRUDIN MOHD DUN - High Court"] ["JAYSHREE LC DOSHI vs AHMAD FAIZAL MOHAMAD ALI & ORS - High Court"] ["KOAY ENG OON vs DR WONG TWEE JUAT & ANOR - 2022 MarsdenLR 1580"] ["MY_MLRA_2015_3_MLRH_327"]
In the realm of healthcare, patient trust hinges on transparency. Imagine undergoing surgery only to later discover undisclosed risks that could have swayed your decision. What is the standard of care for disclosure of risks of a medical procedure or surgery in Malaysia? This question strikes at the heart of informed consent, balancing medical expertise with patient autonomy. Malaysian law imposes a clear duty on doctors to provide comprehensive information, distinct from treatment standards. This post delves into guidelines, case law, and practical implications to help patients and practitioners navigate this vital area.
Malaysian courts and the Malaysian Medical Council (MMC) mandate that registered medical practitioners inform patients in an understandable manner about the condition, investigation and treatment options, benefits, all material risks, possible adverse effects or complications, residual effects, and likely outcomes if untreated. This enables patients to make an informed choice. KOAY ENG OON vs DR WONG TWEE JUAT & ANOR - 2022 MarsdenLR 1580 Failure to disclose material risks breaches the standard of care, potentially leading to negligence liability. NUUR IMAN RAHMATULLAH KHAN DR vs AMPANG PUTERI HOSPITAL SDN BHD & ANOR - 2023 MarsdenLR 1464
Unlike diagnosis and treatment, which follow the Bolam test (whether a responsible body of medical professionals would act similarly), disclosure focuses on the patient's right to decide. It's not dictated by prevailing medical practices. NUUR IMAN RAHMATULLAH KHAN DR vs AMPANG PUTERI HOSPITAL SDN BHD & ANOR - 2023 MarsdenLR 1464ZULHASNIMAR HASAN BASRI & ANOR vs DR KUPPU VELUMANI P & ORS - 2017 MarsdenLR 2301KS SIVANANTHAN vs GOVERNMENT OF MALAYSIA - 2000 MarsdenLR 1746DR KS SIVANANTHAN vs THE GOVERNMENT OF MALAYSIA & ANOR - 2000 MarsdenLR 973 Courts emphasize: It is the duty of a doctor to warn the patient of any material risk, particularly if the patient, if warned of the risk, consider it to be significant. KS SIVANANTHAN vs GOVERNMENT OF MALAYSIA - 2000 MarsdenLR 1746DR KS SIVANANTHAN vs THE GOVERNMENT OF MALAYSIA & ANOR - 2000 MarsdenLR 973
Key requirements include:- Disclosing material risks and comprehensive details beyond broad procedure descriptions. KOAY ENG OON vs DR WONG TWEE JUAT & ANOR - 2022 MarsdenLR 1580- Only fully registered practitioners bear primary responsibility for consent and explaining risks. MOHD SAUFI SAMAN & ORS vs DATO DR AHMAD MURTAZAM & ORS - 2024 MarsdenLR 853- Courts hold doctors liable even for accepted procedures if risks aren't disclosed. NUUR IMAN RAHMATULLAH KHAN DR vs AMPANG PUTERI HOSPITAL SDN BHD & ANOR - 2023 MarsdenLR 1464
The MMC Guideline Adopted on 26 November 2013 explicitly states: A medical practitioner is obliged to disclose information to the patient and to warn the patient of material risks before taking consent. Failure may trigger disciplinary action or legal claims. KOAY ENG OON vs DR WONG TWEE JUAT & ANOR - 2022 MarsdenLR 1580 Disclosures must cover:- Condition details- Investigation options- Treatment options and benefits- All material risks, adverse effects, complications- Residual effects- Outcomes if untreated KOAY ENG OON vs DR WONG TWEE JUAT & ANOR - 2022 MarsdenLR 1580
Only fully registered practitioners can take consent, as they explain procedures, unexpected findings, risks, complications, and remedies. MOHD SAUFI SAMAN & ORS vs DATO DR AHMAD MURTAZAM & ORS - 2024 MarsdenLR 853 Patient forms typically confirm explanations of nature, purpose, benefits, risks or side effects, alternatives, and their risks/benefits. DAYALAN SATHIAMUTTY vs GLENEAGLES HOSPITAL (KUALA LUMPUR) SDN BHD & ORS - 2023 MarsdenLR 1911
This framework protects patient safety, as seen in aesthetic practice cases where unauthorized procedures breached care standards partly due to inadequate disclosure of limitations. ADAM HAMIL vs DR CHIAM TEE KIANG The court noted: Medical practitioners must adhere strictly to their qualifications and licensing; performing unauthorized procedures constitutes a breach of duty of care. Undisclosed limitations undermined consent. ADAM HAMIL vs DR CHIAM TEE KIANG
Malaysian courts rigorously enforce this, drawing from influential cases like Australia's Rogers v Whitaker. In a percutaneous disc coagulation therapy (PDCT) case, the doctor was liable for not informing the plaintiff of risks, despite the treatment being accepted practice. Informed consent demands full risk disclosure; non-disclosure equals negligence. NUUR IMAN RAHMATULLAH KHAN DR vs AMPANG PUTERI HOSPITAL SDN BHD & ANOR - 2023 MarsdenLR 1464
The Australian High Court, cited approvingly, distinguishes: There is a fundamental difference between, on the one hand, diagnosis and treatment and, on the other hand, the provision of advice or information to a patient. Disclosure requires no special skill and isn't bound by professional norms. ZULHASNIMAR HASAN BASRI & ANOR vs DR KUPPU VELUMANI P & ORS - 2017 MarsdenLR 2301
Regional cases reinforce this. For instance, Indian consumer courts stress expert evidence on non-disclosure, noting: An issue whether non-disclosure of a particular risk... should be condemned as a breach of the doctor's duty of care is an issue to be decided primarily on the basis of expert medical evidence. HARISH KUMAR CHADHA VS INDRAPRASTHA APOLLO HOSPITALSSULOCHANA LAD - APPELLANT VS MOHAN GERRAMalay Kumar Ganguly VS Sukumar Mukherjee - 2009 Supreme(SC) 1431 Similarly, failure to obtain consent for procedures like blood transfusions led to liability for assault and battery. SULOCHANA LAD - APPELLANT VS MOHAN GERRA
In aesthetic negligence, breaching qualifications tied to poor disclosure caused RM341,770 in damages. ADAM HAMIL vs DR CHIAM TEE KIANG These align with Malaysia's patient-centric approach.
Guidelines imply exceptions for emergencies or necessity, where immediate action overrides full disclosure. ZULHASNIMAR HASAN BASRI & ANOR vs DR KUPPU VELUMANI P & ORS - 2017 MarsdenLR 2301 Adjustments may apply for unusually nervous patients if full info could harm, but this is narrow. ZULHASNIMAR HASAN BASRI & ANOR vs DR KUPPU VELUMANI P & ORS - 2017 MarsdenLR 2301 Delegation is limited; the consenting practitioner bears vicarious liability. MOHD SAUFI SAMAN & ORS vs DATO DR AHMAD MURTAZAM & ORS - 2024 MarsdenLR 853
Courts may consider if a responsible body of medical opinion approved non-disclosure, but patient-significant risks demand warning regardless. Malay Kumar Ganguly VS Sukumar Mukherjee - 2009 Supreme(Raj) 993
Practitioners should:- Use MMC-compliant forms for documented disclosures.- Ensure understandable explanations, tailored to patients.- Obtain written consent from registered doctors only.
In litigation, plaintiffs prove non-disclosure caused harm, but courts uphold the duty strictly. Patients: Always ask for risks, alternatives, and outcomes.
This outlines general principles in Malaysia; laws evolve, and specifics vary. Consult a qualified lawyer for advice tailored to your situation. Stay informed to protect your rights.
References1. KOAY ENG OON vs DR WONG TWEE JUAT & ANOR - 2022 MarsdenLR 1580: MMC consent guidelines.2. NUUR IMAN RAHMATULLAH KHAN DR vs AMPANG PUTERI HOSPITAL SDN BHD & ANOR - 2023 MarsdenLR 1464: PDCT negligence case.3. MOHD SAUFI SAMAN & ORS vs DATO DR AHMAD MURTAZAM & ORS - 2024 MarsdenLR 853: Practitioner consent rules.4. ZULHASNIMAR HASAN BASRI & ANOR vs DR KUPPU VELUMANI P & ORS - 2017 MarsdenLR 2301: Disclosure vs. treatment distinction.5. KS SIVANANTHAN vs GOVERNMENT OF MALAYSIA - 2000 MarsdenLR 1746DR KS SIVANANTHAN vs THE GOVERNMENT OF MALAYSIA & ANOR - 2000 MarsdenLR 973: Rogers v Whitaker principles.6. DAYALAN SATHIAMUTTY vs GLENEAGLES HOSPITAL (KUALA LUMPUR) SDN BHD & ORS - 2023 MarsdenLR 1911: Consent form standards.7. ADAM HAMIL vs DR CHIAM TEE KIANG: Aesthetic procedure liability.
#MedicalLawMY, #InformedConsentMY, #PatientRightsMY
Whitaker and followed by this Court in Foo Fio Na in regard to standard of care in medical negligence is restricted only to the duty to advise of risks associated with any proposed treatment and does not extend to diagnosis or treatment. ... However, if the patient was adequately briefed on risks and the injury was not due to failure of disclosure, the principle may not apply adversely. ... standard of care expected from the defendant as specialists.....
Whitaker and followed by this Court in Foo Fio Na in regard to standard of care in medical negligence is restricted only to the duty to advise of risks associated with any proposed treatment and does not extend to diagnosis or treatment. ... The courts would 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. ... Standard ....
The regulatory framework that defines different levels of aesthetic medical practice exists precisely to protect patient safety and ensure an appropriate standard of care. ... the standard of care expected of medical practitioners; (c) The Defendant is liable for the injuries and complications suffered by the Plaintiff as a result of these unauthorized procedures. ... Issues To Be Decided [28] The main issues that require determination are: (a) Standard of ....
to obtain consent for the procedures undertaken by them, particularly for the CABG procedure performed on the Deceased; and d) the 3rd Defendant Hospital had breached the standard duty of care by failing to treat the Deceased post-surgery. ... This Court in Foo Fio Na however dealt only with a medical practitioner's duty to advise of risks associated with a proposed treatment. It did not deal with the standard of care expected in respect of either di....
[94] Thus, it is our judgment that in respect of the standard of care in medical negligence cases, a distinction must be made between diagnosis and treatment on the one hand and the duty to advise of risks on the other. ... That said, we are of the opinion that the Bolam Test has no relevance to the duty and standard of care of a medical practitioner in providing advice to a patient on the inherent and material risks of the proposed treatment. ... ....
The purpose of the procedure and the risk relating to the said procedure as seen in the standard form was explained to the Plaintiff by Dr Benjamin. ... This conduct I find falls below the standard expected of a competent medical practitioner. ... [24] I also note that the following also appears in the said document: "Nature and purposes of the procedure / surgery, the benefits and risks of the operation or procedure ... at the mat....
in accordance to the standard of reasonably competent medical man. ... Chattopadhyay (Prof. and HOD Dept of Surgery, IPGMER and SSKM Hospital, Kolkata), that the standard protocol for treatment was followed. ... On the other hand, the Petitioners/OPs, contest the allegations of medical negligence and asserted that all necessary procedures were followed, including obtaining consent and providing standard post-operative care. ... He alleged medical neg....
The test was pertaining to the duty and standard of care of a medical practitioner vis a vis a patient... ... to the said medical procedure. ... Relevant information includes disclosure of possible risks which the patient ought to know and/ or should know. ... [24] With that, the law as to the standard of care in medical negligence cases in Malaysia was well settled..." [42] Having set out the ab....
to the duty and standard of care of a medical practitioner in providing advice to a patient on the inherent or material risks of the proposed treatment." ... X-rays were taken after the surgery. [19] Unfortunately this procedure too failed as the appellant became paralysed the day after the operation. ... [60] In Malaysia, the Bolam principle has been applied extensively by the courts in medical negligent cases when determining the standar....
negligence [that] relates more specifically to the duty and standard of care of a medical practitioner in providing advice to a patient on the inherent or material risks of the proposed treatment." ... [60] In Malaysia, the Bolam principle has been applied extensively by the courts in medical negligent cases when determining the standard of care. Such cases include: (1) Swamy v. ... It is my opinion that that is a correct statement of the law, and ....
In the event of a conflict of evidence the judge will have to decide whether a responsible body of medical opinion would have approved of non-disclosure in the case before him. In the times to come, litigation may be based on the theory of lack of informed consent. An issue whether non-disclosure of a particular risk or cluster of risks in a particular case should be condemned as a breach of the doctor's duty of care is an issue to be decided primarily on the basis of expert medical evidence. Standard of care in such cases will involve the duty to disclose to pati....
A judge might in certain circumstances come to the conclusion that disclosure of a particular risk was so obviously necessary to an informed choice on the part of the patient that no reasonably prudent medical man would fail to make it, even in a case where no expert witness in the relevant medical field condemned the non-disclosure as being in conflict with accepted and responsible medical practise. An issue whether non-disclosure of a particular risk or cluster of risks in a particular case should be condemned as a breach of the doctor's duty of care is an issue to be decided pri....
Only after the consent was given was the patient was taken up for surgery. Before undertaking surgery all the risks and complications are fully explained and a consent for surgery was taken. 7. They further stated that the complainant was suffering from phimosis for which he was rightly advised surgery (circumcision).
“The decision what degree of disclosure of risks is best calculated to assist a particular patient to make a rational choice as to whether or not to undergo a particular treatment must primarily be a matter of clinical judgment. An issue whether non-disclosure of a particular risk or cluster of risks in a particular case should be condemned as a breach of the doctor’s duty of care is an issue to be decided primarily on the basis of expert medical evidence. In the event of a conflict of evidence the judge will have to decide whether a responsible body of medical opinion woul....
A judge might in certain circumstances come to the conclusion that disclosure of a particular risk was so obviously necessary to an informed choice on the part of the patient that no reasonably prudent medical man would fail to make it, even in a case where no expert witness in the relevant medical field condemned the non-disclosure as being in conflict with accepted and responsible medical practice." An issue whether non-disclosure of a particular risk or cluster of risks in a particular case should be condemned as a breach of the doctors duty of care is an issue to be decided pri....
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