treatment and also preserve patient’s privacy. However, professionals that are in the medical line are being increasingly sued for negligence. On 29th December 2006, the test for medical negligence had been accepted by the Courts in Malaysia . It was generally known as the Bolam Test. This principle was derived from the case of Bolam v Friern Hospital Management Committee . Justice McNair stated that if the doctor is acting in accordance with the skills or practices that are accepted by a body or responsible
McNair J in Bolam stated what that standard of proof is based on and this was re-affirmed in Dr Soo Fook Mun v Foo Fio Na & Anor and another appeal10 to be applicable. In Dr Chin Yoon Hiap v Ng Eu Khoon & Ors and other appeals11, per Abdul Malek Ahmad JCA, that ‘..
Negligence was not perceived as tort until 1932. However, the development of this doctrine can be traced back to the rulings of House of Lords in the case of Donoghue v Stevenson. This case was concerned with what was claimed to be the decomposed remnants of a snail in a bottle of ginger beer. Despite its generally late starting, Miller has verbally expressed that negligence is the most tort actions. The standard of care established in Donoghue v Stevenson could have been restricted and only applicable
Broad application and usage of the Bolam Test Despite the Bolam decision being rendered by a court of first instance it has become heavily relied upon, widely accepted and reinforced by the House of Lords as seen in the following cases: Maynard v West Midlands Regional Health Authority, Whitehouse v Jordan, Sidaway v Bethlem Royal Hospital Governors, Bolitho v City & Hackney Health Authority. Clinical Judgment and competing opinions Maynard v West Midlands Regional Health Authority -1985 Maynard
Once it has been established that the defendant owed the claimant a duty of care, the claimant must also demonstrate that the defendant was in breach of duty. The test of breach of duty is generally objective, however, there may be slight variations to this”. While using the objective test also referred to as the reasonable man test to determine negligence in breach of duty, the court will decide if the defendant fell below the standard of the reasonable man. The standard of care expected from
irrespective of their age and experience it also included learner drivers . In some situations the reasonable person test is not used and other factors are considered. If the defendant is a professional or particularly skilled, then he/she will be judged on a higher standards against their respective peers. In case of doctors, the famous ‘Bolam test’ will be used as laid down in the case of Bolam v Friern Hosopital Management Committee [1957] in this case it was said that “..the standard of care expected
MEDICAL NEGLIGENCE & CONSUMER PROTECTION IN INDIA Introduction Practice of medicine is capable of rendering great service to the society provided due care, sincerity, efficiency and skill are observed by doctors. Medical profession has its own ethical parameters and code of conduct. This profession is rendering a noble service to humanity and has sustained itself on public trust. According to voluntary Health Association of India, the present state of medical profession seems to mirror the rot, which
Negligence by professionals In the Jacob Mathew’s Case , the Supreme Court of India discussed the conduct of professionals and also which acts amounts to negligence by professionals: In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if
Up until quite recently, the signal from the English courts on this issue was the only approach to be applied was the doctor centered approach. This can be seen from decisions from Bolam and Sidaway. However the landmark decision of Chester v Afshar seemed to change this as the court favoured a patient centered approach over the doctor centered approach. While confusion did exist after this case, a subsequent Scottish decision reaffirmed
After determining whether duty of care exists, the following question would be whether there is a breach of duty by Dr. Jones. To prove that there is a breach of duty, proof of the defendant falls below the expected standard of care is essential. The Bolam case once again could be applied here to determine the standard of care of