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Case Update: Bolam test or Rogers v Whitaker test

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TORT
Medical negligence – Standard of care – Bolam or Rogers v Whitaker test –Whether private hospitals can be held vicariously liable for negligence of independent contracted doctors – Principle in Woodland v. Essex County Council – Whether hospital owed non-delegable duty to patient
 
Dr Hari Krishnan & Anor v. Megat Noor Ishak Megat Ibrahim & Anor And Another Appeal
[2018] 3 CLJ 427, Federal Court
 
Facts The respondent had a retinal tear in his right eye and consulted the appellant, Dr Hari at his private clinic where he was advised to undergo a retinal detachment operation immediately, and performed the operation at the Tun Hussein Onn National Eye Hospital (“the Hospital”). Thereafter, the respondent complained of continuous pain and strong pressure in his eye and upon inspection, was told to undergo a second operation. Dr Hari denied both the respondent’s requests for a scan to confirm and to be treated by the same anaesthetist during his first operation, while assuring him that the anaesthetist on duty, Dr Namazie, was equally competent. After regaining consciousness, the respondent was told that he bucked during the operation, causing a Supra-Choroidal Haemorrhage (SCH), leading to the loss of vision in his right eye. The respondent filed a civil suit against both doctors and the Hospital for negligence. The High Court allowed the respondent’s claim and held all three appellants liable for failure to warn the respondent of the risks of bucking and blindness during the operation. The Hospital was also held vicariously liable for the actions of the doctors. The Court of Appeal further affirmed the decision of the High Court, hence this appeal.
 
Issues The issues were whether (i) the Bolam test[1] or the test in Rogers v. Whitaker[2] should be applied to the standard of care in medical negligence; and (ii) whether the Hospital was liable for the actions of Dr Hari and Dr Namazie based on the doctrine of non-delegable duty.
 
Held In dismissing the appeal, the Federal Court held that in cases involving the standard of care for diagnosis and treatment, the Bolam test still applies. Therefore, since both Dr. Hari and Dr Namazie had failed the Bolam test, they were held negligent for their advice of risks, diagnosis and treatment, mainly, failing to warn the respondent of the risks of bucking and blindness, subjecting the respondent to an unnecessary operation, and failing to keep the respondent anaesthetised completely during the second operation. In addition, although both doctors were found to be independent contractors and did not act on behalf of the Hospital, in applying the principles in Woodland[3], it was held that the Hospital owed a non-delegable duty to the respondent to ensure that reasonable care was taken in the premises, and that such duty was breached by the Hospital thus holding it liable.
 
 
[1] As long as there are two conflicting views on the acceptable medical practice and the doctor acted based on one of the conflicting views, he would be exonerated from liability.
[2] Rogers v Whitaker [1993] 4 Med LR 79
[3] Woodland v. Essex County Council [2013] UKSC 66
 
 

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