Determining the Proper Standard of Care for Doctors: Bolam/Bolitho Test

In Zulhasnimar Hasan Basri v Dr Kuppu Velumani P (2017), the Federal Court clarified the distinction between a doctor’s duty in diagnosis and treatment (Bolam/Bolitho test), and the duty to advise of risks (Rogers test).

Background Facts

A woman (the appellant) was admitted to the hospital due to abdominal pain. Some medications were given as ordered by the doctor (the respondent). The woman suddenly collapsed as a result of severe bleeding, an emergency caesarean section was conducted and the baby was delivered alive. An emergency hysterectomy was performed on discovering that the woman had a ruptured blood vessel at the placenta. The collapse had resulted in a sudden and significant loss of oxygen to the baby, and sadly, the baby suffered severe birth asphyxia (ie: a cerebral injury).

High Court Decision

Given that the woman suffered from an extremely rare, abnormal presentation of the uterus, and this could not have been reasonably foreseen by the doctor. Thus, the claim failed on the basis that the appellants had failed to prove on a balance of probabilities that the doctors had breached their duty and standard of care.

Court of Appeal Decision

The Court of Appeal unanimously affirmed the high court’s judgment.

Federal Court Decision

On appeal to the Federal Court, two key tests were considered.

• The UK’s Bolam test – applied in Chin Keow v Government of the Federation of Malaya, where the standard of care owed by a doctor to a patient is to be determined by medical fraternity.
• The Australian Rogers test, applied in Foo Fio Na v Dr Soo Fook Mun, where it was held that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment.

To determine which test shall apply, the Federal Court made the following observations:

• The decision in Rogers v Whitaker was entirely related to the duty to advise, hence, the decision in Foo Fio Na must be confined to the duty to advise of risks only.
• For cases concerning diagnosis and treatment, the Bolam test shall continue to apply, which means the court will respect the medical body’s opinion as long as it is reasonable and logical.

Conclusion:

The Rogers test is restricted only to the duty to advise of risks, whereas the Bolam/Bolitho test applies to the standard of care for diagnosis or treatment.