When liability is established, loss must be proven for the Courts to decide on the quantum of the damages. In Rogers v Whitaker the High Court, the apex court in Australia, reconsidered the application of the Bolam Principle under Australian law and held that “except in the case of an emergency or where disclosure would prove damaging to the patient, a medical practitioner has a duty to warn the patient of a material risk inherent in the proposed treatment. C.A. PUTRAJAYA: The Court of Appeal here has awarded a Myanmar refugee almost RM1.7mil in damages in a medical negligence lawsuit. FxoMessenger.sendMessage('Hey! ... after allowing Henry Siang Len’s appeal to raise the quantum of damages In claiming damages for his injuries against the management of the hospital, Bolam contended that the hospital was vicariously negligent in permitting Dr Allfrey to administer electro-convulsive therapy without the previous administration of a relaxant drug which would have excluded the risk of fracture altogether or without restraining his convulsive movements by manual control and in failing to warn him of the risk he was taking in consenting to have the treatment. The Rogers v Whitaker Test was applied by the Judge to reverse the decision of the Sessions Court. Instead, the plaintiffs had attacked the theory advanced by the defendants’ as to the likely cause of the deceased’s death seeking thereby to show that their charge of negligence must be correct. Having had her eyes checked in 1983 she was referred to an ophthalmic surgeon. The appellant was a front seat passenger in a motor car that crashed into a tree on the night of 11/7/82. As a result of this the first respondent performed a second operation on the appellant on the same day whereby he removed the wire loop. This test was applied to determine the doctor’s standard of care in relation to the treatment and information given to the patient. Under the Rogers v Whitaker Test the Court will decide upon evaluating the evidence adduced that is, the Court will have the final say, whereas under the Bolam Test the Court will defer to the opinion of the medical profession. 30120�a`$�����@� X�( No further shocks were administered and the convulsion was not unusually violent. The Court further held that there is a need for members of the medical profession to stand up to the wrong doings, if any, as is the case of professionals in other professions. Injury No (4), the most serious of her injuries caused much pain to her neck each time she moved her head. If the Australian High Court had followed the Bolam Principle the surgeon would not have been held responsible for the failure to warn. Court awards Myanmar refugee RM1.7 mil in medical negligence suit ... 7 million in damages in a negligence suit today. Reduction of damages by 50% damages due to pl.’s contributory negligence. Generally speaking, whether the patient has been given all the relevant information to choose between undergoing and not undergoing the proposed treatment is not a question the answer to which depends upon medical standards or practice. In a public lecture entitled, “The Standard of Care in Medical Practices: Has the Pendulum Swung in favour of the patients?” delivered by Prof  Denis A. Cusack of the School of Medicine and Medical  Science, University College of Dublin, Ireland, in Kuala Lumpur on 16/3/07, Dr. Cusack considered the legal standards for due care and skill of the medical profession on its diagnosis and treatment of patients and how this is balanced with the patient’s0 right to know as expressed in the law relating to disclosure of risks in such diagnosis and treatment following the decision in Foo Fio Na. In so doing people involved in medical negligence cases would be able to obtain better professional advice and that the courts would be appraised with evidence that would assist them in their deliberations. Medical Negligence Claims in Malaysia ... Medical records are one of the most essential documents for a plaintiff in medical negligence claims if the plaintiff is the patient. The Bolam Principle was reviewed in the case of Dr. Khoo James & Anor v Gunapathy d/o Muniandy (2002) when in a strongly worded judgment the then Chief Justice Yong Pung How had this to say: “This is why the legal principle in Bolam v Friern Hospital Management Committee restrains the judiciary from treating medical experts as they would any other. Under the Foo Fio Na Test patients must be informed of material risks prior to a procedure much as under the Rogers v Whitaker Test. Despite three attempts, the first respondent failed to reduce the dislocated cervical vertebrae and on 19/7/82, the first respondent performed the first of two operations to place the dislocated vertebrae into their original positions. It governs claims by victims seeking compensation against the person that caused them to suffer. He was examined by the consultant psychiatrist attached to the hospital and was advised to undergo electro-convulsive therapy which was carried out by placing electrodes on the head to allow an electric current from a machine to pass through the brain. The jury found that the hospital was not negligent. }); Secretary Malaysian Inner Temple Alumni Association published by the Malaysian Medical Association, July 2007. On Tuesday, Jan 28, a threemember bench comprising Justices Kamardin Hashim, Kamaludin Md Said and Nor Bee Ariffin allowed Henry Siang Len’s appeal on the quantum of damages, raising it to RM1,685,594 from RM734,000 awarded by the High Court … But has the pendulum swung too far in favour of the patient or has it merely swung to a point where the imbalance in favour of the doctor has now been properly corrected in favour of the patient’s legitimate rights? }, 1. ��덺�}K/�u��nA&���w�Z>��ܤr�_/U���0����� W�x����T�9��L�PM1u��٦o� rdw����h�~�N֩��M�T��FS�6.��J��ز�� ��R�4su$,f�4\؀1}Ѝ��8j�Q�Rl�� ��Ӯ��A�¥8 �CD�e���. Following extensive consultation and incessant questioning by the patient (Mrs. Maree Lynette Whitaker) she undertook eye surgery. Court awards Myanmar refugee RM1.7 mil in medical negligence suit. The first defendant’s therapeutic privilege outweighed any duty to warn her of any material risk which would result in her refusing the life saving operation.”. In determining whether a doctor has breached the duty of care owed to his patient, a judge will not find him negligent as long as there is a respectable body of medical opinion, logically held, that supports his actions. ]z(���,�G�8��&0�Wtt400 Since the quantification of such damages have not been codified, the determination of damages follows judicial precedence. function messengerReady() { FxoMessenger.on('stateChanged', function(state) { One of the results of the treatment was to cause convulsion in the nature of a fit. The case has generated a lot of interest in medical negligence amongst patients, doctors, dentists, nurses, administrators of government and private hospitals and of course lawyers. For general guidance on damages, see Practice Note: The remedy of damages—general principles. The same cannot be attributed to the appellant as the risk of paralysis was present and real; (4)       unlike Bolam’s case there is no conflicting body of medical opinion adduced in the instant appeal  to establish whether the appellant should or should not be warned of the risks of paralysis.”. This was accordingly done. [1] Article: “ The Standard of Care in Medical Practice” – by Mr. S. Radhakirshnan, Hon. In allowing the appeal with costs Azahar Mohamed J (now JCA) held that the appellants were not liable as only material risks of injury need to be disclosed, not minimal risks. Bolam signed a form consenting to the treatment and nothing untoward happened to him when he received the treatment for the first time. What happens if I die without a will? The appellants commenced proceedings against the respondents in the High Court claiming the respondents negligently caused his death by failing to diagnoses and treat a spinal injury. name: 'Trademark Protection in Malaysia' Economic Damages in Medical Malpractice Cases Also called "special" damages, economic damages are those that are capable of exact (or close to exact) calculation. X-rays were taken after the surgery. Gopal Sri Ram JCA (as he then was) when reserving his comments on the correctness of the decision on the actual facts of Foo Fio Na, held that it is one that is plainly binding on this Court. PUTRAJAYA: The Court of Appeal here today awarded a Myanmar refugee almost RM1.7 million in damages in a medical negligence lawsuit.. A three-member … These Acts are listed in the Appendix. To prove the medical negligence, a patient must establish four ... the extent and quantum of the loss that has followed from the breach of duty is recoverable in law (Islam, 2013). 2. The allegation of negligence pleaded at the trial in this appeal were (a) failing to take reasonable care and skill during the operation so as to negligently cause damage to the appellant’s spinal nerve resulting in complete paralysis of his waist and lower limbs; (b) failing to inform him of the inherent risk involved in the operation, which he would not have agreed and/or consented to undergo had he been properly advised. The Federal Court answered the question in the negative. Quantum has for 28 years been advising, investigating and pursuing medical negligence claims, or as they are also known clinical negligence claims. Although there is often some guesswork involved, particularly when it comes to future medical expenses, special damages are typically more exact than general damages. In Dominic Puthucheary, the Rogers v Whitaker Test was applied in relation to the claim of a misdiagnosis and wrongful treatment. Personal injury can be caused by many factors, which are frequently road traffic accidents, medical negligence, accidents at work, product liability, etc. These Acts are listed in the Appendix. On the principle of stare decisis the Court applied the Foo Fio Na Test and rejected the Bolam Test. The consultant psychiatrist did not warn Bolam of the risks involved, one of which was the risk of fracture. Anxiety arising from medical negligence claims represent a disturbing aspect of the current medical practice1. Rogers v Whitaker concerned a woman who had lost sight of her right eye when she was a child. 1.2. legal aid franchise in medical negligence. 897 0 obj <>stream 3. In tort law, a remedy is paid in the form of monetary compensation (damages). The court a quo (Mashile J) adjudicated the damages. The right or responsibility to make such a determination now rests with the court upon evaluation of the evidence before it, including the opinion and practices of members of that profession. Beyond this time-honoured test of liability, neither this court nor any other should have any business vindicating or vilifying the acts of medical practitioners. Medical Negligence and Compensation in India: How Much is just and Effective? ... after allowing Henry Siang Len’s appeal to raise the quantum of damages. Understand the severity of the injury using the medical report on the claimant 3. Court awards Myanmar refugee RM1.7 mil in medical negligence suit Myanmar refugee Henry Siang Len was assaulted by a group during a robbery in Cheras, Kuala Lumpur, on Christmas eve in 2010. Medical negligence lawsuits are becoming more prevalent as people seek to protect their rights in regards to medical malpractice. Mr Le Grand said a claim for compensation for loss or injury sustained due to professional negligence will ordinarily include damages for pain and suffering, along with past and future loss of wages, medical expenses, care expenses and legal costs. There is no particular act for medical negligence in Malaysia (Islam, 2013). Whether Malaysia will extend the Rogers v Whitaker Test to diagnosis and treatment or whether it will, as Australia has done following the Naxakis case, restrict the Rogers v Whitaker Test by legislation to the giving of advice only, is an important decision for the future of healthcare in Malaysia. A malpractice claim may be grounded in either contract and/or in delict and is governed by the law of obligations. Presently, the tort system is used to regulate medical negligence litigation in Malaysia. The resulting guidelines show in more detail than the original Book of Quantum the ranges being paid in Ireland by the various bodies in the injuries claims area in respect of compensation for pain and suffering. Medical negligence or malpractice is a failure to exercise an accepted standard of care in medical professional skills or knowledge, resulting in injury, damage or loss. No relaxant drugs were administered to Bolam prior to the treatment. The House of Lords in Sidaway v Bethlem Royal  Hospital Governors (1985) also approved the  BolamPrinciple to cover the issue of advice to the patients. Jeanette is accredited by both the Law Society and the Association of Personal Injury Lawyers. Dr. Cusack ended his lecture by stressing that what is now required is an informed and reasoned debate of where the pendulum should swing in order to achieve the proper balance between medicine and law in the best interests of the patient whilst giving full encouragement and support to a properly regulated and competent, caring medical profession. Dr Celine Pereira, the doctor on duty, prescribed the initial treatment by having X-rays taken of her neck and placing a cervical collar around it. This proved to be unsuccessful and on 14/7/82, the first respondent performed a manipulation or closed reduction procedure under general anaesthetic to unlock the locked facet joint. 1671 Ont. For general guidance on damages, see Practice Note: The remedy of damages—general principles. In that case, the Federal Court held that the standard of care that a medical practitioner should exercise is now a question which is for the ultimate consideration of the courts and no longer one for the medical profession alone to decide through a responsible body of medical opinion. There was no hard and fast rule in negligence cases that damages were always to be quantified as at the date of the breach. Medical malpractice liability is incurred when patients suffer damages, which may be attributed to sub-standard care provided by health practitioners or hospital personnel involved in their treatment. This Practice Note considers what damages may be available as remedy for claims in tort, including negligence claims. ... 7 million in damages in a negligence suit. The res ipsa rule can seldom, if ever, be applied to establish alleged medical negligence, as Brand JA said in Buthelezi v Ndaba 2013 (5) SA 437 (SCA) ‘ To me that seems reminiscent of an application of the res ipsa loquitur maxim, which the court a quo quite rightly found inappropriate in this case. Section 6(1)(a) Limitation Act 1963 specifies that you will only have 6 years from when the damage occurred to sue. We, more than most, can appreciate how devastating it can be when a medical procedure or indeed when medical treatment over a period of time has a detrimental effect on an individual. negligence of the staff at the hospital and that the respondent was liable for 100 per cent of the plaintiff’s proven damages. There is a clear link between the defendant's behavior and the plaintiff's injury. medical negligence and other delicts quickly come to mind, there are many laws where the application of actuarial criteria could add value. Siti Noma FCJ (later CJM) held that “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. In the course of this treatment, Bolam sustained severe physical injuries consisting in the dislocation of both hip joints with fractures of the pelvis on each side which were caused by the head of the femur on each side being driven through the acetabulum or cup of the pelvis. ', { h�bbd```b``K���d�dI�L����dN��- ��H2��U�I�U���� [5] The damages were claimed under four separate heads: past hospital, medical and related expenses; future hospital, medical and related expenses; future As well as inflation, this field takes into account the Heil v Rankin ([2000] 3 All ER 138) uplift and/or the Simmons v Castle ([2012] EWCA Civ 1288) uplift, where they are relevant. His Lordship went on to explain the meaning of “negligence” in law in an ordinary case and negligence which involves the use of professional skill. Tim Newman, clinical negligence barrister at No5 Chambers, explores how the report will affect legal practitioners. It will be noted that in this case the Court of Appeal applied the Rogers v Whitaker Test not only to the provision of advice but in relation to the treatment as well. 1. What is unclear and therefore uncertain is whether the Courts will in the future apply the Rogers v Whitaker Test todiagnosis and treatment as well. THE ACTUARIAL QUALITY FRAMEWORK Medical diagrams and a glossary of medical terms assist in researching injuries; Quantum conversion tables to assist in finding comparative awards in the Quantum of Damages in Bodily and Fatal Injury Cases; Quick referencing system for tables point the user to the volume and page of each case, providing quantum figures updated to 2019 hޜUmo�0�+��i��Ǒ*$`�"�5}�V����S���s}�:���{��w�s�C1&! Except where mentioned, this paper is primarily addressing the assessment of damages for loss of income or support. Summary: Medical negligence – quantum of damages – court a quo erred in this regard – award for general damages increased – contingency deduction for future loss of earnings reduced – appeal upheld. He said the court awarded the amount after hearing testimonies on the quantum of damages from the parents and three medical experts. bruises on both anterior iliac spine areas; closed dislocation C4 and C5 vertebrae with bilaterally locked facets. in order for the defendant to be held liable. The scale of the costs to be awarded to the Plaintiff. PUTRAJAYA, Jan 28 — The Court of Appeal here today awarded a Myanmar refugee almost RM1.7 million in damages in a medical negligence lawsuit. The Federal Court, the apex court in Malaysia, on 29/12/06 in its judgment in the case of Foo Fio Na v Dr. Soo Fook Mun & Anor [2007] 1 MLJ 593 declared inter alia, that the Bolam Test which has been the basis in determining the standard of care in medical negligence cases in Malaysia since her independence in 1957 is no longer applicable. The opinions of the medical experts were divided. Less than three hours after arriving at the casualty department, he died. The Defendant has admitted that the arrest and detention was unlawful and this court is called upon to determine: 1.1. He is the ordinary man. ... E. Damage to the Teeth 22 The impact of the loss of more than one tooth 22 2. In most cases, the ability of the defendant to anticipate the injury (or the severity of the harm) does not bar the plaintiff from receiving full compensation for his or her general damages. It was left for the Court to consider the extent of damage suffered by the plaintiff and the quantum of damages arising from the negligence. This Practice Note considers what damages may be available as remedy for claims in tort, including negligence claims. medical negligence and other delicts quickly come to mind, there are many laws where the application of actuarial criteria could add value. Mizzi Hopkins 2003 May 7, upheld trial decision: Dec. 27/01, Coo J. The quantum of an individual's income loss claim will depend on the employment history and circumstances, as well as the medical details of the negligence claim. Contributory negligence is a partial defence, in that, if it is successful, it will not deny the claimant’s claim, but will result in the amount of damages paid to the claimant being reduced. Dr. Cusack went on to say that the pendulum has swung from a doctor-centered test of disclosure of risk to a patient-centered test. �i����A�ŝe���2�h�a�H1Oظ���͉1�QąH㈰�Ƞ\N�2S"�5q� .d�p$��ZC�*�����P��)��2`�gP`|͠�sv'�F��[!C\ �J���60�1|`bfP0 @���p`�� � (&c��������qˁ,Fn� ��A�C �$�� ���� � �� �&0����1Hn ���{D�d� T'p hPb6��f�\�8�A� ����f`�l�2X0��\��O�4#��sH�1�^ ��4�U�1��AT1: �Ǟ) The test is the standard of the ordinary skilled man exercising and professing to have that special skill. This flowchart explains the figures in the General Damages (PSLA) Today’s Value field. 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