Dr. Zam owed a duty of care to his patient, Miss Lin, after she consulted with him and followed his recommended seaweed wrap program and drugs. However, Dr. Zam breached this duty by failing to warn Miss Lin of the material risk of developing a severe skin rash, which she then did. Under the reasonable prudent patient test, Dr. Zam would be liable for negligence for not informing Miss Lin of this inherent risk so she could make an informed choice. But under the reasonable prudent doctor test, Dr. Zam would not be liable as he acted in line with accepted medical practices.

1. MMEEDDIICCAALL NNEEGGLLIIGGEENNCCEE LLAAWW
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1

2. FACTS OF THE CASE
LEGAL ISSUES
DECIDED CASES: JUDGMENT
APPLYING THE CASE
CONCLUSION
O
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T
L
I
N
E
S
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3. FFaaccttss OOff TThhee CCaassee
3

4. CCoonnttiinnuuiinngg……
4

5. CCoonnttiinnuuiinngg……
Therefore, based on the current facts of the case, the following
things need to be considered which are-
 Duty of Care
Duty to treat.
Duty to Diagnose.
Duty to Warn.
 Breach of Duty of Care.
 Reasonable Prudent Patient Test.
 Reasonable Prudent Doctor Test.
5

6. DDuuttyy ooff CCaarree……
“… A duty to use care toward others
that would be exercised by an
ordinarily reasonable and prudent
person in order to protect them from
unnecessary risk of harm…”
6

7. 11sstt IIssssuuee:: WWhheetthheerr tthheerree iiss aa dduuttyy ooff ccaarree
bbeettwweeeenn DDrr ZZaamm aanndd MMiissss LLiinn
The authenticity of creating responsibility of duty of care of a
doctor to his patients had been witnessed by the milestone
case of R v Bateman [1925] 94 L.J.K.B 791, where Lord
Hewart C.J. held that-
“If a person holds himself out as possessing special skill
and knowledge and he is consulted, as possessing such
skill and knowledge, by or on behalf of a patient, he owes
a duty to the patient to use due caution in undertaking the
treatment. If he accepts the responsibility and undertakes
the treatment and the patient submits to his direction and
treatment accordingly, he owes a duty to the patient to use
diligence, care, knowledge, skill and caution in
administrating the treatment… 7

8. CCoonnttiinnuuiinngg……
Based on the R v Bateman Case, the following requirements are
necessary to create Doctor-Patient relationship which reads-possessing
special skill and knowledge;
he is consulted from Patient’s side;
accepts the responsibility;
patient submits to his direction;
AAPPPPLLYYIINNGG TTOO OOUURR CCAASSEE: After Miss Lin consults with
Dr. Zam, undergo the see weed wrap programme and take
several drugs as it has been recommended by Dr. Zam. Hence,
established a doctor-patient relationship between Dr. Zam and
Miss Lin and Thus Dr. Zam owed a duty of care to Miss Lin.
8

9. 22nndd IIssssuuee:: WWhheetthheerr DDrr.. ZZaamm hhaass bbrreeaacchheedd
hhiiss dduuttyy ooff ccaarree ttoo MMiissss LLiinn ppaarrttiiccuullaarrllyy
dduuttyy ttoo wwaarrnn……
The classic statement of understanding ‘Standard of Care’ demanded
of a doctor had been standardized by the decision of McNair J. in
Bolam vs. Friern Hospital Management Committee [1957] 1 WLR
582, which has got numerous acceptance in medical paradigm. Based
on Bolam Case, the following principles outlet to determine doctors
liability which are-
1) The doctor must have acted in accordance with “accepted
medical practice”; Ref: Whitehouse v Jordan [1981] 1 WLR
246;
2) The accepted practice must be regarded as proper by “a
responsible body of medical men” skilled in that art and not by
the standard of the man on the Clapham omnibus; Ref: Gold vs.
Haringey Health Authority [1988] Q.B. 481.
9

10. CCoonnttiinnuuiinngg……
However, the unanimous attitude of the court to follow Bolam
Principla in medical disputes had been shifted to a new dictum that
established first time by the case of Hucks vs Cole [1993] 4 Med LR.
Sachs LJ held that-
“… Where the evidence shows that a lacuna in professional practice
exists by which risks of grave danger are knowingly taken…the
courts must anxiously examine that lacuna…If the court finds…for
not taking the precautions…, its function states that it constitutes
negligence…”
This dictum of the Hucks case had got recognition and stamped
approval by the case of Bolitho vs City & Hackney Health Authority
[1997] 4 All ER 771, whereby Lords Browne held that- the Court is
not bound to hold Doctor not liable just because a number of medical
experts agree with him…and the court has to be satisfied…such
opinion has a logical basis.
10

11. CCoonnttiinnuuiinngg……
A similar decision has also been made by the Federal Court of
Malaysia in the Case of Foo Fio Na vs. Dr. Soo Fook Mun & Anor
(2007), where the judge opined that-
 Bolam principle is no longer applicable for doctor’s duty to
disclose risk,
 the Doctor is duty bound by law to inform his patient… such
information of the risks involved in any proposed treatment… to
make an election of whether to proceed with the proposed
treatment with knowledge of the risks involved or declined to be
subjected to such treatment.
AAPPPPLLYYIINNGG TTOO OOUURR CCAASSEE:: In the facts of the question, Dr.
Zam breach the duty to warn to Miss Lin because he did not
warn about the risks of skin rash in which Miss Lin
developed severe skin rash causing her skin all over her body
to turn bluish black resulting her unable to go for work. 11

12. 33nndd IIssssuuee:: WWhheetthheerr DDrr.. ZZaamm ccaann bbee lliiaabbllee
uunnddeerr tthhee rreeaassoonnaabbllee pprruuddeenntt ppaattiieenntt tteesstt??
The origin of the concept of reasonable prudent patient test can be traced
from Canterbury vs. Spence 464 F2d 772 (DC Cir 1972) case whereby the
‘r.p. doctor test’ was rejected and replaced by new principle called r.p.
patient test, i.e. the doctor must disclose to the patient all “material risks”
inherent in a proposed treatment. This meaning of “material risks” was
further clarified by the Australian case of Rogers vs. Whitaker [ 1992] 175
CLR 479 and determined that the standard of care is a matter for judicial
opinion and not medical opinion.
Liability under the reasonable prudent patient test depend on the
identification of material risks that the courts have taken into consideration
the following factors:
1. The likelihood and gravity of risk,
2. The desire of the patient for information,
3. The mental and physical health of the patient,
4. The need for the treatment and alternatives available,
5. Medical practice at that time,
6. The nature of procedure – routine or complex,
12

13. FFaaccttoorr 11:: TThhee lliikkeelliihhoooodd aanndd
ggrraavviittyy ooff rriisskkss..
If the risks is remote, it reduces the need for disclosure but
there will be greater need of disclosure if the possible
consequences are more serious.
A salient illustration can be seen in this regards is Rogers v
Whitaker (1992) 175 CLR 479 case. In this case, although the
likelihood of risks is remote, occurring only once in
approximately 14,000 of such procedures, but the gravity of
losing sight in one of the patient’s eye was significantly
increased as the patient was blind in the other eye. Therefore,
this risk was considered as a material risk and failure of
disclosing the consequence of the treatment led doctor liable
for negligence. 13

14. FFaaccttoorr 22:: TThhee DDeessiirree ooff ppaattiieenntt ffoorr
iinnffoorrmmaattiioonn
In general, there is no requirement for patient to ask specific
questions in order for the risks to be material.
Circumstances in which patient asks questions that reveal
their personal fear and concerns would alert medical practitioners to
the fact that they attach significance to the risks.
E.g. Rogers v Whitaker (1992) – “Ms. Whitaker
showed a clear nervousness, asked all the possible
complication of the operation and suggested the
doctor to cover her good eye in order to protect it”.
14

15. CCoonnttiinnuueedd....
A similar picture of addressing patient’s specific concerns can be
illustrated in the case of Chappel v Hart (1998) 156 ALR 517.
In this case, the patient Mrs. Hart claimed that Dr. Chappel knew that
she was a principal education officer where the quality of voice was
significant vocationally and she had specifically told Dr. Chappel
that she “did not want to end up like Neville Wran (who was an ex-
Premier of New South Wales with an extremely husky voice)”.
15

16. CCoonnttiinnuueedd....
AAPPPPLLYYIINNGG TTOO OOUURR CCAASSEE:: Thus, in the facts of the
present question,
Dr. Zam had the duty to warn to Miss Lin about the material
risk of skin rush, associated with the undergoing sea weed
wrap program even though, the possibility of it was less than
1% and she did not ask about the risks.
 Dr. Zam ought to know that the particular patient would
attach significance to the risk and there is no requirement for
the patient to ask specific questions in order for the risks to
be material.
However, Miss Lin incessantly mentioned to Dr. Zam about
her fear in developing allergic reaction to foreign substances.
Therefore, Dr. Zam is liable for negligence due to failure to
worn Miss Lin about the risk inherent with the treatment,
under the reasonable prudent patient test. 16

17. FFaaccttoorr 33:: TThhee nneeeedd ffoorr tthhee ttrreeaattmmeenntt aanndd
aalltteerrnnaattiivveess aavvaaiillaabbllee
Chester v Afshar [2005] followed closely the principles in Rogers v
Whitaker and Chappel v Hart Cases.
Dr Afshar was found liable for not warning Mrs Afshar about the
small risks of the nerve root damage inherent in the operation
His negligent failure to warn her of this risk had deprived “her of an
opportunity to reflect, consider and/or seek alternative medical or
other opinion as to the options which might be open to her.
AAPPPPLLYYIINNGG TTOO OOUURR CCAASSEE:: Dr Zam has a duty to inform to Miss
17
Lin about the risks in order to give her choice whether to
consent or refuse the treatment or she can seek other
alternatives. Therefore, Dr. Zam is liable under reasonable
prudent patient test.

18. 44rrdd iissssuuee:: WWhheetthheerr tthhee rreeaassoonnaabbllee pprruuddeenntt
ddooccttoorr tteesstt ccaann bbee uusseedd ttoo ddeetteerrmmiinnee DDrr..
ZZaamm’’ss lliiaabbiilliittyy??
To examine the issue of reasonable prudent doctor test, we have to
flash back to the case of Bolam v Friern hospital
Management Committee [1957] 1 WLR 582.
In this case, McNair J. formulated that- “…the doctor is not guilty of
negligence if he has acted in accordance with a practice accepted as
proper by a responsible body of medical men skilled in that particular
area… Putting it the other way round, a doctor is not negligent, if he
is acting in accordance with such a practice, merely because there is a
body of opinion that takes a contrary view…”
18

19. CCoonnttiinnuueedd....
Based on the judgment, two essential elements layout which are:
1. The doctor must have acted in accordance with “accepted medical
practice”.
Supporting case: Whitehouse v Jordan [1981] 1 WLR 246.
2. Accepted practice must be current practice.
Supporting case: Roe v Minister of Health & Anor [1954] 2
QB 66.
19
AAPPPPLLYYIINNGG TTOO OOUURR CCAASSEE:: Dr. Zam will not liable
because he had acted in accordance with a practice accepted
as proper by a body of medical men who possess similar
skills. He recommended Miss Lin such therapies with
reasonable care and skill.

20. CCoonncclluussiioonn
1. Dr. Zam has a duty of care to Miss Lin because she had consulted
with Dr. Zam and Dr. Zam gave her advise to undergo that sea weed
wrap program and taking the drug to melt her body fat.
2. Dr. Zam has the duty to warn to Miss Lin all the risks and
consequences associated with the said programme.
3. If the reasonable prudent patient test was applied, Dr. Zam will be
liable as he had failed to warn all the risks that is inherent with the
sea weed wrap program. Three out of six factors in determining
material risks in the scope of reasonable prudent patient test related
with the facts in the question which are the likelihood and gravity of
risk, the desire of the patient for information and the need for the
treatment and alternatives available.
4. If the reasonable prudent doctor test was used, Dr Zam will not be
liable or negligent. 20