Foo Fio Na v Dr Soo Fook Mun [2007] 1 MLJ 593: A Doctor-Lawyer Case Note

The facts

On the night of 11 July 1982, Madam Foo Fio Na was a front-seat passenger in a car that crashed near Assunta Hospital. She was admitted with a closed dislocation of the C4 and C5 cervical vertebrae. After traction and an unsuccessful closed reduction, the first defendant, orthopaedic surgeon Dr Soo Fook Mun, performed an open reduction on 19 July 1982, securing the vertebrae with bone grafting and a wire loop.

She was paralysed the day after that operation. A myelogram on 5 August 1982 showed the wire loop pressing on the spinal cord, and it was removed in a second operation that day. She regained the use of her upper limbs but remained confined to a wheelchair.

She sued Dr Soo and the hospital in 1987, alleging negligence in the surgery and its aftermath and a failure to warn her of the risk of paralysis.

The High Court and Court of Appeal

The High Court found that the paralysis was caused by the first operation and not by the accident, that Dr Soo was negligent in tying the wire loop and in not acting promptly once the paralysis was discovered, and that the hospital was vicariously liable. The trial judge also accepted her evidence that she had been told the first operation was minor and had not been told of the risk of paralysis. The Court of Appeal allowed the defendants’ appeals, holding that there was no evidence establishing with certainty that the first operation caused the paralysis. The plaintiff appealed to the Federal Court.

The Federal Court’s decision

1. The negligence findings stood

The Federal Court treated the High Court’s findings that Dr Soo was negligent as findings of fact that it would not disturb, noting that there was sufficient evidence to support them.

2. Rogers v Whitaker applies to the duty to advise

On the question of law, the Federal Court held that the Bolam test has no relevance to a doctor’s duty to advise a patient of the inherent and material risks of proposed treatment, and preferred the test in Rogers v Whitaker (1992) 175 CLR 479. Under that test:

“A risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it; or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.”

The court described the risk of paralysis in her case as “present and real”. The appeal was allowed with costs and the High Court’s orders on quantum were restored.

Why Foo Fio Na matters today

For patients

If you were not warned of a material risk that materialised, you have a stronger claim than under the old Bolam standard. Examples:

• Surgery without disclosure of paralysis, blindness, or sterility risks

• Cosmetic procedures without disclosure of scarring or revision-surgery risks

• Drug treatments without disclosure of significant side effects

• Cancer treatments without disclosure of less-aggressive alternatives

• Childbirth interventions without disclosure of caesarean alternatives

For doctors

Document risk disclosure carefully. The signed consent form is no longer enough. Best practice: disclose all common risks (over 1% incidence); disclose any rare-but-serious risks (paralysis, death, blindness); disclose alternatives (including no treatment); document the conversation in patient notes; allow time for questions.

Practical implications for your case

If you are considering a medical negligence claim, ask:

• What was the procedure?

• Was there a known risk you were not told about?

• Did that risk materialise?

• Would you have refused or delayed if you had been told?

• Have you obtained your medical records?

If yes to all five, you have a Foo Fio Na claim worth investigating.

Consultation

I’m Dr Chee Hui Bing — qualified medical doctor and Advocate & Solicitor. The combination matters in Foo Fio Na cases.

• Contact us See our Medical Negligence practice page.

Related

• Medical Negligence Lawyer Malaysia (practice page)

• Bolam Test Malaysia (article)

• How to Sue a Government Hospital Malaysia

• Misdiagnosis Claims Malaysia

• Surgical Negligence Malaysia

• Birth Injury Claims Malaysia