Foo Fio Na v Dr Soo Fook Mun [2007] 1 MLJ 593: The Whitaker Test Adopted in Malaysia

Case at a glance

• Case name: Foo Fio Na v Dr Soo Fook Mun & Anor

• Citation: [2007] 1 MLJ 593

• Court: Federal Court of Malaysia

• Year: 2007

• Practice area: Medical Negligence

Background and facts

The plaintiff, Foo Fio Na, was treated by the first defendant, orthopaedic surgeon Dr Soo Fook Mun, for a neck injury suffered in a road accident in July 1982. She was paralysed the day after an operation to realign the dislocated vertebrae, and the trial judge accepted that she had not been told of the risk of paralysis.

The trial court applied the traditional Bolam test (from Bolam v Friern Hospital Management Committee [1957] 1 WLR 582), under which a doctor is not negligent if they acted in accordance with a practice accepted as proper by a responsible body of medical opinion — including in deciding what to disclose. On that basis the claim failed at first instance.

The issue before the court

The principal question on appeal was whether Malaysian law should continue to apply the Bolam test for the doctor’s duty to inform a patient of risks, or whether a different — more patient-centric — standard should govern risk disclosure.

Holding and reasoning

The Federal Court held that the duty to disclose material risks is a matter for the court, not the medical profession. It adopted the test from Rogers v Whitaker [1992] 175 CLR 479: a doctor must disclose any material risk that a reasonable patient in the patient’s position would attach significance to, or that the doctor knows or should reasonably know the particular patient would attach significance to.

Applying that test, the failure to disclose the risk of paralysis to Foo Fio Na was a breach of duty.

Why this case still matters in 2026

For practitioners and patients alike, Foo Fio Na has three lasting consequences:

• Risk disclosure is patient-led, not profession-led. What matters is what a reasonable patient would want to know, not what the medical profession typically discloses.

• Bolam survives — but only for diagnosis and treatment. For the standard of clinical diagnosis and treatment, courts continue to apply Bolam as modified by Bolitho v City and Hackney HA [1998] AC 232.

• Documentation matters. Doctors should record the specific risks discussed, alternatives offered, and the patient’s response — particularly where the risk is rare but serious.

For our clients, this is the leading authority we plead in any medical-negligence claim that involves a failure to obtain informed consent or to disclose a material risk.

Frequently asked questions

Did Foo Fio Na replace the Bolam test in Malaysia?

No — only for risk disclosure. For the standard of diagnosis and treatment, Bolam (modified by Bolitho) still applies. Foo Fio Na changed the test specifically for the duty to inform of risks.

What is a material risk under Foo Fio Na?

A risk that a reasonable patient in the patient’s position would attach significance to, or that the doctor knows or should reasonably know the particular patient would attach significance to. The threshold is patient-centric, not profession-centric.

Does Foo Fio Na apply to government hospitals?

Yes. The duty applies to all medical practitioners regardless of whether they work in private or public healthcare. Government doctors are under the same duty to disclose material risks.

How long do I have to sue under Foo Fio Na principles?

Generally six years from the date the cause of action accrued, under section 6(1)(a) of the Limitation Act 1953. The date-of-knowledge rule in section 6A applies only to negligence claims not involving personal injuries, so it does not extend the time for a personal-injury claim.

Frequently asked questions

Did Foo Fio Na replace the Bolam test in Malaysia?

No — only for risk disclosure. For the standard of diagnosis and treatment, Bolam (modified by Bolitho) still applies. Foo Fio Na changed the test specifically for the duty to inform of risks.

What is a material risk under Foo Fio Na?

A risk that a reasonable patient in the patient’s position would attach significance to, or that the doctor knows or should reasonably know the particular patient would attach significance to. The threshold is patient-centric, not profession-centric.

Does Foo Fio Na apply to government hospitals?

Yes. The duty applies to all medical practitioners regardless of whether they work in private or public healthcare. Government doctors are under the same duty to disclose material risks.

How long do I have to sue under Foo Fio Na principles?

Generally six years from the date the cause of action accrued, under section 6(1)(a) of the Limitation Act 1953. The date-of-knowledge rule in section 6A applies only to negligence claims not involving personal injuries, so it does not extend the time for a personal-injury claim.