Two Tests, One Profession: How Zulhasnimar Settled the Standard of Care

For more than ten years after Foo Fio Na [2007] 1 MLJ 593, nobody could say with confidence which legal test a Malaysian court would use to judge a doctor’s clinical decisions. The Federal Court ended that uncertainty on 25 July 2017 in Zulhasnimar bt Hasan Basri & Anor v Dr Kuppu Velumani P & Ors [2017] 5 MLJ 438. Its answer: there are two tests, and the one that applies depends on whether the complaint is about treatment or about advice.

An obstetric emergency with a hidden cause

The first appellant was about 36 weeks pregnant when she went to a private hospital with abdominal pain. She was admitted under the care of the first respondent, an obstetrician, and given medication. Some hours later she collapsed from massive internal bleeding, and the attending doctor performed an emergency caesarean section.

The source of the bleeding was identified only afterwards: ruptured blood vessels at the fundus, the top of the uterus, associated with placenta percreta, a condition in which the placenta grows through the uterine wall. The baby, the second appellant, was delivered alive but suffered severe birth asphyxia and hypoxic-ischaemic brain injury, meaning brain damage caused by a lack of oxygen and blood flow.

Mother and child sued, contending that the mother had been in labour and should have had an immediate caesarean section. The defence was that she had never been in labour. The claim failed in the High Court and the Court of Appeal, and the plaintiffs took it to the Federal Court.

The uncertainty that followed Foo Fio Na

The traditional test comes from Bolam v Friern Hospital Management Committee [1957] 2 All ER 118. A doctor who acts in accordance with a practice accepted as proper by a responsible body of medical opinion is not negligent merely because other practitioners would have acted differently.

In Foo Fio Na the Federal Court departed from Bolam for the duty to warn of risks. It adopted the Australian approach in Rogers v Whitaker (1992) 175 CLR 479, under which the court itself decides whether the warning was adequate. The wording of that judgment left doubt about whether Bolam had also been displaced for diagnosis and treatment, and later Court of Appeal decisions conflicted.

Leave to appeal was therefore granted on whether Bolam or Rogers v Whitaker supplies the standard of care in medical negligence, given those conflicting decisions and legislative changes in Australia. A second question asked whether a hospital can be directly liable for organisational or system failures under a non-delegable duty, a theme the Federal Court took up two months later in Dr Kok Choong Seng [2018] 1 MLJ 685.

One test for treatment, another for advice

A five-member panel dismissed the appeal, with the judgment delivered by Raus Sharif.

For diagnosis and treatment, Bolam remains the test, as qualified by Bolitho v City and Hackney Health Authority [1997] 4 All ER 771: the expert opinion relied on by the defence must withstand logical analysis. For the duty to advise a patient of risks, Rogers v Whitaker and Foo Fio Na apply, and they apply only there.

The court’s reasoning was that diagnosis and treatment call for technical medical judgment on which judges need expert guidance. Advice about risk is different, because it concerns the patient’s own choice, which a court is able to assess for itself. Bolitho keeps the court as the final arbiter even on the clinical side, since an opinion that is illogical will not protect a defendant.

On the facts, no breach was proved. The court found that the failure to diagnose labour, the timing of the caesarean section and the adequacy of resuscitation were each supported by responsible medical opinion, and that placenta percreta was not detectable or foreseeable by standard methods.

What the two-track approach means in a real dispute

A single episode of care can now engage both tests. Less than five months later, in Dr Hari Krishnan [2018] 3 MLJ 281, a largely overlapping Federal Court panel affirmed Zulhasnimar and held that two doctors had failed to warn their patient of risks.

The decision is not a return to the idea that the doctor always knows best. On the treatment side the defence opinion must be logically defensible; on the advice side the court decides. The UK Supreme Court has taken a comparable court-led approach to risk disclosure in Montgomery v Lanarkshire Health Board [2015] UKSC 11.

Not everyone was persuaded. Commentary written from the plaintiffs’ side has criticised how the expert evidence on whether the mother was in labour was dealt with. That is advocacy, not settled law, but it shows how much a treatment claim turns on the experts.

Practical takeaways: patients, doctors and hospitals

• Patients: a bad outcome is not proof of negligence. Here the court found the underlying condition could not have been detected or foreseen by standard methods.

• Patients: in a treatment claim, expert evidence is decisive. Calling an expert who would have acted differently is not enough; the defence opinion must be shown not to withstand logical analysis.

• Patients: work out early whether the complaint is about treatment, about advice, or both, because different tests apply.

• Doctors: a clinical judgment supported by a responsible and logically defensible body of opinion is not negligent merely because another expert disagrees. Notes recording why a decision was made help to show that logic.

• Doctors: Bolam offers no shelter on risk disclosure, where the court, not peer practice, decides.

• Hospitals: the appeal also raised a hospital’s direct liability for system failures. Later Federal Court cases, beginning with Dr Kok Choong Seng, developed that area, so clinical governance deserves attention whatever the contractual status of the doctors.

Authorities and sources

• Zulhasnimar bt Hasan Basri & Anor v Dr Kuppu Velumani P & Ors [2017] 5 MLJ 438 (Federal Court, 25 July 2017)

• Foo Fio Na v Dr Soo Fook Mun & Anor [2007] 1 MLJ 593 (Federal Court)

• Dr Kok Choong Seng & Anor v Soo Cheng Lin and another appeal [2018] 1 MLJ 685 (Federal Court)

• Dr Hari Krishnan & Anor v Megat Noor Ishak bin Megat Ibrahim & Anor and another appeal [2018] 3 MLJ 281 (Federal Court)

• Bolam v Friern Hospital Management Committee [1957] 2 All ER 118; Bolitho v City and Hackney Health Authority [1997] 4 All ER 771

• Rogers v Whitaker (1992) 175 CLR 479 (High Court of Australia)

• Montgomery v Lanarkshire Health Board [2015] UKSC 11 (UK Supreme Court)

• Medical Journal of Malaysia 2025;80(3):277; published law-firm case notes and law-report headnote summaries (secondary material)

This article is general legal information only and is current as at 19 September 2026. It is not legal advice and does not create a solicitor-client relationship. Court decisions may be appealed and the law may change; please seek advice on your own circumstances. — Chris & Partners, Advocates & Solicitors