Foo Fio Na v Dr Soo Fook Mun [2007] 1 MLJ 593: A Doctor-Lawyer’s Case Note
The facts
Madam Foo Fio Na was a 28-year-old woman who suffered persistent neck pain following a road traffic accident in 1981. She was diagnosed with a fracture-dislocation of the C5/C6 vertebrae. The first defendant, Dr Soo Fook Mun, recommended spinal surgery (anterior cervical fusion).
During or shortly after the procedure, Madam Foo became paraplegic from the chest down. Despite further treatment, she remained permanently paralysed.
She sued on three grounds: (1) negligent surgery; (2) failure to inform of material risks (including the risk of paralysis); (3) negligent post-operative management.
The High Court and Court of Appeal
The High Court found for the plaintiff on grounds 1 and 2 and awarded RM 700,000. The Court of Appeal reversed, applying the Bolam Test: a responsible body of medical opinion would have approached both surgery and disclosure the same way. The plaintiff appealed to the Federal Court.
The Federal Court’s decision
1. Bolam applies to diagnosis and treatment
The Court accepted that for the surgical-negligence claim, the Bolam Test as qualified by Bolitho remained the correct standard. There was a responsible body of medical opinion supporting Dr Soo’s surgical approach, and that opinion withstood logical analysis. Ground 1 failed.
2. Rogers v Whitaker applies to the duty to advise
For the failure-to-disclose claim, the Federal Court rejected the Bolam Test and adopted the Australian High Court’s test in Rogers v Whitaker (1992) 175 CLR 479:
“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.”
Applied to the facts, the risk of paralysis from cervical spine surgery — though small — was clearly material. A reasonable patient would have wanted to know. Ground 2 succeeded; final award was RM 100,000 plus interest, special damages and costs.
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.
Free 30-minute consultation
I’m Dr Chee Hui Bing — qualified medical doctor and Advocate & Solicitor. The combination matters in Foo Fio Na cases.
- WhatsApp +60 17-702 2800
- Email [email protected]
See our Medical Negligence practice page.