The Federal Court decision in Dr Hari Krishnan & Anor v Megat Noor Ishak bin Megat Ibrahim & Anor [2018] 2 MLRA 547 reaffirmed and clarified the dual-test framework established in Foo Fio Na: Bolam-Bolitho for diagnosis and treatment, Rogers v Whitaker for risk disclosure. The case is essential reading for any Malaysian medical negligence practitioner because it crystallises how the two tests interact in practice.
The facts
The respondent, Megat Noor Ishak, underwent ophthalmic surgery (vitrectomy) performed by Dr Hari Krishnan. The surgical procedure went wrong, and the respondent suffered serious complications. The trial centred on whether: (a) the surgery itself was performed below the standard of care (a Bolam-Bolitho question); and (b) the patient had been adequately informed of the risks of the procedure (a Rogers v Whitaker question).
The Federal Court reaffirmation
The Federal Court reaffirmed that:
- The Bolam-Bolitho composite test (responsible body of medical opinion, as qualified by logical analysis) governs the standard of care in diagnosis and treatment
- The Rogers v Whitaker test (material risk to a reasonable patient in the position of this patient) governs the duty to advise of risks
- The two tests are conceptually distinct and apply to different stages of the doctor-patient interaction
Why this matters — the case for clarity
Some commentators had read Foo Fio Na as having abolished Bolam in Malaysia entirely — that is, that all medical decisions, including treatment choices, should be assessed by what a reasonable patient would consider material. The Federal Court in Hari Krishnan put this misreading to rest. Bolam-Bolitho remains the Malaysian standard for diagnosis and treatment, with Rogers v Whitaker reserved for risk disclosure.
Practical consequences for litigants
For claimants alleging negligent diagnosis or treatment, the burden remains to show that no responsible body of medical opinion would have done what the defendant did (and that any such body\’s opinion fails Bolitho\’s logical analysis test). This is a higher threshold than \”a reasonable patient would have wanted otherwise.\”
For claimants alleging negligent risk disclosure (informed consent), the threshold is lower: was the disclosed information sufficient for a reasonable patient in this patient\’s position to make an informed choice?
Implications for documentation
The case underscores the importance of documenting two distinct things:
- The clinical reasoning (for the diagnosis / treatment limb) — records that show the doctor weighed the relevant clinical evidence in line with established practice
- The consent conversation (for the risk-disclosure limb) — records that show the patient was informed of the material risks, alternatives, and the doctor\’s experience
Consent forms alone are insufficient for the second. The conversation matters; the contemporaneous note matters more.
See also: Foo Fio Na case comment | 马来西亚医疗疏忽律师 | Medical Misdiagnosis Claims
About the author
Dr Chee Hui Bing is a Malaysian Advocate & Solicitor and former medical doctor. Principal of 克里斯和伙伴律师事务所, Batu Pahat, Johor. Read full profile.