The Standard of Medical Care in Malaysia: The Case for Legislative Reform

A contentious issue in the law of medical negligence in Malaysia is the standard of care that is expected of doctors in the spheres of diagnosis and treatment. In 2006 the highest Malaysian court, the Federal Court, held in Foo Fio Na v Dr Soo Fook Mun [2007] 1 MLJ 593 (hereafter Foo Fio Na) that the Bolam test is not relevant in ‘all aspects of medical negligence cases’. In the wake of this decision, most lower court judges in Malaysia take the view that the principle enunciated in the Australian High Court decision in Rogers v Whitaker (1992) 175 CLR 479 is the test for determining the standard of care for diagnosis and treatment. It is, however, argued that the decision in Foo Fio Na is far from providing a clear statement on this issue. This paper identifies the shortcomings of the law relating to the standard of care in diagnosis and treatment in Malaysia and proposes legal reforms in light of developments in the United Kingdom, Australia and Singapore