Should doctors face liability for every judgment error?

Should doctors face liability for every judgment error?


GK Ganesan
Published: Aug 2, 2025 12:30 PM
Updated: 3:22 PM


COMMENT | When medical treatment goes wrong, patients and their families naturally seek answers. They wish to know whether their doctor has made a mistake that could have been avoided.

The law must then decide a crucial question: was this simply an unfortunate error in professional judgement, or did the doctor actually fail to meet the required standard of care?

This distinction has huge consequences because it determines whether patients receive compensation and whether doctors face legal consequences.

Picture this scene: an operating theatre where monitors suddenly sound their alarm.

Despite years of training and careful technique, an unexpected complication has emerged during surgery. The patient survives but suffers permanent damage.

Later, as lawyers examine the evidence and expert witnesses prepare their testimony, one fundamental question emerges that will determine the case’s outcome. “Was this an inevitable consequence of medical uncertainty, or clear evidence of substandard care?”

This distinction between an error of judgement as opposed to negligence represents one of the law’s most difficult boundaries, where professional autonomy meets public accountability.

The courts have spent decades working out what counts as medical negligence. The landmark English case Bolam v Friern Hospital Management Committee established a key principle.

A doctor is not negligent if their actions follow a practice that a responsible body of medical professionals would accept as proper, even if other doctors might disagree. This became known as the “Bolam test”.

However, the law evolved further with Bolitho v City and Hackney Health Authority.

This case established that “professional opinion must be capable of withstanding logical analysis”. Simply having expert support is not good enough if that support lacks a reasonable foundation. The experts must be able to explain why their approach makes sense.

This refinement introduced a layer of judicial oversight. It allowed courts to scrutinise the logic and reasonableness of medical practices, rather than simply accepting them based on a body of expert medical opinion.

The Bolito decision ensures that the Bolam test is not a shield for irrational or outdated medical practices.

Before Bolitho, in 1992, the Australian High Court case Rogers v Whitaker marked another turning point.

The court held that the Bolam principle did not apply to a doctor‘s duty to warn patients about risks associated with a procedure.

Instead, the standard of care in such cases must be determined by the court: the court will take into account the particular circumstances and the need for patients to make informed decisions.

The Rogers v Whitaker decision established that a doctor has a duty to warn a patient of a material risk - one that a reasonable person in the patient‘s position would consider to be important in the patient’s decision-making process.


Development in Malaysian jurisprudence

Malaysian courts have applied these principles with considerable sophistication. In Zulhasnimar v Dr Kuppu Velumani, the Federal Court confronted a case concerning the failure to perform a timely Caesarean section, resulting in cerebral injury to an infant.

The central issue was whether the doctors had detected labour early enough to prevent harm. The Federal Court reaffirmed the Bolam test for clinical diagnosis and treatment while applying the Rogers v Whitaker test for patient advice.

Both tests require that “professional decisions can be logically defended”. Legal academics note that Zulhasnimar reestablished doctrinal clarity in Malaysia. It protects necessary professional freedom without abandoning proper judicial oversight.


Practical illustrations of the distinction

The difference between error of judgement and negligence becomes clearer through real examples.

In Swamy v Mathews, the court found that a defendant doctor’s chosen dose, based on personal experience and within a legitimate variation of professional practice, was not negligent despite differing from the guidance of the medical manufacturer.

The court emphasised the danger of imposing liability for every medical misadventure or mere error of judgement.

The law recognises that medicine involves uncertainty. Doctors must often choose between different treatment options, each carrying risks.

When they make these choices with proper care and professional skill, the law protects them even if the outcome proves unfortunate.

However, when doctors fail to follow accepted safety procedures, ignore obvious warning signs, or fail to warn patients about significant risks, they may face liability for negligence.

Modern medical litigation raises important questions about whether the courts have correctly balanced these competing concerns.

This is because courts must weigh the context, the urgency, and available information when assessing liability.

Rapid, “split-second” good-faith decisions in high-pressure situations must (and do) continue to receive legal latitude, provided the conduct of the doctor can be supported as a reasonable professional response under the circumstances.


Interesting parallel question

Can we say the same of a court of law?

A doctor asked this question: “When a trial court’s judgment is overturned by an appellate court, can the initial court judge be found guilty of negligence, especially if all aspects of a case are not well studied?”

The answer remains generally negative. Judges are statutorily protected.

Judicial error, absent dishonesty, or gross dereliction constitutes a mere error of judgment rather than legal negligence.

That judicial error allows the unsuccessful party to appeal: the right to appeal is a right guaranteed by statute.

Contrast that with errors made by a doctor.

What “appeal” can there be from a doctor’s error, especially if one is incurably damaged, or worse, dies? This is where the responsibility to society weighs in.

The law makes this distinction because doctors and judges operate in fundamentally different circumstances. Judges have time to research, consider evidence, and deliberate before making decisions.

Doctors, particularly in emergency situations, must often make split-second choices based on limited information. A delay in medical treatment can mean the difference between life and death.


The heart of professional judgement

A doctor’s honest error of judgement does not cause legal liability: carelessness, incompetence, and or deviation from accepted standards do.

Legal authorities repeatedly emphasise that an honest error of judgement, made with due care and professional skill, does not constitute negligence.

Rather, negligence arises where error results from carelessness, incompetence, or deviation from accepted standards.

As one historical formulation expressed it, a surgeon does not become an actual “insurer” but is only bound to display sufficient skill and knowledge of the profession.

An insurance company provides a guarantee - if your house burns down, they will pay you. If your car is damaged, they will compensate you. The insurer takes on the risk of these events occurring.

Doctors do not, and cannot, guarantee successful outcomes or promise that nothing will go wrong during treatment.

They cannot promise that every surgery will be successful, that every diagnosis will be correct, or that every treatment will cure the patient.

Medicine involves inherent uncertainties, individual biological variations, and risks that even the most skilled practitioner cannot eliminate entirely.

This principle was established in early English caselaw, such as the 1838 case of Lanphier v Phipos.

Tyndall CJ directed the jury with words which still echo in the silent chambers of courts:

“Every person who enters into a learned profession undertakes to bring to the exercise of it a reasonable degree of care and skill.

“He does not undertake… that at all events you shall gain your case, nor does a surgeon undertake that he will perform a cure; nor does he undertake to use the highest possible degree of skill.

“There may be persons who have higher education and greater advantages than he has, but he undertakes to bring a fair, reasonable, and competent degree of skill, and you will say whether, in this case, the injury was occasioned by the want of such skill in the Defendant.”

Thus, if injury occurs from an accident or individual variation, it represents no fault in the medical practitioner.

The plaintiff must demonstrate that the injury was attributable to a want of skill. It is called “causation”.

This principle recognises that medicine cannot guarantee perfect outcomes. Human bodies respond differently to treatment. Rare complications can occur even with the best care.

The law differentiates between unavoidable medical risks and preventable harm caused by substandard practice.

This balance protects both patients who suffer genuine negligence and doctors who provide competent care under difficult circumstances.


Other considerations for the courts

The courts and the public must recognise that doctors face near-impossible tasks.

They work up to 84 hours per week, often 30 hours straight.

Sleep-deprived, they must diagnose patients and prescribe treatments from vast possibilities.

These exhausted doctors are then judged for mistakes.

The medical system itself creates conditions for these errors.

Current judgments in medical negligence have not so far acknowledged or addressed this systemic problem in any meaningful way.

Perhaps courts should finally take notice.


Medical insurance and cost of care

A second issue emerges: insurance. Court judgments and professional insurance share a dynamic, rapidly evolving relationship.

Doctors must carry professional indemnity insurance. Insurance actuaries decide premiums based on court compensation awards.

Aggravated damages make it worse - these have become standard pleas in recent claims, which compounds the problem.

The result is a damaging cycle: higher compensation awards drive up insurance costs, which increases medical care costs.

That in turn drives up the cost of professional indemnity insurance and also, of greatest concern to the public, the cost of medical care.

Who bears this horrid burden in the end? The public.

Courts must be mindful of these concerns.

As medical technology advances and public expectations rise, courts must continue to navigate this delicate balance, ensuring that the law neither abandons injured patients nor paralyses the medical profession with fear of litigation.

The distinction between negligence and error of judgment thus remains not merely an academic exercise, but the cornerstone upon which both patient safety and medical progress depend.

GK GANESAN is a lawyer and an international commercial arbitrator.

The author thanks surgeon Dr Mahadaven Murugiah, Sharmini Navaratnam, Shalini Ragunath, UK Menon, KN Geetha, TP Vaani, JN Lheela, and Lydia Jaynthi.

Malaysiakini has obtained permission to republish this article, which first appeared here.