Once considered a niche and specialised area of law, medical law has recently garnered greater attention, exposure, and prominence. This shift is driven by several factors, including increasing public awareness and education, advancements in medicine and technology, etc.
Much of the increased exposure can be attributed to the greater coverage of medical negligence claims brought by patients, some with sensational stories of medical errors and tragic outcomes, and some resulting in publicly reported million-dollar judgments against hospitals and doctors, much to the dismay of the healthcare and insurance industries.
Malaysia, in particular, has certainly seen its share of such cases. However, the available news reporting of various medical negligence cases represents just a tiny percentage of the actual claims litigated in the courts, and even those claims are a mere fraction of the thousands of patient complaints nationwide.
Access to Justice Through Medico-Legal Litigation
Dr Anthony Barton, a renowned medico-legal practitioner in the United Kingdom and also co-editor of the book Clinical Negligence, wrote in a recent article regarding medico-legal litigation:
“There are collateral benefits: truth, justice, professional accountability, and patient safety. It is in the investigation of adverse clinical outcomes that litigation makes its major contribution; the health service cannot be trusted to investigate itself — it places reputation above all.
Litigation provides independent, rigorous, judicially regulated investigation according to medical professional norms. The claimant is a party in an adversarial process and has an active role in proposing the issues: the evidence, the scope, and the direction of the claim. The same cannot be said of the inquisitorial process.”
The significance of this approach is highlighted by the staggering costs incurred by the National Health Service (NHS) in 2023, where clinical negligence claims cost the NHS over £2 billion. Around 13,000 cases were pursued during that year from an estimated 300,000 inquiries.
Case Examples in Malaysia
The Malaysian courts have seen an increasing number of medical negligence claims brought on behalf of patients and their families, resulting in millions being awarded as damages, each case with its unique story.
For example, in March 2024, the Court of Appeal awarded the sum of RM8.6 million in damages in a medical negligence suit, marking the highest amount ever awarded by the Malaysian courts in a medical claim. The plaintiff, an infant girl named Adeena who was born in 2020 by Caesarean section, suffered spinal cord injuries due to complications during the surgery, leaving her paralysed from the neck down. A substantial portion of the damages awarded was allocated towards her long-term treatment and rehabilitation.
In another notable case in 2023, the High Court awarded RM3.8 million in damages to a former saleswoman named Shuhazani following negligent treatment received at a government hospital. However, what distinguishes Shuhazani’s case is not the amount of damages but the tragic facts surrounding her ordeal.
In 2016, during her first pregnancy, Shuhazani was diagnosed with preeclampsia, which was not properly managed by the attending doctors. She subsequently developed acute pulmonary oedema and impending eclampsia during labour, leading to a delayed emergency Caesarean section and the stillbirth of her baby.
Post-operatively, Shuhazani suffered from HELLP syndrome, complicated by placenta abruption and other severe conditions. Her situation worsened with a right frontal intraparenchymal haemorrhage, necessitating brain surgery. While in the general ward, she collapsed due to a mucus plug obstructing her airway, requiring resuscitation and intensive care. Shuhazani remains completely bedridden and significantly disabled, needing assistance for all daily activities. The experts in that case estimated that Shuhazani had approximately 13 to 14 years left to live, during which her family struggled with her extensive care needs.
Notably, the High Court stated as follows regarding Shuhazani’s suffering:
“[23] Without delving in detail into the plaintiff’s injuries and the required medical treatment in particular, the plaintiff suffers from bed sores, fashioning of tracheostomy, insertion of drains and nasogastric tubes, weakness of the upper and lower limbs and contractures as the sequelae of the brain injuries. The permanent brain damage has resulted in severe cognitive impairment and depression as attested by the experts from both sides. The plaintiff has also lost her baby in utero and has to undergo an emergency lower section caesarean to remove the dead baby.
[24] The deprivation of enjoyment of life suffered by the plaintiff may aptly be described as permanent. Based on the circumstances, I believe it is fair and appropriate to award the plaintiff RM500,000.00 as general damages for pain and suffering and loss of amenities of life (emphasis supplied).”
…
[29] …The mental and emotional distress she has experienced is likely so significant that it is difficult to fully comprehend even if she were able to articulate it (emphasis supplied)…”
After filing her suit in 2020, the Government admitted liability, leading to a trial on the quantum of damages. Following the High Court’s award in 2023, the Government appealed the compensation amount to the Court of Appeal.
While tragic, Shuhazani’s case is just one among many. Similar to Adeena’s and Shuhazani’s experiences, numerous other cases are being litigated in the Malaysian court
Statistics
In 2022, the Medico-Legal Section of the Ministry of Health reported an average of 200 medico-legal complaints annually between 2012 and 2021. During this period, over RM189 million of taxpayer money was expended to address 881 medico-legal cases involving the Ministry of Health and its healthcare facilities.
However, the data provided by the Ministry of Health offers a very limited perspective. Healthcare facilities under the Ministry of Health represent just a fraction of Malaysia’s healthcare provider industry. For context, as of 2021, it was reported that there were approximately 135 hospitals and 2,800 clinics under the Ministry of Health, excluding dental and community clinics.
In contrast, the private healthcare sector in Malaysia encompasses a far greater number of facilities, including over 200 hospitals and 10,000 clinics, with dental clinics included. Additionally, teaching or university hospitals under the Ministry of Education have also experienced their share of medico-legal litigation.
Private Hospitals
The law on liability, particularly regarding private hospitals, has also seen recent developments. Historically, in Malaysia, the owners and managers of private hospitals have, in order to escape liability, argued that private hospitals are not actually healthcare providers but simply providers of premises, utilities, facilities, services, etc. They argued that they merely aid the doctors who practice in their hospitals and who provide treatment to patients. It is therefore a common practice for private hospitals to engage specialist doctors under consultancy agreements with parties agreeing that the doctor is an independent contractor and not an employee of the hospital.
On 23 February 2024, the Federal Court in the landmark decision of Siow Ching Yee v Columbia Asia Sdn Bhd [2024] CLJU 404 [02(f)-12-02/2023(B)] held, amongst others, that private hospitals owed a statutory non-delegable duty of care to their patients. The Federal Court rejected the notion that private hospitals are not healthcare providers and that they cannot be held liable for the actions and omissions of their purported independent contractors, particularly the specialist consultants that they engage.
The Federal Court also increased the award of damages for, amongst others, brain injuries or damage and the consequent permanent physical and mental disabilities suffered by the patient arising out of the anaesthetic accident prior to surgery, resulting in a total award of approximately RM4.5 million, for which the hospital was held jointly liable.
The trend of increasing damages and exposure to liability in medical negligence claims, including the reporting of the Federal Court’s decision and of Adeena’s and Shuhazani’s cases, sent shockwaves in the medical industry. Various healthcare associations in Malaysia, including the Malaysian Medical Association, the Association of Private Hospitals Malaysia, and the Federation of Private Medical Practitioners Associations Malaysia, released statements expressing wariness and concerns about, amongst others, a potential rise in defensive medicine, an increase in doctors’ professional indemnity insurance premiums, and the need for reforms in handling medical procedures involving high-risk patients.
What Patients Should Do
The preliminary stage of medical negligence claims often includes, amongst others, obtaining copies of the relevant medical records and reports, engaging relevant experts to give independent expert opinions, assessing the merits of the claim, preparing the cause papers to file a suit, engaging in correspondence with a view to negotiating an amicable resolution or settlement, etc.
It is therefore important for patients who feel that they have suffered injuries as a result of negligent treatment to first seek the advice of a qualified lawyer who has significant experience in undertaking medico-legal litigation, in particular on behalf of patients. From there, the patient and their family members will receive important legal advice regarding, amongst others, the keeping of important documents, applicable limitation periods, the process or stages of a medical negligence claim, the procedures to be complied with, etc.
Conclusion
The future of medico-legal litigation in Malaysia may appear promising or bleak, depending on one’s perspective. For the healthcare industry, the same developments may be seen as negatively impacting how medicine is practised in Malaysia, as well as opening the floodgates to waves of medical negligence claims.
For patients, the recent developments represent a ray of hope that their cases will receive justice and that they too may receive adequate compensation for their injuries. In the decade prior, it was much more challenging for patients in Malaysia to undertake, let alone succeed, in medico-legal litigation due to various factors, including a lack of rules regarding pre-action discovery of medical records and the law regarding the liability of hospitals and doctors.
Going by recent developments, the tide appears to be turning in favour of patients’ rights and justice for medical negligence victims. Only time will tell whether this change is just the beginning or a temporary shift in a system that continues to favour healthcare providers.
Note: This article does not constitute legal advice to any specific case. The facts and circumstances of each and every case will differ and therefore will require specific legal advice. Feel free to contact us for complimentary legal consultation.
