Medical Negligence 101
– Jason Cheong (Partner) & Tan Qian Hui (Paralegal)
What should you do if a doctor (or a hospital) provided the wrong diagnosis, the wrong prescription of medicine, gave improper advice, and/or failed to attend to you within a reasonable time?
What is medical negligence?
Medical negligence can be generally defined as the situation where a medical or healthcare professional deviates from their profession standard of care and causes injury to a patient.
However, not every situation can amount to medical negligence.
Firstly, the purported negligent act must be one which fell below the standard of a competent medical professional.
Secondly, the purported negligent act must have caused damage to the patient’s health which would not have otherwise occurred.
The standard of care required by medical professionals can be seen in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 and should be read together with Bolitho v. City and Hackney Health Authority [1996] 4 All ER 771. In determining whether the doctor has fallen below the standard of care required of him, the Court will take into consideration what a competent medical practitioner or hospital would have done in that circumstances. Besides that, the opinion must be based on logical and defensible grounds.
Can a hospital be held vicariously liable (i.e., can you sue the hospital in medical negligence claim as well?)
Generally, a hospital will not be vicariously liable to the patient for its independent contractor’s negligence. In a private hospital context, doctors are to be considered independent contractors.
However, following a recent decision of the Federal Court in Dr Hari Krishnan & Anor v Megat Noor Ishak bin Megat Ibrahim & Anor and another appeal [2018] 3 CLJ 427, it was held that a non-delegable duty is owed by the hospital to patients to ensure that reasonable care was taken in the hospital. Regardless of who performs the non-delegable, the hospitals could be held liable if such duty is breached.
Having said that, if the hospital had voluntarily assumed their responsibility to ensure their patient will receive reasonable medical care, then the hospital would be liable for negligence in the doctor’s treatment, regardless of whether the doctor is an independent contractor or not, this is because the duty owed is non-delegable.
How to establish a claim?
Firstly, you need to obtain all the medical information such as medical reports and medical records. Medical reports can be obtained via a request to the hospital and by paying a certain fee. As to medical records, requests can be made to the hospital as well. Should the hospital refuses to provide the same, you may rely on Personal Data and Protection Act 2010 or commence a civil proceeding to compel the hospital to provide the medical records.
Secondly, you also need to obtain an expert opinion as to whether there is a potential negligent act. An expert must be a professional and has sufficient experience on the subject matter in question.
Therefore, any potential plaintiff will have to complete the aforementioned procedures before even considering bringing a civil lawsuit: getting the relevant medical reports and records; hiring a certified expert to provide an opinion on the matter.
It is not a case where the plaintiff may just submit a claim first and then add evidence afterward with the help of expert witnesses.
Such a strategy is very likely to be a waste of time and money, and worst of all, it increases the risk that the claim would be dismissed for being pleaded wrongly.
What are the remedies available? (i.e., what can you sue and/or claim for?)
Two types of damages are available, which are special damages and general damages.
Special damages refer to losses suffered that can be calculated or specifically quantified. For instance, medical expenses such as costs for surgeries necessitated by the negligent treatment, bills from the hospital, equipment, and injury-related damages such as cost for rehab or physical therapy, household assistance necessitated by the injury, or cost for lost wages if the injury result in unable to work.
General damages are compensation for losses that cannot be quantified but still related to the injury caused by the negligent act. Examples of general damages are physical pain, reduced quality of life, emotional distress, physical impairment or disability, mental health problems and etc.
In Malaysia, it is also available to claim for loss of future earnings under s.28A of the Civil Law Act 1956. Further, such a claim needs to be supported and proved by expert opinions as to the physical and emotional damages attributable to the injury in assisting the Court to determine whether such a claim will be allowed. However, such a claim is barred if the plaintiff is 60 years old or older at the time of injury.
Any time limit for a claim?
It is important to note that a civil suit needs to be filed in the Court within 6 years from the date the incident happened. In medical negligence cases, the time starts to run from the date of the injury. A suit could be struck out by the Court for exceeding the time limit regardless of the merits of the case. If such injury resulted in death, the patient’s estate can file a civil suit in Court within 3 years.
Conclusion
So, here are 3 things you should do if you find and/or feel that your doctor (or hospital) is negligent:
- Calm down and seek medical treatment elsewhere (if necessary);
- Obtain the necessary documents – medical reports, medical records, and/or expert opinion; and
- Simultaneously, seek legal advice from a lawyer.
Disclaimer: This article is for informational purposes only and does not constitute any legal advice. If you have any questions, please contact us directly.