In its ordinary meaning, negligence is the failure to act as a reasonable person would or do something a reasonable person wouldn’t do. In tort law, negligence means breaking a legal duty to exercise care, causing unintended harm to the complainant.
What is medical negligence?
Medical negligence, also known as medical malpractice in Malaysia, is a breach of the duty of care owed by a healthcare professional to their patient, resulting in harm or injury. This breach of duty can occur through an act or omission where the healthcare professional fails to provide the standard of care that a reasonable and prudent healthcare professional would provide in similar circumstances.
Such a situation could arise in many instances. For instances:
- Failing to diagnose a disease accurately, despite the patient presenting symptoms that a reasonably competent professional would recognise and effectively manage.
- Prescribing incorrect medication or dosage, thereby causing unwanted side effects to the patient’s existing health condition.
- Negligence can occur during surgical procedures. For example, if a surgeon operates on the wrong body part, leaves medical instruments in the patient’s body, or fails to provide appropriate post-operative care, this would be considered medical negligence.
Time limits to file a claim for medical negligence
Section 6(1)(a) of the Limitation Act stipulates that a lawsuit for negligence must be filed within SIX YEARS from the date of the negligent act complained of or six years after the date the injury arose. This 6-year time limit only applies if the lawsuit is against private hospitals or doctors who work in private practice. In other words, after the 6-year, any person will generally be barred from making such claims.
For a plaintiff seeking to sue public healthcare professional, the Public Authorities Act 1948, which governs actions against government hospitals and public servants, sets a limitation term of only THREE YEARS from the date of negligence or the date on which injury transpired.
Suing on behalf of a deceased
If the patient’s death resulted from a negligent act, the deceased’s next of kin would typically act as the deceased’s legal representative. Section 7 of the Civil Law Act 1956 specifies that in such a circumstance, they have THREE YEARS to file a civil claim in court.
If the lawsuit is not filed within the allotted time frame, the court might dismiss it as “statute-barred”, no matter how strong the case is. If a case is statute-barred, it is unlikely that the victim will be able to pursue legal action and seek compensation for their injuries. However, this rule has some exceptions, such as in cases where the victim was mentally incapacitated, or the negligence was only discovered later.
How can one prove medical negligence in Malaysia?
If a patient is suing their doctor for medical negligence, they must convince the court that all four elements of medical negligence exist in their case.
(1) The doctors and hospitals (“Defendants) owed the patient (“Plaintiff”`) a duty of care.
The notion of “duty of care” is rooted in the contractual relationship between a doctor and patient, in which the physician must provide a diagnosis and inform the patient of the proposed treatment plan and any associated risks before the treatment begins.
To make an informed choice, a patient must understand the treatment and its possible side effects. This understanding assumes the patient’s capacity to grasp this information. Once the patient consents, the doctor is now responsible for their care.
(2) The doctors have breached their duty of care
Breaching their duty of care implies that the doctor did not meet the expected medical standards and acted inappropriately. The court determines this standard by comparing the doctor’s performance to an average skilled doctor in the same field.
Yet, to be judged negligent, the defendant doctor does not need to possess the utmost expert competence; it is sufficient if they used the average skill of an ordinary competent doctor performing that particular conduct.
Examples of breaching the duty of care may include the following:
- misdiagnosis
- incorrect treatment
- delayed diagnosis
- failure to refer to a specialist
- failure to obtain informed consent
- failure to provide appropriate follow-up care
(3) Patient suffered damages
A patient who has suffered losses due to medical negligence may be entitled to compensation in the form of damages. Damages could cover the patient’s medical expenditures, loss of earnings, physical injury, mental anguish and emotional distress resulting from the negligent act.
To prove their losses, patients should keep track of the following:
- Medical tests
- Prescription records
- Medical records
- Medical bills
- Testimony of expert witnesses
If the hospital refuses a patient’s request for a copy of their medical records, the patient can either file a request under the Personal Data and Protection Act 2010 or initiate a pre-action discovery application, both of which are civil proceedings that demand the hospital to disclose the medical records.
(4) The causal relation between the negligent act and injury suffered.
The patient cannot claim medical negligence against their doctors, regardless of how negligent they may have been, unless they can prove it. To successfully sue for damages, the patient bears the burden of proof to prove that the alleged negligent act caused the injury they suffered. The connection between the doctor’s action (or non-action) and the injuries sustained must be direct, natural and not obstructed by any efficient intervening cause.
A medical expert’s testimony is required to support the argument that the doctor’s negligence or incompetence directly caused the injury. This is known as proving causation. It is not enough to show that the doctor made a mistake; the plaintiff must also prove that this mistake led to their harm or loss.
Potential legal remedies that can be awarded in a medical negligence case
Victims of medical negligence in Malaysia have several legal avenues at their disposal. Typically, a plaintiff in a negligence action can seek both special and general damages. Damages are a form of monetary compensation intended to restore the victim to the position they would have been in had the negligence not occurred.
General damages are granted for intangible injuries and non-monetary losses, such as pain and suffering, loss of amenities of life, emotional anguish and death. On the other hand, special damages are awarded for losses that can be calculated, such as medical bills and loss of earnings.
Can a patient claim for their loss of future income?
The answer is YES! If the plaintiff can prove that the negligent act caused them to lose the ability to generate an income in the future, they can file a claim for that loss of potential income under Section 28A of the Civil Law Act of 1956.
It should be noted, however, that the amount of damages awarded is at the court’s discretion and depends on the specific circumstances of each case. Therefore, victims must seek legal advice to understand their potential claims and the remedies available.
To substantiate these claims, Plaintiff must produce the appropriate documents, particularly when claiming special damages.
What are the consequences for healthcare professionals found guilty of medical negligence in Malaysia?
Patients may also be able to file complaints with the Malaysian Medical Council (MMC). The MMC is the statutory body responsible for regulating the practice of medicine in Malaysia. They have the power to investigate complaints of medical negligence. They can impose various sanctions against medical practitioners found to be negligent, including suspending or revoking their medical practising license.
What to expect after filing your claim?
A patient typically engages a lawyer to investigate the claim when medical negligence is suspected. This lawyer will liaise with a medical expert whose expertise aligns with the area of medical care where the supposed negligence occurred. Following a meticulous examination of the patient’s medical records and an in-depth assessment, this expert will subsequently produce a report detailing the perceived negligence. However, a lawsuit is not the immediate next step. The legal team must first ascertain if the evidence substantiates a strong claim for medical negligence.
Out-of-court settlement
Should the plaintiff’s case advance to a claim, it is important to remember that the compensation sought is from the hospitals or the doctors’ insurers rather than the professionals themselves. In real-world scenarios, these insurers usually evaluate the viability of defending the lawsuit or opt for mediation. Mediation provides an opportunity for an out-of-court settlement, where all parties strive to find a mutually agreeable resolution and determine a fair compensation figure. However, if the plaintiff accepts the insurer’s offer, they forfeit the right to bring the matter to court to establish medical negligence on the part of the defendants.
Summary
In brief, medical negligence cases can be complex and challenging to prove, as it requires demonstrating that the healthcare professional breached their duty of care and that the breach caused harm or injury to the patient. Patients need to seek legal advice from experienced medical negligence lawyers who can help them navigate the legal complexities and obtain the compensation they deserve.
