MEDICAL NEGLIGENCE LIGITATION IN MALAYSIA

MEDICAL NEGLIGENCE LIGITATION IN MALAYSIA:

CURRENT TREND AND PROPOSALS FOR REFORM (SUMMARY)
By
Ahmad Luqman Bin Md Asri
4171004131
Ethics and Law for Health Professional
Lecturer
Sir Yusmi Bin Mohd Yunus
MEDICAL NEGLIGENCE LIGITATION IN MALAYSIA

Abstract
In case of medical case occurs, there would always be an argument in the court room where
patients trying to receive compensation while the doctors trying to defend themselves along
with their reputations and career. Claim of medical negligence is on the rise in certain countries
such as United Kingdom, Australia, and United States. This situation is very alarming
especially to the medical field as it challenges their credibility, practice and codes in doing their
job. Medical negligence claim is assessed by common law and is not perfect. It has several
flaws that seems bias towards certain party and does not resolve the issue satisfactorily.
Content
The Tort system is not perfect. There are many problems in dealing with the system as it is an
adversarial in nature in which the plaintiff needs to present the evidence to the court in order
for the authority to make a decision. Sometimes it failed to upheld real justice due to the flaw
in the system that allows subtle impartiality, tactical disadvantage and the unreliability of the
witnesses that can affect the decision from the court. The system also make pursuing a claim
become a lengthy ordeal as they need the plaintiff and the defendant to send a report to the
authority before a proper investigation can be made which will take more time before the court
can set a trial date. This procedure can take several years before being properly challenged in
the court.
The Tort system also affect the defendant doctor. Regardless if a conclusion has already made
or not, once a claim has been made, his credibility will be questioned. His reputation could be
tarnished overnight due such legal action taken by the patient and this would lead to subtle
changes in dealing with future patients given that the doctor still able to practice after the
conclusion. The system also caused a rise in medical insurance premium rates. The doctor is
paying more for insurance and may lead to rise of medical consultation fees.
As mentioned before, the doctors reputation would be jeopardised when a legal action is taken
on them. Therefore, some of the doctors would start adopting defensive medicine where it is
an action not for the benefit of the patients, but for the doctors. It will act as an insurance for
the medical personnel if a patient makes a negligence claim. Defensive medicine is basically a
waste of sources and time as it is not needed for the benefit of patients health.
Most victims of medical negligence demand an explanation for their injury and apology from
the doctor. However, in the tort system, the victim will deal with an insurance company instead
of the doctor himself. The system has a flaw that is ineffective to act as deterrence against
medical incompetence or malpractice. A highly competent and experienced medical personnel
can be penalised for one unlucky mistake that he did. That one mistake would cost him his
career and the medical world will lose a competent doctor and a less experienced doctor will
replace the place.
Medically injured victims are sometimes being compensated poorly and unsatisfactorily in
relation of their injury. The victims want their situation being remedied through legal action
which may not be achieved as the system favours compensation in form on money to the
plaintiff rather than services to help reducing the medical problem that is caused by medical
negligence.
MEDICAL NEGLIGENCE LIGITATION IN MALAYSIA

The plaintiff also bears the burden to present all the evidences to support their claim. They
would have trouble procuring the detailed medical report from the hospital where the medical
negligence occurred as the hospital would want to defend their medical personnel.
In the current trend of medical negligence claim in our country, Bolam principle is applied. It
is a principle which derived from the tort system that is used to assess medical negligence.
Bolam holds that the law imposes a duty of care between a doctor and his patient, but the
standard of that care is a matter of medical judgement. Under Bolam, the plaintiff seeking to
prove medical negligence needs to show that there was a duty of care between the doctor or
nurse and the patient, which is usually a straightforward exercise, and that the act or omission
of the doctor or nurse breached the duty of care. Bolam principle is making it harder for the
plaintiff to pursue negligence claim against the doctor.
Bolam principle is showing that matters regarding the medical practice which involved with
such intricacies and technicalities that may are beyond the comprehension of the court members
who have no medical training and knowledge. Therefore, to make a decision for medical
negligence needs the expertise of those who are working in the field that we know are capable
of reaching a decision that is fair for the medical personnel. The Bolam principle also
acknowledge that is it not right to blame the doctor for everything that went wrong during
medical treatment. So this principle allows doctor to protect themselves against improper
medical negligence claim by patients.
The standard Bolam principle is using previous cases that are similar or identical with the case
that is being claim in the court.
Through Bolam principle, one may say that there is an excessive judicial deference to medical
opinion. So why this happens? The court members do not have the expertise in medical
treatment and procedures. Therefore they can only rely on medical experts to make the decision
whether a doctor is negligence or not in his treatment of his patients. The court only judge
whether the medical experts is telling the truth or otherwise. Medical field has high standard
for their manpower as any other professionals in different field so people may have been
uncomfortable to judge the personnel. It also due to the fact that it is difficult to set a standard,
whether it is right for the doctor to be judged by his peers in the case of medical negligence.
Doctors have taken the oath which they will not be part in taking away someones life. So, it
is presumed that the doctors that taking part in decision making is doing the right thing for both
patient and the physician.
In the case of Asiah bte Kamsah v Dr Rajinder Singh & Ors, the patient underwent caesarean
operation due to suspected fetus distress. After the operation, the patient did not gain
consciousness and upon further inspection, she suffered permanent brain damage. The court
used a Bolam principle and supported by medical experts, there was no evidence that medical
negligence occurred during the operation by Dr Rajinder Singh. However, the anaesthetist was
found guilty as the person did not act in accordance with practice accepted by medical body in
that particular speciality.
In Australia, the judiciary is disregarding the Bolam principle and stated that the court has
obligation to scrutiny any professional practices to ensure that they are aligned with the
standard imposed by the law. Meaning, even if the medical personnel adhere to the code of
MEDICAL NEGLIGENCE LIGITATION IN MALAYSIA

conduct, if it did not align with the law, the doctor cannot be exempted although he fulfilled
the criterion in Bolam principle.
There are cases where bolam principle does not matter as Bolam endorse poor communication
between the physician and the patient. Based on Rogers v Whitaker case, the doctor has the
responsibility to inform the patient everything that could happen if they decided to go through
the medical treatment and procedures that are recommended by his or her physician. If they
did not fulfil the responsibility, they can be brought to court if the patients are claiming medical
negligence on the doctors. Rogers stressed that the patient has the ultimate right whether to go
through with the medical procedure or not.
Federal court has been making decision for medical negligence and there are some discussions
regarding the rulings made by the court. One of them is that the decision by the judge can be
appealed through court of appeal that question the decision made by the court. As this happens,
the time taken to make an absolute conclusion in longer. The court also has been interpreting
Bolam principle more complex than it is. They are too rigid in making decision in order to fulfil
the principle and at the same time disregarding some new reasonable laws that concerns
medical malpractice.
Courts decision nowadays may cause a rise of claims in the future, although the most probable
cases would come from elective medical procedures such as cosmetic surgery instead of
therapeutic surgery since doctor still have some privilege in withholding certain information in
therapeutic cases, but not in elective cases.
In Rogers v Whitaker case, Roger refused to be judged by the standard Bolam test which
allowing the doctor to manipulate the decision of their patients by omitting certain information
that the doctors deemed would change the decision that the patient already made. Roger clearly
stated that patients has the right to decide for themselves given that all of the information have
been laid out to them. Rogers did not dispute the opinion from the medical experts regarding
the matters of medical technicalities and procedures, but he denied the conclusion made from
it. The ruling of Roger v Whitaker clearly abandoning the standard Bolam principle and making
the doctors to tell every information including the risks of the proposed treatment.
Court ruling will create awareness among health care provider community that they can be
judge by their mistake as they are responsible with human lives. Any legal action taken by the
patients would jeopardise their career as health care provider.
Due to all of these cases and reasoning, a proposal for reforms has been made. The first
amendment asking for current system to be moved to a No-Fault system where all the
medically injured victim will receive compensation regardless the cause of the situation.
Meaning, the compensation is due to the fact that they suffered injury after medical procedures
and not because they won the case in the court which impartiality and tactical disadvantage
may occurs. Asking for Malaysia to make a fund in order to compensate victims in medical
negligence cases.
The motion is not without its difficulties. In order to realise the proposal, we need to reform
the system that we are currently using. We need to legislate the principles of law by clearly
stating all the laws regarding medical field as oppose to the common law that we currently use
to form judgement on medical cases. Next, an effective patient complain mechanism need to
be made so that the patient can put up a complaint at a proper place. The mechanism also can
MEDICAL NEGLIGENCE LIGITATION IN MALAYSIA

diffuse the tension by properly deal with all the claims made by the patients before it escalated
to legal action.
In addition of that, we should introduce pre-action protocols that allows the health care provider
to negotiate a negligence claim with the patients at early stage in order to prevent a longer
dispute that could lead to court sessions and ultimately tarnishing the doctors reputation.
Attempting to move onto No-Fault system, we need to set up a medical review bureau to
monitor every cases involving medical negligence. Even though through the proposed system
that no one is to blame, the doctor that the patient made a claim on should be placed under
review so that no medical personnel would lax in their job as part of health care provider.
We need to implement effective case management in order to avoid the case taking so much
time and able to identify the nature of the case early. There should be an alternative solution
for every medical cases so that they can be dissolve as peaceful as possible and would lead to
negotiation that would benefit both patients and the health care provider.
MEDICAL NEGLIGENCE LIGITATION IN MALAYSIA

Personal opinion
It is true that doctors hold a very big responsibility as their job involves human lives. Their
small mistake can be fatal and affects so many people, physically and emotionally. However,
doctors are also human being that cannot run away from making mistakes. I think it is
unreasonable to completely jeopardise a doctors career just by one mistake that he accidentally
did. No one wants to make mistakes. They just happens. I dont think we should blame the
doctors when they did the best that they can to save peoples lives. But I do think that doctors
should disclose all of the information including the risks of proposed medical treatment.
Everyone has their rights and patients have right to refuse any medical treatment.
So I agree with the reformation proposal that suggests that no one should be at fault in case of
medical injury. Following that, I think that in case of medically injured patients, we should
provide the necessary compensation that would help the victims to be able to live with their
disability instead of just monetary compensation that would never satisfy their claim.
Conclusion
In conclusion, there are rising of concerns regarding medical negligence in many parts of the
world. While it is not unreasonable, it also put a higher stress of the doctors to treat all their
patients perfectly so that no one would accuse them of medical negligence. At current situation
in our country, doctors can be blamed easily if something happened to the patients. Doctors
need law to defend themselves against false claims that would cost them their career.
Reference
1. Bolam test. (n.d.) Segen's Medical Dictionary. (2011).