Proving Liability for Medical Negligence (4) – Remoteness of Damage
Even if the defendant healthcare professional’s actions or decisions were the operative cause of the plaintiff patient’s injuries, the defendant will not be held liable if the type and nature of the injury suffered was not reasonably foreseeable.
If the type of injury is a reasonably foreseeable consequence of the defendant’s actions, the extent and manner of which it was inflicted will be irrelevant.
A patient’s condition can be multi-factorial especially where there are multiple pre-existing comorbidities. Not every injury or complication is attributable to the defendant’s actions, sometimes, it can be independently caused by an intervening act either by the patient himself or something else altogether.
The ‘Eggshell Skull’ Rule
A defendant will be fully liable for any reasonably foreseeable injury and damage caused to the plaintiff. It matters not whether the plaintiff was whole or compromised at the beginning. The defendant must take the plaintiff as he is..
Except where there is a break in the chain of causation, a defendant cannot have his degree of culpability varied on account of the injury or complication being unusually more severe because of the plaintiff’s pre-existing condition(s).
A subsequent complication or further injury following an original injury caused by the negligent defendant must be an extension of the latter and not an injury of a different nature.
Contributory Negligence
Contributory negligence can be raised by a defendant if the plaintiff had caused or contributed to his own misfortune.
A patient may have failed to heed medical advice, failed to seek treatment, or by his own actions, caused injury to himself. If a plaintiff had acted unreasonably and is found to have been the cause or contributing factor to his own injuries, he can be held contributorily negligent.
A finding of contributory negligence will not absolve a negligent defendant of liability. Instead, the quantum of damages to be awarded to the plaintiff will be reduced.
Conclusion
Generally, an injury under complaint tends to be a continuance of his illness which he had wanted cured by his healthcare professional or otherwise a new injury inflicted by the latter’s negligence (Mohd Sabri bin Mohamad Zin v Dr M Nachiappan [2017] MLJU 2443).
Then again, just as well as a medical man will be able to foresee the consequences of his actions, he too can explain away such consequences.
Each of the 4 elements of medical negligence inevitably require the patient and his counsel to take on the medical profession in their field. Even if the patient or his counsel are medically trained, independent expert support is still required in order to successfully pursue a claim for medical negligence in Malaysia.
Written by: –
Evan Lee Sian Wen
Advocate & Solicitor (Malaya)
Principal of Evan Lee Advocates & Solicitors
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