Misconceptions about Government Hospitals & Suing them for Medical Negligence

There seems to be a misconception that Government hospitals are not on par with private hospitals in terms of competence and service. It stems from the fact that Government hospitals were intended to cater to the populace who cannot afford private healthcare. While benevolent, the drawback of this greater accessibility is that Government hospitals tend to operate at over-capacity which leads to the perception of an increased probability of medical accidents occuring.

The Government is the supreme superintendent and manager of all Government healthcare facilities in Malaysia. It is also the employer of all healthcare workers in Government healthcare facilities. Taking on a Government hospital in Court means taking on the Government which can sound daunting to the ordinary citizen.

There is therefore a common assumption that Government hospitals are immune from negligence claims.

This article sets out the preliminary matters patients should consider when contemplating a claim for medical negligence against a Government healthcare faclity and the practical realities of pursuing litigation.

The Misconception of Immunity

It is sometimes assumed that Government servants cannot be sued due to their status as public servants.

This is not true. The Government Proceedings Act 1956 and Public Authorities Protection Act 1948 provide the legal framework for the Government and its servants to be sued in Court. There have been many successful claims in medical negligence against Government healthcare facilities as will be discussed in the next article.

The public nature of a Government hospital does not preclude them from accountability for any personal injuries, losses and damage occasioned to their patients.

The Misconception of Unlimited Resources

One may assume that the party with the deeper pockets will have the capability of resorting to attrition tactics in litigation or have the best access to independent experts. Unlike corporate entities, the Government does not have much cause to be motivated by reputational and commercial concerns. They are however will be held to account for spending taxpayers money on litigation. Damages paid out from the Government’s coffers are usually taxpayers’ monies. So are the Law Officers’ salaries.

If the Attorney-General’s Chamber so chooses, they can hire private defence counsel on an ad hoc basis but they do not.

Those seasoned in taking on medical negligence claims against Government hospitals will notice that the Government hardly ever appoints their “independent experts” from the private sector. The Government’s experts are usually fellow Government doctors.

The Misconception of Bias

It is also sometimes assumed that Magistrates and Judges being technically Government servants will always show deferrence to their paymaster. Most Magistrates and Sessions Court judges are officers elevated from the Office of the Chief Registrar of the Federal Court of Malaysia. Some of them were Law Officers from the Attorney-General’s Chambers. Some of them may go on to be elevated to the High Court and beyond.

Although the Judiciary is one of the three separate and independent branches of the Government, their salaries are paid by the latter. Optics wise, it is reasonable to see why there can be a perception of an arbiter having some level of reluctance to give unfavourable rulings against their own paymaster.

In claims against Government hospitals or for that matter, against the Government itself, the Law Officers from the Attorney-General’s Chambers would defend them. They do not act for patients nor assist private entities in suing the Government. Their dominant portfolios will therefore be in defence work which they will take with them into judicial service. It is therefore not difficult to see why there can be a perception that Magistrates/Judges who hear claims against the Government will have a disposition to being pro-establishment.

It is in fact common to encounter cases where opposing counsel and the presiding judicial officers were former colleagues. It is always daunting to know that opposing counsel and the judge has a prior working relationship. There will be the perception that opposing counsel may have an easier time getting their way with a friend in a former colleague.

The recent trend of successful medico-legal claims against Government hospitals however debunk this misconception. In fact, the largest award so far invovled a Government hospital.

The public nature of a Government hospital does not preclude them from accountability for any personal injuries, losses and damage occasioned to their patients.

The Misconception of Bias

Key Differences Between Claims against Government and Private Entities

Consideration	Government	Private	Public University
Limitation Period (subject to exceptions provided in the legislations on statutory limitation)	3 years	6 years	3 years
The Entity Which Owns the Healthcare Facility	The Government of Malaysia	Company, Registered Society, Partnership, or Sole Proprietor	The University
Legal Representatives	The Attorney-General’s Chambers	Private Lawyers	Private Lawyers
Usual Structure of Legal Representation	All Defendants are Jointly Represented	Healthcare Facility & Practitioners are Separately Represented	All Defendants are Jointly Represented
Paymasters	The Ministry of Finance	Private Indemnity Providers or Their Own Coffers	Private Indemnity Providers or The University’s Treasury

Understanding these distinctions is important when assessing the viability of a claim and strategising your case.

Practical Considerations Before Taking Action

Patients considering legal action should be aware that pursuing a claim involves practical challenges. These may include:

• Obtaining access to complete medical records
• Obtaining supportive independent medical expert opinion(s) on liability for clinical negligence
• Building a viable case within remaining limitation period
• Budgeting for litigation expenses

For those seeking guidance, consulting an experienced medical malpractice lawyer will give you clarity on your options and commitments needed to litigate a claim in Court.

Claims involving Government healthcare facilities present distinct legal and practical challenges, particularly in relation to procedure, evidence, and timelines. However, many cases have proven that such claims are not impossible.

Early consultation with a legal professional familiar with medico-legal matters may assist in evaluating the merits of a potential claim and in determining the most appropriate course of action.

Written by: –

Evan Lee Sian Wen
Advocate & Solicitor (Malaya)
Principal of Evan Lee Advocates & Solicitors

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