Medical Negligence Claims - Preliminary Matters to Consider

Medical Negligence as its colloquialy known is when a healthcare pracititioner makes a mistake which causes his patient to suffer an adverse result. Healthcare practitioners refer to all who are licensed to provide diagnostic, technical, and therapeutic patient care which include but are not limited to doctors, dentists, traditional & complementary medicine practitioners, psychiatrists, psychologists, pathologists, nurses, mid-wives, pharmacists, physiotherapists, occupational therapists, behavioural therapists, orthoptists, podiatrists, paramedics, radiographers, medical technicians, and chiropractors. Below is a non-exhaustive list of what can constitute medical negligence: –

misdiagnosing a condition;
providing inadequate or the wrong treatment regime;
failing to detect an onset of a dangerous condition;
misinterpreting or overlooking vital clinical data;
misinterpreting radiological images and laboratory results;
rushing into invasive procedures;
downplaying and failing to adequately investigate a patient’s complaints;
failing to stabilise a patient’s vitals;
inadequate monitoring of a patient;
delaying in attending to a patient;
perioperative accidents;
botched surgical procedures;
prescribing inadequate, wrong, hazardous, and dodgy medication;
prematurely discharging a patient;
giving inadequate or wrong advice to the patient;
failing to advise a patient on a critical issue, material risks, and alternative treatment options;
failing to properly obtain the patient’s informed consent to treatment;
system failures within the organisation;
failing or delaying in referring a patient to the appropriate speciality;
failing to maintain adequately equipped emergency services;
breaching standard operating procedures and established protocols; and
failing to adhere to national healthcare statutes, regulations, and guidelines.

In most cases, the owner of the healthcare centre will also be named in a lawsuit as a defendant. Medical negligence claims therefore tend to be tripartite. You have the plaintiff patient on the one part and the on the other two, the defendant practitioner and healthcare centre. This note sets out some preliminary matters one must consider when faced with a potential medical negligence lawsuit.

Proving Negligence

Diagnosis & Treatment

There are 2 broad categories of medical negligence in Malaysia; (1) diagnosis and treatment; and (2) the duty to advise on the material risks of a proposed treatment. While there are differing legal requirements between the two, the points below are relevant and necessary for both.

For negligence pertaining to diagnosis and treatment, the simplistic formula is that the patient must be able to prove that; (1) the defendant practitioner’s actions had fallen below the standard of an ordinary competent medical peer; and (2) the injuries, losses, and damage claimed were caused or materially contributed to by the defendant practitioner. If either one of these elements is not established, the lawsuit will fail.

The law however provides that a practitioner will not be negligent if he conforms to the standard expected of him even though there is a body of medical opinion that takes a contrary view.

The Duty to Advise on Material Risks of Treatment

For the negligence pertaining to the duty to advise on the risks of treatment, the patient must establish that (1) he had suffered an adverse result from the proposed treatment; and (2) the adverse result was a material risk of the treatment which the defendant practitioner had failed to warn him about.

Whether a risk was material is primarily measured according to the patient’s perspective. Though not the primary consideration, the defendant pracititioner and the medical profession’s perspectives will also weigh in on whether that duty was breached. In fact, the law provides that a practitioner may lawfully withohold disclosure of material risks if doing so will harm the patient.

It is for this reason that the Court will place heavy deferrence to clinical expertise in medical negligence claims. Healthcare practitioners will be well-placed to defend their own actions and clinical judgments. In this regard, patients, lawyers, and judges who are usually not medical men tend to be outmatched by the defendant practitioner.

In majority of cases, both sides will be required to externally commission independent expert (who are usually peer practitioners of the defendant practitioner) opinion on the case before embarking on litigation. It is for the most part, difficult for a medical negligence lawyer derive a preliminary view on the chances of succeeding in the claim without an expert’s opinion.

Getting Expert Opinion

An expert will ordinarily be asked to study the case and provide his written opinion on whether there was negligence. Sometimes, an expert will also be asked to examine the patient for the purpose of deriving an opinion on the patient’s future medical care needs. An expert will have to attend Court to have their opinions tested on the witness stand. Experts will therefore charge fees for their opinions and to attend Court.

For patients, the decision to sue often turns on the availability of supportive expert opinion and whether they can afford the expert’s fees. For practitioners, a lack of supportive expert opinion may be cause for him to quickly negotiate an out-of-court settlement and in some cases, admit liability and proceed to have the Court determine the amount of damages to be awarded to the patient.

One does not simply appoint a random practitioner to be an expert. An expert must possess the requisite expertise, qualifications, and experience in the discipline which the defendant pracitioner belongs to. An expert must be of credibile standing and most importantly non-partisan and free from bias towards patients or the medical profession.

Obtaining the Patient’s Medical Records

An expert will not be able to derive an opinion on a case without the patient’s medical records. Medical records are a systematic documentation of a patient’s clinical history and care which are updated every time he receives medical care. They are ordinarily kept in the healthcare centre and are usually not readily accessible to the public or the patient. Medical records are crucial in medical negligence claims as they contain the necessary information for lawyers, experts, and Court to build the complete clinical picture of the patient’s case.

Some healthcare centres will upon a formal written request, make voluntarily disclosure of copies of the patient’s medical records. Some will ask for a Court order for disclosure of which legal fees will have to be incurred.

A defendant practitioner will have access to his patient’s medical records in the healthcare centre of which they practise in. In some cases, a patient may procure treatment from several healthcare centres. In that circumstance, both patient and defendant practitioner have to be prepared to incur costs to obtain the medical records from those other healthcare centres.

Financial Considerations

Medico-legal litigation is expensive. “No-win, no-fee” (a.k.a. contingency) arrangements are illegal. Lawyers cannot fund the litigation on behalf of their clients. Limited access to litigation funding can hamper a patient from suing and some practitioners from obtaining legal representation.

In less severe and low value claims, the cost of suing may exceed the benefit the patient stands to receive. Conversely, mounting cost and the stakes involved in defending against a lawsuit may move a defendant to cut his losses by trying to settle a case as early as possible. Some practitioners and healthcare centres may be denied professional indemnity coverage or may not have taken out sufficient coverage which runs the risk of a successful patient being left with a “paper judgment” if the defendants do not have sufficient funds to pay the judgment sum.

If the claim is successful, the unsuccessful defendants must ordinarily pay party and party costs (a portion of the winning party’s legal fees) to the patient. If the claim fails, the patient must pay costs to the defendants. The longer the case drags, the more expensive it will be for all parties in the lawsuit.

Getting Lawyers with the Appropriate Expertise

Medico-legal litigation is highly technical and will require familiarity with the field of medicine and the medical profession. Having supportive expert opinion will not guarantee victory. The lawyer must be able to appreciate the interactions of medical science and clinical practice otherwise he will not be able to appreciate the clinical issues in the case, properly instruct an expert, and effectively advance his client’s case in Court. The lawyer must also be familiar with law on damages otherwise the patient may be left undercompensated.

The lawyer for the patient must be equipped to cross-examine the defendant pracititoner and his expert on clinical matters. The lawyer for the defence must also be prepared to do the same with the opposing expert who will be well-equipped to defend his opinion. Meritorious claims and defences have failed because of the lawyer’s unfamiliarity with medico-legal cases. Few possess the skills and rapport to effectively undertake such cases.

The lawyer must also have some rapport with the medical profession to gain access to experts. There are deserving cases which do not see their day in Court because of a lack of access to experts.

Closing

More can be done to improve access to justice for everyone be it for patients and healthcare providers. It should never be about upstaging one another but about improving patient safety and making lives whole again as best as they can be.

Pursuing litigation should be for the sole purpose of obtaining compensation and not to exact retribution. Defence against lawsuits should undertaken fairly and honourably. The interests of the broken and battered should not be eclipsed by a zealous desire protect rice bowls.

Evan Lee Sian Wen
Advocate & Solicitor
27 September 2024

~We do not use nor condone the use of generative artificial intelligence in our materials.~

Medical Negligence Claims – Preliminary Matters to Consider