Proving Liability for Medical Negligence (1)- Duty of Care

The textbook definition of negligence is failing to take proper care over something. In terms of the law, there are specific “elements” which must be fulfilled, failing which, a defendant will not be found liable for negligence.

The 4 Elements of Negligence

In the context of a claim for medical negligence, the party who sues (usually the patient) is known as the plaintiff. The counterparties (usually the doctor and the owners of the healthcare facility) are known as defendants. For the plaintiff to succeed, the following elements must be fulfilled: –

(1) The Defendant Owed a Duty of Care to the Plaintiff

A duty of care is a legal obligation imposed on an individual to ensure that his actions and omissions do not cause harm to others. Medical treatment, if administered carelessly or incorrectly, can have devastating consequences to a patient.

(2) That the Defendant Breached His Duty of Care

A healthcare provider breaches their duty of care to their patient when their actions or omissions fall below the standard of care which is expected of them. The standard of care expected of a healthcare practitioner is the standard of the ordinary competent peer in the profession.

(3) That the Breach of Duty had Caused the Plaintiff to Suffer Injuries, Losses & Damage

The patient must have suffered injuries, losses and damage because of his healthcare provider’s breach of their duty of care. If there is a break in the chain of causation of the same, a claim may fail.

(4) That the Injuries, Losses & Damage Suffered were Reasonably Foreseeable

Once it is established that the breach of duty did cause the patient to suffer damage, its extent must have been of a kind that was a reasonably foreseeable consequence of their healthcare provider’s negligence.

A Healthcare Professional’s Duty of Care

Healthcare professionals which include but are not limited to housemen, medical students, locums etc. would by reason of their special skills, expertise, and relationship with their patients owe a duty of care to use diligence, care, knowledge, skill, and caution in administering treatment to their patients (Foo Fio Na v Dr Soo Fook Mun [2007] 1 MLJ 593).

Generally speaking, a healthcare professional owes a duty to his patients to treat them and not to make them worse off than before.

In the ordinary patient-doctor setting, a duty of care is usually readily recognised and rarely disputed.

A Healthcare Facility’s Duty of Care

The owner of a healthcare facility would also owe a duty of care to their patients. A healthcare facility can be held liable for system and equipment malfunctions and administrative and organisational failures (Muhammad Yassien bin Zuliskandar v The Government of Malaysia [2010] MLJU 2163).

A healthcare facility would owe a non-delegable duty of care for the negligence of their healthcare professionals notwithstanding a claim to be independent contractors (Siow Ching Yee (suing through his wife and litigation representative, Chau Wai Kin) v Columbia Asia Sdn Bhd [2024] 3 MLJ 66).

A healthcare facility is also vicariously liable for the negligence of its employees (Chai Beng Hock v Sabah Medical Centre Sdn Bhd & 2 Ors [2011] 2 AMR 741).

Doctor-Patient Relationship

In the absence of a patient-doctor relationship, a healthcare professional will ordinarily not owe a duty of care to a third party. There are however certain circumstances where a duty of care to a non-patient is imposable.

(1) Duty to an Unborn Foetus

Though technically not yet a patient, the law recognises that healthcare professionals would owe the mother of a foetus a duty to ensure that their management does not harm the pregnancy and by extension the foetus whether in-utero or during the birthing process. A foetus’ right to sue for negligence will crystallise at birth if there has been mismanagement of the pregnancy or birthing process.

(2) Duty to Family Members of a Patient

A duty to advise a patient’s family members may exist in cases involving treatment which may adversely affect joint reproductive rights, and patients who are mentally incapacitated or incapable of understanding the doctor’s advice on the nature and risks of the proposed treatment (Gurmit Kaur a/p Jaswant Singh v Tung Shin Hospital [2012] 4 MLJ 260).

(3) Duty to Protect Third Parties from Tainted Blood Products & Infectious Diseases

The party responsible for handling and containing venereal and infectious diseases may be held negligent if their dereliction of duty causes a third party to be infected (Loi Teck Chai v Kinta Medical Centre Sdn Bhd [2017] 3 CLJ 486).

(4) Duty to the Injured Bystander

A passerby even if he is qualified to administer emergency treatment generally would not owe a duty to treat an injured passerby. If he elects to do so, he can be held to have assumed responsibility and liable for any negligent treatment provided to the injured passerby (Ang Yew Meng v Dr Sashikannan a/l Arunasalam [2011] 9 MLJ 153).

There are currently ongoing efforts in Malaysia to legislate protection for Good Samaritans. As of the date of this article, no legislation has been enacted.

Conclusion

The Court will examine whether a doctor-patient relationship exists between the parties in a medical negligence claim. Save for cases where no such relationship exists or when no assumption of responsibility is imputable, it will be difficult for a healthcare provider in a medical negligence claim to successfully detach themselves from owing a duty of care.

Written by: –

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

Shannon Khoo Wen Yee
LL.B. (Hons.) University of Leeds (Class of 24′)

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