Difficulties in Establishing Medical Negligence in Malaysia

Authored by Syameel Amirundanish, Loh Yi Qing and Tan Yi Xuan



The number of medical negligence involving wrong surgery, medical error, unintended retention of foreign objects, transfusion and patient falls had nearly doubled in both public and private hospitals.[1] This is especially between 2016 and 2018 where the Health Ministry official figures showed that negligence arose when the doctor, an ordinary skilled man exercising and professing to have that special skill falls below the acceptable standard[2] and have then caused damage or injury to the patient’s health.


Medical negligence is governed under the law of tort which provides for compensation only when a doctor or any other medical practitioner is negligent. This falls under an adversarial system where it requires the litigating parties to determine the subject matter of the controversy between them and supply the court with the evidence on which they wish to rely on. The Plaintiff bears all the burden on proving the components of the medical negligence claim.[3]


Limitation Period

Medical negligence cases shall only be brought within six (6) years from the date the damage or injury arose as per Section 6(1)(a) of the Limitation Act 1953.[4] However, do take note that the Limitation Act 1953 only applies in Peninsular Malaysia. Sabah and Sarawak have their own Limitation Ordinance, but for the purpose of this article, we will only be discussing the position of medical negligence in Peninsular Malaysia. If the negligent causes death of a patient, family members may only bring a claim on behalf of the deceased within 3 years from the death of the deceased.[5]


Medical Records

To bring a claim against medical negligence, the Plaintiff first has to obtain relevant medical records and information relating to the medical complexity of the treatment. This is because it would be impossible for a Plaintiff to commence an action without providing particulars of medical misconduct. However, more often than not, these medical records are not easily accessible to the patient as they are seen as property of the medical practitioner under the Guideline of Malaysian Medical Council, (“the Guideline”) which states the following:


A patient’s medical record is the property of the medical practitioner and the healthcare facility

and services, who hold all rights associated with ownership”.[6]


Although it is clearly stated in the Guideline that medical records can be demanded by the patient and the courts of law in matters of litigation as it would act as a supportive document,[7] medical practitioner will be reluctant to provide especially when it aims to establish medical negligence.


The Plaintiff may commence action under Order 24 Rules of Court 2012 to make an order against discovery of documents, however, pursuant to Order 24 Rule 4, this discovery of document can only be made after the determination of issues, it does not extend to cover discovery of document during the pre-trial stage.[8] Although Order 34 provides for pre-trial case management and allows automatic discovery of documents in personal injury action,[9] this rule nevertheless expressly excludes discovery of documents for personal injuries arising from negligent act or omission in the course of medical or dental treatment.[10] This shows that the difficulty in getting access to medical records is not overcome and the only way to obtain these medical records is through civil action.[11]


Medical Experts Opinion

After obtaining medical records, it is important to obtain opinion from medical experts on whether the particular act or omission concerned constituted a breach of duty. Medical experts’ opinions are need to address complications and technicalities for one who has not undergone medical training. Therefore, the question of whether the doctor falls short of its standard of care is best judged by his peers.[12] This is often difficult because doctors may be unwilling to provide evidence against their peers and they might also be reluctant to testify in court as witness.


Conclusion

Although medical negligence claims can be lengthy and may seem difficult to obtain the relevant supportive documents or opinions, there are still methods for the Plaintiff to gain access to these medical records. Plaintiff can make an application under the Personal Data Protection Act 2010 upon payment of prescribed fee to gain access.[13] The current practice is for the Plaintiff to first bring a medical claim against the doctor and then attempt to obtain the medical records.[14]