KUALA LUMPUR, March 13 — The Federation of Malaysian Consumers Associations (Fomca) has called for the formation of an alternative dispute resolution (ADR) mechanism to manage medical negligence complaints without litigation.
Fomca secretary-general Paul Selvaraj noted that litigation is expensive, even as he praised the Federal Court’s recent landmark ruling that held private hospital operator Columbia Asia Sdn Bhd liable for medical negligence in a 2010 case of a patient who suffered massive brain damage at Columbia Asia Hospital – Puchong, resulting in permanent mental and physical disabilities.
The lower courts had previously held only the anaesthetist who treated the patient aged 35 then, Siow Ching Yee, liable for negligence in the emergency case.
Crucially, the apex court rejected Columbia Asia’s defence that doctors working at its hospitals operate as “independent contractors”, ruling that Columbia Asia held a “non-delegable duty of care” to Siow and remained “liable personally” for the negligence of the anaesthetist.
“Hospitals must be held accountable for negligence. No passing of the buck. Consumers deserve justice in the face of negligence,” Selvaraj told CodeBlue.
“ADR should be for medical complaints in general where the hospital refuses to resolve directly with the patient.”
He cited the 2023 update of the Patient’s Charter, which is essentially a bill of rights for patients, that was launched by Fomca, the Malaysian Medical Association (MMA), the Malaysian Pharmacists Society (MPS), and the Association of Private Hospitals of Malaysia (APHM) last year.
The Charter is a non-binding document that outlines the rights and expectations of patients when they receive medical care and seeks to recognise health care as a basic human right, irrespective of race, religion, social status, age, gender and economic status.
“We should explore an ADR system for health care,” Selvaraj said, suggesting that this start with private hospitals.
“An ADR system protects both sides. Not everyone can afford to go to court. An alternative dispute resolution is like the consumer tribunal or OFS (Ombudsman for Financial Services) for the banking sector.”
Muhammad Sha’ani Abdullah, chair of the Sustainable Development Network Malaysia (Susden Malaysia), said the Federal Court verdict obligates all health care providers liable for any negligence.
“Though this is simple common sense, business entities use legal systems to try to avoid or disclaim responsibility as service providers.”
The Federal Court judgement does not apply to public hospitals, as the Private Healthcare Facilities and Services Act (PHFSA) 1998, which the court cited extensively, only applies to private health care facilities and services.
