The Federal Court (“FC”) decision in Siow Ching Yee v Columbia Asia Sdn Bhd [Civil Appeal: 02(f)-12-02/2023(B)], delivered on February 23, 2024, would have a monumental impact on health care delivery in Malaysia.
Before delving into the FC decision and the implications of the decision, it is prudent to remind oneself of some aspects of medical negligence litigation in Malaysia.
The plaintiff in every alleged medical negligence case has to prove, on the balance of probabilities, that (s)he was owed a duty of care; that there was breach of the duty of care; the plaintiff suffered injury (or injuries); and that the breach of the duty of care caused or materially contributed to the injury (or injuries).
Duty Of Care Of Doctors
It cannot be contested that all doctors owe their patients a duty of care. The duty comprises diagnosis, treatment and advice.
Diagnosis And Treatment
With regard to diagnosis and treatment, the Federal Court (“FC”) had stated “…With regard to the standard of care for diagnosis or treatment, the Bolam test still applies, subject to qualifications as decided by the House of Lords in Bolitho.” (Zulhasnimar Hasan Basri Anor vs Dr Kuppu Velumani Anor (2017) 5 MLJ 438).
The Bolam test stated “A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art … Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view.” (Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 at p 122).
The Bolitho qualification stated “…But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible. I emphasise that in my view it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable.” (Bolitho v City and Hackney Health Authority [1998] AC 232 at p 243C-D).
Advice
With regard to the duty to advise, the FC had stated ”…we are of the opinion that the Bolam Test has no relevance to the duty and standard of care of a medical practitioner in providing advice to a patient on the inherent and material risks of the proposed treatment… we are of the view that the Rogers v Whitaker test would be a more appropriate and a viable test of this millennium then the Bolam Test”. (Foo Fio Na v Dr Soo Fook Mun & Assunta Hospital [2007] 1 MLJ 593 at p 611). This FC decision has had a monumental impact on Malaysian health care delivery.
The Australian High Court stated “The law should recognise that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. This duty is subject to the therapeutic privilege“. (Rogers v Whitaker (1992) 175 CLR 479 at p 490).
Duty Of Care Of Private Hospitals
The duty of care of private hospitals has, however, not been fully addressed in Malaysia.
Significant growth in private hospitals in the past three decades has led to the extent that the private hospitals have one quarter of the total hospital beds in Malaysia. Although private hospitals call themselves health care providers, medical care is provided by doctors (both specialists and medical officers).
In most instances, whenever there is a case of medical negligence, the financial burden of the liability is borne by the doctors. The private hospital’s position, barring any unusual circumstances, has always been that the doctor(s) are the sole tortfeasor(s) (person or entity who commits a civil wrong i.e. negligence) as the private hospital only provided the facilities, equipment and allied professional staff e.g. nurses. This is in tandem with the general rule in the common law i.e. that tortious liability associated with negligence is fault-based and is linked to a breach of one’s duty of care.
The so-called “independent contractors” have a contract for service with the private hospital. Scrutiny of these contracts would reveal detailed arrangements that include matters like discipline, finance, management control, use of laboratory and imaging services, practising in other private hospitals nearby or after leaving the private practice.
Yet when there is medical negligence, the so-called “independent contractors” are left to fend for themselves although private hospitals call themselves health care providers.
The well-known exception to the fault-based general rule is vicarious liability, in which the tortfeasor is under a contract of service. In such situations, the employer is liable for the torts of its employees including doctors, nurses etc.
Vicarious liability does not only occur in employment. It can also arise in partnerships, in principal and agent relationships, joint ventures and even in “independent contractors”. For example, other professionals like lawyers are aware of the vicarious liability for the negligence of their other partners.
The other exception to the fault-based general rule is non-delegable duty of care. There are two categories of cases wherein such duty is found. The first is one in which an entity, usually an organisation, engages an independent contractor to perform an inherently hazardous function. The other category is one in which medical negligence is involved.
In this category, there are three critical characteristics which were stated succinctly by Lord Sumpton in Woodland v Swimming Teachers’ Association and others [2014] 3 AC 537 at p 583 i.e.
“First, it arises not from the negligent character of the act itself but because of an antecedent relationship between the defendant and the claimant. Second, the duty is a positive or affirmative duty to protect a particular class of persons against a particular class of risks, and not simply a duty to refrain from acting in a way that foreseeably causes injury. Third, the duty is by virtue of that relationship personal to the defendant.” (Emphasis added)
In short, the key ingredients are, whether in the factual circumstances, it can be found that:
a. The private hospital had “assumed a positive duty to protect the claimant from harm”; and
b. The private hospital had delegated some integral part of its assumed duty to the so-called “independent contractor”.
Non-delegable duty of care, which is the substance of the Federal Court (“FC”) decision in Siow Ching Yee v Columbia Asia Sdn Bhd [Civil Appeal: 02(f)-12-02/2023(B)], will be addressed in a subsequent article.
Federal Court Decision
The FC coram comprised Mohamad Zabidin Mohd Diah (Chief Judge of Malaya), Abdul Rahman Sebli (Chief Judge of Sabah and Sarawak), FCJ Zabariah Mohd Yusof, FCJ Hasnah Mohammed Hashim and FCJ Mary Lim Thiam Suan.
In a 4-1 decision (FCJ Zabariah dissenting), the FC found in favour of the appellant stating that the “respondent has assumed a non-delegable duty of care that it owes personally to the appellant, a patient that is admitted to its emergency services. The defence of independent contractor thus is not sustainable in law and on the facts and ought to have been rejected by the Courts below”.
Facts
The appellant (“Z”) underwent a tonsillectomy, palatal stiffening and endoscopic sinus surgery at private hospital (“S”) on 10 March 2010. At about 3.30 am on 22 March 2010, Z suffered bleeding at the operation site. His family brought him to the accident and emergency department of a private hospital of the respondent (“C”).
Z was attended to by a Medical Officer who contacted Dr M, Consultant Ear, Nose and Throat surgeon, who recommended examination under anaesthesia and wound debridement. Dr N, Consultant Anaesthesiologist also attended to Z.
In the airlock area outside the operating theatre, Z started vomiting copious amount of blood. Despite efforts by Dr M and Dr N, Z collapsed and cardiopulmonary resuscitation was instituted. Subsequently, the intended surgery was performed. It was uneventful.
Unfortunately, Z suffered hypoxic brain damage. After surgery, he was admitted to the intensive care unit of C. At the family’s request, Z was transferred out to private hospital S on 28 March 2010. Because of the hypoxia, Z has permanent mental and physical disability.
High Court
Z instituted a claim, through his wife, in the High Court against Dr M, Dr N and private hospital C. The High Court allowed the claim against Dr N while the claims against Dr M and private hospital C were dismissed, and ordered Dr N to pay damages to Z amounting to RM1.9 million.
At the High Court, private hospital C stated “D1 (Dr M) and D2 (Dr N) carried out their respective medical practice at the said hospital as independent contractors under contracts for service. All diagnosis, medical advice including material risks and known complications, medical treatments, operations and referrals (if and when necessary) are the responsibility of the medical specialists, including D1 and D2 in this action who practice as independent contractors in the said hospital under the above contracts”.
Private hospital C “avers that their responsibility as the owners and managers of the said hospital is merely to ensure the provision of facilities and medical equipment, including nursing staff” (emphasis added).
The High Court judge found against Dr N, stating that there were “indisputably other emergency, life-saving procedures which D2 (Dr N) in line with expert opinion, ought to have considered but she failed to do so. Importantly, she did not even discuss the said options, which were within her purview and professed expertise, with D1 (Dr M)”.
After analysis of the evidence, expert opinions and court testimonies, the judge was satisfied that negligence ought to be ascribed to Dr N “as it had become plainly obvious that her conduct had fallen below the standard of skill and care expected from an ordinary competent doctor professing the relevant specialist skills based on which she was entrusted to treat the plaintiff”.
The High Court judge also found that Z “had failed to adduce any credible, let alone sufficient, evidence to prove the negligence” of private hospital C. On the issue of vicarious and direct non-delegable duty, the judge found that the Dr M and Dr N were “at all material times not as employees, servants or agents of the hospital but as independent contractors…Their contracts were evidenced by the Resident and Consultant Agreements produced in Court”.
Court Of Appeal And FC
Z and Dr N appealed to the Court of Appeal, which concurred with the High Court’s decision but increased the damages awarded to Z to RM3.3 million.
However, Dr N’s indemnity coverage was RM1 million – hence Z’s appeal to the FC against private hospital C alone. One of the questions posed to the FC when granting leave to appeal in February 2023 was “whether the owner and manager of a private hospital is liable to patients under a non-delegable duty of care when a doctor practising in the hospital as an independent contractor has insufficient professional indemnity for malpractice?”
The FC noted that there was really not much deliberations in the lower courts on the question of whether private hospital C owed a non-delegable duty to Z, which duty was breached when there was negligence found on the part of Dr N.
Questions Posed To FC
Seven questions of law were posed to the FC i.e.
- Whether the owner and manager of a hospital is in law a provider of health care and owes a non-delegable duty of care to patients as stated by the English Court of Appeal in the post Dr Kok Choong Seng & Anor v Soo Cheng Lin & Another Appeal [2018] 1 MLJ 685 case of Hughes v Rattan [2022] EWCA Civ 107?
- Whether the judgment of the Federal Court in Dr Kok Choong Seng regarding the tort of negligence in a private hospital applies where the owner and manager of the hospital owes separately duties of care in contract and by statute?
- Whether the owner and manager of a private hospital is liable to patients under a non-delegable duty of care when a doctor practising in the hospital as an independent contractor has insufficient professional indemnity for malpractice?
- If the answer is yes, whether the owner and manager, as a provider of health care, may escape liability for a breach of such duty of care committed by a doctor because the doctor is an independent contractor who has been engaged to practise in the hospital?
- Whether there is a statutory duty of care, independent of a duty in negligence or contract, owed by the owner and manager of a private hospital under the Private Healthcare Facilities and Services Act 1998 and the subsidiary legislation made thereunder?
- Whether the fees received by a director of a company from the company are ‘earnings by his own labour or other gainful activity’ under s 28A(2)(c)(i) of the Civil Law Act 1956?
- In light of the post Dr Kok Choong Seng case of Armes v Nottinghamshire Country Council [2018] 1 All ER 1 decided by the Supreme Court of the United Kingdom, whether after applying the 5-feature test in Woodland v Essex County Council [2014] 1 All ER 482, a Court must additionally apply the test of whether it is fair, just and reasonable to impose a non-delegable duty of care in the circumstances of the case?
Dr Milton Lum is a Past President of the Federation of Private Medical Associations, Malaysia and the Malaysian Medical Association. The views expressed do not represent that of any organisation the writer is or was associated with. No responsibility is assumed by the writer for any injury and/ or damage to persons or property in respect of anything or the consequences of anything done or omitted to be done by anyone in reliance, whether wholly or partial, upon the whole or any part of the contents of this article. If legal advice is required, the services of a legal counsel versed in medical law should be sought.
- This is the personal opinion of the writer or publication and does not necessarily represent the views of CodeBlue.
