In Columbia Asia Case, Hospital And Doctor Equally Liable For Full Award, But Hospital Can’t Pursue Indemnity Against Doctor

The patient’s lawyer in the Columbia Asia medical negligence case says both the hospital and doctor are equally liable for the RM4.5mil award of damages, but the hospital can’t seek indemnity against the anaesthetist. Her indemnity insurance is only RM1mil.

KUALA LUMPUR, March 14 — In the landmark medical negligence case involving Columbia Asia Sdn Bhd, the Federal Court held the private hospital equally liable as the anaesthetist for the full RM4.5 million award of damages, including costs.

However, the apex court, in its ruling last February 23 on Siow Ching Yee v Columbia Asia Sdn Bhd, dismissed Columbia Asia’s application for the court to order Dr Noor Asilah Abdul Rahman to indemnify the hospital in the event the private hospital operator was found liable for negligence of the patient, Siow.

The Federal Court’s majority verdict said Columbia Asia owed a “non-delegable duty of care” to the patient and remained liable, with this principle imposing a “personal liability” on the hospital, “over and above that against the tortfeasor”.

Manmohan Singh Dhillon – one of the lawyers from PS Ranjan & Co who represented Siow – explained that the Federal Court’s judgement means that both Columbia Asia and Dr Noor Asilah are liable to pay the total RM4.5 million award. The RM4.5 million amount is the total to be paid to the plaintiff, not RM4.5 million from each, hospital and doctor.

This is because the lower courts had already found the anaesthetist negligent, while the hearing at the Federal Court only involved one defendant, Columbia Asia Sdn Bhd, who lost the case.

“The question of proportion of the award to be paid [by either Columbia Asia or the anaesthetist] doesn’t arise because the indemnity claim was dismissed. In the Federal Court decision, both are liable for 100 per cent of the award,” Manmohan told CodeBlue.

He added that the question of “vicarious liability” did not arise in the apex court that held the private hospital equally liable for negligence as the doctor who treated Siow, who was left with permanent mental and physical disabilities after treatment as an emergency case in 2010 at Columbia Asia Hospital – Puchong.

While his client is legally entitled to recover money from Dr Noor Asilah, Manmohan pointed out that the anaesthetist only has professional indemnity insurance coverage of RM1 million.

“It’s really for the patient’s side to choose who should pay; generally, the courts don’t decide how awards of damages should be paid.”

When asked who his client would pursue for the RM4.5 million award then, Manmohan declined to comment.

He added that anaesthesiologists, in general, should have medical indemnity insurance coverage of at least RM5 million, with a top-up of another RM5 million.

Manmohan also stressed that the accident and emergency (A&E) departments of private hospitals should always be fully equipped and prepared to accept emergency cases. “If you want to have an A&E department as a catchment area to get patients, you want the gain, then you must accept the pain.”

Doctor Groups Missed ‘Golden Opportunity’ to Represent Profession at Federal Court

Manmohan also criticised doctors’ associations for not acting as amicus curiae (friend of the court) in the Columbia Asia case at the Federal Court.

The apex court saw only the appointments of the Association of Private Hospitals Malaysia (APHM) and Consumers’ Association of Penang (CAP) as amicus curiae.

“Whenever something goes wrong, hospitals have always been throwing doctors under the bus,” Manmohan said.

“This was a golden opportunity for doctors to be amicus curiae to represent doctors. It was a missed opportunity for them to stand up against Big Business.”

Manmohan – who was the lead counsel for Siow at the High Court and Court of Appeal, and assisted lead counsel PS Ranjan at the Federal Court – said as amicus curiae, medical professional groups could have explained to the court that in cases of alleged medical negligence, the doctor alone should not be held responsible.

“There’s so much involvement of the hospital,” he said, citing factors like systems in a hospital.

The Federation of Private Medical Practitioners’ Associations, Malaysia (FPMPAM) – which gave comments to CodeBlue after the court ruling – said it had been looking to be appointed as amicus curiae in another case that it missed.

“When it comes to hospitals, we’ll let APHM handle their part,” FPMPAM president Dr Shanmuganathan Ganeson told CodeBlue.

“On our side, we were not fully aware of the case; we were not in the loop at that point.”

CodeBlue has also asked the Malaysian Medical Association (MMA), the largest doctors’ association in the country, why it did not seek to be appointed amicus curiae in the Columbia Asia case at the Federal Court. MMA president Dr Azizan Abdul Aziz declined comment.

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