KUALA LUMPUR, Sept 3 — Malaysian courts are still awarding too little compensation to victims of catastrophic medical negligence, with existing laws and judicial practices failing to fully account for decades of care, lost earnings, and changing medical needs.
Manmohan Singh Dhillon, a senior partner at P.S. Ranjan & Co. who has represented patients in landmark medical negligence cases, said concerns that damages were becoming excessive failed to account for the lifelong costs of catastrophic injuries such as brain damage, paraplegia, quadriplegia, limb loss, and psychiatric injury.
“Often enough I hear this complaint, usually from doctors, lawyers, and sometimes insurers, that damages are too high,” Manmohan told a medical law conference on August 15. “I say, with a straight face, damages have been too low and need to be increased.”
The debate comes after a series of multimillion-ringgit medical negligence awards in Malaysia in 2024, including RM8.6 million awarded to Nur Adeena Mohd Syahmir and RM9.45 million to Thaqif Asyraf Khairol Nizam, the highest medical negligence award in Malaysian history. Both suffered catastrophic injuries associated with their births.
But Manmohan said large headline figures should not be viewed in isolation because Malaysian courts assess damages on a “once and for all basis”.
This means a court must estimate at trial how much an injured person will require for the rest of their life. If the person’s condition subsequently deteriorates or their actual care costs exceed the award, they generally cannot return to court for additional compensation.
“If he gets damages for a life expectancy of 30 years, two years after getting damages, the patient dies, the defendant cannot recover that money,” he said.
Future Care Cannot Simply Be Dismissed As ‘Speculative’
Manmohan said future losses inevitably involve some uncertainty, but that did not make them speculative in the legal sense.
On the standard of proof for future losses, he said the Federal Court had held that they should be assessed on the balance of probabilities, “but with a lower degree of certainty as to the occurrence of such loss of damage in the future”.
“You can see there is a lowering of the standard. But we still have lawyers and judges saying that is speculative,” he said. “If you want to talk about the future, it has to be speculative.”
He also rejected the argument that courts can reduce damages for future treatment because patients can obtain free physiotherapy or other care at government or charity hospitals.
“How will an injured person, who needs some form of treatment or therapy over a period of 10 years, be assured that if they turn up at a charity hospital or a government hospital, he or she will get the therapy or treatment as advised by the experts?” Manmohan said.
Monetary compensation, he said, allows patients to organise care according to their needs and choose their practitioners. The same principle should apply to recurring expenses such as diapers, medication, and specialised nutrition, he added.
Manmohan also criticised the expectation that families preserve documentary proof for every expense over many years. “Can you imagine buying four, maybe 12 diapers a week, and your case comes up seven years later, 52 weeks times seven years – keeping bills and receipts for those diapers?” he said.
The senior lawyer said courts should consider the circumstances of the injured person when documentary evidence is unavailable.
“The point made was claimants do not behave like accountants, auditors, or bookkeepers in keeping receipts. They are encouraged to, they should keep documentary evidence. But you should look at their exigencies.
“If you can see that the victim is doubly incontinent, the defendant doctor and the defendant hospital should appreciate that the victim will need diapers,” Manmohan said.
The Cost Of A Life Interrupted
Manmohan also criticised restrictions on loss of earnings arising from amendments to the Civil Law Act in 1984.
He said the law could disadvantage people who suffer catastrophic injuries before entering employment. Manmohan gave the hypothetical example of a 24-year-old medical graduate who takes a six-month break before starting work but then suffers a disabling injury or dies.
“Going by the amendments, if he’s dead, his dependents will get zero for loss of earnings. If he’s alive, he will get zero for loss of earnings because he must be gainfully employed at the material time,” Manmohan said.
The issue is particularly significant in birth-injury cases, he said, because the children have no earnings at the time they suffer their injuries.
Manmohan contrasted Malaysia with the United Kingdom, where courts have recognised “lost years” damages in some catastrophic injury cases. The damages compensate an injured person for the earnings they would have made during the years they would otherwise have lived and worked had their injury not shortened their lifespan.
Manmohan also urged judges to rely on medical experts when determining life expectancy rather than making additional arbitrary reductions.
“If the expert had said that this person will now only survive to the age of 40, while the ordinary life expectancy is 75, that is a reduced life expectancy. The judge should not be making another deduction,” he said.
Manmohan said rehabilitation physicians, therapists, nurses, prosthetics experts, accountants, and other specialists were increasingly important in determining what catastrophically injured patients would require over their lifetimes.
He called for Malaysia to introduce formal case managers who could coordinate between patients, families, lawyers and therapists and assess whether proposed treatments were actually suitable.
He also advocated the exchange of tables of damages between opposing parties earlier in proceedings, as practised in the UK, instead of keeping quantum calculations until closing submissions.
Manmohan also pointed to the UK’s provisional damages system, under which certain future losses can be reassessed in appropriate cases where there is a measurable risk of serious deterioration or illness.
Rising Awards, Rising Health Care Costs
Azrul Mohd Khalib, chief executive of the Galen Centre for Health and Social Policy, pointed to the rapid increase in the size of medical negligence awards.
Azrul cited awards including RM4 million involving Columbia Asia, RM5.2 million involving Prince Court Medical Centre, RM5.1 million awarded to the estate of former Prolintas CEO Zainudin Abdul Kadir, RM4.8 million involving Nur Syarafina, RM8.6 million for Nur Adeena, and RM9.5 million for Thaqif Asyraf.
“Whatever the eventual share of fault, the price of getting hospital care wrong in Malaysia is climbing quickly,” Azrul said.
He said the Ministry of Health (MOH) paid RM189 million across 881 medicolegal cases between 2012 and 2021, while about 200 complaints reach its medicolegal section annually.
“Sometimes I forget myself. This is our money, it’s taxpayers’ money. It’s not the government’s money, it’s our money,” he said.
Azrul said the rising cost of medicolegal claims was contributing to medical inflation, as hospitals increasingly had to consider specialist recruitment, professional indemnity insurance, and potential liability alongside the cost of running their facilities.
He said Malaysia was already experiencing defensive medicine, in which doctors take additional precautions or order more investigations because of concerns about medical liability.
“This is not in the future, this is not 10 years down the road, it’s not five years,” Azrul said.
“The reality is that with the increasing success of these medical legality cases in the courts, it is inevitably raising the cost of health care in Malaysia and it’s causing defensive medicine to also occur.”
Manmohan, however, said an injured patient should not be expected to accept a lower award because the doctor responsible had insufficient professional indemnity.
“Should an injured person give a discount just because the professional people did not take sufficient professional indemnity cover?” he said. “I don’t think so.”
Manmohan also called for greater use of “day in the life” videos showing how catastrophic injuries affect patients’ everyday lives, better investment options for lump-sum awards and more education for judges, lawyers, experts, and claimants.
“The defendants should stop deny, delay, and defend their merits. It should be resolved,” he said.
