Legal Update: Siow Ching Yee (Suing Through His Wife and Litigation Representative, Chau Wai Kin) v Columbia Asia Sdn Bhd [2024] 3 MLJ 66
As Malaysians become more aware of their legal rights, medical negligence cases have become more prevalent in court. These are lawsuits stemming from a mistake of either the doctor in making a wrong diagnosis, giving out unsuitable medication, giving bad medical advice in error, to the ultimate nightmare of making mistakes during surgery.
Of course, the issue for the courts to determine is if there had actually been medical negligence in the first place. This would mean looking into if the doctor’s actions and conduct fall below the standard of a competent medical professional, among other tests (as per the Bolam Test, and Zulhasnimar Hasan Basri v Dr Kuppu Velumani P).
But once it has been determined that medical negligence exists, the next question would be whether the doctor himself is liable, or would the hospital be instead?
When a doctor commits a mistake that results in medical negligence, the previous position would be for the hospital to rely on the argument that the they cannot possible be held vicariously liable for the doctor’s negligence, as doctors were independent contractors rather than employees of the hospital. Hospitals would claim that they merely provided the facilities and the premises, which the doctors would then use as contractors.
But in the recent case of Siow Ching Yee (suing through his wife and litigation representative, Chau Wai Kin) v Columbia Asia Sdn Bhd [2024] 3 MLJ 66 changes this once and for all. In this case, the Federal Court was asked to determine whether a private hospital can be made liable for a tort committed by an independent contractor it appointed, if it was found to have a non-delegable duty of care to the patient.
At the High Court stage, claims against the ENT doctor attending was dismissed entirely. Whereas the consultant anaesthetist was deemed to have been too slow in securing the patient’s airway during an emergency, which caused hypoxia and resulted in the patient suffering permanent mental and physical disabilities. However, it was held that the hospital was not vicariously liable for the negligence of the consultant anaesthetist, on the basis that the consultant anaesthetist was merely an independent contractor.
At the Court of Appeal, the appeal was once again dismissed, and the issue of vicarious liability was abandoned at this stage.
So the Federal Court was now faced with the question of whether or not the hospital had a non-delegable duty of care to the patient. The Federal Court then answered in the affirmative.
In a 4-1 majority decision, the court had found that the duties of the hospital can be determined via the Private Healthcare Facilities & Services Act 1998 and the Private Healthcare Facilities & Services (Private Hospitals and Other Private Healthcare Facilities) Regulations 2006, specially via Sections 2, 31, 38 and 78 of the Act. By applying the Act and Regulation together, hospitals are now deemed to have a non-delegable and personal duty of care to their patients. In the words of the Court, “…no longer can private hospitals say that they were mere providers of premises, utilities, facilities or backup services for treatment and care of patients. The law provided that they were themselves providers of such care and treatment in which case they owed a non-delegable and personal duty of care to all who knocked on their door to seek treatment and care”.
Given that they are deemed that private hospitals are deemed to have a non-delegable duty of care to the patients, the Court then applied the principles in Woodland v Swimming Teachers Association & Others [2014] AC 537 (Woodland) as adopted by the Federal Court in its decision in Dr Kok Choong Seng & Anor v Soo Cheng Lin and another appeal [2018] 1 MLJ 685, in determining when would non-delegable duties apply to the present case. The test in Woodland requires the fulfilment of the following 5 features:
a. the claimant is especially vulnerable and dependent on the defendant’s protection from the risk of injury. Such claimants include, but are not limited to, patients and children;
b. there is an antecedent relationship between the claimant and the defendant, from which to impute an assumption of responsibility on the defendant to protect the claimant from harm. The relationship places the claimant in the defendant’s actual custody or care;
c. the claimant has no control over how the defendant chooses to perform the duty assumed, whether personally or otherwise;
d. the defendant has delegated to a third party a function which is an integral part of its positive duty towards the claimant, and also the custody and control incidental to that function; and
e. the third party was negligent in the performance of the very function assumed by the defendant and delegated to him.
The Court found all 5 features to be present in the current case. Thus, the hospital was liable for the negligence of the consultant anaesthetist.
The consequences of this decision is big. In the near future, we might see hospitals and medical healthcare facilities resort to “defensive medicine” which is the general term for healthcare facilities operating with an S.O.P. that seeks to minimize the possibility of a lawsuit rather than optimizing patient care. However, seen from another angle, it could also mean that healthcare facilities are now held up to a higher standard of care, and will ensure that their patients receive only the best treatment possible without delay.
As for the average consumer, we should be more aware of our rights. Hospitals can no longer hide behind the excuse that doctors are mere independent contractors. If one suspects being on the receiving end of medical negligence, be it from a private or public hospital or even from a clinic, do not hesitate to seek out legal assistance at once.
This article was written by Caleb Goh from Marcus Tan & Co’s Litigation Department