By:
Bryan Lui (Co-Managing Partner) [bryanlui@luibhullar.com]
Harneshpal Karamjit Singh (Co-Managing Partner) [harnesh@luibhullar.com]
Proving Medical Negligence in Malaysia
When pursuing a claim of medical negligence in Malaysia, the plaintiff must first prove that the defendant owed them a duty of care. Additionally, the plaintiff must establish, on a balance of probabilities, that the defendant's actions fell below the required standard of care. The standard of care, typically referred to as "reasonable care," is satisfied by the conduct of a hypothetical reasonable person in similar circumstances.
Standard of Care for Medical Practitioners
The standard of care for medical practitioners and other professionals exceeds that of an ordinary individual. Professionals, especially medical negligence lawyers and medical practitioners, are expected to demonstrate a level of skill and expertise typical of their peers. This standard reflects the knowledge and abilities they claim to possess or what is deemed reasonable under the circumstances. To meet this requirement, the defendant must demonstrate the level of competence expected of someone in their position.
The Bolam Test: Establishing the Level of Care
The Bolam principle, established in the case of Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, is frequently cited in medical negligence cases in Malaysia. It provides that:
“A doctor is not negligent if they act in accordance with a practice accepted as proper by a responsible body of medical professionals skilled in that particular field.”
Key elements of the Bolam principle include:
The medical practitioner’s actions must align with "accepted medical practice."
The accepted practice must be endorsed as appropriate by "a responsible body of medical professionals" in that specific area of expertise.
Accepted Medical Practice and Staying Updated
To meet the required standard, a medical practitioner must adhere to current practices and remain informed about advancements in their field. In Roe v Minister of Health & Anor [1954] 2 QB 66, the necessity for continuous professional development was emphasized.
Responsible Body of Medical Professionals
In De Freitas v O’Brien and Connolly [1993] 4 Med LR 281, the court recognized that even a small group of tertiary specialists could represent a credible medical opinion. The case highlighted that the decision-making process does not rely solely on majority consensus but on the reasoned judgment of a responsible body of experts.
Pre-Treatment Advice and Duty of Disclosure
A medical professional’s duty extends to providing adequate pre-treatment advice. According to Foo Fio Na v Dr Soo Fook Mun, the Bolam test does not apply when assessing whether a doctor has adequately informed a patient about treatment risks. Instead, the focus is on the patient’s right to make an informed decision. Doctors must disclose all material risks unless there is a valid reason for withholding such information under the principle of therapeutic privilege.
Therapeutic Privilege
Therapeutic privilege allows medical practitioners to withhold information if disclosure is reasonably believed to be detrimental to the patient’s well-being. However, this must be justified, as failure to disclose relevant risks can result in a breach of duty.
Proving Causation in Medical Negligence Cases
Establishing causation is crucial in medical negligence claims. The plaintiff must demonstrate a direct link between the alleged breach of duty and the harm suffered. For undisclosed risks, causation hinges on whether the specific risk should have been disclosed and whether its occurrence caused the harm.
Diagnosis and Treatment: The Court’s Role
When evaluating whether a medical practitioner’s diagnosis or treatment was negligent, courts consider whether the actions align with those of a reasonable professional of similar training and status. In cases where expert opinions are presented, the court evaluates their logic and reasonableness rather than accepting them at face value. A notable standard is that treatment decisions must be based on a careful consideration of risks and benefits, as demonstrated in Chin Keow v Govt of Malaysia [1967].
Breach of Standard of Care: Case Studies
Chin Keow v Govt of Malaysia [1967]: Negligence was established when a medical practitioner failed to inquire about a patient’s medical history, including drug allergies, before administering treatment.
Chelliah Manickam v Govt of Malaysia [1997]: The misdiagnosis of pancreatitis as appendicitis led to a patient’s death. The court found negligence in failing to review X-rays promptly, not conducting necessary diagnostic tests, and ignoring pancreatitis as a potential diagnosis.
Seeking Legal Assistance
Victims of medical negligence are advised to consult a medical negligence lawyer in Malaysia. A skilled medical negligence lawyer can help evaluate the case, gather evidence, and navigate the complexities of medical malpractice law. For individuals in Kuala Lumpur or nearby areas, searching for “medical negligence lawyer near me” or “medical malpractice attorney Kuala Lumpur”, Messrs Lui & Bhullar are here to help.
Conclusion
Medical negligence cases demand a thorough understanding of legal principles and medical standards. By consulting with the best medical negligence lawyers or medical malpractice attorneys in Malaysia, victims can ensure their rights are protected. Law firms specializing in medical negligence cases provide invaluable support in seeking justice and fair compensation for affected individuals and families.
Contact us for a free consultation via WhatsApp (+60143000960) or E-mail (admin2@luibhullar.com) for any queries
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