MALPRACTICE SURGERY CLAIM IN MALAYSIA - DUTY OF CARE AND FOUR ELEMENTS OF NEGLIGENCEMARCH 6, 2019 @5.51 PM
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On April 21, 2017, the nation was taken by storm of news reports of 56-year-old Pertemahwadi, who filed a civil claim at the High Court registry against the government as well as a hospital for RM20mil in general and aggravated damages and RM223,487 in special damages for negligence which she claimed resulted in the loss of her breast.
In her claim, the housewife said she was advised to undergo a heart bypass surgery when she sought treatment at the hospital on January 22, 2016. Subsequently, the bypass surgery was performed the following month on February 16 by the hospital’s specialist. She was discharged nine days later, despite complaining to the specialist that the wound on her chest was beginning to open up. She also said that the specialist failed to advise her on the potential consequences of the bypass, especially in view of her diabetic condition and the weight of her breast. In her statement of claim, she said that she was not given antibiotics although she was prescribed medication in addition to being advised to seek post-operative treatment at a health clinic. On February 27, 2016, the attending doctor advised her to return to the hospital upon finding an open 5cm wound with infection on her left breast. Subsequently, she was admitted and had to undergo another surgery to remove the infected part of her left breast. This, however, was futile as the infection had spread to the entire breast which again had to be removed in a second surgical procedure. |
Although Pertemahwadi's case wasn't the first, there are no statistics to show the number of surgical error claims called “the never events” on a yearly basis in Malaysia. However, the statistics obtained from ‘What You Do & What You Don’t on Medical Negligence, Trends & Challenges to the Medical Profession,’ by Professor Dr Puteri Nemie Jahn Kassim, Ahmad Ibrahim Kulliyah of Laws, Civil Law Department, International Islamic University showed that the number of potential medico-legal cases and medical legal cases settled from 2005 to 2009 was in total 113 cases.
RM6, 664, 248 was paid in compensation upon court orders and ex gratia within that five year period. In ‘A Review of Medical Malpractice Issues in Malaysia under Tort Litigation System’ by Siti Naaishah Hambali & Solmaz Khodapanahandeh, Global Journal of Health Science; Vol. 6, No. 4; 2014, the average number of medical negligence cases from 2007-2011 has risen by 46.8%, comparing to 2002-2006 with average of 33.6 (Attorney General’s Chambers, Civil Division, Bi-Annual Report 2010 – 2011). The journal also revealed that the Medico Legal Section of Ministry of Health showed an increasing trend from year 2006, with 1394 complaints received in 2011 (MOH Annual Report, 2011). Standard operating procedures (SOP) in government and private hospitals Associate Professor Dr Nazirah Hasnan, Deputy Director (Clinical), University of Malaya Medical Centre explained that hospitals have clinical practice guidelines and also clinical pathways that need to be followed in addition to the SOP. “Basically, we practice guidelines, we either develop them by ourselves or we use clinical practice guidelines that are nationally or internationally developed. This clinical practice guidelines will help us make decisions. These guidelines are actually evident based on literature, published journals and books with experts’ guidelines," she said. “In addition to clinical practice guidelines, we also have SOP’s with a set of rules on what to do, when, how, who and where to do.” She further explained that an SOP outlines the management plan based on clinical practice guidelines that is being followed. “For example, when a patient arrives unconscious to the emergency department, a professional will be called in to access the patient. This is done as outlined in the SOP. This SOP is available in the hospital in both hard copies as well as online.” In the meantime, Dr M. Narayanan (pix), Medical Director, Pantai Hospital Kuala Lumpur emphasised that medicine is not an absolute science. “There are a lot of individual variations. Unlike arithmetic where 2 plus 2 is four, medicine is not like that. What works for you might not work for everyone." "We don't work in silos, either. Each case is discussed with a panel prior to surgery." "Today, there is clinical governance which explains how to run it successfully, how to prevent the corporation from risk and the practice of medicine. This clinical governance has been formulated over the years and has caused a shift in the practice of medicine. So, now we are open, accountable and responsible for safe delivery of health.” “It is now mandated in private hospitals, that you should have a certain level of clinical governance. So, there are rules and laws as to what you do. There are also accreditation bodies in healthcare like MSQH and Joint Commission International from The United States who come to survey whether we have all this controls in place,” he said. Defining surgical errors Surgical error is a preventable mistake occurring when an error or mistake on the part of health professionals results in additional harm to the patient. HazidinChan Advocates and Solicitors partner Masitah Alias pointed out that while the patient typically acknowledges the potential for mistake before surgery, surgical error cases address unexpected harms that go beyond known risks in surgery. Quoting Attorneys at Law Limited Liability Partnership (LLP) Lacy Katzen, she outlined surgical errors as a result of insufficient preoperative planning, poor communication between medical professionals, fatigue, incompetence or neglect. Duty of care and four elements of negligence A doctor owes a duty of care to his/her patient. Masitah Alias emphasised again that the duty of care is founded on a contractual relationship of doctor and patient. “The doctor is duty bound to diagnose, explain and advise his/her patient on the course of treatment to be undertaken and the risks involved before commencing treatment. It is settled law that the doctor-patient relationship makes it duty bound for the practitioner to inform his patient who is capable of understanding and appreciating such information of the risks involved in any proposed treatment so as to enable the patient to make an election whether or not to proceed with the proposed treatment with knowledge of the risks involved or decline to be subjected to such treatment.” “In the event of medical negligence, the patient may file summons in any competent court against the doctor for negligence in his/her duty of care and/or the hospital for vicarious liability for the negligence of the doctor," she said. In any case of medical negligence, the plaintiff (patient) is required to satisfy the court that the following four elements of negligence are present: 1. The 1st and 2nd defendants (the doctor and the hospital) owed the plaintiff a duty of care; 2. The 1st and 2nd defendants (the doctor and the hospital) have breached their duty of care to the plaintiff; 3. The 1st and 2nd defendants’ (the doctor and the hospital) breach had caused or materially contributed to the injury suffered by the plaintiff; and 4. The plaintiff had suffered damage. In order for the plaintiff to succeed in his/her claim against the defendants, even if the plaintiff succeeds in establishing that the defendants have breached their duty of care towards him/her, the plaintiff must first demonstrate a sufficiently strong factual link between the defendants’ breach of duty and the injuries suffered by him/her. “Only if the plaintiff is able to prove that the defendants’ negligent act or omission was in fact the cause of the injury, will the court then go further to consider the question of legal causation.” “However, even if the defendants’ was in breach of his/ her duty of care to inform the appellant of the risk of the medical procedure, the next issue for determination is whether the plaintiff injury was attributable to the defendants’ breach of duty of disclosure of the risk,” she added. |
"Medicine is not an absolute science. There are a lot of individual variations. Unlike arithmetic where 2 plus 2 is four, medicine is not like that. What works for you might not work for everyone." Dr M. Narayanan, Medical Director, Pantai Hospital Kuala Lumpur |
