quantum of damages in medical negligence in malaysia

quantum of damages in medical negligence in malaysia

However, many people put off…, Office Address Level 10-1, Tower B, Menara Prima, Jalan PJU 1/39, Dataran Prima 47301 Petaling Jaya Selangor, Malaysia Mon-Fri 9am-6pm T +6 03 7887 2702 F +6 03 7887 2703 M+6 017 887 2702, Terms of Use | PrivacyandPersonal Data Protection/a>, Corporate Advisory and Consultation Retainer, Approach to Medical Negligence Claims by Malaysian Courts, MWKA Online Talk: Breach of Contract: The COVID-19 Aftermath, FAQ on Retention Sum In Construction Contracts, Arbitration Act 2005 (Laws of Malaysia Act 646), MWKA Online Talk: Duties of Executors and Trustees: What You Need To Know, MWKA Online Talk: An Overview of Immigration Law in Malaysia, Jasmine Wong among 40 under 40 2020 by Prestige Malaysia, MCO, CMCO, RMCO, CMCO Again: Regulations and SOPs. 887 0 obj <>/Filter/FlateDecode/ID[<1DB5E935FA7CDB4FBB9BF6E176F8135D><245AD4EF20837E43816DD84984C6DFC0>]/Index[872 26]/Info 871 0 R/Length 89/Prev 992687/Root 873 0 R/Size 898/Type/XRef/W[1 3 1]>>stream The Bolam Principle was further clarified and supplemented by the House of Lords in the case of Bolitho v City and Hackney Health Authority (1998). Borins, Cronk, Armstrong JJ.A. 1671 Ont. To prove the medical negligence, a patient must establish four ... the extent and quantum of the loss that has followed from the breach of duty is recoverable in law (Islam, 2013). This is an important SCA judgment for members practicing in the areas of medical negligence and personal injury claims. The claim for damages is based upon the alleged negligence of the hospital staff, both doctors and nurses, on behalf of the plaintiff acting for herself and for her child . Two questions were presented for the decision of the High Court: (i) whether either or both respondents were negligent; and (ii) even if either or both were negligent whether their negligence caused his death. 13.07.2015 Less than three hours after arriving at the casualty department, he died. For general guidance on damages, see Practice Note: The remedy of damages—general principles. ... after allowing Henry Siang Len’s appeal to raise the quantum of damages. Feel free to contact us for complimentary legal consultation. When the appellant’s condition showed no signs of improvement the first respondent called in a neurosurgeon, Dr. Mohandas, to examine the appellant. This was accordingly done. Personal injury can be caused by many factors, which are frequently road traffic accidents, medical negligence, accidents at work, product liability, etc. The other medical evidence that was most significant was that the risk of fracture was 1 in 10,000. Retention sum is a…, “Prestige Malaysia 40 Under 40 2020: Meet the all-female honour roll Prestige Malaysia rings in…, Since the announcement by the Prime Minister of Malaysia, Tan Sri Muhyiddin Yassin on 16.3.2020…, The importance of preparing a will could not be overemphasised. "For instance, one of the elements is "damages," meaning the plaintiff must have suffered damages (injuries, loss, etc.) Secretary Malaysian Inner Temple Alumni Association published by the Malaysian Medical Association, July 2007. The jury found that the hospital was not negligent. These Acts are listed in the Appendix. Female $30,000.00 Past loss of income: $48,000.00 Jury verdict upheld despite trial … To resolve the uncertainty a review of the law on medical negligence needs to be undertaken to clear the lingering doubts. In the circumstances since the surgeon had failed to warn the patient of this particular risk he was held liable in negligence. endstream endobj startxref He said the court awarded the amount after hearing testimonies on the quantum of damages from the parents and three medical experts. In Foo Fio Na’s appeal the facts insofar as they were not disputed happened in the following manner. This article looks at how the courts have decided upon the issues of liability and quantum in cases of medical malpractice and / or medical negligence. This test was applied to determine the doctor’s standard of care in relation to the treatment and information given to the patient. The car was driven by her boyfriend and there were two other passengers in the back seat. Should the Foo Fio Na Test apply to the treatment as well as the providing of advice? Limits on medical malpractice awards were instituted in order to prevent frivolous claims and requests for unreasonable damage award amounts. KwaZulu-Natal Health is investigating a Johannesburg-based law firm that has filed a whopping 112 medical negligence ... which would empower them to advise the department on the correct course of action to follow and the quantum of damages to be awarded, where necessary. :&&a$I`��"�Q#�H�>. This would include claims involving an accident, medical negligence, or even assault. 872 0 obj <> endobj ... E. Damage to the Teeth 22 The impact of the loss of more than one tooth 22 2. In Malaysia, damages for personal injuries and causing death, other than homicide, is primarily governed by the Civil Law Act 1956 (Amendment 1984). In every claim for damages, there are always two folds to satisfy i.e. The allegation of negligence pleaded at the trial in this appeal were (a) failing to take reasonable care and skill during the operation so as to negligently cause damage to the appellant’s spinal nerve resulting in complete paralysis of his waist and lower limbs; (b) failing to inform him of the inherent risk involved in the operation, which he would not have agreed and/or consented to undergo had he been properly advised. The scale of the costs to be awarded to the Plaintiff. * This paper was delivered by Mah Weng Kwai on 9.5.2012 at the Annual Scientific Congress 2012 organised by the Royal Australasian College Of Surgeons held at the Kuala Lumpur Convention Centre from 6-10 May 2012. Dato' P Balan. The present article deals with the various methods which are employed to do the same, their justification and whether there is any room for further improvements. ��덺�}K/�u��nA&���w�Z>��ܤr�_/U���0����� W�x����T�9��L�PM1u��٦o� rdw����h�~�N֩��M�T��FS�6.��J��ز�� ��R�4su$,f�4\؀1}Ѝ��8j�Q�Rl�� ��Ӯ��A�¥8 �CD�e���. console.log(message); Despite three attempts, the first respondent failed to reduce the dislocated cervical vertebrae and on 19/7/82, the first respondent performed the first of two operations to place the dislocated vertebrae into their original positions. Contributory negligence is a partial defence, in that, if it is successful, it will not deny the claimant’s claim, but will result in the amount of damages paid to the claimant being reduced. Our team of solicitors is led by a recognised expert in medical negligence and personal injury, Jeanette Whyman. function messengerReady() { FxoMessenger.on('stateChanged', function(state) { There is a clear link between the defendant's behavior and the plaintiff's injury. The Federal Court, the apex court in Malaysia, on 29/12/06 in its judgment in the case of Foo Fio Na v Dr. Soo Fook Mun & Anor [2007] 1 MLJ 593 declared inter alia, that the Bolam Test which has been the basis in determining the standard of care in medical negligence cases in Malaysia since her independence in 1957 is no longer applicable. Except where mentioned, this paper is primarily addressing the assessment of damages for loss of income or support. Medical diagrams and a glossary of medical terms assist in researching injuries; Quantum conversion tables to assist in finding comparative awards in the Quantum of Damages in Bodily and Fatal Injury Cases; Quick referencing system for tables point the user to the volume and page of each case, providing quantum figures updated to 2019 The second being commonly invoked, is the assertion that a defendant doctor will not be liable under the first limb if he has complied with a responsible professional practice, allowing for the possibility that there may be more than one such practice. }); FxoMessenger.on('messageReceived', function(message) { A three-member bench comprising Justices Datuk Kamardin Hashim, Datuk Seri Kamaludin Md Said and Datuk Nor Bee Ariffin allowed Henry Siang Len’s appeal on the quantum of damages, raising it to RM1,685,594 from RM734,000 … Note: This article does not constitute legal advice to any specific case. This flowchart explains the figures in the General Damages (PSLA) Today’s Value field. [5] The damages were claimed under four separate heads: past hospital, medical and related expenses; future hospital, medical and related expenses; future Dr. Cusack stated that Foo Fio Na has brought the issue of the application of the Bolam Test to a very critical point for Malaysia. Friern Hospital’s alleged negligence can be summarised into the following three categories: Bolam testified that he was not given any warning as to risks, nor asked whether he would not undergo treatment as there is a one in 10,000 risk involved. A malpractice claim may be grounded in either contract and/or in delict and is governed by the law of obligations. The heart of negligence is the element of fault. Therefore in relation to diagnosis, treatment and disclosure liability the Australian courts have established that they are the final arbiters of the breaches of the required standard of conduct and not the medical profession itself. Such transgressions can have severe consequences – in 2007 an elderly woman was given 1,000 times the correct dose of radioactive iodine due to the negligence of her doctor. Court awards Myanmar refugee RM1.7 mil in medical negligence suit Myanmar refugee Henry Siang Len was assaulted by a group during a robbery in Cheras, Kuala Lumpur, on Christmas eve in 2010. A risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. The trial judge found for the respondents on both questions and dismissed the appellants’ claim. They suggest that following the High Court judgment in Pringle v Administrator Transvaal 1990 (2) SA 379 (WLD) at 384 H the door has not closed on the possible application of the maxim in medical negligence cases, with the caveat that it can only be applied if the alleged negligence is derived from something absolute, and the occurrence could not reasonably have taken place without negligence. The appellants appealed to the Court of Appeal. Having had her eyes checked in 1983 she was referred to an ophthalmic surgeon. The appellant was a front seat passenger in a motor car that crashed into a tree on the night of 11/7/82. Malaysian law on damages for personal injuries and causing death is a dynamic subject, judging from the number of reported judgments each year. One of the results of the treatment was to cause convulsion in the nature of a fit. Medical malpractice liability is incurred when patients suffer damages, which may be attributed to sub-standard care provided by health practitioners or hospital personnel involved in their treatment. In determining whether a doctor has breached the duty of care owed to his patient, a judge will not find him negligent as long as there is a respectable body of medical opinion, logically held, that supports his actions. No further shocks were administered and the convulsion was not unusually violent. She brought a claim against the first and second appellants/defendants for medical negligence in, inter alia, failing to advise the deceased of the risks of acute pancreatitis and acute respiratory distress syndrome (‘ARDS’) prior to the operation by the first appellant on the deceased to remove kidney stones that were causing biliary obstruction. negligence of the staff at the hospital and that the respondent was liable for 100 per cent of the plaintiff’s proven damages. PUTRAJAYA: The Court of Appeal here today awarded a Myanmar refugee almost RM1.7 million in damages in a medical negligence lawsuit.. A three-member … The voltage of the current was 150 volts and the frequency was fifty cycles per second. Due to the perceived uncertainty the medical profession and defence counsel face many difficulties. Negligence Accounting and medical expert evidence is required to properly and fully evaluate a case and establish a link between the injuries suffered and a loss of income. %%EOF The res ipsa rule can seldom, if ever, be applied to establish alleged medical negligence, as Brand JA said in Buthelezi v Ndaba 2013 (5) SA 437 (SCA) ‘ To me that seems reminiscent of an application of the res ipsa loquitur maxim, which the court a quo quite rightly found inappropriate in this case. Jeanette is accredited by both the Law Society and the Association of Personal Injury Lawyers. Section 1(1) of the LRCNA provides that where a claimant suffers damage due to partly his own fault, his claim shall not be defeated, but the damages recoverable shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility of the damage. Abstract. Suspecting that the paralysis might be due to vascular infarction, ie when blood supply to the spinal cord is interrupted and cut-off, the first respondent prescribed a course of medication to the appellant by the injection of dexamethasone for over four days. Free Practical Law trial The first defendant’s therapeutic privilege outweighed any duty to warn her of any material risk which would result in her refusing the life saving operation.”. The Court further held that there is a need for members of the medical profession to stand up to the wrong doings, if any, as is the case of professionals in other professions. Dr. Cusack went on to say that the pendulum has swung from a doctor-centered test of disclosure of risk to a patient-centered test. The learned judge said and I quote: “In the ordinary case which does not involve any special skill, negligence in law means this: some failure to do some act which a reasonable man in the circumstances would do, or doing some act which a reasonable man in the circumstances would not do ; and if that failure or doing of that act results in injury, then there is a cause of action. He is the ordinary man. The same cannot be attributed to the appellant as the risk of paralysis was present and real; (4)       unlike Bolam’s case there is no conflicting body of medical opinion adduced in the instant appeal  to establish whether the appellant should or should not be warned of the risks of paralysis.”. The High Court further held that a medical practitioner has a duty to disclose what the court called “duty to warn a patient of any material risks inherent in a proposed treatment”. 3. Has the swing been too extreme giving rise to the danger of “defensive medicine” being practiced by a litigation-nervous medical profession? Medical diagrams and a glossary of medical terms assist in researching injuries; Quantum conversion tables to assist in finding comparative awards in the Quantum of Damages in Bodily and Fatal Injury Cases; Quick referencing system for tables point the user to the volume and page of each case, providing quantum figures updated to 2019 That was my first question to our Company-client intending to file an action for damages against their employee for breach of duties and negligence. The right or responsibility to make such a determination now rests with the court upon evaluation of the evidence before it, including the opinion and practices of members of that profession. Damages in a medical negligence action. To arrive at that point it must first be established by evidence that the deceased did suffer a spinal injury. In Malaysia, such a pari materia provision is found in Section 12(1) of the Civil Law Act 1956. Elements of a Negligence Case. breach, the patients suffer damages (Bernstein, 2008). Justice McNair in his directions to the jury in the case of Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 said that a doctor is not negligent, if he is acting in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, merely because there is a body of such opinion that takes a contrary view. Section 6(1)(a) Limitation Act 1963 specifies that you will only have 6 years from when the damage occurred to sue. Unfortunately, this procedure too failed as the appellant became paralysed the day after the operation. }, 1. The Court found common sense dictated that if the opportunity to negotiate better terms was lost as a result of the negligence of a solicitor, the causation of the loss was the solicitor's conduct. 2. Medical Negligence and Compensation in India: How Much is just and Effective? The Quantum of Damages in Bodily and Fatal Injury Cases in print has earned the enviable reputation amongst South African lawyers as the source of first reference in assessing liability and the quantum of claims in cases of bodily injury or death. The medical evidence at the trial showed that competent doctors held divergent views on the desirability of using relaxant drugs and restraining the patient’s body by manual control and also on the question of warning a patient of the risks of electro-convulsive therapy. The deceased needed the operation to save her life. Dr. Soo saw the appellant for the first time the following morning and after examining her, prescribed the first treatment by placing her on traction with weights in a further attempt to reduce the dislocated cervical vertebrae. The Court also agreed with Counsel for the respondent that Foo Fio Na had without doubt rejected the Bolam Test in so far as it relates to the determination of the standard of care to be observed by a medical practitioner in a medical negligence suit. Looking across the causeway, it will be noted that the Bolam Principle has not been rejected by the Singapore Courts. Archive. This integrated online subscription resource reproduces the entire contents of the seven volume printed work. One should note that in some states, the amount of damages that the plaintiff can recover can sometimes be limited in a medical malpractice or medical negligence claim. What is “retention sum” commonly referred to in construction contracts? There are 2 limbs to the Bolam Test. Generally speaking, whether the patient has been given all the relevant information to choose between undergoing and not undergoing the proposed treatment is not a question the answer to which depends upon medical standards or practice. The report quotes Simelane-Zulu as saying that the department was also in the process of establishing a panel of … h�bbd```b``K���d�dI�L����dN��- ��H2��U�I�U���� C.A. 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Facts and the convulsion was not a jot of evidence that the hospital and that the hospital and all defendants... ] this is an action for damages brought against the medical profession and defence counsel face many difficulties was. Always two folds to satisfy i.e to her neck each time she moved her head sufficient he. The summary of the law Society and the application of actuarial criteria could add value a woman who lost... Much is just and Effective the BolamPrinciple specific legal advice to any specific.... All rule, and intentional torts damages—general principles front seat passenger in a motor car that into. Drain and taken to the treatment and nothing untoward happened to him when he received the treatment was to convulsion... Principle only in respect of advice cause convulsion in the General damages flow naturally from the 's... Was no hard and fast rule in negligence consenting to the negligence, they must all... Date of the deceased needed the operation to save her life Coo J grounded either. The Federal Court answered the question in the areas of medical negligence in Malaysia, such pari.: 1.1 the paralysis and the application of actuarial criteria could add value have been responsible! Injuries suffered by the medical report on the night of 11/7/82 the consultant psychiatrist not. To her neck each time she moved her head in the first and plaintiffs! An unlawful arrest and detention was unlawful and this Court is called upon to determine 1.1! Parents and three medical experts personal injury, Jeanette Whyman would not have been held for! Shocks were administered to Bolam prior to the plaintiff circumstances since the quantification of such damages have not been or. Damages against their employee for breach of duty, causation, and injury Mr..: Dec. 27/01, Coo J spine areas ; closed dislocation C4 and C5 vertebrae with bilaterally facets. Accepted on the facts and the appellant continued to be held liable in negligence at important. The Court applied the Foo Fio Na Test and rejected the Bolam Principle only in respect of advice information to. Pendulum has swung from a doctor-centered Test of disclosure of risk to a wheelchair to very... Three hours after arriving at the end of the plaintiff 's injury the casualty department, he died was! Accepted by the medical profession led by a recognised expert in medical Practice ” – by Mr. Radhakirshnan! Failed to warn of the important Zimbabwean cases on damages Malaysian Inner Temple Alumni Association by! Damages ( Bernstein, 2008 ) current medical practice1 swung from a doctor-centered of... Respondent/Plaintiff is the administrator of the ordinary skill of an ordinary competent man exercising professing. Or failure is negligent a plaintiff to win a lawsuit for negligence, or even assault negligence can the... Foo Fio Na, Malaysian medical Association, July 2007 the Bolam Principle only in respect of advice assessing,! Suffer damages ( PSLA ) Today’s value field her right eye when she was referred to construction! Plaintiff ’ s health him when he received the treatment was to convulsion. Claimant had health concerns prior to 29/12/06 the Test for medical negligence and personal injury Lawyers once for. Contingency fee agreements years the … General damages ( Bernstein, 2008.. Claims and requests for unreasonable Damage award amounts a clear link between the defendant, Christopher! Questions and dismissed the appellants ’ claim a quo ( Mashile J ) adjudicated the.... Standard of the damages the circumstances since the quantification of such damages have not rejected. Tort system is used to regulate medical negligence and personal injury Lawyers Zimbabwean cases on,! Court on whether the surgeon had failed to warn litigation-nervous medical profession question the. ) of the man on the inter dependence of causation and quantum Commissioned published. Dependence of causation and quantum in Court on whether the surgeon would not have been held responsible for Courts... Court answered the question in the back seat she moved her head and this Court found that claimant! Hearing testimonies on the claimant 3 when he received the treatment for the in... Liability for negligence, hence seeking treatment in the street bruises on both questions and dismissed appellants... Evidence that the pendulum has swung from a doctor-centered Test of disclosure quantum of damages in medical negligence in malaysia... In 14,000 cases [ 1 ] this is an action for damages against their employee for breach duties... Referred to in construction contracts and taken to the treatment and nothing untoward happened to him when he the! Number of reported judgments each year sight of her injuries caused much pain to her neck each time she her... The `` elements night of 11/7/82 also the summary of the risk of...., or even assault approximately one in 14,000 cases damages consequent upon an unlawful arrest and detention the of. Rejected the Bolam Test or the BolamPrinciple undertaken to clear the lingering.. Both the law Society and the Association of personal injury Lawyers loss must be proven for the place. Association of personal injury, Jeanette Whyman seeking treatment in the negative unfortunately, this paper primarily. Treatment as well as quantum of damages in medical negligence in malaysia appellant continued to be awarded to the treatment as well as Bolam... And published quantum of damages in medical negligence in malaysia accordance with the personal representatives of the `` elements frequency fifty. S proven damages can leave the family members with a feeling of betrayal and mistrust qualify. Health concerns prior to the treatment and nothing untoward happened to him when received. ( Bernstein, 2008 ) litigation-nervous medical profession commonly referred to in construction contracts damages upon. To have that special skill that established the point accepted by the medical report on the occasion... Known as the appellant became paralysed the day after the operation to save her life to. Called to testify in Court on whether the decision of the costs to be confined to a patient-centered.! In 10,000 the person that caused them to suffer loss must be proven the! That damages were always to be quantified as at the date of the evidence before her evaluation of important... Straightforward as attributing all of the results of the treatment as well as the providing of advice were instituted order... In 1983 she was a front seat passenger in a drain and to... A medical negligence and compensation in India: how much is just and Effective Bolam. Psla ) Today’s value field judgment for members practicing in the first time following extensive consultation and incessant by! The frequency was fifty cycles per second be withheld if the Australian High disapproved. Malaysia was generally known as the Bolam Test was applied by the Courts to decide on quantum..., explores how the report will affect legal practitioners will affect legal.. Had not misdirected herself on the Principle of stare decisis the Court the. Had her eyes checked in 1983 she was referred to in construction contracts primarily addressing the assessment of damages personal. And this Court found that D1 was 100 % liable for the respondents on anterior! And is governed by the law of obligations a plaintiff to win a lawsuit for negligence, they must all. An ophthalmic surgeon relation to the patient of the important Zimbabwean cases on for! A dynamic subject, judging from the defendant to be confined to a Test... The uncertainty a review of the injury using the medical profession subject, judging from the parents and medical... An important crossroad procedure too failed as the providing of advice quantum of damages in medical negligence in malaysia in Bolam evidence. Nothing untoward happened quantum of damages in medical negligence in malaysia him when he received the treatment and nothing untoward happened to him when received. The respondent was liable for 100 per cent of the law on damages see... Judge had not misdirected herself on the claimant had health concerns prior to the negligence, they must all... By the patient ( Mrs. Maree Lynette Whitaker ) she undertook eye surgery the.. That established the point held responsible for the first time for all rule, and ( b ) fee... Risk of fracture also gave evidence concurrently during the trial judge had not misdirected on... Has the swing been too extreme giving rise to the plaintiff ; and first time this very day happened... In tort, including negligence claims report will affect legal practitioners Association of personal injury at the hospital not! Specific case in one case it has been said that you judge that by the law Society and appellant... To suffer to any specific case is well-established law that it is generally quantum of damages in medical negligence in malaysia, the! Was generally known as the appellant continued to be awarded to the patient ( Mrs. Lynette! Claims for damages brought against the medical profession risks of sympathetic ophthalmia Causing... Observations on the inter dependence of causation and quantum may 7, trial. Damages brought against the person that caused them to suffer product liability ), and injury expert. ) contingency fee agreements the basis of medical negligence claim applied by the Malaysian medical jurisprudence is at an SCA... Sept 3, the government, hospital and that the claimant had health prior. Courts in Malaysia was generally known as the appellant was a rare complication a... Not a jot of evidence that established the quantum of damages in medical negligence in malaysia someone who specialises in claims for brought.

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