Medical negligence, also known as medical malpractice, is a legal concept that arises when a healthcare professional or medical institution fails to provide a standard level of care, resulting in harm or injury to a patient. In this context, “standard level of care” refers to the degree of skill and care that a reasonably competent medical professional with a similar background and experience would provide in similar circumstances.

Medical negligence can encompass a wide range of situations, including misdiagnosis, surgical errors, medication errors, birth injuries, failure to obtain informed consent, improper treatment, and more. It’s important to note that not all medical errors automatically constitute medical negligence. Sometimes, even with the best care, medical treatments can lead to unfavourable outcomes, and not every negative outcome is a result of negligence.

Proving medical negligence in a legal context can be complex, often requiring expert testimony from medical professionals to establish the standard of care and demonstrate how it was breached. If successful, a medical negligence claim may result in compensation for the patient’s damages, including medical expenses, lost wages, pain and suffering, and other losses incurred due to the medical error.

Elements of medical negligence

For a medical negligence claim to be valid, certain elements must be established:

Duty of care: There must be a doctor-patient relationship, which means that the healthcare professional or institution had a duty to provide medical care to the patient.

Breach of duty: It must be proven that the medical professional or institution breached their duty of care by failing to adhere to the recognized standard of care. This could be an act of omission (failure to do something) or commission (doing something improperly).

Causation: The breach of duty must be shown to be the direct cause of the patient’s injuries or harm. In other words, negligence must be the reason for the adverse outcome.

Damages: The patient must have suffered actual harm, such as physical or emotional injuries, financial losses, or other damages, as a result of the negligence.

Acts related to Medical Negligence in Malaysia

In Malaysia, the practice of medicine and healthcare is governed by various laws and regulations to ensure the safety and well-being of patients. Some key acts related to medical and healthcare in Malaysia include:

Medical Act 1971: This act regulates the registration and practice of medical practitioners in Malaysia. It sets out the qualifications and requirements for medical practitioners, establishes the Malaysian Medical Council, and outlines the code of professional conduct and ethics for doctors.

Private Healthcare Facilities and Services Act 1998: This act governs private healthcare facilities and services in Malaysia. It provides guidelines for the establishment, licensing, and operation of private hospitals, clinics, and other healthcare facilities. It also outlines the standards of care and patient rights in private healthcare settings.

Poisons Act 1952: This act regulates the import, sale, and possession of poisons in Malaysia. It sets out the rules for the safe handling and dispensing of drugs and controlled substances.

Sale of Drugs Act 1952: This act regulates the sale, import, and distribution of drugs and medicinal products in Malaysia. It ensures that only registered and approved drugs are available in the market.

Medicines (Advertisement and Sale) Act 1956: This act regulates the advertising and promotion of medicines and medical devices in Malaysia. It aims to prevent false or misleading advertising of medical products.

Question: time-limit for medical negligence cases

In Malaysia, the time limit for filing a medical negligence case, or any other civil claim, is governed by the Limitation Act 1953. The Limitation Act sets out the time periods within which legal actions must be initiated, and it varies depending on the nature of the claim.

For medical negligence cases, the general time limit is as follows:

Tort of Negligence: The time limit for filing a medical negligence claim under the tort of negligence is six years from the date the negligence occurred or from the date the patient became aware of the negligence, whichever is later. This is provided under Section 6(1)(a) of the Limitation Act.

Contract: If the claim is based on a breach of contract (for example, a claim against a private healthcare provider based on a contractual relationship), the time limit is six years from the date the breach of contract occurred, as specified in Section 6(1)(b) of the Limitation Act.

Case: Y.N. binti Z. v The Government of Malaysia & 9 Ors [2021] 1 LNS 320

This case involves Yasmin Nabila, a Plaintiff who was born on 17 April 2008 at Sg Buluh Hospital. At the age of 4 months, the mother found out that Yasmin had cerebral palsy, and since then she received treatment at Sg Buluh Hospital and other hospitals. He is definite with quadriplegic spastic delay and GMFCS level V.

However, the Court stated why this legal action was filed relatively late, on March 19, 2019, when Yasmin had reached 11 years old. Evidence shows that at this stage, Yasmin’s GMFCS level will not reach 4 or better even with intensive treatment.

The 1st Defendant admitted liability on 20 January 2020, and the claim against the 2nd to 10th Defendants was withdrawn with no order as to costs. Today’s decision focuses on assessed damages and costs, and the parties have recorded a Consent Judgment on January 20, 2020, in which the Defendant acknowledges liability and damages will be assessed by the Court.

The Government acknowledged responsibility, and the High Court granted compensation of around RM1.4 million in the case of Yasmin Nabilah binti Zulhilmi v The Government of Malaysia & 9 Ors [2021] 1 LNS 320. Subsequently, the Court of Appeal raised the award to about RM2.9 million in 2022.

Situations where Medical Negligence is difficult to prove

Proving medical negligence can be challenging in certain situations, and several factors can contribute to the difficulty of establishing a strong case. Some situations where medical negligence may be hard to prove include:

Lack of Clear Evidence: Medical negligence cases often rely on complex medical evidence, expert opinions, and documentation. If there is a lack of clear evidence, such as medical records, diagnostic tests, or witness accounts, it can be challenging to substantiate the claim.

Inherent Risks of Treatment: Some medical procedures or treatments carry inherent risks, and not every unfavourable outcome is a result of negligence. Differentiating between an expected complication and negligence can be challenging, especially if the patient was made aware of the risks before undergoing the procedure.

Lack of Expert Witnesses: Medical negligence cases often require expert witnesses, typically other medical professionals, to provide opinions on the standard of care and whether it was breached. If obtaining an expert witness is difficult or the witness is not willing to testify, it can weaken the case.

Long Time Gap: If there is a significant time gap between the alleged negligence and the patient realising harm, gathering evidence and establishing a causal link can become more difficult.

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