Wai Hong and Brenda explain a significant decision on medical negligence by the Federal Court.
This article was first published in Issue 2/2018 of Legal Insights, a Skrine Newsletter. Reproduced with permission of Skrine.
The recent decision of the Federal Court in Dr Hari Krishnan & Anor v Megat Noor Ishak bin Megat Ibrahim & Anor and another appeal  3 CLJ 427 arose from a medical negligence claim. The patient underwent an eye operation for retinal detachment and bucked on the operating table leading to blindness in one eye.
After a full trial, the High Court held that the surgeon and the anaesthetist (collectively “doctors”) involved in the procedure were negligent in the diagnosis and treatment of the patient and in failing to warn the patient of the risks in the operation. The High Court also found the private hospital where the operation was carried out, vicariously liable for the negligence of the doctors. The patient was awarded RM200,000 as general damages and an unprecedented sum of RM1,000,000 as aggravated damages.
The Court of Appeal dismissed the appeals by the doctors and the hospital and affirmed the decision and the award of the High Court. Still dissatisfied with the Court of Appeal’s decision, the doctors and the hospital obtained leave to appeal to the Federal Court on various questions of law.
The Federal Court unanimously dismissed the doctors’ and the hospital’s appeals (collectively “Eye Appeal”) and affirmed the High Court’s award of damages to the patient. We will now examine the Federal Court’s grounds of judgment.
NON-SPEAKING JUDGMENTS AND WHEN TO ORDER A RETRIAL
The doctors raised preliminary objections before the Federal Court in their submissions. They sought an order for a retrial on the ground, amongst others, that the trial judge had given a non-speaking judgment. A non-speaking judgment is when a judge fails to give a reasoned judgment for his conclusions, and merely makes a finding without explaining why he was persuaded to that end.
In its judgment, the Federal Court gave its views as future guidance for the courts below when faced with the same issue.
The Federal Court agreed that the trial judge in the Eye Appeal had indeed given a non-speaking judgment and disapproved of such judgment. However, it went on to say that it does not necessarily follow that the court should always order a retrial. This is because the party seeking the retrial has the burden of proving that there was some substantial wrong or miscarriage of justice by the trial court before such relief can be granted.
The Federal Court cautioned that a retrial should not be easily ordered, and advised the appellate courts to avoid ordering a retrial merely because there was a non-speaking judgment. In such a scenario, the appellate courts have a duty to make their own findings of fact based on the evidence available in the records of appeal.
The Federal Court noted that in the case of the Eye Appeal, the alleged negligence happened in 1999, the trial commenced in 2007 and concluded in 2010, after 23 days of trial and involving 10 witnesses. Accordingly, the Federal Court held that a retrial would unduly prejudice all parties and was contrary to the best interests of justice.
JUDGING THE DOCTORS – WHO DECIDES?
In cases of medical negligence where the evidence involved is often highly technical and complicated, the courts require the assistance of expert witnesses to help them understand the material facts. Where parties in a medical negligence suit produce expert witnesses who are of opposing views as to whether the medical professional in question had performed below a reasonable standard of care, the question as to how this is to be resolved has been long debated in many Commonwealth jurisdictions.
The first question before the Federal Court was this:
“Whether it is the Bolam test or the test in the Australian case of Rogers v Whittaker  4 Med LR 79 which should be applied to the standard of care in medical negligence, following, after decision of Federal Court in Foo Fio Na v Dr Soo Fook Mun & Anor  1 MLJ 593, conflicting decisions of the Court of Appeal of Malaysia, conflicting decisions of the High Court in Malaysia, and the legislative changes in Australia, including the re-introduction there of a modified Bolam test.”
The Bolam test is essentially a “doctors know best” test. The courts must accept the views of a responsible body of men skilled in the particular discipline, even if there exists another responsible body of men with a different view. The rationale behind such a test is that judges, not being medically trained, are not equipped to resolve genuine differences of opinion on matters that are beyond their expertise. The Bolam test which originated from the English courts, had subsequently been qualified by the English House of Lords in Bolitho v City & Hackney Health Authority  4 All ER 771 which in effect retained the Bolam test but subjected it to the condition that the expert opinion must be capable of withstanding logical analysis.
Meanwhile, the Rogers test expounded by the High Court of Australia in Rogers v Whittaker positions the court as the final arbiter on the question of whether the standard of care has been breached. Under such a test, the court is not to delegate its judicial function to the medical profession. The Rogers test was applied by the Federal Court in Foo Fio Na. This led to some uncertainty as to the correct legal test to be applied in Malaysia.
In Zulhasnimar Hasan Basri & Anor v Dr Kuppu Velumani P & Ors  8 CLJ 605 (which was heard together with the Eye Appeal), the Federal Court clarified the position in Malaysian law. The Federal Court in the Eye Appeal reiterated its grounds of judgment in Zulhasnimar – that a distinction is to be made between diagnosis and treatment in medicine, and the duty to advise the patient of risks. The former is not within the expertise of the courts and thus cannot be resolved by the courts, whereas the latter is an issue of fact that the courts are able to determine.
As such, the Bolam test as qualified in Bolitho continues to apply to the question of the standard of care in medical diagnosis and treatment, while the Rogers test as propounded in Foo Fio Na applies to the duty to advise of risks associated with a procedure.
However, it is pertinent to note the Bolitho qualification attached to the Bolam test. While doctors may know best, the expert opinion before the court must be capable of withstanding logical analysis. If the court finds that it fails to satisfy this criterion, it may hold that such expert opinion is not reasonable or responsible and depart from it.
Indeed, that was what the Federal Court did in the Eye Appeal. During the trial, the patient had produced an expert witness to testify that the doctors had breached the reasonable standard of care. The doctors too produced their own expert witness to testify that they did not breach that standard. The Federal Court analysed the opposing expert evidence and ultimately held that the doctors were negligent in diagnosis and treatment, in addition to failing to warn the patient of risks. This was partly due to inconsistencies in the evidence given by the doctors’ expert witness.
In that sense, it can be said that courts have not completely delegated their judicial function in cases of medical negligence. They must still judge the expert evidence on its logical merits, as demonstrated by the Federal Court in the Eye Appeal.
AGGRAVATED DAMAGES IN MEDICAL NEGLIGENCE
The second question of law posed by the doctors to the Federal Court was:
“Whether aggravating factors should be compensated for as general damages, therefore rendering a separate award of aggravated damages unnecessary, as decided by the English Court of Appeal in Richardson v Howie  EWCA Civ 1127 and explained in Michael Jones’ Medical Negligence, 4th Edn. 2008, para 12-011”.
On this issue, the Federal Court noted that aggravated damages have previously been awarded as a separate head of damage in its earlier decision in Mohd Ridzwan bin Abdul Razak v Asmah bt Hj Mohd Nor  4 MLJ 282, although this was not a medical negligence case but concerned the tort of sexual harassment.
The Federal Court went on to hold that there was no reason to exclude this kind of damages from being awarded in medical negligence cases which involve real injury to a person’s body.
CAN A HOSPITAL DELEGATE ITS DUTY OF CARE?
The hospital put the following question of law to the Federal Court:
“Where the doctors are qualified professionals in a private hospital and working as independent contractors by virtue of a contract between the private hospital and the doctors, can the private hospital be held vicariously liable for the sole negligence of the doctors?”
At the outset, the Federal Court held that the doctors were independent contractors and not agents, servants or employees of the private hospital. As such, the hospital could not be vicariously liable for the doctors’ negligence.
Nevertheless, the Federal Court found that the hospital was liable for breach of its non-delegable duty in respect of the anaesthetic services provided to the patient.
In the recent case of Dr Kok Choong Seng & Anor v Soo Cheng Lin  10 CLJ 529, the Federal Court held that the doctrine of non-delegable duty of care as expounded by the English Supreme Court in Woodland v Swimming Teachers Association and others  AC 537 could apply to private healthcare institutions. However, the court in Dr Kok Choong Seng found that the doctrine did not apply to the facts of that case and the private hospital therein was not liable for the doctor’s negligence.
Unlike in Dr Kok Choong Seng, the Federal Court in the Eye Appeal held that the Woodland test was satisfied in respect of the anaesthetist’s negligence, although not the surgeon’s. Insofar as the surgeon’s negligence was concerned, the Federal Court found that the facts were similar to those of Dr Kok Choong Seng, in that the diagnosis and treatment of the patient’s eye, including the operation, was arranged between the patient and the surgeon and the hospital had merely provided the facilities and services for the operation. Accordingly, the Federal Court held there was no non-delegable duty of care by the hospital in that respect.
The facts in the Eye Appeal diverged from Dr Kok Choong Seng when it came to the anaesthetist’s negligence. The Federal Court found the hospital liable for breach of its non-delegable duty to ensure reasonable care in the anaesthetic services provided. The salient facts in the Eye Appeal which led the Federal Court to this conclusion are summarised as follows:
(a) The anaesthetist was the only anaesthetist on duty at the hospital on the day of the operation and was involved in all operations at the hospital requiring general anaesthesia on that day;
(b) The patient was left with no choice of anaesthetist for his operation;
(c) The patient had initially requested for another anaesthetist but was informed that the latter was unavailable;
(d) The patient had no control over how the hospital chose to provide anaesthetic services, whether by delegation to employees or otherwise;
(e) The hospital had delegated to the anaesthetist the responsibility to administer doses to the patient properly; and
(f) The anaesthetist was negligent in the performance of the duty delegated to him by the hospital.
The decision in the Eye Appeal is the first positive finding in Malaysia of a non-delegable duty of care by a private hospital for the medical negligence of independent contractors.
In arriving at this decision, the Federal Court was mindful of the proviso in Woodland to impose liability only to the extent where it is fair, just and reasonable, and stated that it would not make broad findings of liability by all private hospitals on the basis of policy alone.
It appears that the question as to whether a private hospital will be found to owe a non-delegable duty of care to its patients will continue to be answered on a case-by-case basis, and could turn on nuanced differences in the facts of the case as shown by the findings in the Eye Appeal and in Dr Kok Choong Seng. The Federal Court’s judgment in the Eye Appeal will be useful guidance on this issue.
The Federal Court’s judgment in the Eye Appeal is significant in several respects.
It reiterates the position of law in Malaysia with respect to the standard of care for medical professionals. For diagnosis and treatment, the courts must accept the views of a responsible body of men skilled in the particular discipline, and cannot resolve differences of expert opinion on its own. However, it must still examine the expert evidence to see if it is capable of withstanding logical analysis.
As for the duty to advise of risks, it is the courts and not the body of medical professionals that will decide the yardstick for the standard of care to be expected.
The Eye Appeal also represents the first time that a non-delegable duty has been imposed in Malaysia on a private hospital.
Based on reported cases, the award of RM1,000,000 for aggravated damages is the highest ever imposed in Malaysia. This will have a significant impact on claims against professionals such as lawyers, doctors and accountants as it shows that in certain cases, an award of aggravated damages can far exceed the general damages awarded.
About the Authors
Leong Wai Hong is the Head of the Skrine’s Dispute Resolution division. He read law at the National University of Singapore. He has more than 27 years’ experience in litigation, having practised in Singapore before returning to Malaysia. He is listed as a Market-Leading lawyer in The Asia law Leading Lawyers Guide 2015 – 2018 focusing on the leading individuals at Asia-Pacific law firms. He is listed as a leading individual for Dispute Resolution by Chambers Asia-Pacific 2011-2018.
Brenda Chan graduated with first class honours in LLB Law from the University of Reading in the year 2015. Thereafter, she did her Bar Vocational Training Course at BPP Manchester and was called to the Bar of England and Wales in 2016. She completed her pupillage with Skrine and was admitted as an Advocate and Solicitor of the High Court of Malaya in 2017.