20 July 2017

When Medical Practitioners Get It Wrong

By Selina Sui

The issue of medical negligence has been a widely debated area in Malaysia especially in the recent years as the number of these cases has been rising uncontrollably.

Medical negligence has been defined as an act or omission (or failure to act) by a medical professional that deviates from the accepted medical standard of care. In the context of medical negligence, medical practitioners owe a duty or medical standard of care to their patients. This duty of care is more distinctly defined as the level and type of care that a reasonably competent and skilled health care professional with a similar background and in the same medical community would have provided under the circumstances that led to the alleged medical negligence. Therefore, in medical negligence cases, it is essential for patients to prove that medical practitioners have failed to meet the required duty of care.

In Malaysia, there have been countless criticisms on imposing the burden of proof on patients to prove that medical practitioners have breached their recognised duty of care. This burden is such an onerous one because layman patients who lack the skills and expertise will first have to establish the professional standard of care of medical practitioners which is beyond their abilities. Furthermore, medical practitioners who can prove that they have done what is endorsed by a responsible body of medical opinion in the relevant specialty at the time of the alleged offence will be absorbed of this offence. According to Dr Mohd Khairie Ahmad and Dr Rohana Abdul Rahman from Universiti Utara Malaysia, this is an unfair standard set by the medical profession with very little interference from the courts and this standard should therefore be more strictly evaluated to allow for more judicial intervention. They suggest that the courts should adopt a more interventionist approach by setting an objective legal standard of care that should apply in all medical negligence litigation rather than relying mainly on expert evidence provided by the medical profession as per the case of Bolitho v City and Hackney Health Authority (1997).

Besides, some researchers argue that the standards endorsed by a responsible body of medical opinion might just be the epitome of “what is done” by most people in a particular situation which might also likely be negligent. This is based on the reasoning that “what is done” by most people in a particular situation does not necessarily denote “what ought to be done” in that situation and hence, should also be considered as medical negligence.

Though heavily criticised by some researchers, there are many others that deemed the current approach of relying highly on expert evidence has its merits. They argue that if the courts are to take a more interventionist approach by introducing an objective standard of care, medical practitioners will be compelled to engage in what is known as “defensive medicine” of doing what is “legally” right in keeping with the standard rather than what they consider to be medically appropriate. This practice is not only against medical ethics but also against the fundamental rights of patients to be informed of the types of medical treatment that they are entitled to receive in different circumstances.

Moreover, the courts have stated in previous precedence that to set a standard for the medical profession should be left to medical judgments. In particular, the English court in the case of Mahon v Osborne (1939) highlighted that the medical profession has always been cloaked with much complications and technicalities which the judiciary will be unable to address professionally and therefore, to ensure just and accurate decision in medical negligence litigation, any complex issue should be addressed only by skilled medical experts. In addition, there are considerable risks associated with various medical treatments that can only be recognised by medical practitioners themselves and as such the courts viewed that it is justified for defendants in medical negligence litigation to be judged by their fellow peers as per the words of Chief Justice Yong Pung How in the case of Dr Khoo James & Anor v Gunapathy d/o Muniandy (2002), “that we often tell doctors not to play God, it seems only fair that, similarly, judges and lawyers should not play at being lawyers”.

After all, the courts strongly deemed any medical experts who are to give expert evidence in medical negligence trials will have weighed all the relative risks and benefits before forming any professional opinions as indicated in a statement made by Lord Browne-Wilkinson, “that in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter”.

The debate as to whether the judiciary should adopt a more interventionist approach in medical negligence litigation is still ongoing. As such, the future of medical negligence still remains under much scrutiny in Malaysia. Researches have established that over time, medical negligence will possibly evolve from doctor-centred to patient-centred and cause tremendous anxiety for the Malaysian healthcare industry. Hence, it is essential that any changes should be managed in a manner that adequately protect both medical practitioners and patients. As in the pertinent words of Professor Dr Denis Cusack from the University College Dublin, “the pendulum should swing in order to achieve a proper balance between medicine and law in the best interests of the patient whilst giving full encouragement and support to a properly regulated and competent, caring medical profession”.

Selina Sui is a lecturer with the Faculty of Business and Design at Swinburne University of Technology Sarawak Campus. She is contactable via slssui@swinburne.edu.my