Reproductive Technologies and the Law: Medical Negligence

Medical Negligence Law

Definition of Negligence

  • General Risk:

    • Inherent risk exists in any treatment, regardless of care level.

    • A mishap alone doesn't automatically imply hospital or doctor liability. (Swamy v. Matthews & Anor [1968] 1 MLJ 138, referencing Hatcher v Black & Ors [1964] CLY 2289)

  • Complex Concept:

    • Negligence encompasses duty, breach, and resulting damages. (Lord Wright in Lochgelly Iron and Coal Co v McMullan [1934] AC 1).

  • Error vs. Negligence:

    • Not all errors constitute negligence.

    • Negligence is defined as errors unacceptable by a reasonable doctor in similar circumstances.

    • A doctor isn't negligent for errors in judgment or misadventures, but for falling below reasonable competence, warranting censure. (Hucks v. Cole [1968] 112 SJ 483, cited in Foong Yeen Keng v Assunta Hospital (M) Sdn Bhd & Anor [2006] 5 MLJ 94).

Law on Medical Negligence

  • Tort Law:

    • Medical negligence falls under civil claims (tort law).

  • Scope of Law:

    • Applies to all medical practitioners (doctors, nurses, dentists, pharmacists, paramedics, etc.).

  • Parties in Lawsuit:

    • Doctors are generally sued individually or jointly with the hospital.

    • Hospitals may be held liable due to vicarious liability or non-delegable duty

    • Nurses may be co-defendants.

Elements of Negligence

To succeed in a negligence claim, the plaintiff (injured party) must prove these three elements:

  1. Duty of Care:

    • The defendant (medical professional) owed a duty of care to the plaintiff.

  2. Breach of Duty:

    • The defendant breached this duty.

  3. Causation:

    • The breach directly resulted in loss or damage to the plaintiff.

Plaintiff must prove a failure in fair, reasonable standard of care, resulting in the plaintiff's medical condition. (Dr Wong Chuen Yeen v Thivagar a/l Bala Ratnam and another case [2023] MLJU 584)

Duty of Care Detailed

  • Definition:

    • A legal obligation imposed by law. (Norchaya Talib, Law of Torts in Malaysia).

  • Heaven v Pender [1883] 11 QBD 503:

    • Duty arises when one person's actions or omissions can foreseeably cause danger or injury to another, requiring ordinary care and skill to prevent such harm.

Neighbour Principle

  • **Donoghue v Stevenson [1932] AC 562:

    • Defines "neighbour" as those closely and directly affected by one's actions, whom one should reasonably consider when acting or omitting to act.

    • reasonable<br>careAvoid<br>actionsresultinginjuryreasonable<br>careAvoid<br>actionsresultinginjury : One must take reasonable care to avoid acts or omissions that could foreseeably injure one's neighbour.

Elements of Neighbour Principle

  1. Foreseeability:

    • It must be reasonably foreseeable that a failure to take reasonable care will result in injury or harm.

  2. Proximity:

    • Sufficient proximity required between the plaintiff and defendant; those "closely and directly affected" by one's actions.

Doctor-Patient Duty

  • Recognition:

    • Courts acknowledge duty of care in doctor-patient, teacher-student relationships.

  • Arises From:

    • The doctor-patient relationship.

  • R v Bateman [1925] 2 All ER 45:

    • If someone presents themselves as skilled/knowledgeable and are consulted by a patient, they owe a duty to use due caution in undertaking treatment. Accepting responsibility implies a duty to use diligence, care, knowledge, skill, and caution in administering such treatment when the patient submits to discretion and treatment.

Establishment of Doctor-Patient Relationship

  • Common Law Foundation:

    • Duty of care is imposed when a doctor assumes responsibility for a patient's care.

  • Steps:

    1. Patient request.

    2. Doctor agrees to treat.

    • Upon these, a doctor-patient relationship is established, triggering duty of care. (R v Bateman [1925] 2 All ER 45).

  • Foo Fio Na v Dr. Soo Fook Mun & Anor [2007] 1 MLJ 593 Siti Norma Yaakob FCJ:

    • Without doctor-patient relationship, the doctor is not obliged to diagnose, advise and treat his patient.

Legal Implications

  • Without a doctor-patient relationship, there's no inherent legal duty to help strangers; it's discretionary.

  • Important Note: There's no legal duty to treat strangers, but undertaking treatment creates a doctor-patient relationship, thus duty of care to the patient.

  • Malaysia currently lacks specific Good Samaritan laws protecting those offering help in emergencies from legal action if unintentional harm occurs.

Good Samaritan Law

  • Proposed Act (Malaysia):

    • The Health Ministry is considering a Good Samaritan Law.

    • This law offers legal protection to encourage assistance in emergencies without fear of lawsuits for unintentional harm.

    • Discussions and debates are ongoing regarding its implementation. (The Star, 15 Dec 2024)

Ethical Duty

  • MMC Good Medical Practice 2019:

    • Doctors must provide emergency or life-saving treatment regardless of social/financial status or suspicion of communicable diseases, using standard precautions.

    • Refusing emergency treatment is unethical and unprofessional (4.2.3).

    • Emergency care requires considering the doctor's safety, skills, other options, and continuing aid until no longer needed (4.2.4).

Determining Doctor-Patient Relationship

  • Complexity:

    • While often straightforward, it can be hard to determine precisely when a person becomes the doctor's patient. (E. Jackson, Medical Law: Text Cases and Materials).

Duty to Act in Emergency

  • Professional Context:

    • Kennedy and Grubb questioned if duty arises when doctors receive emergency calls in a professional context.

    • Responding to "Is there a doctor in the house?" in a social setting doesn't create a duty.

    • However, in a professional context, it may not be so clear cut whether a duty to act arises.

  • Examples:

    1. A hospital doctor encounters a collapsed person just inside the hospital after their shift.

    2. A worker collapses needing medical attention inside a doctor's office.

    • The law may consider these doctors 'undertaking' the duty to provide emergency care due to the professional environment, obligating them to act. (Kennedy & Grubb).

Scenario: Clinic Visit

  • A Scenario:

    • 'A' arrives at a clinic with an eye injury. The registration staff informs the doctor, who then directs them to another clinic or hospital.

    • Question: Does the doctor owe 'A' a duty to see and treat them? Can they refuse treatment?

Case Study: Ang Yew Meng & Anor v Dr. Sashikannan a/l Arunasalam & Ors [2011] 9 MLJ 153

  • Facts:

    • Parents brought their unconscious, feverish child (40°C) to Poliklinik T.

    • Dr. MR (D2), the doctor in charge, was on break.

    • Dr. S (D1), an intern, was present.

  • D1's Account:

    • D1 advised transferring the child to a hospital, but the mother insisted on treatment.

    • D1 administered Voltaren and reiterated the need for immediate hospitalization.

    • The child died en route to the hospital.

  • Cause of Death:

    • Myocarditis from acute septicemic shock, likely typhoid-related.

Ang Yew Meng: Claims & Defence

  • Plaintiffs' Claims:

    • Sued for negligence/breach of contractual duty, alleging the death was due to an adverse reaction to Voltaren.

  • Defendants' Defence:

    • Argued no duty of care existed.

    • D1 claimed to have acted as a Good Samaritan on the insistence of P2

    • D2 and D3 claimed D1 was not employed as a doctor and they were not aware that he had rendered medical treatment until after the event.

Ang Yew Meng: HC Decision

  1. Duty of care hinges on the evidence presented at trial, a mix of law and fact (following Chien Tham Kong v Excellent Strategy Sdn Bhd).

  2. As an unregistered attachment student under instructions not to treat, D1 had no general duty to assist and could have refused help, as the law generally doesn't impose a duty to be a Good Samaritan without a special relationship.

High Court Decision (Continued)

  • Undertaking Treatment:

    • Once D1 relented and began treatment, he took control and responsibility, voluntarily entering a doctor-patient relationship.

    • He then owed a duty to use due diligence, care, knowledge, skill, and caution in administering treatment.

Pause: Further Thoughts

  • Considerations:

    • D1 wasn't employed, was told not to treat patients, and wasn't publicly known as a clinic doctor.

  • Question:

    • Would the decision differ if D1 was on duty at the clinic as a registered doctor?

  • Contrast:

    • Examine Barnett v Chelsea and Kensington Hospital Management Committee and Lowns v Woods.

Barnett v Chelsea and Kensington Hospital Management Committee [1969]1Q.B.428

  • General Rule:

    • Doctors generally have no duty to treat strangers without a pre-existing doctor-patient relationship.

  • Exception:

    • Duty of care may arise in an emergency department.

  • Facts:

    • 3 men suffered arsenic poisoning and arrived at a hospital emergency department.

    • The nurse called Dr. Banerjee, who instructed them to seek their own doctors.

    • One man died and the widow sued for negligence.

  • Held:

    • Dr. Banerjee owed the men a duty of care and breached it by not examining them personally.

    • Reason: Doctor was working in an emergency department open to all patients seeking treatment, owing a duty to treat arrivals.

Barnett v Chelsea: Limitations

  • Not Absolute:

    • The court notes emergency department doctors don't always need to see every patient.

  • Examples:

    • If the patient is seeking only a second opinion, or has a minor injury a nurse can handle, the doctor need not be involved.

  • Expert Witness:

    • The court agreed with the expert witness that a doctor wouldn't leave a case of 3-hour vomiting to a nurse.

  • Conclusion:

    • Dr. Banerjee's failure to examine the deceased was not an excusable error but negligence.

Implications of Barnett v Chelsea

  • Duty of care arises upon arrival at hospital for treatment even before seeing a doctor (E. Jackson, 2010).

  • Hospitals with emergency departments owe a duty to patients visiting them and may be liable if patients are sent away without treatment [M. Brazier, 2023].

Lowns v Woods (1995) 36 NSWLR 344 (Australia)

  • Facts:

    • Patrick Woods suffered severe epileptic fit resulting in brain damage and quadriplegia.

    • His sister asked Dr. Peter Lowns to attend to Woods, but he refused.

    • Plaintiffs claimed Dr. Lowns’ refusal deprived Patrick of timely treatment.

    • Suit filed for negligence and breach of statutory duty under the Medical Practitioners Act 1938.

Lowns v Woods: Key Factors

  • Proximity

  • Statutory Duty

  • Court Decision: Duty of care existed

These factors contributed to the finding that a duty of care was present.

Lowns v Woods: Proximity Principle

  • Determining duty of care requires examining proximity (Sutherland Shire Council v Heyman).

  • Proximity involves:

    • Nearness in space and time.

    • Circumstantial factors, like employer-employee or professional-client relationships.

    • Causal connection between act/omission and injury.

    • Assumption of responsibility to prevent injury or reliance on care being taken.

Grounds for Imposition of Duty of Care:

  1. Proximity

    • Physical Proximity

      • Nearness or closeness.

      • Woods was within 300 meters/3-4 minutes' walk from the doctor.

    • Casual Proximity

      • Relationship between conduct and loss.

      • The doctor knew Woods' condition was an emergency.

    • Circumstantial Proximity

      • Overriding relationship such as doctor and patient.

      • Dr. Lowns knew the appropriate treatment, the potential consequences, and was competent and equipped to treat Woods and was at his place of practice ready to begin his days work (