Docs, hospitals now cannot get away with murder

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Docs, hospitals now cannot get away with murder

KUALA LUMPUR, March 14, 2024: Doctors/specialists and hospitals are no more immune to negligence suits following a landmark Federal Court ruling that Columbia Asia Hospital is “liable personally” for the anaesthetist’s negligence.

The apex court made a 4-1 majority decision on Feb 23 to hold the hospital in Puchong, the owner and manager of Columbia liable for negligence of Siow Ching Yee, a patient who suffered permanent mental and physical disabilities from severe brain damage after treatment as an emergency case in 2010 when he was then aged 35.

The court also did not let the hospital get away with liability when it rejected its defence of doctors being “independent contractors”.

For decades, doctors and hospitals in Malaysia, and many other countries, have been immune to negligence suit.

That has now ended with the Federal Court landmark decision - doctors and hospitals now cannot bully patients and “get away with murder”, so to speak.

No News Is Bad News reproduces below a news report on the court proceedings:

In Landmark Ruling, Federal Court Holds Private Hospital Liable For Medical Negligence, Rejects Defence Of Doctors Being ‘Independent Contractors’

By Boo Su-Lyn | 7 March 2024

In a landmark verdict on the case of a patient who sued Columbia Asia after suffering permanent mental and physical disability from brain damage, the Federal Court ruled that the private hospital is “liable personally” for the anaesthetist’s negligence.

The apex court made a 4-1 majority decision onFeb 23 to hold the hospital in Puchong Columbia Asia Sdn Bhd, the owner and manager of Columbia Asia Hospital – Puchong, liable for negligence of Siow Ching Yee, a patient who suffered permanent mental and physical disabilities from severe brain damage after treatment as an emergency case in 2010 when he was then aged 35 years.

Columbia Asia Hospital – Puchong, a private hospital in Selangor. Picture from Columbia Asia Hospital - Puchong (Puchong)'s Facebook page.

KUALA LUMPUR, March 7 — In a landmark verdict that is set to change the practice of medicine in Malaysia, the Federal Court ruled that a private hospital is liable for medical negligence – beyond individual doctors. 

The apex court made a 4-1 majority decision last February 23 to hold Columbia Asia Sdn Bhd, the owner and manager of Columbia Asia Hospital – Puchong, liable for negligence of Siow Ching Yee, a patient who suffered permanent mental and physical disabilities from severe brain damage after treatment as an emergency case in 2010 when he was then aged 35 years.

Crucially, the Federal Court rejected Columbia Asia’s defence that the doctors who treated Siow – a consultant ear, nose and throat (ENT) surgeon and a consultant anaesthetist – were “independent contractors” under contracts for services in its hospital in Selangor.

Columbia Asia had previously asserted at the High Court that in the event that either or both ENT surgeon Dr Megat Shiraz Megat Abd Rahman and anaesthetist Dr Noor Asilah Abdul Rahman were to be found liable for negligence, the private hospital itself was not vicariously liable, describing both doctors as operating as “independent contractors”, and not as Columbia Asia “employees or agents”.

However, the Federal Court’s majority ruling stated it is clear that Columbia Asia “has assumed a non-delegable duty of care that it owes personally to the appellant, a patient that is admitted to its emergency services”.

“The defence of independent contractor thus is not sustainable in law and on the facts and ought to have been rejected by the Courts below,” said the Federal Court’s full majority decision, written by Justice Mary Lim Thiam Suan. 

Citing the Private Healthcare Facilities and Services Act (PHFSA) 1998, the Federal Court ruled that the intent of Act 586 and its regulations is that Columbia Asia assumes a “non-delegable duty of care” to Siow and remains “liable personally” for the negligence of the anaesthetist, regardless of the presence of other defendants as long as negligence is proven first.

According to the written judgement by the High Court in Shah Alam on November 30, 2020, Columbia Asia stressed that its responsibility as the owner and manager of Columbia Asia Hospital – Puchong was “merely to ensure the provision of facilities and medical equipment, including nursing staff”.

Columbia Asia – a Southeast Asian health care company that now operates 18 hospitals in Malaysia, including the recent launch of its Bukit Jalil hospital – had further said that “all diagnosis, medical advice including material risks and known complications, medical treatments, operations and referrals (if and when necessary) are the responsibility of the medical specialists”, including the ENT surgeon and anaesthetist “who practise as independent contractors” in Columbia Asia Hospital – Puchong.

However, the Federal Court interpreted the PHFSA 1998 (Act 586) as meaning that a private hospital is responsible “for not just the efficacy of premises or facilities, but also for the treatment and care of the patients; regardless how and who the responsibility may have been delegated to”.

“The elaborate, extensive and detailed provisions in both the parent Act and the Regulations are enacted for the purpose of ensuring patient safety and care whilst being treated in our private hospitals, private health care facilities and services, always remains paramount and to be observed by the private hospital or private health care facility or service itself,” said the Federal Court.

“Not only does common law no longer see hospitals as mere providers of premises, utilities, facilities or backup services for such treatment and care of the patient, the law provides that private hospitals are themselves providers of such care and treatment of the patient in which case, the private hospitals or health care facilities or services owe a non-delegable and personal duty of care to persons who knock on their door and seek treatment and care.”

The Federal Court pointed out that Columbia Asia’s own website lists the hospital group’s facilities, treatment, care, and procedures, besides stating what patients of Columbia Asia Hospital can expect.

“From the reading of all these provisions, it is clear as daylight that the legislative scheme intends private hospitals, such as the respondent, to remain responsible for the treatment and care of the patients, regardless to whom they may have employed, engaged or delegated that task or responsibility. 

“This remains so even if the hospital is rendering emergency care services. In the case of the respondent, it renders such services on a routine basis.”

The Federal Court also said people relying on treatment and care in private health care facilities and services “should never have to concern themselves with issues of responsibility and separate accountability, as negligence and mishaps would be furthest from their minds”.

Specifically on emergency cases – as in Siow’s case – the Federal Court cited Section 38(1) of the PHFSA 1998 that requires every licensed and registered private health care facility or service to be capable of instituting and making available essential life-saving measures and implementing emergency procedures on any person requiring such treatment or services.

The apex court also cited Regulation 230 under Act 586 that states that a private health care facility or service shall have a well-defined care system for providing basic outpatient emergency care services to any occasional emergency patient who comes or is brought to the private health care facilities or services by chance.

Where emergency care services are provided on a regular basis, as was in the case of Siow, Regulation 231 applies, the Federal Court found. “In such a situation, regulation 231(12) requires ‘additional health care professional and other ancillary staff if the circumstances demands’ shall be made.”

Doctor Had Insufficient Professional Indemnity For Malpractice

In the case that appeared before the Federal Court, Columbia Asia was the only defendant in the lawsuit filed by Siow’s wife, Chau Wai Kin, on behalf of her husband. 

After a full trial, the High Court, in 2020, dismissed Siow’s claims against the hospital and the ENT surgeon, allowing only the claim against the anaesthetist and ordering Dr Noor Asilah to pay damages of RM1.9 million.

While the Court of Appeal, in 2022, raised the quantum of damages awarded against the anaesthetist to RM3.3 million, the appellate court dismissed Siow’s appeal for liability to be imposed on Columbia Asia; he withdrew his appeal against the ENT surgeon. The Court of Appeal also dismissed the anaesthetist’s appeal.

Hence, the appeal at the Federal Court concerned Columbia Asia alone. One of the questions of law before the apex court, when granting leave on February 14 last year, was: “whether the owner and manager of a private hospital is liable to patients under a non-delegable duty of care when a doctor practising in the hospital as an independent contractor has insufficient professional indemnity for malpractice?”.

News portal Free Malaysia Today reported that the Federal Court increased the award of damages to about RM4 million.

Columbia Asia had asked the Federal Court to order that the anaesthetist indemnify the private hospital company in the event that it is found liable, but the court denied the request.

“I do not find this to be right or available in law,” Justice Lim wrote, pointing out that the anaesthetist was not a party to this appeal before the Federal Court.

“More importantly, it flies in the face of the earlier findings that the respondent owes a non-delegable duty of care and it remains liable regardless to whom it may have employed or engaged to carry out that duty of care. The principle imposes a personal liability on the respondent, over and above that against the tortfeasor.”

The Federal Court decided to increase the quantum of damages awarded because it disagreed with the lower courts’ decisions to disregard Siow’s earnings derived from allowances, fees, and monthly salaries received as a director of two family-owned companies. The High Court had only recognised his basic salary.

Hence, the apex court fixed the award at a constant sum of RM8,750 per month with the multipliers as suggested by Siow, an increase from the RM2,600 monthly amount fixed by the High Court. The Federal Court also agreed with the multiplier of 10 for loss of earnings, based on Siow’s age of 35 years at the time of the incident. Special damages were calculated for 90 months, whereas pre-trial damages were calculated for 30 months.

The Federal Court majority decision was made by four judges: Lim, Chief Judge of Malaya Mohamad Zabidin Mohd Diah, Chief Judge of Sabah and Sarawak Abdul Rahman Sebli, and Justice Hasnah Mohammed Hashim. The dissenting judge was Justice Zabariah Mohd Yusof.

Case Background: Anaesthetist Took 25 Minutes To Intubate Patient After General Anaesthesia

According to the Federal Court’s written judgement, Siow underwent a tonsillectomy, palatal stiffening, and endoscopic sinus surgery on March 10, 2010 at Subang Jaya Medical Centre (SJMC), a private hospital that was then not under Columbia Asia.

Last November, Sime Darby Bhd confirmed that it and its Australian partner, Ramsay Health Care Ltd, were selling Ramsay Sime Darby Health Care Sdn Bhd, which owns SJMC, to Columbia Asia Healthcare Sdn Bhd for RM5.7 billion cash.

At about 3.30am on March 22, 2010 – twelve days after his surgery at SJMC – Siow suffered bleeding at the site of the operation. His family brought Siow to Columbia Asia Hospital – Puchong’s accident and emergency department, as the hospital was nearer to their home than SJMC.

At Columbia Asia Hospital – Puchong’s A&E department, Siow was examined by a medical officer who then called consultant ENT surgeon Dr Megat Shiraz. 

According to the background of Siow’s claim, as written in the High Court ruling, Dr Megat Shiraz recommended that Siow undergo an examination under anaesthesia and wound debridement under general anaesthesia, or surgery. Debridement is the process of removing dead skin and foreign material from a wound. Dr Noor Asilah was the consultant anaesthetist who attended to Siow.

Siow experienced complications even before surgery started. In the airlock area outside the operating theatre, he started vomiting copious amounts of blood and suffered profuse bleeding.

Despite efforts by the ENT surgeon and the anaesthetist to treat the complications, Siow collapsed and emergency resuscitation had to be done, after which Dr Megat Shiraz proceeded to perform the surgery, which was uneventful.

But Siow had suffered hypoxic brain damage, the Federal Court noted. Hypoxic brain injury occurs when the brain doesn’t get enough oxygen, causing brain cells to die. Siow was then admitted to the intensive care unit of Columbia Asia Hospital – Puchong for continued post-surgical care and management, until he was transferred to SJMC on March 28, 2010, at his family’s request.

“He is now permanently mentally and physically disabled by reason of the massive cerebral hypoxia,” said the Federal Court.

Siow had accused both ENT surgeon Dr Megat Shiraz and anaesthetist Dr Noor Asilah of failing to undertake appropriate anaesthetic management appropriately when treating his complications, before proceeding with the surgery, that allegedly resulted in severe hypoxic brain damage, leaving Siow with permanent mental and physical disabilities.

According to the High Court’s written judgement, the anaesthetist had put the patient under general anaesthesia at 4.50am, successfully intubating Siow 25 minutes later at 5.15am. Expert and medical witnesses told the High Court that once the patient was put under general anaesthesia, it was important to secure his airway immediately and not 25 minutes later.

“The expert and the medical witnesses had testified that any delay in securing the plaintiff’s airway will cause him to suffer brain damage,” wrote High Court judge Gunalan Muniandy in his judgement on November 30, 2020.

The High Court cited expert evidence that the anaesthetist failed to consider alternative options to urgently secure Siow’s airway — like awake intubation, fibro optic laryngoscopy, video laryngoscopy with the patient breathing spontaneously, or a tracheostomy.

Cricothyroidotomy, said the High Court, is an alternative, quick, life-saving procedure to secure temporary access to the airway, while waiting to intubate the patient, that could be done in two minutes. While Dr Noor Asilah herself conceded that as an anaesthetist, she had the skill and expertise to undertake the life-saving procedure, with the equipment needed also being available at the hospital, she asserted that she did not know how to undertake this kind of surgery.

Further, the High Court cited expert evidence that the induction of general anaesthesia, without backup plans, had actually led to the patient losing control of his airway and eventually suffering brain damage.

“When [the] patient had more massive bleeding in the airlock and the operation theatre, ANAESTHESIA SHOULD NOT HAVE BEEN INDUCED. Vomiting of blood, especially clots, showed it was blood from the stomach swallowed earlier and it did not constitute such a dire emergency that anaesthesia needed to be induced immediately without plans on how to safely proceed. He was still conscious at this juncture and he was able to protect his airway and his life,” the High Court quoted the expert witness as saying.

The High Court agreed with the expert witness’ opinion on the anaesthetist’s failure to secure Siow’s airway before administering general anaesthesia.

At the Federal Court, Siow was represented by lawyers PS Ranjan, Manmohan Singh Dhillon, KB Karthi and Desmond Mun from PS Ranjan & Co. Ambiga Sreenevasan acted for Columbia Asia.

The Association of Private Hospitals Malaysia (APHM), which participated in the proceedings at the apex court as amicus curiae (friend of the court), was represented by Malik Imtiaz Sarwar. The Consumers’ Association of Penang, also appointed as amicus curiae, was represented by Gurdial Singh Nijar. - CodeBlue