I recently had the privilege of hosting a medicolegal forum on the case of Siow Ching Yee vs Columbia Asia on behalf of Beating Hearts. We were honoured to have esteemed guests Mr. Manmohan of PS Ranjan and Co, Mr. Felix Raj of Felix Raj Chambers, Datuk Dr. Kuljit Singh, President of the Association of Private Hospitals of Malaysia, and Mr. Japhire Gopi Kannan, Founder and CEO of Doctorshield join us for this insightful event.
The forum provided a platform for valuable discussions and highlighted important learning points. One key takeaway was the unpredictable nature of emergency cases, emphasising the need for doctors to possess not only knowledge but also skilled hands, quick thinking, good judgment, clinical acumen, and common sense.
BACKGROUND
Mr. Siow Ching Yee was admitted to Columbia Asia Hospital Puchong due to throat bleeding, following a tonsillectomy at Subang Jaya Medical Centre. Represented by his wife, he filed a medical negligence claim against the hospital, an ENT surgeon, and an anaesthetist, after suffering brain damage and permanent disabilities in a 2010 anaesthetic accident at the hospital at the age of 36.
On March 22, 2010, around 4:00 am, Mr. Siow was conscious but vomiting blood and struggling to breathe due to mouth bleeding when brought to the Accident and Emergency Department. The on-duty medical officer contacted D1, the ENT surgeon, and D2, the anaesthetist. D1 instructed gargling with ice cubes to stop the bleeding, while D2 was informed and met Mr. Siow, who was spitting blood, at the emergency room. Mr. Siow then began to vomit blood profusely, causing him to choke and collapse while still outside the operating theatre airlock.
At one point, D1 applied pressure to the bleeding to allow D2 to intubate. Expert Witness PW2 criticised D2’s actions, particularly the timing of anaesthesia and the decision to induce it without proper assessment and planning, considering Mr. Siow’s consciousness and ability to protect his airway.
Mr. Siow filed a negligence claim against the doctors and the hospital, arguing that the hospital had a non-delegable duty to ensure proper care by the doctor. This duty is based on the premise that hospitals, as healthcare providers, cannot avoid responsibility for care provided, even by independent contractor doctors, especially if the doctor lacks adequate professional indemnity. This duty is also enshrined in the Private Healthcare Facilities and Services Act 1998.
The High Court found Dr. D2 the anaesthetist, negligent but dismissed the claims against the surgeon and the hospital.
In a unanimous decision, the Court of Appeal dismissed the plaintiff’s appeal against the hospital but partially allowed his appeal on the amount of damages. There was no appeal pursued against the surgeon.
Dr. D2 appeal was also dismissed. Her expert’s opinion, which was disclosed to the High Court and the other parties, did not support her defence. She did not call the expert to give evidence at trial.
The Court of Appeal did not provide any reasons for its judgment. The Federal Court disagreed with the previous rulings and allowed the claim for director’s fees and allowances. While the High Court had only allowed the claim for the plaintiff’s salary and provident fund contributions as an employee of the companies, the Federal Court increased the multiplicands used to compute earnings. Following the judgment of the Federal Court, the judgment sum, including costs, is now RM 4.5 million. There is also interest chargeable for various periods on various items of damages and the costs.
THE CASE OF SOO CHENG LIN V. DR. KOK CHOONG SENG & SUNWAY MEDICAL CENTRE
Mr. Soo Cheng Lin, the patient, had a lump on his forearm that Dr. Kok Choong Seng, a consultant orthopaedic surgeon, recommended for removal. The patient agreed, and the surgery was scheduled at Sunway Medical Centre. After the surgery, the patient complained of pain and numbness in the operated area. A second doctor diagnosed him with a 90% loss of his left median nerve.
The patient filed a negligence claim against both the doctor and the hospital, arguing that the hospital had a non-delegable duty to ensure his proper treatment by the doctor.
In Malaysia’s private healthcare system, doctors usually operate under independent contractor agreements with hospitals. Hospitals argue that, in most cases, they are not liable for treatment failures, as the responsibility lies solely with the treating doctors.
This aligns with the principle of negligence, where liability is fault-based and tied to a breach of one’s duty of care. Vicarious liability, an exception to this rule, is often mitigated by independent contractor agreements. However, a recent legal development introduced the doctrine of non-delegable duty of care, which challenges this principle.
Both the High Court and Court of Appeal agreed that the hospital had a non-delegable duty of care.
The High Court ruled that the hospital had a duty to ensure proper care by the doctor, which could not be delegated. It held the hospital liable for the doctor’s actions, regardless of the doctor’s employment status.
The hospital appealed the decision.
The Court of Appeal upheld the finding, adopting the doctrine of non-delegable duty. It noted the patient’s vulnerability upon admission and the hospital’s role as a healthcare provider, imposing a duty to protect the patient from harm.
APPLICATION OF WOODLAND TEST
The Woodland case in the UK established criteria for a non-delegable duty of care. The Federal Court in Malaysia applied this test to the case.
The Court found that the hospital did not assume a positive duty to protect the patient from injury during the surgery. Therefore, it concluded that the hospital was not liable for the doctor’s negligence.
IMPLICATIONS FOR HEALTHCARE
The doctrine of non-delegable duty of care is a nuanced area of law, balancing liability and fairness. While imposing strict liability on entities may seem excessive, it aligns with the fundamental principle of protecting others from harm. The Federal Court’s subjective approach suggests further development in this area of Malaysian law.
The legal proceedings in this case, culminating in the Federal Court’s decision to reverse the lower courts’ rulings, have significant implications for private healthcare providers. The case underscores the importance of maintaining high standards of care, ensuring staff competency, and prioritising patient safety in private healthcare settings.
MEDICAL PERSPECTIVE
From a medical perspective, the case emphasises the critical importance of sound clinical judgment, effective communication, meticulous documentation, continuing education, and risk management. Adhering to these principles can help doctors provide high-quality care and reduce the risk of medical negligence.
Empathy and transparency in patient care are not only ethical imperatives but also crucial components in navigating the medico-legal landscape. Patients often encounter challenges in accessing medical records and expert opinions, highlighting the need for healthcare professionals to advocate for greater transparency and accessibility.
Collaboration emerges as a key theme in addressing the challenges posed by the medico-legal environment. By actively engaging with one another, sharing perspectives, and embracing technological advancements, healthcare professionals can navigate these challenges effectively, ensuring a brighter future for the field.
IMPORTANCE OF INSURANCE
In navigating the complex and evolving medico-legal landscape, the case of Siow Ching Yee vs Columbia Asia Sdn Bhd serves as a poignant reminder of the critical role insurance plays in safeguarding healthcare professionals during legal proceedings. As claims rise and legal battles intensify, healthcare practitioners must prioritise obtaining adequate insurance coverage, recognizing that anyone can be drawn into negligence claims.
The aftermath of the Siow Ching Yee case also sheds light on the need for clinic owners to ensure that all locum doctors are sufficiently covered, thereby protecting their practice and reputation. Moreover, understanding insurance policy intricacies is paramount, as what may seem like adequate coverage today could fall short in the face of evolving legal complexities.
CONCLUSION
In conclusion, proactive measures and collaborative efforts are essential in safeguarding the interests of all stakeholders in healthcare. By prioritising adequate insurance coverage, understanding policy intricacies, and advocating for empathy and transparency in patient care, healthcare professionals can mitigate the risks posed by the medico-legal landscape and uphold the highest standards of care.
APOLOGY
I received an email from the Malaysian Society of Anaesthesiologists regarding a comment I made during the forum. I apologise for the incorrect reference regarding the statement from MSA and COA, and I have made the same apology on social media. It is of paramount importance for me to echo Dato Dr Yong Chow Yen’s email to me that all emergency front of neck airway knowledge and skill in situations of can’t intubate-can’t oxygenate is part of anaesthesiology training and practice.
Dr Betty Teh (Editor-in Chief and Founder of Beating Hearts)
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