On 23 February 2024, the Federal Court delivered a landmark ruling, holding a private hospital (“Hospital”) jointly liable with a Consultant Anaesthesiologist, for negligence in the treatment of a patient who suffered from permanent mental and physical disabilities as a result of cerebral hypoxia in 2010 (“Patient”).

Leave to appeal to the Federal Court had been granted in respect of 7 questions of law. Apart from the 1 question of law which was in relation to the calculation of damages, the rest of the questions related to whether a private hospital may be liable for the negligence of a medical practitioner who was an independent contractor under a contract for services (as asserted by the private hospital). 

In a 4-1 majority decision, the Federal Court held that the Hospital was “liable personally” for the negligence of the anaesthesiologist, rejecting the Hospital’s defence that it was not liable for the negligence of the doctors who treated the Patient on account that they were independent contractors under their contracts for services with the Hospital (and not employees of the Hospital).

The majority judgment and dissenting judgment are discussed below.

Background Facts

On 10.3.2010, the Patient underwent a tonsillectomy, palatal stiffening and endoscopic sinus surgery at a different private hospital (“First Hospital”).

The Patient suffered bleeding in the throat 12 days later. He sought treatment at the Hospital’s accident and emergency department.

At the Hospital’s accident and emergency department, the Patient was examined by a medical officer who referred the Patient to a consultant ear, nose and throat surgeon (“Consultant ENT”). The Consultant ENT recommended the Patient undergo surgery under general anaesthesia. As is usual, a Consultant Anaesthesiologist was also to attend the Patient during the surgery.

Before the surgery, the Patient started vomiting copious amounts of blood. There was profuse bleeding when he was in the airlock area outside the operating theatre. Despite efforts by the doctors, the Patient collapsed, and emergency resuscitation had to be carried out. The intended surgery was eventually performed.

Unfortunately, due to the events before the surgery, the Patient suffered hypoxic brain damage.

Post-surgery, the Patient was admitted to the intensive care unit of the Hospital for continued post-surgical care and management. On 28.3.2010, the Patient was transferred to the First Hospital at the family’s request.

At the High Court and Court of Appeal

The Patient’s wife brought an action on behalf of her husband against the Consultant ENT, the Consultant Anaesthesiologist and the Hospital for negligence, and breach of duties under the Private Healthcare Facilities and Services Act 1998 (“PHFSA”).

Against the Hospital in particular, it was contended that the Hospital was vicariously liable for the negligence of both its consultants and was directly in breach of its non-delegable duty to the Patient.

It was the Hospital’s contention that it was not liable given that (1) both the doctors in question were independent contractors under their contracts for services and (2) its responsibilities and functions merely involved ensuring the provision of facilities, medical equipment and nursing staff.

At the High Court, the trial judge dismissed the claim against the Consultant ENT and the Hospital. However, the High Court found that there was a delay of about 25 minutes on the Consultant Anaesthesiologist’s part in securing the Patient’s airway (during the time the Patient was bleeding profusely) – leading the Patient to suffer severe brain damage. The Consultant Anaesthesiologist was therefore held liable and was ordered to pay damages in the sum of RM1.9 million.

The Patient (through his wife) appealed to the Court of Appeal against the dismissal of the claims against the Consultant ENT and the Hospital as well as to increase the quantum of damages awarded by the High Court. On the other hand, the Consultant Anaesthesiologist appealed against the decision finding her liable.

The Court of Appeal dismissed the appeal against the Hospital whereas the appeal in respect of quantum was allowed in part, increasing the damages awarded against the Consultant Anaesthesiologist. The appellant withdrew the appeal against the Consultant ENT.  At the same time, the Consultant Anaesthesiologist’s appeal was dismissed. In other words, the Court of Appeal maintained the High Court’s decision that only the Consultant Anaesthesiologist was liable, whilst increasing the damages awarded against her.

Majority Decision at the Federal Court

The Patient applied for, and was granted, leave to appeal to the Federal Court in respect of the Hospital’s liability. The crux of the appellant’s appeal at the Federal Court was whether the Hospital owed a non-delegable duty of care to the Patient (and if it did, whether that duty was breached).

Justice Mary Lim, delivering the majority judgment, considered the principle of a non-delegable duty as expounded in the United Kingdom Supreme Court’s decision in Woodland v Swimming Teachers Association & Others [2014] AC 537.

In establishing the imposition of a non-delegable duty of care, the Federal Court had no hesitation in finding that the 5 defining features of the duty, as identified in Woodland, were satisfied.   

• The Patient was especially vulnerable and reliant on the care and treatment of the Hospital against the risk of injury, more so when the Patient was admitted to the Hospital’s emergency services.

• There was an antecedent relationship between the Patient and the Hospital under the statutory framework which assumes a non-delegable duty of care on part of the Hospital. 

• The Patient clearly had no control over how the Hospital renders its emergency care and treatment.

• The Hospital had delegated the integral function of treatment and care of the Patient at its emergency services to its medical officer, the Consultant ENT and the Consultant Anaesthesiologist.

• The Consultant Anaesthesiologist was negligent in rendering proper emergency care and treatment of the Patient.

When considering the intent of the PHFSA in determining the issue of a non-delegable duty of care, the Federal Court held that:

• the legislative scheme of the PHFSA and its regulations envisages that the intended function of the Hospital clearly goes beyond the provision of facilities and staff treatment and management of its patients;

• “hospitals are and remain, providers of both the facilities for the treatment and care of patients as well as the treatment and care rendered.” – relying particularly on Regulation 231 (12) of the Private Healthcare Facilities and Services (Private Hospitals and Other Private Healthcare Facilities) Regulations 2006 under the PHFSA, the Federal Court noted that the legislation clearly provides an understanding of the relationship between the obligations and functions of the hospitals;

• this is no different for the Patient’s situation, where the Hospital provides emergency services on a routine basis; and

• as such, the Hospital could not escape liability given that “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.”

Notably, the Federal Court pointed out that patients seeking treatment and care from private hospitals “should never have to concern themselves with issues of responsibility and separate accountability, as negligence and mishaps would be furthest from their minds”.

For the reasons stated above, the Federal Court concluded that (1) the Hospital’s reliance on the status of the Consultant Anaesthesiologist as an independent contractor was unsustainable and ought to have been rejected by the lower courts and (2) the Hospital had assumed a non-delegable duty of care to the Patient and was therefore liable for the injury suffered by the Patient.

In respect of other aspects of the judgment, the Federal Court:

• denied the request of the Hospital to order that the Consultant Anaesthesiologist indemnify the private hospital in the event that it is found liable, as (1) the Consultant Anaesthesiologist was not a party to the appeal and (2) it would run contrary to the finding that the Hospital owed a non-delegable duty of care and remains liable “over and above that against the tortfeasor”; and

• increased the quantum of damages awarded to the Patient.

Minority Decision at the Federal Court

The dissenting judgment was delivered by Justice Zabariah Mohd Yusof. Her Ladyship among others, held that:

• apart from finding that there was an absence of an antecedent relationship between the Hospital and Patient, there was no compelling public policy justification for the imposition of such a duty on the Hospital; and

• the imposition of a non-delegable duty of care on hospitals would place an unfair burden on healthcare institutions.

Moving Forward

Just a few years before this decision, the Federal Court in Dr Kok Choong Seng & Anor v Soo Cheng Lin & Another Appeal [2018] 1 MLJ 685; 10 CLJ 529; [2017] 6 MLRA 36, had accepted the considerations set out in Woodland as to when a non-delegable duty would be imposed. However, the Federal Court in that case declined to say whether private hospitals in Malaysia would always be taken to have a non-delegable duty with respect to patients walking through their doors or that such a duty did not apply to private hospitals in Malaysia. Instead, the Federal Court in 2017 held that each case ought to be analysed and decided on its own particular facts.

The decision of the majority of the Federal Court in the most recent case seems to suggest that private hospitals in Malaysia will almost always be found to have a non-delegable duty to patients being treated by doctors working in the private hospitals (the question of whether or not the doctors are in fact independent contractors is a whole other can of worms). This would impose a fairly onerous obligation on hospitals to ensure that reasonable care is taken of its patients. In this regard, we would say that there probably is merit to the contention advanced by the Hospital that it had no control over how the Consultant Anaesthesiologist carried out her treatment of the Patient.   

It remains to be seen whether there will be changes to the manner in which claims of negligence are defended in court by hospitals and doctors. It may be that, at the close of trials, hospitals and doctors will move the Court to make orders as to the apportionment of liability between them (in the event both parties are found liable), to avoid any dispute over who is to pay damages awarded by the Court. There may also be changes to the contractual arrangements made between the consultants and the hospitals respectively, particularly in respect to any indemnity provisions. 

On the other hand, this decision may appear to be favourable to claimants seeking relief from the Court as it addresses the disparities in the imposition of liability between doctors as well as hospitals and provides a more accurate reflection of the realities patients may face when seeking treatment and care at healthcare facilities.

Author: Maxine Lim