2 November, 2017
IN THIS ARTICLE, V SHARVEENA THEVY LOOKS AT THE CASE OF VINCENT MANICKAM S/O DAVID (SUING BY HIMSELF & AS ADMINISTRATOR OF THE ESTATE OF CATHERINE JEYA SELLAMAH, DECEASED) & ORS V DR S HARI RAJAH & ANOR[1].
Introduction
A medical malpractice lawsuit is an action brought by a distraught patient or his or her family members against doctors and healthcare providers under the tort of negligence. This action is usually triggered by substandard medical treatment rendered on patients resulting in harm.
The law has been long settled that hospitals are not liable for the negligence of their doctors, so long as they have engaged properly qualified persons[2].
This is because doctors are usually appointed as “independent contractors” by private hospitals, absolving the hospitals from any form of liability stemming from the doctors alleged negligent conduct.
However, the law on this is changing. Recently, the Court of Appeal in Vincent Manickam s/o David (suing by himself & as administrator of the estate of Catherine Jeya Sellamah, deceased) & Ors v Dr S Hari Rajah & Anor had deviated from this position and held a private hospital liable for the negligence of a surgeon who was an “independent contractor” by virtue of the “common sense approach” which served as a guiding compass in determining the hospital’s liability.
What is the hype all about?
In this case, the patient (now deceased) was admitted to a private hospital with symptoms of vomiting, diarrhoea and severe lower abdominal pain over a period of two days. A laparotomy and appendectomy were performed by a consultant general surgeon at the hospital on the same day and she was discharged after a few days.
Subsequently, the patient was re-admitted following complaints of similar symptoms. She was diagnosed by the surgeon to be suffering from paralytic ileus which caused abdominal distension and the possibility of collection of residual pus in the abdomen. The patient was immediately started on antibiotics and was transferred from the ward to the Intensive Care Unit (“ICU”) due to her worsening condition.
In the ICU, the patient had a cardiac arrest. She recovered following CPR and cardiac support. Unfortunately, she passed away a few days later in the hospital due to “multiple organ failure – septicaemia acute appendicitis – peritonitis”.
The patient’s husband and their children filed a suit against the surgeon and the hospital at the High Court.
The High Court proceedings
The learned High Court judge held that the surgeon was negligent in the management of the patient. However, the suit against the hospital was dismissed as the surgeon was an independent contractor.
The appeal to the Court of Appeal
Being dissatisfied with the decision of the High Court in dismissing the claim against the private hospital and on the quantum of damages awarded, an appeal was filed to the Court of Appeal.
The Court of Appeal unanimously decided to depart from the long-standing position that private hospitals are not responsible for the conduct of independent contractors and held “… the issue of liability is examined by adopting a more realistic approach following a recognition of the way businesses and services are now arranged and provided”.
It further went on to state that “[36] The underlying contractual agreement between the parties is also not the conclusive determinant of the relationship between the respondents”.
In arriving at its decision, the Court of Appeal applied the “common sense approach” based on the case of Tan Eng Siew v Dr Jagjit Singh Sidhu[3].
The Court of Appeal was of the view that in order to make private hospitals vicariously liable for the negligence of its doctors, consultants or nurses, investigation and evaluation of whether such persons are truly independent contractors or employees or in special relationships with the hospital become a vital exercise. The Court of Appeal held that the “common sense approach” was the most appropriate test as the evaluation involves mixed questions of fact and law.
This “common sense approach”, also known as the test of various indicia[4], acknowledges the relevance of factors such as the way healthcare and health service business arrangements are run today. Having said that, the following factors were examined further.
Agreement between the surgeon and the hospital
The court examined the clauses in the Consultant Agreement and Resident Consultant Agreement thoroughly before concluding that the terms and conditions in the agreements amply indicate the existence of a special relationship between the surgeon and the hospital and the surgeon was not truly independent of the hospital.
This is in light of the fact that the hospital was in constant control of the surgeon as it was mandatory for the surgeon to treat, manage and care for the patient only at that hospital in accordance to the terms and conditions specified in the agreement failing which the hospital can terminate the agreement.
Position under the Private Healthcare Facilities and Services Act of 1998 (“the Act”)
Under the Act, a private hospital is described as a “healthcare facility”[5] which provides healthcare services regulated by and under the law to members of the public.
Any business arrangement does not absolve hospitals from accountability and liability in law in the healthcare services business. This is because the key components in healthcare services are healthcare professionals. Therefore, the hospital owes a duty of care to the clients or patients.
Non-delegable duty of care
The Court also highlighted that a hospital does not discharge its duty by simply delegating its performance to an employee or an independent contractor by virtue of the doctrine of non-delegable duty of care[6].
For the reasons above, the Court of Appeal held that the High Court’s decision in finding the surgeon to be an independent contractor was an error of law as the evidence indicated that the surgeon was “part and parcel of the organisation”.
This matter has been appealed to the Federal Court.
Conclusion
It is yet to be ascertained whether this decision is only a temporary setback to private hospitals or a new legal development in the area of medical law. Private hospitals may have to review their contractual agreements with the doctors in light of the Court of Appeal decision[7].
[1] [2017] MLJU 325
[2] See Justice Dato RK Nathan, Nathan on Negligence, 1998 3rd Edition.
[3] [2006] 1 MLJ 57
[4] Lee Ting Sang v Chung Chi-Keung & Another [1990] 2 AC 374
[5] Section 2 of the Private Healthcare Facilities & Services Act 1998 defines “healthcare facility” as any premises in which one or more members of the public receive healthcare services.
[6] This principle was adopted in two recent decisions of the Court of Appeal: Dr Hari Krishna & Another v Megat Noor Ishak bin Megat Ibrahim [2015] 1 LNS 1476; and Soo Cheng Lin v Dr Kok Choong Seng & Anor & Another Appeal [2016] 8 CLJ 368. In both appeals, the issue of whether hospitals are vicariously liable for the negligence of the doctors arose and in both cases it was answered in the affirmative based on the principle of non-delegable duty of care.
[7] Chai Beng Hock v Sabah Medical Centre Sdn Bhd & 2 ors [2011] 2 AMR 742 referred.
For further information, please contact:
V.Sharveena Thevy, Shearn Delamore & Co
sharveena@shearndelamore.com
