Medical negligence occurs when a healthcare provider’s mistake or oversight results in harm to a patient. Healthcare providers encompass all licensed individuals responsible for diagnostic, therapeutic, or technical patient care, including, but not limited to, doctors, dentists, complementary medicine practitioners, psychiatrists, psychologists, nurses, pharmacists, physiotherapists, behavioral therapists, paramedics, radiographers, medical technicians, and chiropractors.

Below are some examples of situations that may constitute medical negligence:

• Misreading or ignoring critical clinical information
• Administering an incorrect or insufficient treatment plan
• Incorrectly interpreting radiology or lab results
• Misdiagnosing a health condition
• Hastily proceeding with invasive procedures
• Not stabilizing a patient’s vital signs
• Insufficient monitoring of a patient
• Fail to recognize the emergence of a serious health issue
• Delays in attending to a patient
• Errors during surgery or perioperative incidents
• Ignoring established procedures and protocols
• Not accurate medication prescriptions
• Underestimating and failing to thoroughly investigate a patient’s symptoms
• Discharging a patient prematurely
• Giving incorrect or insufficient advice to a patient
• Neglecting to inform a patient about significant risks or alternative treatments
• Failing to obtain informed consent for procedures
• Operational failures within the healthcare facility
• Inadequate emergency resources
• Delays in referring a patient to a specialist
• Not adhering to healthcare regulations and guidelines

Example of Medical Negligence

1) Diagnosis and Treatment Errors

In Malaysia, medical negligence is categorized into two main areas: diagnostic and treatment errors, and the duty to advise on the material risks of a proposed treatment. For claims related to diagnosis and treatment, the patient must demonstrate two key points:

1. The practitioner’s conduct fell short of what is expected from a competent medical peer.
2. The alleged injuries or damages were caused or significantly influenced by the practitioner’s actions.

If either of these criteria is unmet, the claim is likely to fail. The law acknowledges that a practitioner may not be deemed negligent if they adhere to accepted medical standards, even if there is dissenting medical opinion.

2) The Duty to Advise on Material Risks of Treatment

In cases where negligence involves the duty to inform a patient about treatment risks, the patient must show that

(1) they experienced a negative outcome from the treatment, and

(2) this adverse outcome was a significant risk associated with the treatment, which the practitioner failed to disclose.

Determining whether a risk is significant is mainly based on the patient’s viewpoint. However, the perspectives of the practitioner and the broader medical community also play a role in assessing whether the duty was breached. In some cases, the law allows a practitioner to withhold information about certain risks if disclosing them could potentially harm the patient.

Due to this complexity, courts often rely heavily on clinical expertise in medical negligence cases. Practitioners are generally in a strong position to justify their actions and clinical decisions, while patients, lawyers, and judges—who may lack medical knowledge—often face challenges against a skilled defendant practitioner.

Typically, both parties will need to seek an independent expert’s opinion, often from a peer of the defendant, before proceeding with litigation. For medical negligence attorneys, forming an initial assessment of the case’s likelihood of success is usually difficult without such expert guidance.

Get A Legal Expert Opinion

Typically, an expert is requested to review the case and provide a written assessment regarding the presence of negligence. In some instances, the expert may also conduct an examination of the patient to evaluate their future medical care requirements. Experts are required to appear in court, where their opinions will be subjected to cross-examination. As a result, they charge fees for their evaluations and court appearances.

For patients, the choice to pursue legal action often hinges on the availability of a supportive expert opinion and their ability to cover the associated fees. Conversely, for practitioners, the absence of a favorable expert opinion may lead them to seek a quick out-of-court settlement or even admit liability, allowing the court to determine the appropriate damages for the patient.

Choosing an expert is not a matter of randomly selecting a practitioner; the expert must have the necessary qualifications, expertise, and experience relevant to the defendant’s specialty. Additionally, the expert should have a credible reputation and, crucially, must be impartial and unbiased towards both the patient and the medical field.

Get Patient’s Medical Records

An expert cannot formulate an opinion on a case without access to the patient’s medical records. These records provide a systematic account of a patient’s clinical history and treatments, and they are updated each time the patient receives care. Typically maintained at the healthcare facility, medical records are not easily accessible to the public or the patient. They are essential in medical negligence cases, as they offer the necessary information for lawyers, experts, and the court to fully understand the clinical aspects of the patient’s situation.

Some healthcare facilities may voluntarily provide copies of a patient’s medical records upon receiving a formal written request, while others may require a court order for access, which can incur legal fees.

A defendant practitioner has access to the medical records of their patients within the healthcare facility where they work. However, if a patient has received treatment from multiple healthcare centers, both the patient and the defendant practitioner should be prepared to cover the costs associated with obtaining records from those additional facilities.

Financial Considerations

Medico-legal litigation can be costly, and “no-win, no-fee” arrangements are illegal, meaning lawyers cannot finance cases for clients. Limited litigation funding may prevent patients from pursuing claims and practitioners from securing representation. In lower-value cases, the costs of litigation may outweigh potential benefits.

Conversely, high defense costs may prompt practitioners to settle early. Some healthcare providers might lack adequate professional indemnity insurance, leaving successful plaintiffs with unpaid judgments. If a claim succeeds, defendants typically cover a portion of the winning party’s legal fees, while unsuccessful plaintiffs may have to pay defendants’ costs, increasing expenses the longer the case lasts.

Find Lawyers with Relevant Expertise

Medico-legal litigation is intricate and requires an understanding of medical terminology and the healthcare field. While having an expert opinion can be beneficial, it does not guarantee success. A lawyer must comprehend the relationship between medical science and clinical practice to effectively address the clinical aspects of the case, provide proper instructions to experts, and advocate for their client in court. Additionally, the lawyer needs to understand damage laws to ensure the patient is adequately compensated.

The patient’s lawyer should be skilled in cross-examining the defendant practitioner and their expert on clinical issues, while the defense lawyer must similarly challenge the opposing expert’s opinions. Many valid claims and defenses have failed due to a lawyer’s lack of familiarity with medico-legal matters, as only a few possess the necessary expertise to handle such cases effectively.

Furthermore, establishing a good relationship with the medical community is essential for accessing expert opinions. Many deserving cases go unheard in court due to difficulties in obtaining expert testimony.