Dr Kok Choong Seng: When the Surgeon Is Not the Hospital’s Employee

A patient picks a surgeon. The surgeon books an operating theatre at a private hospital, and the operation goes wrong. Whether the hospital must share the blame was the issue in Dr Kok Choong Seng & Anor v Soo Cheng Lin and another appeal, decided by the Federal Court on 26 September 2017. The court accepted a new basis of liability for Malaysian hospitals, the non-delegable duty, yet found that it did not apply to the hospital before it.

A forearm lump and a damaged nerve

The patient consulted Dr Kok, an orthopaedic surgeon, about a lump on the forearm. The surgeon advised an operation and arranged for the patient to be admitted to Sunway Medical Centre, where the surgery took place on 14 September 2004.

Afterwards the patient had pain and numbness. About 90% of the left median nerve, one of the main nerves of the forearm and hand, had been lost, and another surgeon later carried out microsurgical reconstruction.

The patient sued both the surgeon and the hospital in negligence and in contract. The High Court held both liable, and the Court of Appeal upheld the hospital’s liability. Surgeon and hospital each appealed to the Federal Court.

Two routes to making a hospital pay

There are two ways in which a hospital may be liable for a doctor’s mistake. Vicarious liability makes an employer answerable for the wrongs of its employees. It does not ordinarily extend to an independent contractor, which was Dr Kok’s status at the hospital.

A non-delegable duty is different. It is a duty the hospital itself owes to the patient. The hospital may hand the work to someone else, but it cannot hand over the legal responsibility. If the person chosen is negligent, the hospital is in breach of its own duty, whatever the contract between them says.

The Federal Court granted leave on four questions. The first two asked whether the doctrine of non-delegable duty in Woodland v Swimming Teachers Association [2014] AC 537, a decision of the UK Supreme Court, applies in Malaysia, and whether it makes private hospitals liable for independent-contractor doctors. The others asked whether the extended form of vicarious liability discussed in Various Claimants v Catholic Child Welfare Society, which covers relationships akin to employment, applies to private hospitals and such doctors.

Doctrine accepted, hospital not liable

A five-member panel heard the appeals, and Raus Sharif CJ delivered the judgment. The court held that the Woodland doctrine applies in Malaysia, to be assessed case by case against the five features identified by Lord Sumption in that case.

In outline, and as later applied to a hospital in Siow Ching Yee v Columbia Asia Sdn Bhd [2024] 3 MLJ 66, those features ask whether the patient was vulnerable and reliant on the hospital; whether an earlier relationship had placed the patient in its care; whether the patient had any control over how the hospital performed its function; whether the hospital delegated an integral part of that function; and whether the delegate was negligent in performing it.

On these facts the hospital was not liable. The patient had chosen Dr Kok and relied on Dr Kok. The hospital merely provided facilities and had not assumed a positive duty for the conduct of the operation. Nor was it vicariously liable, because the surgeon was an independent contractor and the relationship was not akin to employment. The surgeon alone was liable.

The door the court left open

The court left room for a different result where the patient looks to the hospital itself for treatment. Emergency services are the example commentators draw from the judgment.

That door opened quickly. In Dr Hari Krishnan & Anor v Megat Noor Ishak bin Megat Ibrahim & Anor and another appeal [2018] 3 MLJ 281, decided on 14 December 2017, the Federal Court applied Dr Kok Choong Seng and held that a private hospital owed a non-delegable duty in respect of anaesthetic services, because the patient had no say in who the anaesthetist would be.

In Siow Ching Yee, decided in 2024, a Federal Court majority built on the case and grounded the hospital’s duty in the Private Healthcare Facilities and Services Act 1998. There the patient had come to the emergency department, and the independent-contractor defence failed. Published commentary reports that the Court of Appeal applied the same analysis in Dr Chandran a/l Gnanappah v Gan See Joe [2025] 5 MLJ 216.

The reasoning in Dr Kok Choong Seng still stands, but later cases have considerably narrowed the ground on which a hospital can rely on it.

Practical takeaways: who the patient looked to for care

• Patients: how you came to be treated matters. If you chose your own consultant and the hospital only provided the facilities, this case points to the consultant, not the hospital, as the party liable.

• Patients: where the hospital assigned the clinician, or you arrived through its emergency department, later decisions show that the hospital may owe you a duty of its own.

• Doctors: a consultant engaged as an independent contractor carries personal liability. In this case the surgeon alone was liable, which makes the adequacy of indemnity cover a practical concern.

• Private hospitals: a consultant’s contract does not settle the hospital’s exposure. What matters is who the patient reasonably looked to for care.

• Private hospitals: services that the hospital itself arranges, such as emergency care and anaesthesia, are where later cases have found a non-delegable duty, so credentialing, clinical governance and indemnity arrangements for them deserve close attention.

Authorities and sources

• Dr Kok Choong Seng & Anor v Soo Cheng Lin and another appeal [2018] 1 MLJ 685; [2017] 10 CLJ 529 (Federal Court, 26 September 2017)

• Dr Hari Krishnan & Anor v Megat Noor Ishak bin Megat Ibrahim & Anor and another appeal [2018] 3 MLJ 281; [2018] 3 CLJ 427; [2018] 1 MLRA 535 (Federal Court)

• Siow Ching Yee v Columbia Asia Sdn Bhd [2024] 3 MLJ 66; [2024] 3 MLRA 208 (Federal Court)

• Dr Chandran a/l Gnanappah v Gan See Joe & Anor and another appeal [2025] 5 MLJ 216 (Court of Appeal)

• Woodland v Swimming Teachers Association [2014] AC 537 (UK Supreme Court)

• Various Claimants v Catholic Child Welfare Society (referred to in the leave questions)

• Private Healthcare Facilities and Services Act 1998 (Act 586)

• Published law-firm case notes and law-report headnote summaries (secondary material)

This article is general legal information only and is current as at 19 September 2026. It is not legal advice and does not create a solicitor-client relationship. Court decisions may be appealed and the law may change; please seek advice on your own circumstances. — Chris & Partners, Advocates & Solicitors