Duty of Care in Medical Negligence Claims (Malaysia)

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The concept of ‘duty of care’ was established in the legal case of Donoghue v Stevenson in 1932, where Lord Atkin articulated a broad obligation to exercise reasonable care to prevent foreseeable harm to a ‘neighbour’. In this instance, a woman in Paisley fell ill after discovering a decomposing snail in a bottle of ginger beer she consumed. Legal action was taken against the ginger beer manufacturer for damages. Lord Atkin concluded that the manufacturer had acted negligently by not ensuring the woman’s safety during production, regardless of whether the woman or her friend had purchased the beverage. The term ‘neighbour’ was defined as someone who could reasonably be anticipated to be directly affected by an action. In this case, it was immaterial who purchased the ginger beer, as it was foreseeable that anyone consuming it would face similar consequences, thus falling under the ‘neighbour’ principle. Not All Errors Are Negligent Medical negligence that failure to adhere to the standard of care expected of a typical qualified physician practicing within the relevant specialty. Occurs not merely when there is an error but when the degree of error exceeds the accepted norm. Principle Elements Of Negligence i. Duty of care Or, an established legal obligation of the defendant towards the plaintiff to exercise caution in actions falling under the responsibilities outlined within the duty. ii. Breach of duty Or, the defendant’s neglect to meet the expected level of care owed to the plaintiff. iii. Causation or consequential damage For the plaintiff, meaning that the plaintiff experiences harm due to the defendant’s failure to fulfill their duty. Duty of care is a legal requirement or responsibility that mandates an individual to adhere to a specific level of behavior. This obligation, when present in particular circumstances, creates what is referred to in tort law as a “duty situation.” A person is obligated to exercise care towards those reasonably anticipated to experience potential harm, thereby owing them a duty of care. Heaven v Pender [1883] 11 QBD 503 led to the formulation of the neighbour principle “Whenever an individual finds themselves in a situation where any reasonable person would immediately understand that failure to exercise ordinary care and skill in their actions could result in harm to another person or their property, a duty is established to employ such care and skill to prevent such harm.

17 May 2024

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