Medical negligence is a species of the tort of negligence. To succeed in a medical negligence claim in the Malaysian High Court, a plaintiff must establish four elements on the balance of probabilities: duty of care, breach of that duty, causation, and damage.
Medical negligence under Malaysian law
- Duty of care — owed by the medical practitioner or hospital to the patient;
- Breach of that duty, measured against the standard of a reasonably competent practitioner in the relevant field of practice;
- Causation — the breach caused, or materially contributed to, the injury complained of; and
- Damage — actionable loss, whether physical, psychiatric, or consequential economic loss.
The modern Malaysian position on the standard of care was settled by the Federal Court in Foo Fio Na v Dr Soo Fook Mun & Anor [2007] 1 MLJ 593, which departed from the English Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 test in favour of the patient-centred approach in Rogers v Whitaker (1992) 175 CLR 479. Under Foo Fio Na, the standard for the duty to advise of material risks is determined by what a reasonable patient in the plaintiff’s position would wish to know, not solely by what a responsible body of medical opinion would disclose. The Federal Court later clarified and reaffirmed this position in Dr Hari Krishnan & Anor v Megat Noor Ishak bin Megat Ibrahim [2018] 3 CLJ 427.
For diagnosis and treatment, the Bolam test — modified by the principle in Bolitho v City and Hackney Health Authority [1998] AC 232 that the expert opinion relied upon must withstand logical analysis — continues to apply.
Limitation period
Under section 6(1)(a) of the Limitation Act 1953, an action founded in tort must be brought within six years from the date on which the cause of action accrued. In latent-injury cases, the running of time may be postponed by the principle of discoverability, and public-authority defendants may engage the shorter three-year limit under the Public Authorities Protection Act 1948. Early legal advice is essential to protect limitation.
Claims commonly handled
The firm has experience advising on and litigating a range of medical negligence matters, including:
- Misdiagnosis and delayed diagnosis (including oncology, cardiac, and obstetric cases);
- Surgical error, retained foreign objects, and post-operative complications;
- Birth injuries, including shoulder dystocia, cerebral palsy, and stillbirth;
- Medication errors and adverse drug reactions;
- Failure to obtain informed consent, particularly for elective and cosmetic procedures;
- Dental, aesthetic, and cosmetic surgery negligence;
- Hospital systems failure, nursing negligence, and inadequate supervision.
What a prospective claimant should do
If you believe you or a family member has suffered harm from substandard medical treatment, the practical steps are:
- Preserve records. Request your full medical records from the hospital or clinic in writing. Under the Malaysian Medical Council’s Confidentiality guideline, patients are entitled to access to their records.
- Obtain a second clinical opinion to understand whether the outcome was a recognised complication or a departure from accepted practice.
- Keep a chronology — dates of consultations, symptoms, investigations, procedures, and communications.
- Do not sign anything presented by the hospital that purports to release claims or waive liability without first obtaining legal advice.
- Consult a lawyer early, both to preserve limitation and to assess whether independent expert evidence should be commissioned.
How the firm assists
Chris & Partners Advocates & Solicitors is led by Dr Chee Hui Bing, who is qualified both in medicine and in law and has appeared in medical negligence matters before the High Court of Malaya. The dual qualification enables the firm to read medical records, correspond with clinical expert witnesses, and test the medical evidence at first principles rather than relying solely on secondary interpretation.
The firm’s medical negligence work typically involves:
- An initial review of the medical records and chronology;
- Identification of the relevant breach allegations and causation pathway;
- Engagement of appropriately qualified independent expert witnesses;
- Pre-action correspondence and, where indicated, mediation or settlement negotiation;
- Issue of Writ and Statement of Claim in the High Court, and conduct through pleadings, discovery, expert exchange, and trial;
- Assessment of damages, including general damages for pain and suffering, loss of amenities, cost of future care, and loss of earnings.
Fee arrangements are discussed at the initial consultation and are structured to comply with the Legal Profession (Practice & Etiquette) Rules 1978 and the Solicitors’ Remuneration Order 2005.
Contact
Chris & Partners Advocates & Solicitors — Batu Pahat, Johor. For an initial consultation on a possible medical negligence claim, please contact the firm via the details on the home page.
This page is provided for general information only. It does not constitute legal advice and does not create a solicitor–client relationship. Every case turns on its own facts; formal advice should be sought on your particular matter.
Related Articles on Medical Negligence
A Patient’s Guide to Suing a Doctor or Hospital
In-depth guide to the Bolam-Bolitho test, expert reports under O.40A r.3, causation, damages, and the procedural path to a Malaysian medical negligence judgment.
Read article →Misdiagnosis Claims in Malaysia
When the doctor got it wrong — missed cancer, missed cardiac, missed paediatric infection, missed fracture, missed obstetric red flags. Five common categories.
Read article →Surgical Negligence Claims
Errors in the operating theatre — never events, anaesthetic errors, technique errors, and failure of informed consent under Foo Fio Na.
Read article →Birth Injury Claims
The highest-value medical negligence claims in our courts. Hypoxic injury, shoulder dystocia, delayed Caesarean. Limitation suspended until child reaches 18.
Read article →