医疗过失
医疗过失
In Malaysia, medical negligence cases can be complex. Our firm assists clients who may have been affected by medical errors or healthcare-related issues. We are familiar with the processes involved in medical negligence matters and provide compassionate advocacy aimed at supporting your rights throughout the legal process.
Are you looking for Medical lawyer ?
Have you or a loved one been affected by possible medical negligence at hospitals or clinics in Malaysia? Our lawyers assist clients dealing with preventable medical mistakes, from hospital errors to specialist malpractice, offering guidance and support during these sudden, life-changing situations.
为什么选择我们作为您的医疗律师？
- 我们有作为医生的经验！
- 30 分钟免费 - 由我们的医疗律师提供法律咨询
- We help you 最大化您的索赔！
- We assist clients with court matters, advocating on their behalf.
Are you facing these medical negligence issues?
01.
误诊或未诊断癌症、心脏病或感染等严重疾病。
02.
手术错误，例如损伤器官、将异物留在体内或引起感染。
03.
用药错误，例如给予错误的药物或剂量，会导致并发症。
04.
未能正确监测患者或对测试结果做出反应。
05.
伤害婴儿的分娩错误，例如缺氧或导致脑瘫。
06.
延迟治疗会使可治疗的病情变得更糟。
FAQs
1. What counts as “medical negligence” in Malaysian law?
It is a tort requiring proof of duty of care, breach, causation and damage, the test having been firmly endorsed by the Federal Court in Foo Fio Na v Dr Soo Fook Mun [2007] and consistently followed ever since.
2. Which test does the court apply when deciding whether a doctor breached the standard of care?
Malaysia applies the modified Bolam-Bolitho approach: expert opinion must not only represent accepted practice (Bolam) but must also withstand logical analysis (Bolitho).
3. Has that standard moved recently?
Yes. In Siow Ching Yee v Columbia Asia Sdn Bhd (Federal Court, 23 Feb 2024) the court awarded RM2.1 million and insisted that professional custom is no shield if the practice itself is illogical.
4. Can a private hospital escape liability by saying its doctors are independent contractors?
No. Siow Ching Yee recognised a hospital’s non-delegable duty of care to in-patients, meaning the institution is jointly liable with the negligent doctor.
5. What is the current law on informed consent?
Courts measure disclosure against both the Medical Council’s 2019 Good Medical Practice guidelines and the Bolam-Bolitho yardstick, requiring practitioners to disclose any material risk a reasonable patient would want to know.
6. Is an apology treated as an admission of liability?
Under the case law of Gurmit Kaur, it could be deemed as an admission of liability if the doctor apologised.
7. What is the limitation period for a claim?
An action must be filed within six years of the negligent act (Limitation Act 1953, s 6). For the government facilities, the action must be filed within 3 years (PAPA 1948, s2).
8. Can that limitation clock start later if the harm was latent?
Courts may apply an equitable “date-of-knowledge” rule where the injury was not reasonably discoverable earlier, allowing the claim even after six years. However, it is not advisable to do it in practice.
9. Must expert reports be exchanged early?
Yes. High Court Practice Direction 1/2024 obliges parties to identify and exchange expert reports at case-management; late reports can be excluded.
10. Is mediation formally encouraged?
A Bar Council–MOH working group has drafted a voluntary Medical Mediation Scheme (pilot launch expected 2025) to shorten litigation timelines.
11. Are damages awards rising?
Recent judgments (including the RM 2.1 million Siow award) confirm a willingness to recognise lifelong care costs.
12. How do courts calculate future-care costs?
They apply the multiplier-multiplicand method with a 2 % real-discount rate, following Tun Pakir (CA 2023).
13. Can plaintiffs claim exemplary damages?
Yes where the conduct shows conscious or reckless disregard for patient safety, but awards remain exceptional.
14. Do courts ever reduce damages for contributory negligence by patients?
Yes. Deduction of 10-25 % is common where, for example, the patient ignored post-operative instructions.
15. Is the “loss of a chance” doctrine accepted?
Still unsettled: the High Court rejected it in Baharuddin v UM Specialist Centre [2022]; the Court of Appeal’s decision is pending.
16. Can breach of a hospital’s own SOPs prove negligence?
Internal SOPs are persuasive evidence of breach because they show the standard the institution itself considered safe.
17. How are electronic medical records admitted?
Sections 90A-90B Evidence Act allow computerised records to be proved by a certificate that identifies the device and its hash value.
18. What defences remain open to doctors?
Valid consent, therapeutic privilege, proof of accepted competent practice and the possibility that an intervening act, not the doctor’s breach, caused the damage.
19. Is a finding of professional misconduct by the MMC binding on the civil court?
No, but it is highly persuasive when the same facts come before the civil court.
20. May foreign experts give evidence?
Yes under Order 40A Rules of Court, though the judge may require security for their costs.
21. Who ultimately pays expert-witness fees?
If the claimant wins, reasonable expert fees are normally recoverable as disbursements.
22. Is Malaysia moving toward a birth-injury no-fault scheme?
The MOH’s 2024 concept paper proposes a Cerebral Palsy fund; legislation is awaited.
23. What is the patient’s burden on causation?
They must show on the balance of probabilities that the negligent act materially contributed to the injury.
24. Can claimants bring a class action?
Yes under Order 15 rule 12, but medical-negligence class actions remain rare in practice.
25. How will AI decision-support tools affect liability?
Courts are likely to treat AI output as an adjunct: responsibility stays with the clinician who relied on it.
26. How long must hospitals keep patient records?
Private Healthcare Facilities Regulations 1996 reg 91 sets a minimum of seven years; loss of notes may trigger an adverse inference.
27. Can an early “disclosure-and-apology” meeting stop litigation?
The proposed mediation scheme will allow privileged, without-prejudice meetings to explore early settlement.
28. Are judges using joint expert conclaves?
Yes. PD 1/2024 expressly empowers judges to direct experts to confer and produce a joint statement narrowing the issues.
29. Do future care costs include GST if it is re-introduced?
Yes—if evidence shows the claimant will actually bear the tax on future services.
30. What happens to costs where the plaintiff beats an earlier settlement offer?
If the plaintiff betters an Order 22B formal offer, the court can award indemnity costs from the offer date onward.