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The Liability Of Private Hospitals In Medical Negligence Cases

In medical negligence cases, once negligence by the doctor has been established, the dispute then focuses on who should pay the damages, either the hospital or the doctor or both.


The prevalent industry practice now sees the doctor being contracted by the hospital as an independent contractor instead of an employee. This arrangement is effective to minimise the risk that the hospital will be held liable for negligent acts by the doctor. As the doctor is no longer an employee of the hospital, thus, it is argued that there is no basis to impose vicarious liability on the hospital for such negligent acts by the doctor.


However, the recent development suggests that the courts are bypassing the limitation of vicarious liability argument by resorting to the concept of non-delegable duty of care. The idea is that regardless of whom the hospital engages to perform a task, that arrangement between the hospital and the delegee only determines the entity that practically performs the task. It does not change where the duty of care lies legally. To a patient who has an antecedent relationship with the hospital, the antecedent relationship gives rise to a personal and non-delegable duty of care to the hospital to see the patient being treated properly. This non-delegable duty of care allows the hospital to be held liable to the patient when a contractor doctor is found negligent.


This is the exact legal proposition that has been accepted in a few common law jurisdictions and which our Federal Court affirmed recently in Siow Ching Yee (menyaman melalui isteri dan wakil litigasinya, Chau Wai Kin) v Columbia Asia Sdn Bhd [2024] MLJU 444.


Brief Facts


The appellant was a patient in the respondent’s hospital. The appellant was brought to the respondent’s accident and emergency department after suffering bleeding from an operation conducted earlier at another hospital. The appellant was attended by a consultant surgeon (1st defendant in the High Court) and a consultant anesthetist (2nd defendant in the High Court). Unfortunately, the appellant suffered hypoxic brain damage after undergoing surgery and is now permanently mentally and physically disabled. The suit was initiated by the appellant through his wife against the two consultants and the hospital, in which both the consultants are, at all material times, independent contractors of the respondent. The appellant claimed that the respondent was vicariously liable for the negligence of the 1st and 2nd defendants and for breach of its non-delegable duties.


At the first instance, the High Court dismissed the claim against the 1st defendant after finding that there was no causal link between the 1st defendant's act or omission and the injuries suffered by the appellant. On the other hand, the 2nd defendant was held negligent for falling below the standard of care expected from an ordinarily competent anesthetist, for her failure to secure the appellant’s airway after administering anesthetic. The High Court further found that the respondent was not vicariously liable on the basis that the doctors were independent contractors. There was not much elaboration on the issue of non-delegable duty.


Upon appeal, with respect to liabilities, the Court of Appeal dismissed the appellant's appeals against the hospital. The argrument of vicarious liability was also abandoned at the Court of Appeal. Hence, the appeal at the Federal Court concerns only the respondent’s liability alone on the issue of non-delegable duties.




The main issue of the case before the Federal Court was whether a private hospital may be liable for the tort committed by a medical practitioner who was an independent contractor on the basis that the hospital owed an independent duty that was non-delegable.




The Federal Court allowed the appeal in a 4-1 majority and held that the hospital was liable for the injuries suffered by the appellant on the basis that it breached its non-delegable duties owed to the appellant.


In coming to this decision, the court relied substantially on the case of Dr Kok Choong Seng & Anor v Soo Cheng Lin and another appeal [2018] 1 MLJ 685, which recognised and adopted the principle of non-delegable duty of care as decided in the case of Woodland v Swimming Teachers Association & Others [2014] AC 537 (Woodland). As the respondent was a private hospital, the court also relied on the Private Healthcare Facilities and Services Act 1998 and the Private Healthcare Facilities and Services (Private Hospitals and Other Private Healthcare Facilities) Regulations 2006 in establishing the hospital's duties.


The Federal Court held that the hospital was liable for breach of its non-delegable duties as the context of the case met the five defining features as developed in the case of Woodland, commonly known as the “Woodland features”:


1)     The appellant was in a vulnerable position, relying entirely on the respondent for care and treatment.


2)     There was an antecedent relationship between the appellant and the hospital. The hospital places the appellant under its care, assuming a duty to protect the appellant from harm. This duty was established after finding that the hospital was responsible not only for its premises but also for the treatment and care of patients, despite doctors operating as independent contractors.


3)     The appellant has no control over how the respondent chooses to fulfil these obligations, whether through its own personnel or independent contractors.


4)     The respondent delegated its obligations to its medical officer such as the 1st and 2nd defendants, who were performing these delegated functions at the material time.


5)     The 2nd defendant was negligent in performing the crucial function of providing proper emergency care and treatment to the appellant. This function was assumed by the respondent but delegated to the second defendant.


Lastly, the court also commented that a patient approaching a hospital for treatment and care should never have to concern themselves regarding the issue of responsibility and separate accountability. It was also irrelevant for the patient to consider the issue of independent contractor when seeking medical services.




While many are concerned that this case may lead to a practice of defensive medicine and an increase in medical costs, that should not be a real threat. In this case, the hospital was found to be liable for the injuries suffered by the appellant. However, it is not a "broad pronouncement on the liability of all private hospitals" and it does not overgeneralise the nuances of the relationship between the hospital, doctor and patient. The Federal Court commented that the factors highlighted above will be considered or even refined in the particular context where it is fair, just and reasonable to do so, depending on the peculiar facts of individual cases.


The significance of this case lies in the increasing prominence of private hospitals in Malaysia, recognised as crucial supplements to the public healthcare system. The corporate of these hospitals emphasises the necessity of addressing liability issues concerning those managing and operating these facilities in relation to the medical practitioners providing care as independent contractors. One could even say that public confidence in private hospitals is bolstered by the principles established in this case, ensuring that hospitals will observe and fulfill its non-delegable duties, thus fostering trust in the healthcare system.

29 April 2024


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