THE UPDATE SCOOP (#3/2024)
Private Hospital Liable for its Doctor’s Negligence │ Tort
By TAY & HELEN WONG – March 25, 2024
May a private hospital be liable for the negligence of a medical practitioner who is not an employee or servant of the hospital but an independent contractor under contract for services ? That is in essence the pivotal issue in the recent Federal Court case of Siow Ching Yee v Columbia Asia Sdn Bhd[i]. The facts are simple. The plaintiff (P) had undergone a tonsillectomy, palatal stiffening and endoscopic sinus surgery at SJMC but 10 days later, he suffered bleeding at the site of the operation. He was brought to the accident and emergency department of Columbia Asia Hospital, the 3rd defendant (D3) by his family. He was attended to by a medical officer, a consultant ear, nose and throat surgeon, the 1st defendant (D1) and a consultant anaesthetist, the 2nd defendant (D2). Complications developed before the surgery started. Although the surgery was eventually performed uneventfully, P suffered hypoxic brain damage. P was permanently mentally and physically disabled by reason of the massive cerebral hypoxia.
In a suit launched, through his wife, against the three defendants, D1 was held not negligent but D2 was held liable as her conduct had fallen below the standard of skill and care expected from an ordinary competent doctor professing the relevant specialist skills. D3 was absolved of any liability as D1 and D2 were independent contractors hence D3 did not owe any vicarious duty. This High Court decision was upheld by the Court of Appeal.
In the final appeal, the apex court by a majority of 4-1 overturned the ruling against D3 and held that D3 owed a “non-delegable” duty to P which duty was breached when there was negligence found on the part of D2. D3 was a private healthcare facility or hospital used for the reception, lodging, treatment and care of persons who required medical treatment. From the reading of the provisions in the Private Healthcare Facilities and Services Act 1998 and regulations, it was clear that the legislative scheme intended private hospitals such as D3 to remain responsible for the treatment and care of the patients, regardless whom they might have employed, engaged or delegated that task, and even if they were rendering emergency care services.
The pinnacle court also proceeded to apply the common law test known as Woodland features[ii] to the facts of the case; and held that all five features were met which thus gave rise to a non-delegable duty of care. Firstly, P was a patient in a vulnerable position and was totally reliant on D3 for his care and treatment; more so for being admitted to its emergency services. Secondly, there was an antecedent relationship between P and D3, independent of the negligent act or omission, which placed P in the actual custody and care of D3 and from which it was possible to impute to D3 the assumption of a positive duty to protect P from harm. Thirdly, P had no control over how D3 chose to render the emergency care and treatment whether personally or through employees or 3rd parties such as professionals it had engaged. Fourthly, having assumed a positive duty of care to P in respect of emergency services, D3 had delegated to its medical officer, D1 and D2, the performance of its obligations and these persons were indeed performing those delegated functions. Fifthly, the 3rd party, D2 was negligent not in some collateral respect but in the performance of the very function (i.e. rendering proper emergency care and treatment for P) assumed by D3 and delegated by D3 to her.
With all five features satisfied, D3 had assumed a “non-delegable” duty of care that it owed personally to P, a patient who was admitted to its emergency services. The defence of independent contractor was not sustainable in law and was rejected. P’s appeal was allowed with judgment entered against D3 accordingly.
[i] [2024] 3 MLRA 208. See also Dr Kok Choong Seng & Anor v Soo Cheng Lin & Anor Appeal [2017] 6 MLRA 367
[ii] Woodland v Swimming Teachers Association & Others [2014] AC 537
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Tags: [Doctor’s Negligence] [Hospital] [Tort] [Medical Negligence] [Duty of Care]