On 23 February 2024, the Federal Court by a 4:1 majority ruling in Siow Ching Yee v Columbia Asia Sdn Bhd [2024] CLJU 404 held a private hospital, Columbia Asia Sdn Bhd (“the Hospital”) to be jointly liable with an anaesthetist to pay approximately RM2.1 million in damages to the patient.
 
In this significant ruling for medical negligence cases in Malaysia, the Federal Court revisited the contentious issue of whether a private hospital should be liable for the negligence of a medical practitioner who is said to be an independent contractor. In other words, whether the private hospital owes an independent duty to a patient which is non-delegable, regardless of who it may have delegated that duty and who may have performed the act or omission complained of.
 
BRIEF FACTS
 
The patient had undergone a tonsillectomy, palatal stiffening and endoscopic sinus surgery at the Subang Jaya Medical Centre on 10 March 2010. However, 12 days later, the patient suffered bleeding at the site of the operation and was brought to the accident and emergency department of the Hospital at or about 3.30 a.m.
 
A medical officer attended to the patient and referred him to ear, nose and throat surgeon Dr Megat Shiraz Megat Abdul Rahim (“Dr Megat”), who recommended the patient to undergo an examination and wound debridement under general anaesthesia. Dr Megat called for anaesthetist Dr Noor Asilah Abdul Rahman (“Dr Noor Asilah”) to assist him.
 
The patient experienced complications even before surgery started. Despite efforts by the attending surgeon and anaesthetist, the patient collapsed and emergency resuscitation had to be executed. Thereafter the intended surgery was performed and was uneventful. However, the patient suffered hypoxic brain damage and is permanently mentally and physically disabled by reason of massive cerebral hypoxia.
 
DECISION OF THE HIGH COURT
                              
In 2020, the High Court found the anaesthetist Dr Noor Asilah liable for failing to comply with the emergency life-saving procedures. Dr Noor Asilah was ordered to pay damages of approximately RM1.9 million.
 
The High Court dismissed the patient’s claim against Dr Megat due to the lack of causal link between his acts and/or omissions and the injuries suffered by the patient. The High Court also dismissed the patient’s claim against the Hospital on the grounds that the attending surgeon and anaesthetist were carrying out their respective medical practice at its hospital as independent contractors under contracts for services.
 
DECISION OF THE COURT OF APPEAL
 
Both the patient and Dr Noor Asilah appealed.
 
At the Court of Appeal, the patient’s appeal against the Hospital was dismissed whilst his appeal against Dr Noor Asilah with respect to damages was allowed and raised to approximately RM2.1 million. The patient withdrew the appeal against Dr Megat.
 
On the other hand, Dr Noor Asilah’s appeal was dismissed by the Court of Appeal.
 
THE MAJORITY JUDGMENT OF THE FEDERAL COURT
 
The patient’s appeal before the Federal Court concerns the Hospital alone. The central issue is whether the Hospital owes a non-delegable duty of care to the patient.
 
From the outset, it is to be noted that the Federal Court in the case of Dr Kok Choong Seng & Anor v Soo Cheng Lin and another appeal [2018] 1 MLJ 685 (“Dr Kok”) had recognised and adopted the doctrine of non-delegable duty of care as propounded by the United Kingdom Supreme Court in Woodland v Swimming Teachers Association & Others [2014] AC 537 (“Woodland”). Shortly thereafter, the Federal Court revisited the issue in Dr Hari Krishnan & Anor v Megat Noor Ishak b Megat Ibrahim & Anor and another appeal [2018] 3 MLJ 281 (“Dr Hari Krishnan”).
 
In this regard, Lord Sumption in Woodland had formulated five defining features where non-delegable duty of care applies:

In Malaysia, the second Woodland feature appears to be the common hurdle to imposing liability on private hospitals in medical negligence cases as the common defence raised by private hospitals would be that the attending medical practitioners are independent contractors under contracts for services and the hospital is merely to ensure the provision of facilities and medical equipment, including nursing staff. Thus, there is arguably no antecedent relationship between the patient and the private hospital.
 
Dato' Mary Lim Thiam Suan, FCJ who delivered the majority decision in the present case noted that the Federal Court in Dr Kok had ‘refrained from making a broad pronouncement on the liability of all private hospitals in medical negligence cases on the basis of policy alone as it would “risk overgeneralising the nuances of modern business relationships, and result in an unprincipled approach to liability”. According to Her Ladyship, it may now be appropriate for the criteria or five features of Woodland to be re-considered or possibly, refined in the particular contexts.
 
The Federal Court referred to a plethora of authorities for the rationale of non-delegable duty owed by private hospitals. In addition, after discussing the relevant provisions of the Private Healthcare Facilities and Services Act 1998 (“Act”) and the Private Healthcare Facilities and Services (Private Hospitals and Other Private Healthcare Facilities) Regulations 2006 (“Regulations”), such as sections 3, 4, 31, 35, 38, 74 and 75 of the Act and regulations 13, 14, 21 to 27 and Part XVII of the Regulations, Her Ladyship concluded that it is “clear as daylight” that it is the intention of the legislative scheme in Malaysia that private hospitals remain responsible for the treatment and care of patients regardless to whom they may have employed, engaged or delegated the task or responsibility.
 
The Federal Court added that implicit in this structure and legislative scheme is already the balance and incorporation of the elements of fairness, just and reasonableness which need not be reconsidered as an entirely separate exercise or consideration. Persons approaching, using and relying on the treatment and healthcare rendered in these facilities and services should never have to concern themselves with issues of responsibility and separate accountability as negligence and mishaps would be furthest from their minds.
 
In light of the above, the learned Judge was satisfied that second Woodland feature of an antecedent relationship is well met by the statutory framework which puts into place a relationship which deems an assumption of a non-delegable duty of care; and also from the factual circumstances.
 
On the facts, the patient was admitted to and in the Hospital’s emergency facilities and treated by its medical officer, before being referred to the attending surgeon and anaesthetist. The reference to the attending surgeon and anaesthetist was by the Hospital’s own medical officer. The attending surgeon and anaesthetist are also part and parcel of the necessary professionals who must be available if the Hospital is to provide emergency services on a routine basis. More importantly, the negligent act complained of took place during the care and treatment rendered within the Hospital’s premises using its facilities and services.
 
As the Federal Court was satisfied that all five features of Woodland were satisfied, it held that the Hospital owes a non-delegable duty of care to the patient who was admitted to its emergency services. Thus the defence of independent contractor was held to be unsustainable and ought to have been rejected by the Courts below.
 
In closing, Dato’ Mary Lim, FCJ reiterated that the Woodland features have to be refined in the context of the Act in the manner discussed above.
 
THE DISSENTING JUDGMENT
 
The dissenting Judge, Dato’ Zabariah binti Mohd Yusof, FCJ took the view that this is a clear and straightforward case of negligence of an independent contractor. There is no ambiguity in the relationship of independent contractor between the anaesthetist Dr Noor Asilah and the Hospital. There is also no issue of the patient being deprived of remedy or compensation for the negligence and thus, no necessity to go through the difficult route to invoke the doctrine of non-delegable duty to make a private hospital liable. The imposition of a non-delegable duty of care is, and should always be, highly facts sensitive.
 
The dissenting Federal Court Judge quoted Lord Sumption in Woodland who had cautioned against imposing unreasonable financial burdens on those providing critical public services. The case of Woodland concerned the imposition of non-delegable duty only in so far as it would be fair, just and reasonable to do so. In this case, the imposition of the non-delegable duty on the Hospital would not be fair, just and reasonable in the circumstances and would impose a grossly unfair burden on health institutions providing critical public health services in Malaysia, more so in emergency situations.
 
Dato’ Zabariah, FCJ further opined that the doctrine of non-delegable duty of care is distinct from the doctrine of vicarious liability, which according to orthodox theory, imposes secondary liability. Non-delegable duty remains as an exception to the fault-based principle and there is no need to impose liability on a non-tortfeasor premised on non-delegable duty of care when remedy or compensation is available. The normal application of the principle of liability of independent contractors in torts law would not leave the patient without remedy or compensation, as evidenced by the award of damages granted by the Court of Appeal.
 
According to the learned Judge, an “antecedent relationship” which is the second Woodland feature refers to a pre-existing relationship between the hospital and the patient which places the patient in the actual custody of the hospital. It is premised upon the assumption of a positive duty to protect a patient from harm. In this case, the patient was earlier treated by another surgeon in Subang Jaya Medical Centre and was only admitted to the Hospital in an emergency situation. Accordingly the Judge was of the view that there is no antecedent relationship between the Hospital and the patient and the Hospital has not assumed a positive duty to protect the patient from harm or injury.
 
Apart from the absence of an antecedent relationship between the patient and the Hospital, Her Ladyship was of the view that there is no compelling public policy justification for the imposition of a non-delegable duty of care on a private hospital. The Regulations do not impose a non-delegable duty of care on private hospitals. At best, they show that medical practitioners form part of the organisation of private hospitals. Nothing is stated about the liability of private hospitals in the provision, and nothing turns on it. There is also no evidence adduced to show that the Act and the Regulations were not complied with.
 
In this case, the Hospital had arranged for the facilities to be made available for the treatment of the patient by ensuring that the attending surgeon and anaesthetist are registered and skilled in the treatment of the patient. There was no finding of fact by the learned trial judge that the Hospital was negligent in its selection of the attending surgeon and anaesthetist, provision of facilities, or system of work. Therefore, in the absence of negligence on the part of the Hospital, the Hospital should not be held liable for the negligence of Dr Noor Asilah, who is an independent contractor. To infer from the provisions of the Act and the Regulations on such liability would be an overstretch.
 
COMMENTS
 
As mentioned earlier, the doctrine of non-delegable duty of care propounded in Woodland was introduced into Malaysian law by our apex court in Dr Kok and Dr Hari Krishnan. Whilst this recent Federal Court decision is not ground-breaking in that regard, it is nevertheless a significant decision as our Federal Court revisited the Woodland features, in particular, the second feature in light of local private healthcare legislation which were extensively reviewed in the case. The majority judges’ application of the provisions of the Act and the Regulations to establish an antecedent relationship under the second Woodland feature will make it practically impossible for private hospitals to avoid liability under the doctrine of non-delegable duty of care by contending that the second feature has not been fulfilled.
 
The dissenting judgment in this 4-1 decision also provides valuable insights on the possible alternative in applying Woodland features in Malaysian medical negligence cases.
 
Case Note by Loo Peh Fern (Partner) and Tan Yng Yiin (Associate) of the Dispute Resolution (Medical Negligence) Practice of Skrine.