Public or private?
28 July 2022
“Should I be treated at a public or private hospital?”
The above question is a recurring dilemma faced by patients or those seeking medical treatment. More often than not, various considerations are weighed and assessed including the medical expertise, quality and efficiency of the medical facilities and services, the expenses to be incurred, location and so forth.
The High Court case of Hasniyati binti Hassan & Anor v Kerajaan Malaysia  3 AMR 726 (“Hasniyati”) involving a tragic instance of medical negligence that befell a mother and her newborn son, adds a significant consideration to the mix and could potentially influence future decisions made by hospital-goers.
On 1 July 2016, the first plaintiff (“P1”) who was 27 weeks pregnant was transferred to the Penang Hospital (“Hospital”) from Pantai Hospital Penang after complaints of abdominal discomfort and vaginal discharge. An emergency lower segment Caesarean section was performed on P1 at the Hospital. The second plaintiff (“P2”) was delivered on the night of the same day and was taken to the neonatal intensive care unit in light of his prematurity.
The next day, P1 had her uterus, right ovary and right fallopian tube removed as she suffered from severe bleeding and prolonged shock. P2 was born with several complications and suffered auto-amputation of his right arm due to the insertion of an arterial line on the second day of his birth. P2 also suffered an infection at the stump site of his right arm which he slowly recovered from.
Following from the auto-amputation of the right arm, P2 suffered bony over-growth which requires a surgical removal of the bone once every two years until he reaches between 18 to 21 years old, the period of skeletal maturity. P1 suffered from major (reactive) depressive syndrome as a result of the removal of her reproductive organs and the loss of P2’s right arm.
Consequently, P1 and P2 instituted a medical negligence claim against several defendants including the Government of Malaysia (“defendant”) as the owners and managers of the Hospital. The defendant admitted liability and the matter proceeded for assessment of damages.
The High Court awarded damages of RM1,001,980 to P1, and RM7,360,508 to P2, under various heads of claim, amongst others, general damages for pain and suffering, loss of amenities of life, future general damages such as the cost of P2’s prosthetic arms and medical and therapy needs, special damages such as travel and incidental expenses and P1’s loss of income.
PUBLIC, PRIVATE AND GOVERNMENT POLICY
The defendant submitted that P1 and P2 were able obtain free healthcare by their orang kurang upaya (disabled) status and P2 specifically should not be granted any damages because all the medical treatment, therapies and medicines required by P2 in the future are obtainable for free at government hospitals. It is important to highlight here that the medical and therapy needs of P2 were not one-off and covered medical consultation, occupational therapy, physiotherapy and surgery for stump overgrowth. Most of these medical necessities entailed a high frequency of visits – weekly, monthly and annually.
In addressing the defendant’s contention, the learned Judicial Commissioner Quay Chew Soon referred to the High Court case of Nurul Husna bt Muhammad Hafiz (seorang bayi yang menyaman melalui bapa dan wakil litigasinya, Muhammad Hafiz b Abd Wasti) & Anor v Kerajaan Malaysia & 29 Ors  1 CLJ 825 in regard to the provision of healthcare by the government. In particular, the High Court in that case observed that:
“Nor should damages be reduced by virtue of any statutory duty of the government to provide medical care to the first plaintiff by virtue of her incapacity.
… the first plaintiff's entitlement to compensatory damages for the negligence of the defendants cannot be reduced or diminished even though the second plaintiff, and the first plaintiff as child and dependent of the second plaintiff, are entitled to free medical care … by virtue of the first plaintiff's status as a disable (sic) person ("orang kurang upaya") who is afforded free medical care in the government hospitals under the existing policies of the current government …”
The High Court in Hasniyati was of the view that the government is not compelled by any law to provide public healthcare and that its healthcare policy is not cast in stone. It was emphasised that the victim of a tort should not have to be concerned about the uncertainty of his or her treatment and rehabilitation in the future. The decision to use public healthcare is an issue of mitigation of damages. The tortfeasor shoulders the burden of proving the funding that the victim can reliably obtain from the government.
The High Court disagreed with the contention advanced by the defendant and held that no evidence was adduced to prove that free treatment and services would be provided by the government. In addition, P2 should not be compelled to obtain treatment, therapies and medicines for his entire life in the Hospital or at any other government hospitals for the following reasons:
- damages can only be awarded in monetary terms;
- the feasibility of an order to require the government to provide treatment and therapies at the intensity and frequency recommended by P2’s expert, free of charge;
- supervision of the performance of the order will be difficult;
- continuing litigation in the event of non-performance or unsatisfactory performance of the order; and
- the government’s policies for gratuitous medical treatment and therapies are changeable and impermanent.
REASONABLESS OF PRIVATE MEDICAL HEALTHCARE
The High Court awarded P2 the cost of future private medical treatment and therapies by applying the test as to “whether it was “reasonable” for the claimant to seek private medical care.” This test was laid down by the Federal Court in Inas Faiqah binti Mohd Helmi (seorang kanak-kanak yang melalui bapa dan sahabat wakilnya, Mohd Helmi bin Abdul Aziz) v Kerajaan Malaysia & 2 Ors  2 MLJ 1 in the following terms:
“In determining a claim for future medical treatment, be it at a private, or at a public hospital, the question of reasonableness in making such a claim should always be the paramount consideration. The plaintiff not only needs to justify, for instance, why he chooses treatment at a private hospital over a public one, but he must also show that the amount claimed for such treatment is reasonable …”
In applying the said test, the High Court was satisfied that it was reasonable for P2 to seek future private medical treatment, therapies and medicines based on the following reason
- the evidence by P2’s expert that public hospitals were overwhelmed with patients thus deterring them from providing treatment and therapies required for P2 was not challenged by the defendant;
- public hospitals are financially constrained especially for the services for upper limb amputees;
- the Hospital did not procure a prosthetic arm for P2 even though it was the cheapest type of cosmetic prosthetic arm available;
- the reluctance of P1 to bring P2 to the Hospital for treatment and therapies because of her psychiatric condition and bad experience at the Hospital;
- the acceptance by defendant’s psychiatric expert of P1’s refusal to be given treatment and therapies at the Hospital as an acceptable reaction;
- an insensitive remark made against P2 by an occupational therapist in the Hospital discouraged P1 from bringing P2 back for therapy; and
- the acceptance by the defendant’s expert that such remark, if it was made, should not have been made.
LOSS OF INCOME
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In addressing an admission by P1 that she did not declare her income to the Inland Revenue Board and did not pay taxes, the learned Judicial Commissioner held that such failure did not prevent the awarding of damages. Citing the Court of Appeal’s decision in Vincent Manickam s/o David (suing by himself and as administrator of the estate of Catherine Jeya Sellamah, deceased) & 2 Ors v Dr S Hari Rajah & Anor
 2 MLJ 497 at 535, the High Court awarded damages of RM115,200 to P1 for loss of income. In arriving at this sum, the High Court applied a deduction of 20% to the amount of damages that would otherwise have been awarded under this head of claim to take into consideration the income tax that P1 would have had to pay.
may represent another unfortunate case of medical negligence and the determination of the quantum of damages to be awarded to the victims, Hasniyati
is novel in that the High Court was invited incidentally to examine the current state of the healthcare system in Malaysia.
Be that as it may, a positive note that can be taken from the judgment in Hasniyati
in respect to private medical healthcare is that those aggrieved by incidents of medical negligence are able to seek future private treatment for the injuries suffered provided they prove the reasonableness of the choice and the amount claimed for the treatment sought.
Case note by Loo Peh Fern (Partner) of the Insurance and Reinsurance Practice of Skrine