Where should the law go?

In Part-1, we dealt with some general ideas on how a private hospital could be sued for the negligence of its specialists.

We now examine what the law should be.

A Jordanian baby, and a London Lab

A Jordanian couple, the Farrajs, were carriers of a gene. It was of an inherited blood disorder, BTM.¹Beta thalassemia

BTM is a disabling disease. It reduces life expectancy.

There was a real risk that any child that the Farrajs bore, would suffer from BTM.  Their second child already had it.

In 1995, Mrs. Farraj was with her third child.  She wished to know, by a DNA test, if the foetus had BTM.  If so, the couple were determined to terminate the pregnancy.

A tissue sample (‘CVS’) was taken from the womb.  It was supposed to represent the foetus’ genetic make-up.

It was sent for DNA testing at the King’s Health NHS Trust, London (‘KCH’).

When it arrived, the sample was tiny and bloodstained.

KCH found it was unsuitable for DNA testing.  The sample had to be made viable.  The hospital sent the sample to an independent laboratory, CSL.  It was a highly reputable organisation.

A technician at CSL, Wilcox, examined the sample.

She had doubts whether the sample contained any foetal tissue.

But she cultured the tissue. CSL returned it to KCH, without comment.

KCH tested the returned sample. The KCH test was negative – it meant the sample did not have BTM.

This news was conveyed to the parents. Delighted, they  decided to have the baby.

In December 1995, a baby, Abdullah, was born.

He had BTM.

So the KCH test result had been wrong all along.

Mr. and Mrs. Farraj sued KCH.²Farraj and Another vs. King’s Healthcare NHS Trust and Another [2009] EWCA Civ 1203

Who was to be blamed: KCH, CSL, or both?

KCH blamed CSL.

The court found CSL wholly blameworthy.

CSL’s failure to communicate Wilcox’s doubts had been negligent.

The hospital was held blameless.

Dyson LJ, in analysing the liability of independent contractors, relied on an article by Prof. Glanville Williams.³Williams, Glanville, ‘Liability for Independent Contractors’ [1956] CSA 180, 183

Williams argued that where a person is under a duty of care, and entrusts performance of that duty to an independent contractor, he was not under a duty to check the contractor’s work.

He was entitled to rely upon its proper performance.

This approach was confirmed in D&F Estates v Church Commissioners.⁴[1989] 1 AC 177, 208D].

So the hospital escaped liability.

Hospital-1, Patient-0.

A lump in Soo’s forearm

Soo consulted Dr. Kok Choon Seng about the lump.

Dr. Kok advised surgery.

Dr. Kok performed the surgery at Sunway Medical Centre.

After the surgery, Soo was in pain.  The area operated on became numb.

Dr. Kok  referred him to a hand and micro-surgeon, Dr. Ranjit Singh.

Dr. Ranjit diagnosed Soo.  He found that Soo had lost 90% of his left meridian nerve during the earlier surgery.

So Dr. Ranjit conducted a microscopic reconstruction on Soo’s left meridian nerve.

Soo sued Dr. Kok and the hospital.⁵Dr. Kok Choong Seng v Soo Cheng Lin [2018] 1 MLJ 685

Was Dr. Kok negligent?

The High Court found Dr. Kok liable.  Invoking policy considerations, the trial court said that the hospital was liable to Soo for ‘some kind of vicarious liability’. The Court of Appeal agreed with this view.

On appeal to the Federal Court, the hospital raised three arguments:

Dr. Kok was not an employee, but an independent contractor.  So the hospital was not ‘vicariously liable’.

The principle of ‘non-delegable duty’ did not apply to it.

Under written law,⁶Private Healthcare Facilities and Services Act 1998, and the Private Healthcare Facilities and Services (Private Hospitals and Other Private Healthcare Facilities) Regulations 2006 no ‘non-delegable duty’ could be imposed on private hospitals.

The Federal Court agreed that the imposition of non-delegable duties was a ‘more onerous obligation’ than normal duties.

Was the hospital in Soo’s case liable for Dr. Kok’s negligence ?

Dr. Kok was an independent contractor. Was the private hospital liable for his negligence?

In falling back on Cassidy and Woodland, the Federal Court gave an ‘It depends’ answer.

It said that whether the hospital could be liable “depended from patient to patient, and on the circumstances”.⁷Dr. Kok Choong Seng, paragraph 62

By applying the Woodland test, and because of the evidence before it,  the Federal Court concluded the hospital was not liable.

The Federal Court gave three reasons.

First, the Federal Court felt bound to consider the private agreement between the hospital and the surgeon.

Now, one could not have expected Soo to have known anything about the contract.

He was not party to it.  This is the difficult part about this case.

The agreement said Dr. Kok was not an employee, and that he was an independent contractor.⁸Dr. Kok, supra, paragraphs 96-102

Second, the court noted that Dr. Kok’s relationship with the hospital was not ‘sufficiently akin to employment’ –  so the hospital could not be vicariously liable for the doctor’s negligence.  [We shall have something to say about that in a minute!]

Third, the court said Soo had only expected the surgery to be conducted by  the doctor.

It did not matter where it was performed.  So the location of the surgery was not relevant. ⁹Ibid, Paragraph 36-40, 46 and 63-67

So the court concluded the hospital “had not assumed a positive duty to protect (Soo) from injury”.

Thus, the court ruled that only the doctor was liable, not the hospital.¹⁰Ibid, paragraph 96-102  This argument is difficult to understand.

So Private Hospital-2; Patient -0.

This case needs to be contrasted with another.

Megat’s right eye becomes blind

Megat had a giant retinal tear in his right eye.  It was detached.

He went to see Dr. Hari, who recommended immediate surgery.

After the surgery, Megat was in constant pain, despite seeing the doctor numerous times.

Dr. Hari assured him that his condition was ‘not alarming’.

Megat’s problems persisted.  They became so bad that Megat went to see him without an appointment.

Dr. Hari told Megat that his retina had folded out; and that a second operation was ‘necessary’.  It really was not.  Tragically prescient, Megat asked for a scan to confirm the doctor’s findings.  Dr. Hari told him a scan was unnecessary.¹¹Ibid, p. 290, para [10]  A scan would have confirmed that a second surgery would have been wholly unnecessary.  (The moral of the story is – if a patients asks for extra tests, do not refuse).

The second surgery was carried out.

When Megat regained consciousness, Dr. Hari had bad news

Dr. Hari told Megat that he had ‘bucked’ during surgery.

This meant Megat had moved involuntarily while under inadequate anaesthesia.

Consequently, his eye had been badly injured, resulting in profuse bleeding in his right eye¹²Supra-Choroidal Haemorrhage (‘SCH’) – whenever confronted by such a case, the ‘golden rule’ in surgery is – ‘close-up and get out’. What did Dr. Hari do? He ignored the Golden Rule.  He waited for five minutes.  He then made a larger incision, and removed Megat’s right lens; and told him nothing of it.

The injury was so so bad that there was imminent danger Megat would become blind – unless something urgent was done. Nothing nearly adequate – or urgent – was ever done.

Dr. Hari continued to reassure Megat he would regain his eyesight.

Megat became blind in the right eye  The doctor had not explained even that risk to Megat.¹³Dr. Hari Krishnan & Anor v Megat Noor Ishak bin Megat Ibrahim & Anor and Another Appeal [2018] 3 MLJ 281, p. 291, para [14]

Megat sued the hospital, Dr. Hari, and his anaesthetist, Dr. Namazie.

Megat said they were servants of the hospital, the Tun Hussein Onn National Eye Hospital.¹⁴Ibid, p. 281

The court found that: –¹⁵Ibid, p. 233, paras. [135]-[137]

Megat’s second surgery had been unnecessary.

He had not been properly advised of material information.

The anaesthetist had not provided adequate anaesthesia, resulting in the bucking.

Both the surgeon and the anaesthetist had been negligent.

That left a large, but silent question, hanging.

What about the hospital in Dr. Hari’s case?

The Federal Court thought that the duty of non-delegability was ‘a more stringent one’ than that of vicarious liability.¹⁶quoting Dyson LJ in Farraj v King’s Healthcare NHS trust [2010] 1 WLR 2193, at para 93

The hospital argued that “private hospitals were invariably nothing more than just spaces for doctors to operate”.

The Federal Court threw out that argument.¹⁷Ibid, paragraph 130

In Megat’s case, an anaesthetist, Dr. Manavalan, who had attended to Megat during the first surgery, had been unavailable during the second surgery.

The hospital had asked another anaesthetist, Dr. Namazie, to assist.

Over this choice, Megat had no say.

This showed, said the court, that the hospital had ‘assumed a responsibility’ – and duty – over Megat.

Because Dr. Namazie had been negligent, so was the hospital.

So the court held the hospital liable.¹⁸Ibid, pp. 322-324

So, Private Hospital-2, Patient-1.

But these are bad odds. And Megat’s case is a rare exception, not the rule.

The Federal Court’s ruling in Dr. Kok’s case is the law, and one must accept that.

Both cases are not that different – 5 troubling points

If the Woodland  test is applied to  Dr. Kok’s case and Dr. Hari Krishnan’s, common factors emerge: –

(1).  Other than the anaesthetist’s error – both surgeons, in both cases, had been negligent.

Dr. Hari had asked Megat to go through an unnecessary surgery – and had not advised him properly or in time, which could have saved Megat’s right eye.  That had been the main cause of Megat’s blindness.

Dr. Kok had damaged Soo’s meridian nerve during surgery.

(2).  Soo chose Dr. Kok.  Megat chose Dr Hari.  In both cases the patients had no choice.

(3).  Both surgeries were carried out in operation theatres of private hospitals.

(4).  Dr. Kok,¹⁹Dr. Kok’s case, p. 686, 705 para [42] Dr. Hari,²⁰Dr. Hari Krishnan’s  case, p. 320, para [122] and Dr. Namazie²¹Dr. Hari Krishnan’s  case, p. 320, para [126] were all independent contractors.

(5).   that Dr. Namazie’s negligence had compounded  Dr. Hari’s negligence was not, on its own, strong enough to drag in the THONEH hospital in Dr.Hari’s case. Nor was the absence of similar circumstances in Dr. Kok’s  case weak enough to excuse  the Sunway Medical Centre in Dr. Kok’s case.

(6).  Other than (1) above, there were no major differences in principle – or fact – between the two cases.

In the end, reading the judgements of Dr. Kok and Dr. Hari Krishnan, it seems that any liability of the hospital rests on the slender footing of evidence.  This creates a great deal of uncertainty.

Our courts rely too much on Woodland

In the two cases involving Dr. Kok and Dr. Hari, the Malaysian Federal Court had relied on the Woodland test.

The UK Supreme Court in Woodland had ruled that where a person performs services [like a hospital]  for a group of ‘particularly vulnerable or dependent persons’ [like Soo, or Megat], then that person accepts responsibility to take care.²²Ibid, p. 552, paragraph 25

Woodland stipulated that five concurrent conditions had to be satisfied before a hospital could be held liable.²³(1) vulnerability or dependency on the hospital; (2) previous relationship with the hospital; (3) the patient’s lack of control over hospital’s procedures; (4) Delegated by hospital of function to third party (5) negligence of third party

We should not follow Woodland

With respect, Malaysian courts should be more careful in following the Woodland  test.

When Woodland imposed non-delegable duties, it followed  Australian cases.²⁴e.g. Kondis v State Transport Authority [1984] HCA 61

Yet, despite the fact that Woodland racked up five concurrent conditions, the Australian courts only required three:

(1)   there must be previous relationship between the hospital and patient;

(2)   there must be a positive duty to protect a particular class of persons [patients] against a particular class of risks [negligent treatment etc];

(3)   the duty was ‘personal to the defendant’.²⁵Giliker, ibid, p. 523

Thus, when a hospital deals with ‘vulnerable parties’ to whom it offers some form of ‘care or protection’,  a duty is said to be ‘assumed by the hospital’.

It is on these grounds that Australian courts had imposed duties on schools, day-care centres, owners of mines, and hospitals.

But this is still a bar too high.

This is all very confusing

Woodland has been criticised for not being clear.²⁶Giliker, Paula: ‘Analysing institutional liability for child sexual abuse in England and Wales and Australia: vicarious liability, non-delegability duties and statutory intervention’, Cambridge Law Journal, 77 [3], November 2018, pp. 506-535

Words like ‘vulnerable’, ‘dependence’, and ‘assumption of responsibility’ are vague – and, in practice – difficult to identify or apply.²⁷Beuermann, Christine: ‘Do Hospitals owe a so-called ‘Non-Delegable Duty of Care to their patients?’, Medical Law review (2018) 26(1):1; 01 March 2018)

These phrases also do not accurately describe the relationship between patients and hospitals.²⁸Beuermann , op. cit, pp.18, 19

There is also a view that Lord Sumption was wrong when he formulated the test in Woodland.²⁹Beuermann , op. cit, p. 19

Woodland raises the bar too high – it leaves patients unprotected

There has been a complaint that Commonwealth courts have been imposing the concept of non-delegable duty,“as if it is a historical anachronism”.³⁰Giliker , op. cit, p. 522

It was only imposed in a limited category of claims.³¹e.g. in Wilson’s & Clyde Coal Co Ltd v English [1938] AC 57, where an employer of a mine was required to keep a safe system of work

It was imposed only in exceptional circumstances.

It was always kept within very tight limits.

Yet every single day, countless patients expose themselves to varied dangers in hospitals:  there is nothing ‘exceptional’ about their daily plights.

In fact, if the Woodland test is followed slavishly, private hospitals would go scot free – every time.

Vicarious Liability should be expanded to include independent contractors

Third, because the common law concept of ‘vicarious liability’ is still growing, it is in a state of uncertainty.

Our courts, even if they decide to follow UK cases on vicarious liability, should follow the way UK courts exploited the concept  to defeat paedophiles, as was done in Various Claimants v Catholic Child Welfare Society and Others. ³²[2013] 4 LRC 242, UKSC

There, the court was ready to make an organisation liable if it could discern a relationship – as between the organisation and the wrongdoers – so long as it ‘looked like’ employment.

So also, Malaysian courts should – in the interest of the public and patients across the nation – as a matter of policy – rule that the relationship between a specialist and a private hospital is ‘akin to employment’.

Otherwise every private hospital will draft a contract with its specialist, defining them as ‘independent contractors’ and exclude its own liability – and escape through a side door.

If our statutes require so high a degree of care, why isn’t common law following suit?

When the very narrow and tight non-delegable duty is contrasted with the duties of private hospitals under the Private Healthcare Facilities and Services Act 1998,  a different picture emerges.

The Act defines the duties of private hospital in the most detailed manner possible.³³The Act defines ‘private healthcare facility’ as any premises ‘used … for the provision of healthcare services … such as a private hospital’. ‘Private healthcare services’ are defined as ‘any services provided by a private healthcare facility’. ‘Private hospital’ is defined as ‘any premises … used … for the reception, lodging, treatment and care of persons requiring medical treatment or who suffer from any disease’. ‘Healthcare facility’ means any premise in which one or more members of the public receive healthcare services. [See s. 2 of the Act]. ‘Healthcare professional’ includes a medical practitioner, pharmacist, nurse… and any other person involved in the giving of … health care services under … the Ministry of Health

The requirements for obtaining a licence to run a private hospital are exceedingly tight.

Under s.3 of the Act, ‘no person shall establish any… private healthcare facilities without a licence’.

Under s.11, no person will be given permission to maintain private hospital – unless it is ‘capable of providing adequate health care facilities or services.’

Is not taking greater care of a patient, a function of a hospital’s ‘capacity’ and ‘adequacy’?

Is not the assumption of a non-delegable duty part of those responsibilities?

Under the Private Healthcare Facilities and Services (Private Hospitals and Other Private Healthcare Facilities) Regulations 2006, the law requires a ‘healthcare professional to be ‘registered’ under the relevant law, and possess such experience as is demanded by the Director-General of Health, Malaysia.³⁴The [doctor or specialist] should have such ‘qualification, training, experience and skill to practice in this particular specialty subspecialty in the field of medicine … or other healthcare profession is recognised by the Director General’:[Reg. 13] When a patient is admitted in a private healthcare facility he or she shall be under ‘the direct care treatment of a healthcare professional’:[Reg. 14] Such patients are to be provided ‘with all necessary explanation, instruction and education for pre-and post-procedure or pre-and post-operative care prior to admission: [Reg. 14 (2)]. The person in charge of a private hospital must ensure that any diagnostic procedure, medication and treatment can only be given ‘on the written order of a registered medical practitioner [Reg. 15]. Such a facility must have ‘resuscitation facilities including equipment drugs and material for life-support purposes or for treating any emergencies in the private healthcare facility or service’ [Reg. 20]. A private hospital must have ‘a written policy’ on how its healthcare services are provided. It has a battery of requirements to fulfil [Reg. 21]. All departments under the private health care facility are required to have ‘policies, procedures and guidelines relating to health care services including… Clinical practices’. A person in charge of a private hospital ‘shall ensure that any minor medical, dental, surgical or any other procedures performed in the private healthcare facility are in compliance with (Ministry) guidelines’ [Reg. 22]. The healthcare facility must take ‘reasonable steps to ensure that the patient is… provided information about the nature of his medical condition, any proposed treatment, investigation procedure and the likely cause of the treatment, investigational procedure,… and any person contravenes this regulation commits an offence and shall be liable on conviction to a fine not exceeding RM10,000.00 [Reg. 27]. Part X of the Regulations provide extensive rules about vector control, location of private healthcare facilities, elevators, stairways or rams, corridors, doors, windows, floor finishes, wall surfaces, ceilings, entrances and exits, signs and labourers, number of bits, rule or water requirements, patient room size, internal finishes, furnishing, room lighting, hand washing and toilet facilities, bathing facilities, service facilities, nurse call systems, nurses station, equipment, stretchers etc., clinical examination and treatment room plumbing, water supply, emergency power supply, ventilation, telecommunication devices, refuse, hazardous waste, written procedures, equipment and supplies, Jimmy sites, communication systems, written policy and procedure, supervision, nursing staff, medical assistance, the supervision of medical assistance, procedures for labour etc.

These provisions demonstrate  that Malaysia – like legislatures the world over –  has explicit written laws – which require the most sedulous compliance by private hospitals.

Why?

Because strict laws are needed to protect unsuspecting patients who step into a hospital.

To protect patients, the courts need to re-examine the Woodland test

Like Lord Denning said in Cassidy in 1951, what difference does it make whether the hospital is a government or a private one; and whether the doctors are employees or are independent contractors?

How would such differences bring about greater safety to patients?

This lack of imposition of a non-delegable duty on private hospitals must be re-examined.

The development of the law of non-delegable duties is an ongoing process. With respect, the test in Woodland is far too high.

It places a private hospital completely beyond the reach of a patient who is already paying far too much to private hospitals.

Something more is needed …

Unless serious steps are taken by Parliament and the Superior Courts, private hospitals will become immune from any kind of legal action.

While charging exceedingly high fees to patients, they remain untouchable.

This cannot be right.

Something has to be done.

Two cases that may help

Two cases may have stepped into this breach.

The first is the Court of Appeal decision in Vincent Manickam v Dr. S. Hari Rajah & Anor.³⁵[2018] 2 MLJ 497, at paras. [23] et. seq.

The other is the 1999 High Court decision in Liau Mui Mui v Dr. R. Venkat Krishnan.³⁶[1999] 1 CLJ 207

Vincent Manickam was decided on 29 March 2017.

Dr. Kok’s case was decided on 26 September 2017.

Dr. Hari Krishnan’s case was decided on 14 December 2017.

Both these (later) Federal Court cases did not seem to have had the benefit of the Court of Appeal’s opinion in Vincent Manickam’s case.

What did the courts in Vincent Manickam and Liau Mui Mui  say?

That will be discussed in Part-3.

[The author expresses his gratitude to Miss KN Geetha, Mr. GS Saran and Mr. JP Kirat Singh for all their assistance].