A Legal Analysis on Selected Issues in Medical Negligence in Malaysia

Abstract

It is well-established that a doctor owes a duty to take reasonable care in treating their patients so as not to cause any harm. This duty is owed by the doctor as soon as a doctor-patient relationship is formed. However, in performing their professional duty to treat patients, doctors may encounter several obstacles that may impede the efficacy of their performance. These obstacles range from doctors’ inexperience, lack of skill and even patients’ own conduct. For example, a junior doctor may not have the same skill and ability as a more experienced doctor. Or, a doctor may need to perform procedures which are beyond his expertise. There may also be situations where a patient requests to be discharged before the completion of his treatment. Similarly, a patient may refuse to follow the doctor’s advice to seek for further investigation. In addition, some hospitals may operate with limited resources or facilities and this may jeopardise patient safety. In these scenarios, a crucial question arises - how does the law measure the doctor’s standard of care? This issue forms the crux of this paper where the standard of care imposed on doctors in several identified situations are critically analysed by referring to relevant Malaysian case laws. This discussion is essential to alert doctors on the legal requirements expected from them in order to prevent any legal impediment.