Malaysiakini Letter

Justice for victims of medical negligence

Kumaraguru
Published:  |  Modified:

'Every year 2,000 to 4,000 deaths occur due to some form of medical negligence and a significant number of such cases go unreported either because of the out of court settlement, or because the patients accept the incidents as matters of fate, or they are ignorant about their rights, or are too poor to afford litigation particularly when there is no speedy and inexpensive system of administration of justice in medical negligence cases in Malaysia.' - Prof Dr Ali Mohamad Matta (December 2003) Issues in Medical Law and Ethics , Medical Law and Ethics Unit, Law Centre, Ahmad Ibrahim Kulliyyah of Laws, IIUM Malaysia, p21.

'Our estimates indicate that medical errors could be the No 2 killer in Malaysia. It may rank second, after heart diseases and cardiovascular disorders (8,915) as the top killer in the country. Medical errors may also kill more Malaysians than either cancer, diabetes or motor accidents ... that for every case of medical error reported, 10 cases go unreported ... Medicine is not a universally valid, objective science; and it is also not infallible ... 80 percent of medical procedures used today have never been properly tested. - SM Mohd Idris, Can Doctors Be Trusted? How to protect Yourself against Medical Errors (2004), Consumers' Association of Penang.

'The passive regulatory nature of the Malaysian Medical Council (MMC) which relies on complaints and only reacting to those reported to it, severely reduces the number of offences brought before the MMC. This is further compounded by the lack of an inspectorate to detect offences. There is lack of proper machinery to deal with poorly performing doctors except through the court of law.

'Cases of medical negligence and malpractises are excessively difficult to prove and take a very long time to settle ... an average of 86 percent of claims are filed against doctors in the private sector ... The regulatory bodies as well as the regulatory processes do not show that they provide sufficient safeguards to protect the interests of the public ... the MMC deals with complaints of ethics and professional behaviour, not cases of malpractice or negligence.' - Dr Nik Rosnah Wan Abdullah (September 2003) The Malaysian Medical Professionals: Serving the Public Interests? , FEA Working Paper 2003-9, University of Malaya.

As we know, a doctor's duty towards his patient include, amongst others:

  • a duty of care in undertaking a case according to his skill/expertise;

  • a duty of care in deciding the choice of treatment;
  • a duty of care while administering that treatment;
  • A breach of any of these duties must allow the patient or his family the right to immediate redress as some may have lost a limb or life while others may require urgent corrective surgery that may be beyond their financial means.

    In addition, public hospitals and the taxpayer must not be unnecessarily burdened with the blunders of private healthcare providers.

    Amongst the problems faced by patients in pursuing justice with regards to medical errors are:

    • in procuring unbiased and detailed independent expert medical and radiologist reports;

  • in having these experts give their testimony in a court of law;
  • in accomplishing the arduous task of proving a legitimate case (Bolam Test etc.);
  • in receiving a fair award by the courts (Civil Law Act of 1956 (Act 67) etc.).
  • Why aren't the interests and the safety of over tens of millions of patients in Malaysia protected against medical mishaps, errors and blunders? Not only are patients not assured of consistent quality medical care but they are also denied a speedy, effective and fair avenue for justice in cases of medical negligence and malpractices.

    They are further victimised by the lack of an effective system to protect their interests and safety. The legal process could take 'forever' - if at all and is a costly uphill battle few patients can afford to wage.

    Sometimes it's the medicine and sometimes it's the medical man who may inflict untold pain and suffering on a patient and his family. A careless, incompetent or irresponsible medical professional may inadvertently have the power to kill, paralyse, disfigure or dismember you.

    Whether it was right or wrong, intentional or unintentional, is only secondary. Of paramount importance in any medical treatment is the safety and well-being of all patients. Therefore, is it not fair to say that the medical profession, more than any other profession, needs to be most stringently regulated?

    The medical profession and the way it deals with medical errors seems to be shrouded in mystery and secrecy and hugely lacks integrity, accountability and transparency. But it is the one profession which cannot afford to have any 'black sheep' nor a 'bad day'.

    'Prevention is better than cure' must be practiced more so by the medical profession in preventing cases of medical negligence, malpractice or errors as often there is no quick, cheap or painless cures for botched-up medical treatments.

    Isn't the good health and well-being of patients just as important as those of the medical professionals? Shouldn't doctors learn to treat patients as humans first?

    The government must always ensure that patients' interests are safeguarded at all times and their health absolutely protected from all quarters.

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