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Case Update: Private Hospital owes a non-delegable Duty of Care to patients admitted to its emergency services

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1 April 2024

LAW OF TORT
Private Healthcare – Non-delegable Duty of Care – Vicarious Liability – Negligence – Compensation – Medical Negligence

Siow Ching Yee v Columbia Asia Sdn Bhd
Civil Appeal No. 02(f)-12-02/2023(B) | Federal Court
- see the grounds of judgment here

Facts Siow Ching Yee (the ‘Appellant’) represented by his wife, filed a claim against Columbia Asia Sdn Bhd (the ‘Respondent’) after suffering severe brain damage due to treatment received at the hospital managed by the Respondent. Following surgeries at Subang Jaya Medical Centre, the Appellant experienced bleeding complications and was brought to the Respondent's emergency department. The Appellant was then examined by a medical officer who then called the medical specialist, a consultant ear, nose and throat surgeon. The specialist recommended that the Appellant undergo an examination under anaesthesia and wound debridement under general anaesthesia. The Appellant experienced complications even before surgery started. In the airlock area outside the operating theatre, the Appellant started vomiting copious amount of blood and there was profuse bleeding. Despite efforts by the medical specialist, the Appellant collapsed and emergency resuscitation had to be executed. Thereafter the intended surgery was performed. Unfortunately, the Appellant suffered hypoxic brain damage. After surgery, he was admitted to the intensive care unit of the Respondent for continued post-surgical care and management. He is now permanently mentally and physically disabled by reason of the massive cerebral hypoxia.  Through his wife, the Appellant initiated a suit against the two consultants and the respondent. The suit is founded in contract and in tort, for negligence; and for breach of duties under the Private Healthcare Facilities and Services Act 1998. At the High Court, the learned trial Judge dismissed the claim against the ear, nose and throat surgeon but found against the anaesthetist. On the issue of vicarious and direct non-delegable duty, the learned Judge found that the medical specialist were at all material times not as employees, servants or agents of the hospital but as independent contractors. At the Court of Appeal, the appeal against the respondent was dismissed. Hence this appeal.

Issues 1. Whether the owner and manager of a hospital is in law a provider of healthcare and owes a non-delegable duty of care to patients?
2. Whether the judgment of the Federal Court in Dr Kok Choong Seng regarding the tort of negligence in a private hospital applies where the owner and manager of the hospital owes separately duties of care in contract and by statute?
3. Whether the owner and manager of a private hospital is liable to patients under a non-delegable duty of care when a doctor practising in the hospital as an independent contractor has insufficient professional indemnity for malpractice?
4. Whether there is a statutory duty of care, independent of a duty in negligence or contract, owed by the owner and manager of a private hospital under the Private Healthcare Facilities and
Services Act 1998 and the subsidiary legislation made thereunder

Held In allowing the appeal, Justice Dato’ Mary Lim in delivering the majority judgement of the Federal Court held that the Respondent bears a non-delegable duty of care to patients admitted to its emergency services. The Federal Court emphasized that the hospital remains responsible for the treatment and care of patients, irrespective of how or to whom it may have delegated tasks or responsibilities. Further, the Federal Court considered the Appellant's claim for compensation, including loss of earnings, and found that the multiplicand used in calculating damages should include earnings from allowances, fees, and monthly salaries received by the Appellant. The Federal Court also rejected the Respondent's request for the anaesthetist to indemnify it in the event of liability and emphasized that the Respondent bears personal liability for the non-delegable duty of care owed to patients, regardless of other parties involved.

Zul Rafique & Partners
{29 March 2024}

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