The medico-negligence scenario in Malaysia has seen a lot of developments in the year 2006. In May 2006, the Private Healthcare Facilities and Services Act 1998 (PHFS Act 1998) and Regulations & Order 2006 were enforced. On 29th December 2006, Federal Court made a landmark judgement, Foo Fio Na vs. Soo Fook Mun and Assunta Hospital. This judgement has set aside Bolam principle, and applied Rogers vs. Whitaker principle. What this means is that, it will be easier for the patients to succeed in a medical negligence claim against doctors.

The need for members to be conversant with the Private Healthcare Facilities and Services Act (1998) Regulations & Order 2006 was emphasized in last year’s report.

Members are reminded that several sections of the Private Healthcare Facilities and Services (Private Hospitals and other Private Healthcare Facilities) Regulations 2006 [“PHPHF”] and the Private Healthcare Facilities and Services (Private Medical Clinics and Private Dental Clinics) Regulations 2006 [“PMCPDC”] provide for the penalties of a fine, imprisonment or both, upon conviction.

In addition, the conviction will render a member liable to disciplinary action by the Malaysian Medical Council.

Particular attention should be given to the following sections in the PMCPDC:

• 9(5): Prohibition fee splitting
• 10 : Treatment of patient
• 11: Orders for diagnostic procedure, medication or treatment
• 17: Billing procedures
• 18: Patient’s rights
• 33: Infection control
• 75: Basic emergency care services
• 83: Labeling of medications
• 87: Storage of vaccines

Members who practise in institutions are advised to give particular attention to the following sections in the PHPHF

• 13(5:) Prohibition of fee splitting
• 14: Patient care or treatment
• 15: Orders for diagnostic procedure, medication or treatment
• 26: Billing procedures
• 27: Patient’s rights
• 47-48: Consent
• 49: Infection control

The Bolam principle is still used in Singapore, India, Hong Kong, UK and has been reinstated in Australia in year 2003. This resulted after the medical indemnity crisis that occurred in Australia in year 2002. With Rogers Whitaker principle being applied in the Malaysian Courts, it is prudent for MDM to advise its members to review their methods of managing their patients.

Members are requested to take informed consent for all procedures, no matter how minor. All information on diagnosis and treatment must be disclosed to the patient. Alternative treatment must be offered to patients. In elective operations, allow the patient and relatives adequate time to discuss before taking the consent. Ensure the explanation is done in the language that patient understands.

MDM is six years old and we are now seeing an increasing number of incident reports. Please refer to Fig. 2. The largest number of incidents is in the Obstetrics & Gynaecology group. This specialist group is also the largest group in the MDM Bhd membership, after the General Practitioners, refer to Fig. 1

In the light of Federal Court judgement, MDM Bhd has decided to raise the subscription rate for the very high risk and high risk group (obstetrics, neurosurgery, spinal surgery, orthopaedics and laparoscopic surgery). The low risk group has nominal increase due to inflation.

MDM Bhd will be watching the medico-negligence claims in Malaysian Courts very closely in view of the Federal Court judgement of 29th December 2006.

A library has been set up in MDM’s office for members’ use. Directors have been regularly attending seminars and conferences both locally and abroad to keep abreast with latest developments in medico-legal negligence. Members are requested to visit our website, www.mdm.org.my for updates and articles on medical negligence.

Financially, MDM Bhd is on a sound footing. To date, no payment has been made for any claims yet. The membership is gradually growing. MDM Bhd hopes to do better once medical indemnity is made compulsory for private practitioners.

In concluding, we should strive to ensure that patient safety is central to our practice, and communication with the patient is always effective. Ultimately the quality of the interaction between doctor with the patient and family have a large bearing on the patient’s perception of quality of care delivered, and goes a long way towards meeting the challenges of the changing medical negligence scenario.

Yours sincerely,
Tan Sri Dato Abu Bakar Suleiman
Chairman
Medical Defence Malaysia Berhad

Figure 1: Membership By Specialty
Figure 2: Incident Report By Specialty
Figure 3: Types By Incident Reporting