Members of MDM Bhd should vet their “Hospital Service Agreement” or “Hospital Contract” before agreeing to the terms. Appended below is a sample of a clause in a Hospital’s Service Agreement which is detrimental to the consultant.

“The Consultant shall be personally liable for any acts of negligence or omission committed by him personally or by his agents in the conduct of his professional practice at the Hospital. The Hospital shall not be responsible for any tortious acts of the Consultant and the Consultant undertakes to fully indemnify the Hospital against any losses or damages suffered or incurred by the Hospital in respect of any claims or actions brought against the Company and/or the Hospital by any person arising from any tortious or negligent acts or omissions of the Consultant or his agent”.

Members are cautioned not to agree to the above terms. It would be difficult to get an appropriate defence cover or insurance to meet the Hospital’s demand for an indemnity.

Members have no control on how an aggrieved patient or his or her solicitors may wish to proceed. Members cannot dictate to a potential plaintiff as to who should be added as a Defendant. If a member agrees to such a term without the express approval of Medical Defence Malaysia Berhad, then that member will have to bear personally the brunt of the extension of such liability.

The Hospital should take their own insurance cover and it should not try to take a free ride on the Consultant. If the Hospital has been wrongly sued by the patient, then the Hospital should recover its cost from the patient and not from the Consultant.

Liability and apportionment of liability is a mixed question of fact and law. So, too, is the question of an indemnity or a contribution.

A member of MDM Bhd should not enter into any agreement which will unreasonably cause to widen the extent of MDM’s liability so as to provide an automatic indemnity to the Hospital.

MDM Bhd will only bear liability of its member’s medical negligence.

Yours sincerely,
Dr. Eddie Soo
Executive Director
Medical Defence Malaysia Bhd