Federal Court holds private hospital jointly liable for negligence

 

Justice Mary Lim, reading the broad grounds on behalf of the majority of the Federal Court bench, said accountability and responsibility should be furthest from the minds of patients who seek treatment at private hospitals.

PUTRAJAYA: The Federal Court, in a split ruling, has held that a private hospital in Puchong was jointly liable for medical negligence after a company’s former managing director suffered severe brain damage in 2010.

Following the ruling by a majority of four judges, Columbia Asia Sdn Bhd is jointly liable together with an anaesthetist to pay about RM4 million in damages to Siow Ching Yee.

Siow, who brought the action through his wife, Chau Wai Kin, was also awarded RM100,000 in costs.

Justice Mary Lim, who read the broad grounds on behalf of the majority, said private hospitals that provide emergency services must ensure the availability of healthcare facilities as well as professional and ancillary staff for the purpose.

“The primary healthcare provider remains responsible for not just the provision of the premises and facilities but also for the treatment and care of patients, regardless of how and who the responsibility is to be delegated to,” she said.

Chief Judge of Malaya Zabidin Diah, Chief Judge of Sabah and Sarawak Abdul Rahman Sebli and Justice Hasnah Hashim concurred.

Lim said accountability and responsibility should be furthest from the minds of patients who seek treatment at private hospitals.

“Private hospitals remain responsible, regardless of who they may employ or delegate the task to,” she said when allowing the appeal.

Justice Zabariah Yusof, who dissented, said she would uphold the decisions of both the High Court and Court of Appeal by dismissing the appeal.

She said ruling otherwise would impose an unfair financial burden on private healthcare centres.

Siow’s lawyers had submitted that their client had, on March 10, 2010, undergone a tonsillectomy, palatal stiffening and endoscopic sinus surgery at the Subang Jaya Medical Centre.

However, 12 days later, while at home, he suffered bleeding in his throat and went to the Puchong branch of Columbia Asia Hospital at 4am to seek treatment and management.

A medical officer attended to Siow and referred him to ear, nose and throat surgeon Dr Megat Shiraz Megat Abdul Rahim, who called for anaesthetist Dr Noor Asilah Abdul Rahman to assist him.

Noor Asilah placed Siow under general anaesthesia but there was a delay in securing his airway for about 25 minutes.

Life-saving procedures were not undertaken, resulting in Siow not breathing for the duration.

After he was finally intubated, resuscitation measures were inadequately carried out, leading Siow to suffer severe brain damage.

In 2020, the High Court found Noor Asilah liable and ordered that she pay damages of RM1.9 million. However, the claim against the hospital and Megat Shiraz was dismissed.

Siow appealed to the Court of Appeal, which raised the quantum of damages awarded against Noor Azilah to RM3.3 million.

His appeal for liability to be imposed on the hospital was dismissed by the appeals court, giving rise to the present appeal.

Lawyers PS Ranjan, Manmohan Singh Dhillon, Karthi Kanthabalan and Desmond Mun represented Siow, while Ambiga Sreenevasam acted for the hospital.

The Association of Private Hospitals, which took part in the proceedings as amicus curiae (friend of the court), was represented by counsel Malik Imtiaz.

The Consumers’ Association of Penang, also appointed as amicus curiae, was represented by counsel Gurdial Singh Nijar, Jessica Ram Binwani and Abraham Au. - FMT