Yew Huoi, How & Associates | Leading Malaysia Law Firm

Menu

TORT LAW- NEGLIGENCE- MEDICAL NEGLIGENCE

Madam Lim is nine months pregnant and was admitted to the hospital to deliver her baby. She had consulted Dr. Alice regarding the method of delivery, and the doctor advised her to give birth naturally after viewing the report presented by Madam Lim. Unfortunately, Madam Lim had suffered a perineum injury while her baby had suffered a shoulder injury during the delivery due to the mistake in her report. There are other doctors who are obstetricians supporting Dr. Alice’s suggestion given to Madam Lim. Can Madam Lim sue Dr. Alice on the basis that she had negligently given treatment and advice?

 Q: What can Madam Lim do to sue Dr. Alice for negligent treatment and advice?

A: There are three elements that she needs to establish to hold Dr. Alice liable for acting negligently.

  • Alice has a duty of care towards Madam Lim (Duty of care).
  • Alice has breached her duty of care towards Madam Lim (Breach of duty of care).
  • Such a breach has caused harm to Madam Lim (Causation).

Q: Does Dr. Alice owe duty of care to Madam Lim (her patient)?

A: Yes. A doctor is a professional who possesses professional skills thus Dr. Alice owes a duty of care to Madam Lim to act carefully and logically when she is treating her. Her conduct will be judged according to a person having the same skills as she is.

Q: If a doctor disagrees with Dr. Alice’s conduct, does it mean that she had breached her duty of care?

A: A doctor will not be considered to have failed to act reasonably merely because she has acted differently from her board of professionals. She will not fail to act with reasonable care if she can provide logical reasonings for her conduct.

Q: After establishing a duty of care and breach of duty of care, what is the next step?

A: Madam Lim must then prove that Dr. Alice has failed to act properly that caused her the harm (the “but-for” test), that is if Dr. Alice has not acted negligently, she would not have suffered the said harm.

Q: In the scenario given above, are there any chances that Madam Lim will win this suit?

A: If Dr. Alice has advised giving birth naturally after relying on the report presented to her by Madam Lim, then she is not to be blamed for the injuries. There is evidence from other doctors to say that they would do the same if they were consulted by Madam Lim. Dr. Alice has not acted negligently, Madam Lim could not sue her.

Back to Latest Legal Updates

Recent Post

STRATA MANAGEMENT – MANAGEMENT FEE SHOWDOWN – RESIDENTIAL VS. COMMERCIAL – WHO’S PAYING FOR THE EXTRAS?

In a landmark decision in Aikbee Timbers Sdn Bhd & Anor v Yii Sing Chiu & Anor and another appeal [2024] 1 MLJ 94 , the Court of Appeal clarified the rules on maintenance charges and sinking fund contributions in mixed strata developments. Developers and management corporations can impose different rates based on the distinct purposes of residential and commercial parcels. The judgment emphasizes fairness, ensuring residential owners bear the costs of exclusive facilities like pools and gyms, while commercial owners aren’t subsidizing amenities they don’t use. This ruling highlights the importance of transparency in budgeting and equitable cost-sharing in mixed-use properties.

Read More »
16 12 月 ,2024 尚無留言

ILLEGALITY OF UNREGISTERED ESTATE AGENTS’ CLAIM – FINDER’S FEES AND ILLEGALITY: COURT DRAWS THE LINE ON UNREGISTERED ESTATE AGENTS

In a pivotal ruling, the Court of Appeal clarified that finder’s fee agreements are not automatically void under the Valuers, Appraisers, Estate Agents and Property Managers Act 1981. The Court emphasized that illegality must be specifically pleaded and supported by evidence, and isolated transactions do not trigger the Act’s prohibition. This decision highlights the importance of precise pleadings and a clear understanding of the law’s scope.

Read More »
16 12 月 ,2024 尚無留言

COMPANIES ACT – OPPRESSION – DRAWING THE LINE: FEDERAL COURT DEFINES OPPRESSION VS. CORPORATE HARMS

In a decisive ruling, the Federal Court clarified the boundaries between personal shareholder oppression and corporate harm, overturning the Court of Appeal’s findings. The Court held that claims tied to the wrongful transfer of trademarks belonged to the company, not the individual shareholder, reaffirming that corporate harm must be addressed through a derivative action rather than an oppression claim.

Read More »
16 12 月 ,2024 尚無留言

COMPANIES LAW – WHEN DIRECTORS BETRAY: COURT CONDEMNS BREACH OF TRUST AND CORPORATE MISCONDUCT

In a stark reminder of the consequences of corporate betrayal, the court found that the directors had systematically dismantled their own company to benefit a competing entity they controlled. By breaching their fiduciary duties, conspiring to harm the business, and unjustly enriching themselves, the defendants were held accountable through significant compensatory and exemplary damages, reaffirming the critical importance of trust and integrity in corporate governance.

Read More »
16 12 月 ,2024 尚無留言

JURISDICTION – CHOOSING THE RIGHT COURT: THE SEA JUSTICE CASE HIGHLIGHTS WHERE MARITIME DISPUTES SHOULD BE HEARD

In The Sea Justice cases [2024] 2 Lloyd’s Rep 383 and [2024] 2 Lloyd’s Rep 429, the Singapore courts tackled a key question: which country should handle a maritime dispute when incidents span international waters? After examining the location of the collision, existing limitation funds in China, and witness availability, the courts concluded that China was the more appropriate forum. This ruling highlights that courts will often defer to the jurisdiction with the closest ties to the incident, ensuring efficient and fair handling of cross-border maritime disputes. This approach is also relevant in Malaysia, where similar principles apply.

Read More »
17 11 月 ,2024 尚無留言
zh_TWZH
en_USEN ms_MYMY zh_TWZH
× 联系我们