DAMAGES AND CLAIMS. ! A medical professional's failure to exercise reasonable medical judgment (

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1 DAMAGES AND CLAIMS NURHAFIZZA AZIZAN SENIOR FEDERAL COUNSEL ATTORNEY GENERAL S CHAMBERS Medical negligence/malpractice is professional negligence by act or omission by a health care provider in which care provided deviates from accepted standards of practice in the medical community and causes injury or death to the patient ( A medical professional's failure to exercise reasonable medical judgment ( Failure of a physician or other medical personnel to meet the standards of conduct for duties relating to the medical profession. Those standards are based on what a reasonable person with the requisite knowledge and skills would or would not do ( 1

2 MEDICAL NEGLIGENCE SUIT Where does the suit derived from? Civil - On the Balance of Probabilities Civil Actions i) Contract ii) Tort Direct Tortfeasor (Doctors/Nurses) Who may be liable for medical negligence? Hospital & GOM (Vicarious Liability) Another hospital/ clinic (Joint Tortfeasor) 2

3 Basic elements of negligence " Existence duty of care owed by the Defendant to the Plaintiff " Breach of that duty by way of omission or commission by the Defendant " Causal connection between Defendant s careless conduct and injury or damage " Damage or injury to the Plaintiff DAMAGES 3

4 Inas Faiqah Mohd Helmi v Kerajaan Malaysia [2016] 2 CLJ 885 (Federal Court): It is trite that damages serve as compensation, not a reward, less still a punishment. In assessing damages, the courts should not be motivated by sympathy and award fair compensation based on cogent evidence. The court could not descend into a domain of speculation. The evaluation of evidence which form the basis of any risk of future damage, must still be undertaken. The trial judge could only evaluate such evidence based on the recognised balance of probability standard, but with a lower degree of certainty as to the occurrence of such loss or damage in the future. Such a lower degree to be attached is best termed by the word possibility, chance, risk, danger or likelihood, but regardless of the words used and their semantics, they must also essentially be a substantial one and not speculative

5 Purpose of Awards? to compensate for loss, injury suffered put patient back to his original position as best monies can ( Ong Ah Long v Underwood) amount to be fair adequate and not excessive (Yang Salbiah v Jamil Harun) QUANTUM YANG SALBIAH & ANOR V JAMIL BIN HARUN (1981) 1MLJ 292, Y.A.A. Raja Azlan Shah(ketika itu) It must be remembered that the purpose of damages is to try, so far as humanly possible, to put the victim back to the position he would have been in before the accident. The damages must be fair, adequate and not excessive 5

6 ONG AH LONG V DR S UNDERWOOD(1983) 2 MLJ 324, Y.A.A. Syed Agil Barakhbah; It has to be borne in mind that damages for personal injuries are not punitive and still less a reward. They are simply compensation that will give the injured party reparation for the wrongful act and for all the natural and direct consequences of the wrongful act, so far as money can compensate The award under general damages should be a global sum commensurate with the injury sustained and not a full compensation which might result in ruinous consequences to the Defendan-Defendant. Financial Implications Once liability established, what happens? " court awards damages to Plaintiff (patient) 2 categories: Personal Injury and Death For Death: Limited to several items only (bereavement, funeral expenses, medical expenses, cost of care, etc) For Personal Injury, 2 types SPECIAL DAMAGES and GENERAL DAMAGES 6

7 GENERAL DAMAGES Awarded to compensate future monetary loss and non-monetary loss pain & suffering loss of amenities (eg amputation of limb) SPECIAL DAMAGES Past monetary loss Period between date of injury up to trial Must be specifically pleaded and proven medical expenses medical report fees cost of care (maid during that time) Loss of income travelling 7

8 Special Damages THOSE DAYS :- NOWADAYS :- TRAVELLING HOLIDAYS MECHANICAL AIDS RESPITE CARE HOSPITAL CARE TRADITIONAL TREATMENTS MAID CLOTHING BOTOX A NEW HOME MODIFICATIONS AND RENOVATIONS MADE TO THE HOME A CAR WITH SPECIFIC MODIFICATION FUTURE CARE AFTER THE CHILD REACHES THE AGE OF 18 REQUEST FOR DAMAGES (SAME AS THOSE SPECIFIED IN SPECIAL DAMAGES) A real and substantial possibility or risk, likely future possibilities, possibilities that might occur and other similar terms to denote possible occurrence of future uncertain events as regards the standard of proof required in a claim for future damage 8

9 FUTURE CARE : COST OF CARE BY PARENTS AND FAMILY COSTS OF TRAINING AND EDUCATION OF CAREGIVER COST OF PURCHASE, MAINTENANCE, MODIFICATIONS OF DIASBLED FRIENDLY VEHICLE Trends in Court? Automatic assumption of negligent Huge Award Sympathy therefore tend to compensate Disregard principle of fair and reasonable award Following overseas? Are we ready? 9

10 Other damages awarded What are other damages court may award? Aggravated Damages (compensate feelings) Exemplary Damages (court wants to make example) Restitutionay Damages (to reverseful the wrong) Nominal Damages Have these been awarded? NO, so far. EX - GRATIA What is Ex-Gratia? Compensation towards patient Settlement outside of court (before any court proceeding is initiated) ONCE PATIENT INITIATE A COURT PROCEEDINGS THE DOOR TO EXGRATIA IS CLOSE 10

11 EX - GRATIA Clear Negligence. Eg : Abdominal pad left in uterus after Caesarean delivery Poor documentation. Records missing. Witnesses cannot be found EX-GRATIA Cheaper Save Time Save Litigation Cost Minimize bad press/reputation 11

12 EX-GRATIA A formal complaint is made to Bahagian Amalan Perubatan. An inquiry will be held in regards of that complaint. The case will be discussed in an Ex Gratia meeting Data provided by Bahagian Amalan Perubatan KKM TAHUN BAYARAN EX-GRATIA 5,460, (76 KES) 7,069, (76 KES) 6,762, (71 KES) 4,430, (73 KES) 5,233, (56 KES) 12

13 THANK YOU FOR YOUR KIND ATTENTION 13