Materia Medica Malaysiana

Taking it out

With increasing legal costs, mediation may be the way to go to settle medical legal suits in Malaysia, reports LOH FOON FONG.

IN Malaysia, mediation has never been used as a way to resolve medical legal cases even though some cases have been settled out of court.

Since the Malaysian Bar Council set up the Malaysian Mediation Centre (MMC) in the 1980s, MMC’s role has been limited to com- mercial disputes.

Compared with other dispute resolution methods such as litigation and arbitration, mediation is an informal and non-confronta- tional method. There are minimal procedural and documentary requirements and it is cheaper and quicker than the other two methods.

A mediator only facilitates a case and does not judge like an arbitrator. Although parties involved may appoint a mediator of their choice, often a lawyer’s service is employed.Parties are not barred from other methods if mediation fails.

In mediation, patients’ qualitative needs can be addressed. “Often, they want to know that the practitioner cared and understood the stress they went through, and that they admit fault as well as reassured that steps are taken to prevent similar mistakes from recurring,” said Robert Lazar, a lawyer who presented a paper on Medical Mediation: Litigation vs Mediation at a recent seminar in Kuala Lumpur on Legal Issues in Medical Law:Strategy for the Future, organised by LexisNexis and Asean Law Association of Malaysia.

Professor Denis Cusack, a lecturer from the Department of Forensic Medicine, University College Dublin, who also spoke on the topic, noted that in 2001, the National Audit Office in Britain reported that the annual cost of settling claims for the National Health Services (NHS) had risen seven-fold since 1995.

“There’s too much litigation and too little health,” he said.

Last year, the Chief Medical Officer of the UK Health Department proposed reforms to the NHS approach to clinical negligence.

Alternatives to litigation have also been proposed including efficient complaints and redress procedures, clinical risk management programmes, alternative dispute resolution (mediation and arbitration), no-fault compensation schemes, injury assessment boards and pre-litigation screening of cases.

Some of these reforms and alternatives have been implemented with limited success, said Cusack.

“The rising cost of medical suits has made the need for change all the more pressing. Mediation is one of the possible solutions,” he said.

Hendon Mohamed, chairman of the Alternative Dispute Resolution Committee of the Bar Council, said lawyers tend to think that mediation is a threat to their rice bowl.Lawyers fear that if they take on disputes in mediation, they may lose the chance of earning money by taking on the case as a court case.

However, Hendon said mediation is not suitable for all cases but it is effective if both parties are willing to mediate and not have negative feelings towards each other.

“In Singapore, the method was used following a tremendous backlog in the courts in the 1980s. It has worked out well and solved 30%-40% of the court cases. Here judges are still bogged down with cases,” she said.

“Even after mediation fails, that bit of mediation helps because the parties would have come to an agreement on some issues. It expedites claims,” she said, adding that mediation should just take a few hours and not more than a day.

Should mediation be made compulsory since it helps to reduce backlog cases in court? After all, in some states in the United States, mediation is required as a preliminary step before litigation can be initiated.

Most of the speakers said mediation should not be made compulsory because the method is not suitable for all cases, especially those that are too complex and involve large amounts of compensation.

“Cases that may be suitable include situa- tions where the patient or patient’s family seeks to understand what went wrong, where a request for a medical report is not acceded to and where patient’s complaint is about fees charged. Suitable cases may be resolved without going through disciplinary procedure set out by the Medical Regulations 1974,” said Lazar.

Datuk Dr N. Arumugam, president of the Malaysian Medical Association, said media- tion should not be compulsory because peo- ple may do it just to waste time, especially when they are already determined to take the matter to court.

Mediation is useful not only to patients but also to doctors. Most doctors do not wish to be entangled in long court proceedings because of the stress involved.

“They prefer to settle the case immediately and would rather pay off the patients than fight it out in court. It’s also cheaper to settle out of court as they don’t suffer a loss of income. After all, their insurance companies pay off the compensation,” said Lazar.

However, their reputation and practices are compromised. As such, mediation is a better way to resolve disputes, he said.

Unfortunately, it will be a long time before mediation becomes common in Malaysian medical litigation and one basic issue that has not been resolved is the right of patients to doctors’ case notes, said Lazar.

“If we can’t even give the case notes to patients, how are we to even make mediation a success since it requires a lot of give and take?” he said.

“This issue is well settled in Britain – they have no qualms that patients have the right to case notes. In Malaysia, this is divided – in the legal as well as medical profession,” he said.

The reason for doctors’ hesitation boils down to the fear that patients will use the case notes against them.

Said Darryl Goon, a lawyer from Kuala Lumpur: “The more you hide the notes, the more patients will tend to think that the doctors are negligent or have issues with misconduct.”

In his paper Medical negligence litigation – trends and the law, Goon said under current common law, patients do not have a right to demand for doctors’ case notes. However, in litigation process, the law gives patients the right to the notes.

“Many common law countries have now made disclosure compulsory under data pro- tection legislation. The Malaysian Data Protection Bill caters for compulsory disclo- sure of documents that would probably include case notes. There is also suggestion that case notes should be made available upon demand under the regulations to the Private Healthcare Facilities and Services Act 1998,” he said.

However, he said there are several ques- tions that need to be answered: since the notes are meant for doctors’ personal use, should any inference be made from it? How detailed should case notes be and will they become too onerous? Is it safe for anyone to draw any conclusion based merely on notes? Isn’t a patient’s right to a comprehensive medical report sufficient? Is there any risk of the notes being used to device a claim?

Another issue in the medico-legal circle is the test applied in determining whether a doctor has breached his duty owed to a patient.

In Malaysia, the test on the standard of proof of medical negligence used is the test formulated by McNair J in Bolam vs Friern Hospital Management Committee (1957) which states that the doctor is not guilty of negligence if he has acted in accordance with a practise accepted as proper by a responsible body of medical men skilled in that particular art.

However, Goon said that in England, the judge has the right to conclude that the body of opinion is not reasonable or responsible if the professional opinion is not logical.

In Australia, the standard is not determined solely or mainly by a responsible body of opinion in the relevant profession or trade. Even in the sphere of diagnosis and treat- ment, the Bolam principle has not always been applied, said Goon. More importantly, particularly in the field of non-disclosure of risk and the provision of advice and information, the Bolam principle has been discarded and instead, the courts have adopted the principle that, while evidence of acceptable medical practise is a useful guide for the courts, it is for the courts to adjudicate on what is the appropriate standard of care after giving weight to “the paramount consideration that a person is entitled to make his own decisions about his life.”