Press Statement

RESPONSE TO THE FEDERAL COURT MAJORITY JUDGEMENT ON SIOW CHING YEE VS COLUMBIA ASIA SDN BHD

We, representing the following organisations, (1) Malaysian Society of Anaesthesiologists, (2) College of Anaesthesiologists, Academy of Medicine of Malaysia and (3) Malaysian Society of Intensive Care, would like to issue this statement following the decisions made by the High Court, the Court of Appeal and subsequently the Federal Court in March of 2024. We fully respect the decisions made by the learned judges and the processes that were undertaken before such a verdict was passed. We understand the need to have an impartial system that can address the rights of patients seeking legal recourse.

Nevertheless, we do need to express some concerns with regards to the rising trend of medicolegal cases in the country. The resultant practice of defensive medicine inevitably adds to maldistribution of workload between the public and private sector. Many anaesthesiologists and intensivists are finding it a challenge to manage patients with complex medical and surgical conditions, especially when they are seen at the private sector, leading to a reluctance in performing potential life-saving procedures and transferring the patients to an overworked public healthcare system, all because of the fear of a potential litigation in the event an undesirable outcome occurs despite all best intentions and preparations.

Another worrying aspect of the rising trend of medicolegal cases is the impact it has on the cost of healthcare. As of 2020, our medical inflation rate is amongst the highest in the region, averaging close to 8% to 9% per annum.1 With various internal and external factors adding challenges to the economy, we expect this figure to remain at the same levels thus increasing pressures on the general population's accessibility to healthcare services. Adding to this are the financial challenges that doctors are now facing from a medicolegal point of view. These costs, especially when the indemnity fees or premiums go up, will inevitably be passed on to the patients seeking care at our healthcare facilities, thus potentially reducing access to healthcare to a certain segment of the population. In some cases, the indemnity costs are so high that doctors in certain high-risk fields have slowly withdrawn from performing such work just to avoid being pulled into a potential medicolegal suit.

Our three organisations view these trends seriously and hope that all stakeholders can come together to address these challenges in a holistic manner. Embarking on an open transparent dialogue between physicians, hospital management and the aggrieved family as a first step towards mending any form of discord and disagreement could further improve the manner in which such disputes are addressed.

Alternative dispute resolution in some of these cases utilising approaches such as mediation before proceeding to litigation may also potentially reduce the unnecessary resources and time spent in coming to an amicable solution for all parties concerned.

The fraternity is also keen to embark on establishing a pool of expert witnesses capable of responding to different needs and contexts of the increasingly specialized and complex practice of medicine. These groups of experts could potentially offer an impartial view to the judges, thus reducing the adversarial nature of some of these proceedings when they appear in the courts.

Lastly, as the steps above will take some time to come to fruition, members of the three associations are strongly encouraged to speak to their indemnity providers and understand their policy terms and conditions as well as their coverage better. Where necessary and relevant to the nature and complexities of their work, members are advised to ensure adequate coverage is obtained in view of the rising damages that are being awarded to the patients by the courts of late.

Reference

1. The Insurance and Takaful Industry Medical Cost Containment Task Force Study on the Drivers of Medical Costs and Medical Insurance Premium Inflation 2020