Reforms Needed To Meet Rise In Malpractice Payouts

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A recent court decision to award RM9.45 million in costs and damages to a boy who suffered brain damage at birth in a public hospital has drawn significant attention, particularly within the legal, medical, and insurance communities.
The sum awarded is believed to be the highest granted by a Malaysian court in a medical negligence case involving a government hospital. This implies that taxpayer money will ultimately be used to settle the compensation.
Last week, Federal Court Judge Vazeer Alam Mydin Meera told a law conference in Johor Bahru that awards in medical malpractice cases are expected to rise alongside the increasing cost of healthcare.
He noted that healthcare expenses are becoming more expensive as Malaysians live longer and as advances are made in medicine, treatment and equipment.
Justice Vazeer emphasised that such awards are not intended to enrich victims but to help restore their quality of life as much as possible, adding that judges are guided by the expert evidence given by medical professionals.
Higher costs for doctors, patients
This development is likely to have ripple effects on Malaysians. Beyond the anticipated rise in medical insurance premiums, the cost of doctors’ mandatory indemnity insurance is also expected to increase.
These costs will eventually be passed on to patients as it is unreasonable to expect medical professionals to absorb these rising expenses.
Coincidentally, reports have emerged of insurance companies announcing steep increases in premiums of 40% to 50% for individual medical coverage starting next year.
This trend is alarming, as many, particularly senior citizens, are reportedly opting out of insurance coverage.
This age group will have no choice but to rely on government health facilities, leading to increased crowding in already overburdened public hospitals and clinics. Longer waiting times for clinical tests, scans, surgeries, and specialist care are inevitable.
Bank Negara’s role
These challenges require the attention and intervention of Bank Negara Malaysia, which regulates the insurance industry.
The central bank should evaluate whether the premium increases — for individual medical coverage or indemnity insurance for doctors and hospitals—are justified.
Rationalisation of these costs may be necessary.
As for the courts, they cannot impose an artificial control on the limits of awards as they are bound by established principles and compendiums of damages before giving the awards.
And when it comes to deciding on life spans, they cannot play God.
The judges have to assess the testimonies of expert witnesses and the official estimates on the average life span of Malaysians when deciding on the quantum.
Alternative to court action
As we know, this can take as long as four to five years for settlement. It’s too long a wait for those who are already in physical and emotional pain.
To expedite resolutions, some suggest the government introduce a mandatory alternative dispute resolution system.
This approach, practiced in the UK, includes mediation and arbitration processes that could help resolve disputes before they reach court.
Mediation is a process where an independent third party helps the claimant and the company to reach a mutually acceptable outcome. However, the mediator cannot impose a solution.
Arbitration, on the other hand, allows an independent arbitrator to evaluate the facts and issue a legally binding decision.
In cases where a liability exists, the parties will seek to achieve settlement at the earliest opportunity to avoid the expense and stress of litigation for both practitioner and patient.
Justice Vazeer also raised an interesting point about the award of future damages or cost of future care in Malaysia, which is done on a once-and-for-all assessment basis unlike the UK where damages may be assessed periodically following judgment on liability.
In Malaysia, the victim cannot return to court in the future to claim more damages because his or her injuries have worsened, or if the victim unexpectedly has greater needs and the original award has proved inadequate.
When others benefit
In certain cases, huge one-off awards have led to misuse by the next of kin of the victims. According to insurers, there have been cases of the parents or guardians absconding with the money after abandoning the disabled victims in welfare or nursing homes.
In some cases, the huge awards meant for future damages and care goes to the trustee when the patient dies soon after receiving the compensation.
The money ends up enriching whoever manages the funds, which goes against the principle of the court that medical malpractice awards should not enrich the victim or their guardians.
These issues merit careful consideration by those in the medical, legal, and insurance professions, as well as the government.
With medical malpractice cases and compensation amounts likely to increase, reforms may be necessary to ensure fair and efficient outcomes for all involved. - FMT
The views expressed are those of the writer and do not necessarily reflect those of MMKtT.

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