CASE REPORTS FOR 2011

CASE 1

A MDM member, who is a proprietor of a clinic, writes to seek legal assistance for a Preliminary Investigation Committee Hearing (P.I.C.) of the Malaysia Medical Council (M.M.C.). His locum, who did not have a valid Annual Practicing Certificate (A.P.C.) and medical indemnity was alleged to have sexually molested a young female patient. The patient complained to the Director General, Ministry of Health. The Member employs locums to run his practice/practices.

COMMENTS

1. MDM Bhd declined to assist member at the P.I.C. hearing for the following reasons:
   1. The member's indemnity with MDM Bhd is for the member's personal practice. It does not cover his company/clinic, locums or its employees.
   2. He has employed a locum who does not have a valid A.P.C.
2. Locums should have valid A.P.C.'s and medical indemnity. Without an A.P.C. a doctor can practise but he cannot charge a fee.
3. The excessive use of locums often causes serious medico-legal problems such as poor or inadequate supervision of locums and other staff, system failures and inconsistent management.
4. The Doctor who runs a clinic or a private hospital both registered to practice and provide medical care is responsible for checking the credentials of locums practicing under their registered care. Vicarious responsibility applies to salaried employees for delegated care, contractual employees are not covered by vicarious responsibility for medical care.

CASE 2

A member's male locum doctor was accused of sexually molesting five male contract workers. The locum is a postgraduate student of a local university. The member, owner of a group private practice, writes to query.

1. Should he report the matter to the Police?  
2. Should he report the matter to the Malaysian Medical Council?
3. Should he warn the University (employer of locum) of the locum's actions?
4. Can the locum sue the member for defamation if the latter reports the matter to the Police, Malaysian Medical Council and the University?
5. Are there any legal implications to the Person-in-Charge of the group practice?
6. What can be done to minimize such occurrences?
7. Should chaperones be used when examining male and female patient?

COMMENT

The persons who have the locus standi to make a report to the Police and/or Malaysian Medical Council are the affected patients.

Should the member decide to report to the Police and/or Malaysian Medical Council or warn the locum's employer, the member has to substantiate the allegations; otherwise the member will be exposed to legal action by the locum.

The Person-in-Charge of the group practice has a legal duty under the Private Healthcare Facilities and Service Act, and an ethical duty under the Medical Act, to ensure the standard of care provided to the patients of the group practice. As such the Person-in-Charge of the group practice is vicariously liable for the actions of the locum.

A chaperone is essential during physical examination of a patient by a doctor with documentation. It is frightening to come across how many doctors omit this basic tenet of doctoring because they think it is mundane or banal to have a chaperone present until they are brought up to the MMC for sexual molestation/assault.

The Malaysian Medical Council's guidelines on chaperone can be found in its guidance on "Good Medical Practice" which is available at its website "www.mmc.gov.my."

CASE 3

The member is an orthopaedic surgeon who treated a male patient for low back pain of one year. The patient was hospitalized for treatment and investigations. MRI confirmed a protrusion of L4.L5 disc compressing the thecal sac.

The patient made a hospitalization claim from the insurance company. The claim was rejected as the patient has been a member for less than a year. He then requested the member to alter the duration to enable him to validate his claim. The member declined.

The patient filed a Writ of Summons at the High Court against the member as 1st defendant and the Hospital as 2nd defendant for RM 2million ("gantirugi teladan")!

COMMENTS

1. MDM Bhd defended the claim.
2. The High Court asked the Plaintiff to show cause for not setting the matter for trial – plaintiff had difficulty in getting "expert witness" to support his case.
3. The High Court struck out the Plaintiff's Writ of Summons with costs of RM 500 to be paid to member (i.e. MDM Bhd). To date costs have not been paid.
4. Member acted correctly and ethically by not agreeing to alter the duration of the symptoms. Doctors must not alter medical management findings and documentation; tampering and alterations can carry adverse inferences in the Courts.
5. Doctors should not be a party to a fraud.
6. The gall of the patient and the solicitor to file a claim for RM 2million!

CASE 4

An adult, male patient sustained multiple lacerations of the scalp with fracture of the right occipital bone and the left parietal bone, right occipital extradural haematoma, deep laceration on the back and the base of the neck, deep laceration of the right wrist and amputation of the left middle and ring finger.

The medical officer in attendance attempted haemostasis by suturing the neck laceration. In the process the needle broke and the medical officer could not find it.

This patient was referred to the orthopaedic surgeon, a MDM member. He did not treat the patient as the latter was referred to a public hospital at the request of the patient's relatives.

The orthopaedic surgeon wrote a medical report (requested by solicitors) on the injuries sustained and he stated that the broken needle was not retrieved. Three years later the orthopaedic surgeon received a Writ of Summons where he was the 1st defendant. MDM defended the member.

COMMENTS

1. The member in his medical report to the solicitors did not state that the suturing of the neck wound was done by the Medical Officer. Medical reports requested by solicitors are usually for claims. Hence the doctor must write a comprehensive and factual report. Ideally it should be vetted by the defence organization before its release.
2. The plaintiff's solicitors were informed that it was the medical officer who did the suturing, and they should withdraw the claims against our member. The plaintiff's solicitors withdrew the claim against our member.
3. Had the member in his medical report stated that the suturing of the wound and the inability to find the broken needle was done by the medical officer the member would not have been cited in the claim.
4. A doctor writing a medical report should state what his role was in managing the case.

CASE 5

An urologist, who is a MDM member, was requested to attend to a gynaecological patient at another hospital on an emergency – the gynaecologist has transected the right ureter during a hysterectomy. There was no urologist practicing at this hospital. The member attended to the patient and re-implanted the ureter into the bladder over a ureteric stent. The urological operation was successful.

COMMENTS

1. The gynaecologist should have made arrangement through the hospital to have a urologist to "stand by" for hysterectomies, if operative difficulties were anticipated.
2. The hospital in question should have a urologist on its list of credentialed consultants.
3. The member, should get a letter from the hospital, stating that he was given "emergency credentialing" to do this particular operation.
4. The patient should be informed of the medical accident and why the urologist was consulted. This must be recorded in the case notes.
5. The member's indemnity covers only the stated place/places of practice.
6. All the above are to be instituted in event of an arising medical negligence claim.

CASE 6

An orthopaedic surgeon, who is a member of MDM Bhd, treated a patient for a left knee injury sustained during a game of futsal. The patient consented for arthroscopic surgery of the left knee. On the operation day the right knee was arthroscoped. On returning to the ward it was discovered that the wrong knee was operated on. The orthopaedic surgeon was informed and he explained to the patient. The patient consented to arthroscopic surgery to the left knee. This was performed on the same day.

Nine months later the member received a Writ of Summons citing him as 1st defendant and the Hospital as second defendant.

COMMENTS

1. MDM provided legal assistance.
2. The action of the member cannot be defended.
3. The member and the Hospital are equally liable.
4. The surgeon and the surgical team (surgeon, anaesthetist and assisting nurses) must always ensure that the operation is done on the correct site. The anaesthetist in his pre-operative assessment and consent taking surely documents the site to be operated on.
5. This should be checked at the operation table before the anaesthesia on the patient is induced in the presence of the surgeon, anaesthetist and the staff nurse assisting.
6. Consent judgement was obtained where MDM paid 50% of the award and the Hospital the other 50%.