CASE REPORTS FOR 2012
CASE NO. 1
Member, Dr. ABC, contacted MDM for legal assistance on receiving two Summons from the Magistrate Court for contravening Akta Racun 1952. He was charged for not maintaining a register of the amount of psychotropic drugs in the clinic and a register of the record of the dispensed psychotropic drugs. The penalty for each Summon is a fine of not more than RM10,000 or an imprisonment of not more than 4 years.
- MDM declined to assist member as he has contravened the terms of his medical indemnity - MDM IS NOT LIABLE for "any claim directly or indirectly caused by or contributed to by: any act in violation of any law or ordinance".
- Dr. ABC can use MDM's panel of lawyers but he has to pay the fees.
- It is very important that doctors must keep a proper record of the drugs purchased and the amount of drugs dispensed to the patients.
- Usually in contravention of the "Akta Racun" the doctor's clinic has been under surveillance after a complaint has been lodged.
- If Dr. ABC is convicted and the Malaysian Medical Council is aware of the conviction MMC will institute action against the doctor under the Code of Professional Conduct, Part 2 - 2.1.1, 2.1.2 and 2.1.3.
CASE NO. 2
Orthopaedic member, Dr. XYZ, approached MDM for assistance on receiving Session Court Summons to attend court as a first defendant, and the hospital as second defendant.
- XYZ had earlier attended to plaintiff X for:-
- multiple lacerations of the scalp, back, base of neck and the right wrist
- near total amputation of the left middle finger at the distal phalanx
- amputation of left ring finger at the distal phalanx
- fractured right occipital bone and fractured left parietal bone with right occipital extradural haematoma
- The laceration at the base of the neck was sutured by Dr. U, the A&E medical officer. In the process the needle broke and was "lost" in the deep laceration and could not be located. This was recorded in the notes.
- Plaintiff X was also referred to the neurosurgeon and general surgeon. Plaintiff X was subsequently referred to a public hospital for he could not afford the fees.
- Dr. XYZ wrote a medical report on the plaintiff X on the request of the plaintiff's lawyer.
- Dr. XYZ did not treat any of the orthopaedic conditions as the patient requested for transfer to a public hospital.
- Dr. XYZ did not submit his report to MDM for vetting. In his report he should have emphasized that the needle broke when the wound was sutured by Dr. Y.
- MDM instructed its solicitor to inform the plaintiff's lawyer that Dr. XYZ was merely the "triage officer" and hence he should not be cited as the first defendant.
- The Plaintiff's lawyer agreed and withdrew the suit against Dr. XYZ.
- It is vital that members be informed that when writing medical report one has to be alert, aware of the implication of the contents of the report. If a member is in doubt please contact MDM for advice and help, to avoid being cited as a defendant in a court suit.
CASE NO. 3
Member, Dr. A, receives a subpoena to attend High Court for a civil suit as a witness. Dr. A was the anaesthetist for a procedure done on the plaintiff. Enclosed with the subpoena was RM300 and the consent from the plaintiff to release a medical report. The solicitor requested also for "a detailed written account of your involvement in the management of the plaintiff".
- must she attend court
- is RM300 the witness fee
- to write a detailed account
- THE EFFECT OF THE SERVICE OF A SUBPOENA
Dr. A must attend court on the prescribed date unless the subpoena is set aside by the Court. Failure to attend court on the prescribed day without explanation to the Court, a warrant of arrest will be issued compelling Dr. A to attend Court.
- must she attend court
- the Bar Council has recommended that lawyers should serve a subpoena one month prior to the date for attendance by the witness in Court before an application for a warrant of arrest is applied to the Court.
- if for any compelling and valid reason Dr. A is unable to give evidence, for instance if Dr. A was not involved in the management or her evidence would be privileged and/or prejudice a fair trial then she can apply to set aside the subpoena stating her grounds in an Affidavit in Support of the application.
- ENCLOSED RM300.00
- High Court Rules 1980 do not provide for costs/allowances payable to a witness.
- a cheque for a minimum of RM200.00 has to be enclosed at the time of filing the subpoena before the Registrar would seal the subpoena.
this practice is to safeguard that witness allowance is enclosed with the subpoena.
- the quantum/amount is not specified and it would be good practice to refer to Part 4 of the Fee Schedule Part A - Medical fee to the Private Healthcare Facilities & Services (Private Hospitals and other Private Healthcare Facilities) Regulations 2006 under Court attendance fee stipulated as follows:-
Court Attendance Fee
Qualifying expenses per day - RM250.00 - RM500.00
This is to cover the cost of the medical practitioner who on being called as a witness, is required to study and research a case not previously a patient of the same practitioner (excluding travel, board and lodging expenses and medical report).
Conduct money - Actual expenses incurred in the cost of travelling and lodging
Non-expert witness - RM500.00 - RM1000.00
(testimony involving statement of facts only)
Expert witness (testimony - RM1000.00 - RM2000.00
involving expert opinion)
Comprehensive medical - RM80.00 - RM250.00
report (requested by insurance company, lawyers, others)
Attending physician - RM50.00
statement for insurance company
- Dr. A can charge a witness fee as per the above schedule, either as a witness or expert witness.
- it is advisable for Dr. A to write to the plaintiff's solicitors listing the fees payable.
- actual travelling and lodging expenses would need to be supported by mileage claim and toll receipts , ticket fare (rail and air travel) and lodging bills.
- DETAILED WRITTEN ACCOUNT
- it would be Dr. A's prerogative if the doctor would like to comply with such an order.
- the plaintiff's consent was for a medical report. Dr. A should write the medical report and charge a fee (refer to the above fee schedule)
CASE NO. 4
Member Dr. Z requested for legal opinion when he was sued for defamation.
He was the Chairman of M.A.C. (Medical Advisory Committee), member of the Board of Directors and also member of the Board of Management of the hospital which he was practising.
As the M.A.C. Chairman he wrote a letter to the Director General, Ministry of Health to seek advice whether Dr. Y, an obstetrician & gynaecologist of his hospital, can also practise as an Anti-Ageing Physician simultaneously. The patient had complained to the C.E.O. on this matter. This matter was deliberated by the Board of Management and hence his letter to the D.G. The D.G. replied that Dr. Y cannot practice as an Anti-Ageing Physician. Dr. Y knew about Dr. Z's letter to D.G. He engaged a solicitor to demand a letter of apology and to send a letter to the D.G. retracting the letter he wrote to the latter and admitting he had misrepresented the facts and to pay Dr. Y RM1,000,000!
- MDM declined legal assistance to the member. The medical indemnity does not cover defamation.
- The letter to the D.G. should have been written by the Person-in-Charge or the C.E.O. of the Hospital.
- M.A.C. is to advise the Board on all aspects relating to medical practices.
- Any doctor writing to the D.G. to complain or inform about ‘malpractice' of another doctor will have his name disclosed to the latter when the D.G. investigate the matter.
CASE NO. 5
Member, Dr. K, treated a breast cancer patient L. She completed her chemotherapy in 2009 for breast cancer T2cm N1M0 grade 2 infiltrating ductal carcinoma. Pathologist, Dr. J reported ER negative and PR negative on the specimen in 2009. Tamoxifen was not prescribed.
In 2011 the PET-CT Scan detected bone metastases. Biopsy of the bone lesion was done. Unfortunately not enough tissue was taken hence the ER and PR could not be done.
The old sample of tissue (2009) was submitted for ER and PR. The results were more than 90% positive. These were retested in another lab which were also positive. Tamoxifen was started and patient L is in remission, and the PET Scan shows no activity in her bone metastases.
Patient L wants Dr. K to be an expert witness in an intended medical negligence suit against Dr. J. Dr. K writes to enquire whether he can refuse to be a witness and should he stop treating her in view of the potential civil suit against Dr. J.
- The false ER and PR are the responsibilities of Dr. J. He is answerable for the false negative reports. Dr. K treated patient L based on the reports. Dr. K is not liable.
- Dr. K can appear as a witness but not as an expert witness as he has treated patient L - there will be a conflict of interest.
Dr. K has a duty as the attending doctor to attend court as a witness. Please refer to Case No. 3 for consequences of not appearing as a witness when subpoenaed.
- Dr. K should continue to treat patient L. If he stops treating her she may think that he is colluding with Dr. J.
- Dr. K may explain the situation to Dr. J. He has no choice but to be a witness when and if he is subpoenaed.