Dr Kok Case Summary: Non-Delegable Duty & Vicarious Liability - YouTube

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Most private hospitals in Malaysia engage their resident specialists as independent

contractors. The private hospitals would make it clear in the Independent Contractor Agreement

that the hospital is only a facilities provider. In the event if the specialists negligent

in its medical advices or procedures, the hospital will immediately deny liability and

say “I had nothing to do with it because the specialist is not my employee!”

Exactly, if the specialist is only an independent contractor to the hospital, then the hospital

could not be responsible or vicariously liable for the specialist’s negligence.

Is it fair? Some may argue that, “Fair enough, because it is the specialist’s fault for

committing negligence so the specialist should bear the consequences himself.” There are

also people saying that when a patient is admitted into the private hospitals, the patient

comes under the care and custody of the hospital hence the hospital has a positive duty to

protect the patient. This is supported by the Private Healthcare Regulations 2006, which

basically says that a private hospital is not just a facilities provider – the treatment

and care of the patient and doctors are also integral part of the hospital.

This duty to protect is a hospital’s “non-delegable duty of care”; and it belongs to the hospital

even if it delegates it to an independent contractor.

This is known as the Woodlands principle, named after the English case, Woodland v Swimming

Teachers Association & Ors, where a student suffered brain injury during a swimming lesson.

The school was found to be negligent for breaching its non-delegable duty to ensure that the

swimming lessons were carefully conducted and supervised even though the swimming lesson’s

safety was outsourced to an external lifeguard agency.

The Supreme Court laid down five requirements that must be fulfilled to establish a non-delegable

duty of care:

The claimant is especially vulnerable or dependent on the protection of the defendant against

risk of injury; There is an antecedent relationship between

the claimant and the defendant. By virtue of such relationship, the claimant is placed

under the care and custody of the defendant. Therefore, the defendant assumes a positive

duty to protect the defendant from risk of injury;

The claimant has no control over how the defendant chooses to perform its obligations towards

the claimant. The defendant has delegated to a third party

a function which is an integral part of his own positive duty and the third party has

performed such function. The third party has committed negligent act.

With all that out of the way, we can finally look at today’s case: Dr Kok Choong Seng

& Anor v Soo Cheng Lin and Another Appeal.

In short, Dr Kok had performed an operation on the patient to remove the lump in his left

forearm. After the operation, the patient complained of pain and numbness at the surgical

site. As it turned out, the patient had lost 90% of his left median nerve; so he had to

undergo further surgery to save it.

The patient sued Dr Kok for negligence; and the hospital for breaching its non-delegable

duty toward him. The patient also said that the hospital was vicariously liable for the

negligence of Dr Kok.

Dr Kok was found to be negligent, but let’s focus on the claims against the hospital.

The Federal Court, in this landmark decision, said that the UK Woodland principle was applicable

in Malaysia, and could be extended to private hospitals. So let’s go through the requirements:

Was the patient vulnerable and dependent on the Hospital? YES.

The second one is a bit tricky. Here, the patient had first consulted Dr Kok at his

private clinic. Then he was admitted into the Hospital for his operation pursuant to

Dr Kok’s advice and referral. The only negligent act arose from Dr Kok’s conduct of operation.

So the court held that the Hospital had never assumed a positive duty to protect the patient

from injury.

And with this, requirements 3, 4, and 5 didn’t have to be considered; and so the Court held

that the Hospital had not breached its non-delegable duty of care towards the patient.

Now what about vicarious liability? The Federal Court said that if Dr Kok had a relationship

similar to employment with the Hospital, the Hospital would be vicariously liable.

According to Dr Kok’s practising agreement: Dr Kok is an independent contractor who practised

in the Hospital on non-exclusive basis; Dr Kok has the right and freedom to render

his medical services in the Hospital without undue interference;

Dr Kok can use the facilities of the Hospital freely to treat his patients;

Dr Kok can charge the patients professional fees for his consultation and procedures;

Dr Kok would not receive salary from the Hospital; In return, Dr Kok is required to hold clinical

sessions and on call rotation in the Hospital; Dr Kok would also pay administrative fees

to the Hospital ; The Hospital would also provide back-up services

for Dr Kok.

The Federal Court looked at this and held that the Hospital had no control over Dr Kok’s

services. Furthermore, Dr Kok was not performing the operation for the patient on behalf of

the Hospital. The diagnosis of the patient’s condition, advice to undergo the operation

and the referral of the patient to the Hospital was done in the course of his own practice

in his own private clinic, but not during the on-call rotations or clinical sessions

in the Hospital. The Hospital only provided facilities for Dr Kok to conduct the operation.

All in all, the Federal Court held that Dr Kok was purely an independent contractor;

and therefore the Hospital could not be vicariously liable for Dr Kok’s negligence.

If none of that made sense, don’t worry – we’ll be revisiting this issue in the

case of Dr Hari Krishnan & Anor v Megat Noor Ishak bin Megat Ibrahim & Anor.

Is the Woodland principle apply too high a standard on hospitals? Let us know your thoughts

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Thanks and I’ll see you in the next video!