| A Healthcare Sdn Bhd v Child A & Ors [2024] 2 MLJ 286
Court of Appeal, Putrajaya
Civil procedure – Medical Negligence – Setting aside Respondents’ writ of summon and statement of claim – Vicarious Liability – Employer employee relationship |
|
| Facts | 1. The First Plaintiff is a baby (Child A), represented by his parents. Second and Third Plaintiffs are the baby’s parents.
2. First Defendant, A Healthcare Sdn Bhd, is a Hospital (“the Hospital”). Meanwhile the Second Defendant, Dr. N, is an obstetrician and gynecologist working at the Hospital.
3. The Plaintiffs alleged medical negligence during Child A’s delivery at the Hospital. The Plaintiffs claimed the hospital was vicariously liable for Dr. N’s negligence as her employer.
4. The Second Plaintiff (mother) received treatment at the Hospital starting from 10December 2019, under the care of Dr. N. The mother was informed her amniotic fluid levels were low, and induced labor was suggested, which she agreed to.
5. The baby and the mother suffered injuries during the delivery, leading to the baby’s admission to the Neonatal Intensive Care Unit (NICU).
6. On 29 January 2021, the Plaintiffs (baby and parents) sent a letter demanding compensation from the Hospital and Dr. N, citing negligence and failure to provide proper care.
7. On 5 February 2021, the Hospital denied the allegations, stating that Dr. N was an independent contractor, not an employee, and requested further documentation.
8. On 14 December 2021, the Plaintiffs filed a lawsuit in the Shah Alam High Court and they claimed the Hospital was vicariously liable for Dr. N’s actions because she worked there.
9. The Hospital requested the Court to dismiss the case on 25 March 2022, arguing that the doctor was not an employee and that the claims were baseless but the High Court refused to dismiss the case, stating that the matter required a full trial.
10. Dissatisfied with the decision of the High Court, the First Defendant appealed to the Court of Appeal. |
| Issues | 1. Whether the relationship between A Healthcare and Dr. N constitute an employer-employee relationship, making the Hospital vicariously liable?
2. Whether the Hospital can be held liable for a doctor’s alleged negligence under a non-delegable duty of care? |
| Ratio | 1. Whether the relationship between A Healthcare and Dr. N constitute an employer-employee relationship, making the Hospital vicariously liable?
(a) The Court of Appeal (COA) held that relationship between the First Defendant and the Second Defendant does not constitute an employer-employee relationship.
(b) COA referred to Federal Court rulings on case of Dr Kok Choong Seng & Anor v Soo Cheng Lin [2018] 1 MLJ 685 and Dr Hari Krishnan & Anor v Megat Noor Ishak bin Megat Ibrahim & Anor [2018] 3 MLJ 281), which established that the determination of vicarious liability hinges on whether the relationship is one of employment or akin to employment and whether the Hospital had control over the practitioner’s actions. The court in these particular cases were found no evidence of an employment relationship in Doctor’s Practising Agreement and Consultant’s Agreement respectively.
(c) In this case, COA briefly looked into the Resident Consultant Agreement dated 4 September 2019 signed between the First Defendant and Second Defendant stated that the agreement explicitly classified Dr. N as an independent contractor rather than an employee.
(d) There are specific provisions within the agreement that reinforce her independence. Such as, Dr. N was required to pay rental charges and management fees to A Healthcare for using its facilities.
(e) The Second Defendant was responsible for securing her own insurance coverage and for any claims or litigation arising from her own negligence. She collected professional fees for her services through the Hospital, but this arrangement was administrative and did not establish control akin to employment. The agreement explicitly stated that the relationship between the parties was not one of partnership or employer-employee.
(f) Moreover, the Hospital did not provide a salary, allowances, or employment benefits to Dr. N and she had autonomy in her medical practice, including making decisions regarding patient care, without interference from the Hospital.
(g) The COA was of the view that the First Defendant did not exercise control over on how Dr. N as a consultant and gynaecologist provided her professional medical services, such as her diagnosis, treatment, or management of First Plaintiff and Second Plaintiff while at the First Defendant’s Hospital.
(h) The COA emphasized that control over professional judgment is a critical factor in determining the existence of an employer-employee relationship.
(i) Therefore, The COA held that relationship between A Healthcare (the First Defendant) and Dr. N (the Second Defendant) does not constitute an employer-employee relationship, and therefore the Hospital is not vicariously liable for Dr. N’s alleged negligence.
2. Whether the Hospital can be held liable for a doctor’s alleged negligence under a non-delegable duty of care?
(j) The Plaintiffs did not raise the issue of non-delegable duty of care in their Statement of Claim, which is the foundational document in a civil suit.
(k) Instead, the argument was introduced in the Reply to the Defence, which the court deemed procedurally improper and an afterthought.
(l) COA requires clear and specific pleading of such material facts to allow the Defendant to respond appropriately, and this procedural lapse was fatal to the Plaintiffs’ argument.
(m) The COA noted that the Plaintiffs had ample opportunity to clarify the nature of the relationship between the Hospital and Dr. N but failed to do so.
(n) The Plaintiffs’ reliance on the non-delegable duty argument without proper pleading and substantiation reinforced COA’s view that this claim was an afterthought.
(o) The Court referred to two cases of Dr Kok Choong Seng and Dr Hari Krishnan, these cases clarified that private hospitals are not automatically subject to non-delegable duties for independent contractors’ acts.
(p) Therefore, A Healthcare cannot be held liable under a non-delegable duty of care for the doctor’s, Dr. N’s alleged negligence. |
| Decision | Appellant’s appeal was allowed and the claim against the First Defendant was struck out with costs. |
| Key Takeaways | 1. For vicarious liability to apply, the relationship between the parties must resemble that of employer-employee, with clear control over the alleged negligent actions.
2. Private hospitals are not automatically liable for independent contractors practicing within their premises unless specific factors establish control or direct involvement.
3. Striking out a claim is a severe remedy reserved for clear and obvious cases where no reasonable cause of action exists. However, courts will strike out claims based on insufficient facts or procedural defects. |
