Medical negligence litigation in Malaysia: whither should we travel?

The deficiencies of the tort system is handling medical negligence claims have been apparent for a number of years. Most of the criticisms are directed at whether the action of negligence is a suitable means to compensate victims of medical injury. For a medical negligence claim to succeed, the patient has to overcome the substantive law as well as the procedural law inherent in the tort system. Often, both the substantive and the procedural law tend to work against the interest of the patient. The inaccessibility of the litigation system and particular difficulties of proving medical negligence deter many potential litigants from pursuing their claim. This means that those cases that are pursued are unrepresentative of the number of medical mishaps that have occurred. Furthermore, the current fault-based sysytem seems ill equipped to provide non-legal remedies such as explanation and investigation of events leading to the mishap. There is a cry for reform within the tort system itself and also for the implementation of alternatives to the fault-based system such as a no-fault compensation scheme and methods of alternative dispute resolution. Such methods can be seen to do away with the rigours of litigation and offer settlement through a fairer, cheaper and helpful approach. Developments in other countries such as New Zealand and Sweden shows how medical mishaps are tackled without resorting to the tort system. However, to have such radical change implemented in Malaysia would require consideration of many factors. At the moment, it is more realistic to suggest that the tort system should exists as the traditional and primary avenue available to medically injured victims seeking remedy. However, incremental changes such as adopting measures to complement the tort system should be introduced to promote efficiency, predictability and accountability.