Medical negligence claims in Malaysia: a detailed proposal for introducing Alternative Dispute Resolution

Abstract

Doctors were once accorded public respect, especially by patients, but their status and public image have gradually diminished. The various reasons for this revolve around medical negligence claims including wrongful diagnoses, misleading treatments, and failure to perform obligations with care and prudence. Claims against doctors and hospitals for injury and damages caused by medical negligence are brought by injured parties or third parties as personal injury suits in court. In legal suit proceedings under the current fault-based system in the adversarial system, the burden to prove negligence beyond the balance of probabilities rests with the claimant or plaintiff and is not an easy task, so most legal jurisdictions today have resorted to alternative methods of resolving such disputes rather than bringing them to court. Alternative Dispute Resolution (ADR) has been lauded as the most efficient alternative method to litigation process under the adversarial system because it overcomes problems such as delayed and outstanding court cases, repairs the relationship between parties, and achieves a high level of satisfaction among parties that use it. The Malaysian government has promoted the roles and the application of ADR, specifically mediation and arbitration; its positive response to and reception of ADR has made it increasingly appealing to involved parties and suggests its potential for further development and use in Malaysia. However, to what extent is ADR a feasible and practical option as a tool to resolving complicated medical negligence disputes in Malaysia? The purpose of this research is to examine the use of ADR and propose best practices for using it to resolve medical negligence disputes out of court.