Medical negligence cases are often emotionally overwhelming. Patients and families usually don’t know where to begin, what evidence to preserve or which experts to consult. Understanding the right steps early can make a significant difference to the strength of your claim.

Below is a clear and practical overview of what to do if you believe there is a potential medical negligence claim in Malaysia.

1. What is Medical Negligence?

Medical negligence occurs when a doctor or hospital provides treatment that falls below the accepted standard of care, causing injury, worsening of a condition, or even death.

Common examples include:

• Misdiagnosis or delayed diagnosis;
• Surgical errors;
• Medication or treatment errors
• Failure to monitor a patient properly
• Failure to refer to the appropriate specialist

 

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Steps to take if you suspect that you have a potential medical negligence claim.

 Understand the Limitation Period (Time Limit to Sue)

This is one of the most important aspects of a medical negligence claim. If you miss the deadline, you may be legally barred from pursuing your claim regardless of its merits.

Claims Against Government Hospitals (3 Years)

Under the Public Authorities Protection Act 1948 (“PAPA”), claims against government hospitals and clinics, or university hospitals (etc; UKMMC, UMMC and UM) must be filed within 3 years from the date of the negligent act.

 Claims Against Private Hospitals (6 Years)

Under the Limitation Act 1953, claims against private hospitals and clinics must be brought within 6 years from the date of negligence.

Exceptions

However, there are exceptions, for example:

• Fraud or concealment
• Persons under disability – for minors or persons of unsound mind, time may not start running until they reach 18 or regain mental capacity.

 

1. To obtain copies of the medical records, reports and other relevant documents.

Your medical records are the most important evidence in a negligence claim. Patients and their next of kin are entitled to copies of their medical records. You may request them directly from the hospital or clinic, though the documents provided may be incomplete.

The law is clear that patients have an innominate and qualified right of access to their medical records and that there is a corresponding general duty on the part of physicians and hospitals to grant such access to patients.

See:    Nurul Husna Muhammad Hafiz & Anor v Kerajaan Malaysia & Ors [2015] 1 CLJ 825

If records are incomplete, missing, or withheld, your solicitors may file a pre-action discovery application under Order 24 Rule 7A of the Rules of Court 2012. This helps you obtain the essential documents needed to assess the merits of your potential claim.

 

1. Write Down Your Timeline and Symptoms (Chronology of events)

Keeping a personal timeline is a valuable tool to help your lawyer and medical experts understand the full picture. While important, it complements but does not replace the medical records.

Include details such as:

• Dates and times of consultations;
• Symptoms you experienced;
• What the doctor said or failed to explain;
• Risks explained to you;
• Medication prescribed;
• Any sudden deterioration; and
• Names of doctors or nurses involved.

1. Document Your Losses and Expenses

Keep all receipts and proof of:

• Hospital bills;
• Medications;
• Therapy and rehabilitation;
• Transportation costs;
• Loss of earnings;
• Part-time or full time maid expenses;
• Funeral expenses (in fatal injury cases)

These documents assist in calculating the damages.

 

Types of damages in medical negligence claims may include:

1. General Damages

Pain and suffering and the loss of amenities of life and aggravated damages/

2. Special Damages

Damages that accrued or are accruing from date of incident to the date of filing the claim. These are instances where all the receipts and bills are used to calculate.

3. Pre-trial Damages

Damages accrued or accruing from the date of filing the claim to the date of judgment;

4. Future damages

These may include:

• Future medical treatment;
• Cost of long-term care or nursing;
• Loss of future earnings or earning capacity;
• Assistive devices (wheelchairs, prosthetics); and
• Home modifications or specialised therapy.

However, there are many factors that the patient or the family members have forgotten or overlooked in keeping the receipts. The Court has decided that while documentary evidence is favoured, it had taken cognisance that patients or their family members are not expected to be bookkeepers. Oral evidence would suffice.

1. Obtain an Independent Expert Opinion.

Courts rely heavily on expert evidence. A medical expert will assess:

• Whether the standard of care was breached
• Whether the breach caused your injury
• The long-term impact of the negligence

 

Cost of Expert Reports

Expert opinions are a necessary part of a medical negligence claim but it is important to understand that they must be paid for. These reports are prepared by independent specialists who review the medical records, assess whether the standard of care was breached, and determine whether the breach caused your injury.

The cost of an expert report can vary significantly, depending on:

• The specialist involved – for example, opinions from neurosurgeons, obstetricians, orthopaedic surgeons, or intensive care specialists are generally more expensive due to the complexity of their fields.
• The complexity of the case – cases involving multiple procedures, prolonged hospital admissions, rare conditions or multiple defendants may require more time and analysis resulting in higher fees.

Although these reports can be costly, they are often one of the most important element of a medical negligence claim. Without a supportive expert opinion, the merits of the claim would be difficult to establish.

 

1. Summary of Steps in Medical Negligence Claim

The procedural steps include:

Step 1- Obtaining records.

Step 2- Appointment of an expert.

Step 3- Filing the claim in Court.

 

Conclusion

If you suspect medical negligence, the most important steps are:

Get your records, document everything, seek expert help, act quickly, and understand your limitation period. The earlier you take action, the better your chances of proving your case and securing fair compensation.