How to Prove Medical Negligence in Malaysia: Medical Records, Expert Evidence and the Burden of Proof

A family is told that a procedure has gone well. Hours later, the patient’s condition deteriorates. Another patient leaves hospital expecting to recover, only to return with complications. Sometimes, the consequences last a lifetime.

For those affected, the first concern is rarely compensation. It is understanding what happened.

Was something missed? Should someone have acted sooner? Was this a recognised risk, or the result of care that fell below an acceptable standard?

The answers are not always apparent from the outcome. Medicine carries risks, even when treatment is properly performed. Yet calling an injury a “complication” does not explain whether it was recognised promptly, managed appropriately or adequately discussed with the patient.

A medical negligence claim begins with these questions. Whether it succeeds depends on the evidence.

What must be proved?

A patient must generally establish that a healthcare provider owed a duty of care, breached the applicable standard, and caused injury or loss through that breach.

The distinction between a failure in care and its consequences is important. A delay may have occurred, but did it affect the outcome? Treatment may have been inappropriate, but did it cause the injury for which compensation is sought?

The law also distinguishes between the clinical decisions a doctor makes and the information a patient needs to make a treatment decision.

In Zulhasnimar Hasan Basri & Anor v Dr Kuppu Velumani P & Ors, the Federal Court explained that diagnosis and treatment must be assessed differently from advice about material risks. For diagnosis and treatment, responsible medical practice is central, but the professional opinion relied upon must withstand logical scrutiny.

Advice about risks concerns the patient’s ability to make an informed choice. A signed consent form is relevant, but it cannot, by itself, tell the court everything about what was explained or understood.

The question is therefore more precise than whether the patient received “good” or “bad” treatment. It is whether a particular duty was breached and whether that breach caused harm.

The story is in the records, but the records need interpretation

Patients and families usually remember the moments that caused concern: a request for help, a change in condition, a conversation at the bedside. Those recollections matter. Medical records help place them within the wider sequence of care.

A discharge summary may provide an overview, but the detail often lies elsewhere. Nursing notes, observation charts, medication records, investigation results and operative or anaesthetic records may show what was happening at a critical time. Referral letters and discharge instructions may explain what the patient was told to do next.

Messages, emails and telephone records can also become important where symptoms were reported after discharge.

Reading this material requires care. An absent entry does not automatically mean that treatment was never given. Equally, a written instruction does not necessarily establish that it was carried out properly.

In the case of Zulhasnimar, the court considered other documentary and oral evidence when deciding whether treatment had been administered despite a missing entry. The lesson is straightforward: a record must be assessed alongside the evidence around it.

The same caution applies to apparently helpful wording. In Yong Har Leng v Pantai Medical Centre Sdn Bhd & Ors, notes referred to private nurses learning techniques at the hospital. The court still examined the wider arrangements before deciding whether the hospital had undertaken the alleged responsibility for their training.

For a family seeking answers, this can be frustrating. A document may appear to prove a point, yet leave other questions unresolved. That is where independent medical expertise becomes important.

An appropriately qualified expert should explain what the patient’s condition required, what should have been done, and where the care departed from the applicable standard. The expert must then address whether that departure caused the injury.

A useful opinion engages with the difficult facts as well as the favourable ones. It should explain its conclusions, identify gaps in the material and consider other plausible causes. Its value lies in that reasoning, rather than simply stating that negligence occurred.

Why causation is often the decisive question

Consider a patient with serious underlying illness who deteriorates after treatment. There may be evidence of a failure in care. There may also be a substantial risk of deterioration from the illness itself.

The existence of that illness does not exclude a claim. A vulnerable patient can suffer additional harm through negligence. But the evidence must explain what difference the alleged failure made.

This was a central difficulty in the case of Yong Har Leng. The claim concerned alleged deficiencies in arrangements for home nursing care after discharge. The court found that the necessary causal connection had not been established. The claimant’s own expert attributed death to chronic lung disease involving recurrent pneumothoraces.

The court emphasised at paragraph [81]:

“it must still be proven that a negligent act caused the injury, and therefore caused the death of the deceased.”

That requirement can be demanding, particularly when the patient was already unwell or several factors may have contributed to the outcome. It remains essential. The court needs a supported explanation connecting the alleged failure to the harm claimed.

The claimant ordinarily bears the burden of proof on the balance of probabilities. In plain terms, the relevant facts must be more likely than not.

This does not require absolute medical certainty. It does require more than speculation. An opinion that something “could have” caused the injury may leave the case short of what is needed unless the reasoning and other evidence establish the required probability.

Greater scrutiny of healthcare does not change that standard. What matters is whether the available evidence supports the claim.

The treating doctor may not be the only responsible party

Patients experience hospital care as a service delivered by a team. They do not necessarily know which practitioner is an employee, which is an independent consultant, or which company operates the hospital.

Those arrangements can matter legally, but they do not always settle responsibility.

In the case of Siow Ching Yee v Columbia Asia Sdn Bhd, the Federal Court majority held that the private hospital owed a personal, non-delegable duty in the circumstances of the patient’s emergency care. The hospital could not avoid that responsibility merely because the negligent anaesthetist was an independent contractor.

At paragraph [77], the majority explained that the hospital remained responsible:

“for not just the efficacy of premises or facilities but also for the treatment and care of the patients”

The earlier decision in the case of Dr Kok Choong Seng & Anor v Soo Cheng Lin & Another must be read alongside this development. Independent contractor status is not a complete answer to every claim against a private hospital.

Nevertheless, hospital responsibility does not remove the need to prove negligence. Nor does it mean that every provider remains responsible for every service a patient later receives.

In the case of Yong Har Leng, the family had independently selected a home nursing provider, and the court found that the alleged hospital undertaking had not been proved. The outcome depended on the arrangements and evidence in that case.

The practical question is who undertook the relevant care, what responsibility followed, and where the alleged failure occurred.

Seeking answers before deciding to sue

A person should not have to dismiss a serious concern simply because medicine is complex. Healthcare providers should likewise have their conduct assessed fairly, against the circumstances at the time rather than hindsight alone.

An unsuccessful claim is not necessarily abusive. Sometimes a reasonable concern cannot ultimately be proved. But allegations must remain accurate, and compensation must be supported by demonstrated loss.

For patients and families, the sensible first step is to preserve what is available. Keep records and correspondence. Write a chronology while events are still fresh, distinguishing personal observations from information received from others. Retain documents showing expenses, care needs and the effect on work or income.

You do not need a complete set of records before seeking initial advice. Part of that assessment is identifying what is missing and whether further investigation is worthwhile.

It should also address the realities of litigation: expert expenses, legal costs, possible adverse costs and any outstanding hospital charges or counterclaim. A claim may warrant investigation without proceedings being the immediate or best next step.

Seek advice promptly. The applicable time limits require particular attention in Sabah, including where the patient is a child or the claim concerns a deceased person. A complaint or settlement discussion should not be assumed to stop time running.

You do not have to decide whether to sue before asking whether there is a case. For patients and families in Sabah, LV Partners can assess the legal issues arising from suspected medical negligence, identify the records and independent medical evidence needed, and explain the possible defendants, costs and available options. A short account of what happened, together with the documents already available, is a useful place to begin. The purpose is to give you a clear understanding of where the matter stands, so that your next decision is informed by evidence and practical legal advice.

This article provides general information on Malaysian medical negligence law. Advice on an individual matter depends on its facts, evidence and applicable legal requirements.

This article is written by

Jackson Chung
Lv Partners