This case clarifies the duties of medical professionals and hospitals regarding patient care, emphasizing the hospital's liability for non-delegable duties even when doctors are independent contractors.

[1] These two appeals are against the decision of the Court of Appeal, which affirmed the decision of the High Court in allowing the claim in medical negligence brought by Megat Noor Ishak Megat Ibrahim (the plaintiff). The plaintiffs claim was brought against the 1st defendant, ophthalmologist Dr Hari Krishnan (Dr Hari), the 2nd defendant, anaesthetist Dr Mohamed Namazie (Dr Namazie), and the 3rd defendant, the Tun Hussein Onn National Eye Hospital (the Hospital).

[2] Appeal No: 02(f)-21-03-2015 (Doctors Appeal) was filed by Dr Hari and Dr Namazie. In the Doctors Appeal, this Court granted leave for the following two questions:-

"(i) Whether it is the Bolam test or the test in the Australian case of Rogers v. Whitaker [1993] 4 Med LR 79 which should be applied to the standard of care in medical negligence, following, after the decision of Federal Court in Foo Fio Na v. Dr Soo Fook Mun & Anor, [2007] 1 MLJ 593, conflicting decisions of the Court of Appeal of Malaysia, conflicting decisions of the High Court in Malaysia, and the legislative changes in Australia, including the re-introduction there of a modified Bolam test"; and

(ii) Whether aggravating factors should be compensated for as general damages, therefore rendering a separate award of aggravated damages unnecessary, as decided by the English Court of Appeal in Richardson v. Howie [2004] EWCA Civ 1127 and explained in Michael Jones Medical Negligence, 4th edn 2008, para 12-011."

[3] Appeal No 02(f)-26-04-2015 (Hospitals Appeal) was filed by the Hospital. The sole leave question in the Hospitals Appeal reads as follows:-

"Where the doctors are qualified professionals in a private hospital and working as independent contractors by virtue of a contract between the private hospital and the doctor, can the private hospital be held vicariously liable for the sole negligence of the doctors?"

[4] We heard these two appeals together on 17 April 2017, and adjourned the matter for our decision. We now give our decision and the reasons for the same.

Material Facts

[5] The plaintiff had a giant retinal tear with detachment in his right eye. In 1999, he first consulted one Dr Selvarajah Sathya, a general practitioner at Kumpulan Klinik Prima Care, who referred him to one Dr Indira Verghese, a consultant ophthalmologist at Subang Jaya Medical Centre. Dr Indira then referred the plaintiff to Dr Hari.

[6] On 26 August 1999, the plaintiff consulted Dr Hari at his private clinic, Klinik Pakar Mata Dr Hari, in Medan Tuanku. Dr Hari advised the plaintiff to undergo a retinal detachment operation immediately, and performed the operation on the plaintiff at the Hospital (1st Operation). The anaesthetist for the 1st Operation was one Dr Manavalan. The plaintiff was discharged on 30 August 1999. An appointment date was fixed for the plaintiff to see Dr Hari in a weeks time on 7 September 1999.

[7] Subsequently, the plaintiffs right eye became watery, his vision was bullish, and there were tears of blood when he sneezed. The plaintiff immediately telephoned Dr Hari, who assured him that his condition was not alarming and that he need not go to see Dr Hari. Nevertheless on 4 September 1999, the plaintiff went to see Dr Hari on his own accord at the latters private clinic. By