Aggravated Damages: Do We Really Understand This?

Dear medical community,

In the complex landscape of medical negligence cases in Malaysia, it's crucial for healthcare professionals to grasp the nuanced aspects of legal repercussions. Today, let's delve into the realm of aggravated damages—a facet that demands our attention.

Aggravated damages, in the context of medical negligence, go beyond compensating for the direct harm caused. They are intended to address the additional mental distress, humiliation, or exacerbation of the injury suffered by the patient due to the negligent act. In essence, they recognize the emotional toll and any worsening of the situation caused by the negligence.

Here are key aspects of aggravated damages in medical negligence:

1. Emotional Distress and Humiliation:

Aggravated damages primarily focus on the emotional distress, mental anguish, or humiliation experienced by the plaintiff as a direct result of the negligent act. This can include the psychological impact, trauma, and any exacerbation of the emotional suffering caused by the medical negligence.

2. Intentional or Reckless Conduct:

Aggravated damages are often associated with cases where the defendant's conduct is deemed particularly egregious, intentional, or reckless. It goes beyond ordinary negligence and involves a higher degree of culpability.

3. Compensation for Non-Economic Harm:

While general damages cover quantifiable economic losses, aggravated damages specifically address non-economic harm. This includes factors that are not easily quantifiable, such as pain, suffering, mental distress, and loss of enjoyment of life.

4. Deterrence and Punitive Element:

The awarding of aggravated damages may serve a dual purpose of deterrence and punishment. It aims to deter the defendant and others from engaging in similar egregious conduct in the future and to hold the defendant accountable for their actions.

Case context:

The decision of the Federal Court in Dr Hari Krishnan & Anor v Megat Noor Ishak bin Megat Ibrahim & Anor and another appeal [2018] 3 CLJ 427 arose from a medical negligence claim. The patient underwent an eye operation for retinal detachment and bucked on the operating table leading to blindness in one eye.

After a full trial, the High Court held that the surgeon and the anaesthetist (collectively “doctors”) involved in the procedure were negligent in the diagnosis and treatment of the patient and in failing to warn the patient of the risks in the operation. The High Court also found the private hospital where the operation was carried out, vicariously liable for the negligence of the doctors. The patient was awarded RM200,000 as general damages and an unprecedented sum of RM1,000,000 as aggravated damages.

Key Considerations for Healthcare Professionals:

1.?Legal Precedence: Understanding landmark cases where aggravated damages were imposed can provide insights into the judiciary's approach. This knowledge is pivotal for healthcare professionals navigating the legal landscape.

2. Patient Communication: Effective and compassionate communication with patients is a powerful preventive measure. Clear and transparent communication can contribute significantly to avoiding situations that might lead to aggravated damages.

3. Documentation: Thorough and meticulous record-keeping is paramount. Accurate documentation not only serves as a defense but also demonstrates a commitment to transparency and accountability.

4. Risk Mitigation Strategies: Proactive risk management strategies within healthcare practices can minimize the likelihood of negligence claims and, consequently, aggravated damages.

?

?

?

The information provided in this blog post is for general informational purposes only and does not constitute legal, medical, or professional advice. While every effort is made to ensure the accuracy and completeness of the content, DoctorShield, JA Assure, and the authors do not accept any responsibility for errors, omissions, or any consequences arising from the use of this information.