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negligence.
3 requirements: A. There must be a wrongful tortious act committed by the defendant (D1 and/or
D2)
B. There must be special relationship between employee-employer (subject to
direction & control)
C. The tort must occur within the course of employment (acting within the interest
of the employer or within job function; within the hospital premises, not outside)
If there is tortious act, consequently, VL comes in. Since it was proven that
D1 was at all material times the agent/ servant, D2 is held vicariously liable.
(^ referred to judgment of the case:FOO FIO NA v. DR SOO FOOK MUN & ANOR [2007] 1 CLJ
229 (FC)
1. What are the terms of the contract between the doctor and the principal,
including any provisions that specify whether the physician is an employee or
independent contractor?
o
whether the defendant(s) are independent contractors or otherwise:(a) is there an express clause in contract that clearly states that D1
or/and D2 is an independent practitioner?
DENNIS LEE THIAN POH & ORS v. DR MICHAEL SAMY &
ANOR [2012] 10 CLJ [note: this case was dismissed,
referred to judgment]
Was the patient informed on the relationship between the hospital and
the defendants before he was given treatment?
{The plaintiff is third party, not a privy to the contract, hence not
bound to the contract between the D1 and/or D2 and the management
(D3). (long shot)}
CHAI BENG HOCK v. SABAH MEDICAL CENTRE SDN BHD &
ORS [2011] 1 LNS 33
2. Does the principal have (shared) power (ie to select and discharge the
doctor?
If YES : D3 is the employer, D1/D2 not independent contractor
o
Does the hospital have any control over D1 and D2, thus creating a
special relationship?
(a) practice ; (b) fees structure ; duty
If YES: not possible to rely on the contractual relationship and
ignore other the operative clauses as stated in the contract.
CHAI BENG HOCK v. SABAH MEDICAL CENTRE SDN BHD &
ORS [2011] 1 LNS 33
3. Does the doctor practice only at one entity or at or for several entities?
If only one entity : D1/D2 is independent contractor
o
4. Does the principal provide the doctor with a salary and benefits, which are
commonly provided in an employer-employee relationship?
If YES: D3 is the employer, D1/D2 not independent contractor
Was the payment made to the hospital instead of D1 and/or D2
personally @ Whether the defendant(s) are salaried employee under
the hospital ?
FOO FIO NA V ASSUNTA [1999] 8 CLJ
GURMIT KAUR JASWANT SINGH v. TUNG SHIN HOSPITAL &
ANOR [2013] 1 CLJ 699
5. Does the healthcare entity handle and collect the doctors patient billings
through its system and in its name, with the power to determine the rates
charged?
If YES: D3 is the employer, D1/D2 not independent contractor
o
Was the deceased a personal patient of the defendant(s) ? :(a) Was the payment made to the hospital or the defendant?
(b) If hospital, does the defendant receive any share of the profits or a
fixed payment (salary)?
LIAU MUI MUI V DR R KRISHNAN 1999 1 CLJ
6. Are the equipment, supplies, and/or support staff utilized by the doctors
supplied by the entity?
If YES: contract of services, D1/D2 not independent contractor
o
Were the other medical staffs (nurses, etc) in the hospital instructed to
assist and take instructions from D1 and/or D2?
LIAU MUI MUI V DR R KRISHNAN 1999 1 CLJ
Was there any technical error/ system failure at the material time(s) in
the hospital?
LIM ZI HONG v. PENGARAH HOSPITAL SELAYANG & ORS
Were the other employees and/or workers and/or agents (I.e. medical
nurses) negligent?
TAN ENG SIEW & ANOR V JAGJIT SIDHU & ANOR [note: in
this case, it was decided that the employees did not
commit tort, hence not negligent]
c. course and scope of employment: WHETHER THE ACT OCCURRED WITHIN THE
PREMISE OF THE HOPSITAL DURING MATERIAL TIMES
o
Does the hospital provide medical treatment and advice to the public
on payment of fees at the premises known (locality of the particular
hospital)?
LIM ZI HONG v. PENGARAH HOSPITAL SELAYANG & ORS