Non-delegable duty of care: What a Federal Court decision means for clinicians

Nick Greaves, Claims Manager, Uzair Sidek, Medicolegal Consultant, and Sarah Townley, Deputy Medical Director, discuss what this means for clinicians.

In 2024 a high-profile Federal Court decision considered whether private hospitals owe patients a non-delegable duty of care, despite the clinicians being engaged by them as independent contractors.

As widely reported, the Court held that while the clinician was found negligent and remains personally liable, since the negligence occurred at the hospital, the hospital was also legally responsible because it owes patients a duty of care that cannot be delegated.

This decision marks an important shift for clinical negligence cases with implications for patients, healthcare providers and their insurers/indemnifiers. The court emphasised that patients should not have to worry about internal arrangements – essentially if a patient goes to a hospital, they expect a hospital to ensure competent care.

How Medical Protection supports you

Membership benefits are designed to support you in your own clinical practice. They also help you meet the legal requirement for doctors in Malaysia to have appropriate personal indemnity, so that patients can be compensated if a claim is made and they are entitled to damages.

Your membership protects you in relation to your individual professional work. It does not extend to protecting an employer or hospital – they are expected to have their own insurance or indemnity arrangements.

If you were ever named in a claim together with a hospital, you could request assistance in the usual way. Once your request is approved, support would be provided for you personally – reviewing the allegations, assessing whether you were responsible for any part of the claim, and defending your position where appropriate.

If you were found to carry liability for your own clinical actions, your indemnity would provide protection in relation to the settlement directly with the patient or their lawyers. It would not cover any liability owed by the hospital or employer.

We will always consider each case on its merits to ensure we are providing appropriate assistance when the matter falls within the scope of membership. Further information about where we can assist is included in our Statement of Benefits.

Answering doctors’ questions

Doctors, hospitals, and other healthcare providers are continuing to consider and assess the implications of this judgment.

At Medical Protection, we have seen an increase in queries from doctors relating to this ruling, particularly in relation to indemnity arrangements.

We have received queries from doctors regarding clauses in contracts with private hospitals that require clinicians to ‘indemnify the hospital’ for claims or liabilities arising from your acts or omissions as a medical practitioner. While such clauses have existed for some time and are generally intended to ensure clinicians maintain their own indemnity for personal liability, it is essential that doctors clearly understand the implications for their own position and check any contracts carefully to ensure any clauses do not extend to any additional liabilities.

The case has also sparked an interest in the financial caps or contractual terms that can come with indemnity and insurance products.

The doctor concerned in this case was not a Medical Protection member so we are not well placed to comment on the specifics of what insurance arrangements were in place.

We can however confirm that the indemnity Medical Protection provides to protect most of our members in Malaysia is not restricted by financial caps or contractual terms, and the benefit of discretion is that we can be flexible to support in unusual circumstances that happen in medicine.

By contrast, insurance products offered by insurance providers typically include caps and specific limits. Doctors who rely on such policies should ensure they fully understand these restrictions and are confident that, in the event of a successful claim, the cover in place would be sufficient to meet any liabilities.

We would strongly encourage doctors to contact us should they have any queries in relation to their indemnity or insurance arrangements. Medical Protection can provide protection that is flexible to your needs.

We will continue to monitor developments closely and support our members in navigating changes in the medicolegal landscape.