Mediation in negligence cases involving medical tourists in Malaysia

Abstract

Lack of legal recourse is one of the factors that constraints the development of the medical tourism industry. It happens because of private international law issues and shortcomings of medical negligence litigation in destination countries. Medical tourists might not be able to file lawsuits in their home countries because the jurisdiction and the applicable law for medical negligence cases is at the place where the injuries occurred (lex loci delicti). Even if they managed to obtain favourable judgment in courts, they might face problems in enforcing the judgment against foreign medical providers. This means that medical tourists who suffered injuries after receiving treatment in Malaysia will have to bring the case in Malaysia. However, they might face another problem, which is a shortcoming of medical negligence litigation. Those who choose litigation might find it hard to win their cases because of difficulties in proving elements of negligence in courts and other shortcomings of the system. This will affect the development of the industry, as medical tourists will be less motivated to come to Malaysia due to the fear of lack of legal recourse and fear of not receiving suitable compensation in case of medical negligence. Thus, an alternative is needed to ensure continuous development of the industry. One of the alternatives is mediation, which is suitable to be applied because of its benefits and effectiveness in resolving medical negligence cases. In Malaysia, mediation has been applied in courts and various organisations. A qualitative legal research method was undertaken using data collection methods of analysis of documents and interviews to analyse mediation practice in medical negligence cases involving medical tourists in Malaysia. The findings reveal inadequacies of the practice during a complaint stage, at courts and at private mediation. For example, medical tourists who file complaints at the Ministry of Health (MOH) might find out that there are no qualified mediators or specific section that handle medical negligence cases involving medical tourism. Moreover, judges and judicial officers who mediate cases at the courts are not accredited and properly trained as mediators. There is also lack of consistency in the practice of court-annexed mediation and private mediation due to different mediation rules and guidelines. Therefore, the thesis proposes recommendations for the enhancement of this practice. One of the recommendations is the establishment of Malaysian Medical Mediation Centre, which is exclusive for medical tourists who are bringing their cases in Malaysia. This Centre might resolve some of the inadequacies that are listed. It is hoped that the recommendations can provide better legal recourse for medical tourists who suffer medical negligence in Malaysia and consequently assist in developing the medical tourism industry in this country.