CLJ 2015 8 676 BC07323

676 Current Law Journal [2015] 8 CLJ
ADVENTIST HOSPITAL & CLINIC SERVICES (M) v. A

KEE BOON SUAN & ANOR AND ANOTHER CASE
HIGH COURT MALAYA, GEORGETOWN
NORDIN HASSAN JC
[CIVIL SUITS NO: 22NCVC-85-02-2013 & 22NCVC-307-10-2013]
B
14 JULY 2015
TORT: Negligence – Medical negligence – Patient becoming quadriplegic after

undergoing spinal surgery – Whether due care and skill exercised in treating patient
– Test applicable to determine standard of care – Whether informed consent
obtained for surgery – Whether patient properly advised regarding need for surgery C
– Whether surgery properly carried out – Whether post operative care was proper
and sufficient – Whether there was organisational and system failure in hospital –
Non-delegable duty of care owed by hospital to patients – Whether hospital
vicariously liable for negligence of doctors and nurses – Whether causation
established – Whether patient entitled to special and general damages D
The plaintiff in the original action operated and managed Penang Adventist
Hospital (‘the hospital’). The first and second defendants were the parents of
Kee Jun Hui (‘the patient’), a 12 year old girl. The patient was admitted to
the hospital for spinal surgery. The plaintiff’s claim was for the outstanding
medical bills. The plaintiff’s claim was not disputed by the defendants. In the E
counterclaim, the defendants and the patient were the plaintiffs and the
plaintiff in the original action was the first defendant. The second and fourth
defendants in the counterclaim were the consultant orthopaedic and spine
surgeons who carried out the operation on the patient at the hospital and the
third defendant was the anaesthetist assigned by the hospital for the said F
operation. The plaintiffs’ counterclaim was for damages for medical
negligence by the defendants in respect of the care, management and
treatment of the patient. The plaintiffs had brought the patient to the hospital
for consultation for the patient’s spinal deformity. The second defendant had
conducted physical examination on the patient and concluded that the patient G
had Idiopathic Scoliosis. Thereafter, the second defendant informed the
father about the surgery that the patient required. The father signed a consent
form for the said surgery and the surgery was carried out uneventfully. After
the surgery, the patient was placed in the Intensive Care Unit (ICU) and was
later removed to the paediatrics general ward. At the general ward, on the
H
same day, the patient became drowsy and there was no response from her.
The father called the nurse who came but told the plaintiffs not to worry as
it was only due to the pain relief medication given to the patient. The patient
later collapsed in the ward and only regained her heartbeat and respiration
after active resuscitation. The neurological assessment of the patient showed
no movement of the patient’s upper and lower limbs. Thereafter, another I
operation was carried out to remove the implants from the patient but there
was no neurogical improvement of the patient’s condition. The patient
became quadriplegic. She was paralysed from the neck down and was
Adventist Hospital & Clinic Services (M) v.
[2015] 8 CLJ Kee Boon Suan & Anor And Another Case 677
A dependent on a ventilator for breathing. The issues arising for determination

were: (i) whether the second, third and fourth defendants had acted with due
care and skill in treating the patient; (ii) whether the second and fourth
defendants had acted in accordance with the standard of care expected of an
orthopaedic and spine surgeon; (iii) whether the third defendant had acted
B with the standard of care expected of an anaesthetist; (iv) whether the first
defendant was negligent and in breach of its contractual duty in the treatment
and management of the patient; (v) whether the first defendant was
vicariously liable for the negligence of the second, third and fourth
defendants; (vi) whether the injuries suffered by the patient were caused or
C
materially contributed by the negligence of the defendants; and (vii) whether
the plaintiffs were entitled to special damages and general damages.
Held (allowing claim and counter claim):
(1) The plaintiff had established its claim for the medical charges. The
plaintiff’s claim for the total medical charges in a sum of
D
RM2,350,013.85 was allowed. (para 15)
(2) It is the duty of the court to determine the standard of care to be
observed by doctors or medical practitioners in a medical negligence
case by evaluating the evidence presented by parties which includes the
opinion and practices of members or body of that profession. (paras 73
E
& 74)
(3) It is the duty of medical practitioners to inform and explain the material
risks of the proposed treatment to patients unless it falls under
therapeutic privilege which the non-disclosure is for the best interest of
F the patient. The second defendant did not advise or explain the risk of
quadriplegia to the patient or her parents. The risk of quadriplegia in the
surgery was a material risk and ought to be explained to the father for
him to make an informed decision. As such, there was a breach of duty
of care on the part of the doctors for failing to obtain an informed
consent from the father before the said surgery. (paras 82, 83 & 90)
G
(4) There was nothing on the second defendant’s medical records that
showed any medical indication for the said surgery. The second
defendant decided that the patient required the surgery without having
the medical records or clinical information of the patient. There was
H also no observation made on the progression of the patient’s scoliosis.
The contemporaneous medical record did not indicate any medical
indication for surgery. Therefore, there was no medical indication for
the second defendant to advice for the surgery to be carried out. In
advising the father to give his consent, the second defendant had
breached of his duty of care to the patient. (paras 93, 99 & 100)
I
(5) The patient was put in the prone position during the surgery and
subjected to hypertensive anaesthesia which had led to quadriplegia and
without having the spinal cord monitoring facilities. This was a breach
of duty of care on the part of the doctor. Further, the facilities at the A
hospital at the material time was inadequate and this affected the
performance of the doctors. This was a breach of duty of care to the
patient by the hospital and also an organisational and system failure.
(paras 113, 115 & 116)
B
(6) The second defendant was negligent and in breach of duty of care when
he gave the instruction to transfer the patient out of the ICU prematurely
and without consulting the anaesthetist. He was also negligent for failing
to give specific instruction to the nurses even though the patient needed
close observation and monitoring after the said surgery. The failure to
inform the doctors after having received the complaint that the patient C
became drowsy was a negligent act of the nurses, taking into account the
unstable condition of the patient. The non-observation and monitoring
of the patient at least half hourly was also another negligent conduct by
the nurses and the doctors. (paras 132-134)
D
(7) The plaintiffs had proven causation on the balance of probabilities. It
was proven that the surgery performed by the doctors had caused the
patient to suffer quadriplegia. (paras 136 & 138)
(8) The hospital medical administration had not set the required safety
protocols or policies. The nurses at the hospital were not well trained
E
apart from the facilities which were inadequate. The patient care had
suffered due to the problems between the doctors and the hospital
management. The organisational and system failure of the hospital gave
rise to direct liability on the part of the hospital. (paras 142 & 143)
(9) A hospital owes a non-delegable duty of care to patients and to ensure F
that the healthcare provided either by its servant or agent under a
contract of service or contract for service is not negligent. This doctrine
of non-delegable duty is an extension of the concept of direct liability
of a hospital. There was no reason not to apply this doctrine in the
present case. (paras 147-150)
G
(10) The nurses of the hospital were negligent and in breach of duty of care
to the patient. As the nurses were employees and staff of the first
defendant, the first defendant was vicariously liable for their negligent
act. The hospital also had some control over the doctors in the
performance of their duty in the hospital. The doctors were in fact the H
agent of the hospital in providing the healthcare to the patient.
Therefore, the hospital was also vicariously liable for the negligent acts
of the doctors. (paras 153 & 157)
Case(s) referred to:
Bennett v. Minister of Community Welfare [1992] 176 CLR 408 (refd) I
Bonnington Castings Ltd v. Wardlaw [1956] AC 613 (refd)
Cassidy v. Ministry of Health [1951] 2 KB 343 (refd)
Dr Ismail Abdullah v. Poh Hui Lin [2009] 7 CLJ 167 HC (refd)
Eddy anak Entering v. Azimudin bin Majidin & Anor [2014] 1 PIR [16] (refd)
A Foo Fio Na v. Dr Soo Fook Mun & Anor [2007] 1 CLJ 229 FC (refd)
Gleneagles Hospital (KL) Sdn Bhd v. Chung Chu Yin & Ors and Another Appeal [2013]
8 CLJ 449 CA (refd)
Ku Jia Shiuen & Anor v. Kerajaan Malaysia & Ors [2013] 9 CLJ 489 HC (refd)
Majuikan Sdn Bhd v. Barclays Bank PLC [2014] 9 CLJ 337 CA (refd)
McGhee v. National Coal Board [1973] 1 WLR 1 (refd)
B Nurul Husna Muhamad Hafiz & Anor v. Kerajaan Malaysia & Ors [2015] 1 CLJ 825
HC (refd)
Ong Ah Long v. Dr S Underwood [1983] 2 CLJ 198; [1983] CLJ (Rep) 300 FC (refd)
Roe v. Minister of Health [1954] 2 QB 66 (refd)
Rogers v. Whitaker [1992] 175 CLR 479 (refd)
Schrump Et Al v. Koot Et Al Lexsee 18 OR (2D) 337 (refd)
C
Shanmugam Gopal v. Zinal Abidin Nazim & Anor [2003] 8 CLJ 729 HC (refd)
Yang Salbiah & Anor v. Jamil Harun [1981] 1 LNS 106 FC (refd)
Legislation referred to:

Evidence Act 1950, s. 103
D Other source(s) referred to:
A Jones, Medical Negligence, 2013 edn
For the plaintiff - Mahinder Singh Dulku (Fazleeza Azli & Nga Mei Yan with him);
M/s Chan Ban Eng & Co
For the defendant - MS Dhillon (Rhina Bhar & KB Karthi with him); M/s Rhina Bhar
E & Assocs
For the 2nd & 4th defendants - J Yeoh (Siti Hawa Ahmad Aani with him); M/s Shearn
Delamore & Co
Reported by Amutha Suppayah
F JUDGMENT
Nordin Hassan JC:
Introduction
[1] There are two suits before this court related to the same subject
G matter which are Civil Suit No. 22NCVC-85-02/2013 and NCVC-307-10/
2013. In these two suits, the plaintiff’s claim is for the outstanding medical
expenses in respect of the care, management and treatment of the defendants’
daughter Kee Jun Hui at Penang Adventist Hospital.
[2] In Civil Suit No. 22NCVC-85-02/2013, the claim is for the
H
outstanding medical charges for the period of 31 July 2011 to 31 January
2012 in the sum of RM218,606.10 and in the Civil Suit No. 22NCVC-307-
10/2013, for the unpaid medical bills for the period of 31 January 2012 to
28 February 2013 for the amount of RM537,477. The plaintiff then amended
the statement of claim in Civil Suit No. 22NCVC-307-10/2013 to include
I the claim for the outstanding medical bills from 29 February 2013 to
30 September 2014 for the amount of RM873,553.65.
[3] The defendants thereafter filed their defence and counterclaim
against the plaintiff in these two suits for damages for medical negligence on
the part of the doctors and Penang Adventist Hospital.
[4] On the 8 September 2014, this court ordered the two suits to be A
consolidated and heard together.
[5] The plaintiff in the original action is a company incorporated under
the Companies Act 1965 who operates and manages Penang Adventist Hospital.
[6] The first and second defendant are the parents of Kee Jun Hui and B
reside at No. 717, Jalan 5, Kg. Veldor, Sg. Bakap, Sg. Jawi, Penang.
[7] The second and fourth defendants in the counterclaim are consultant
orthopaedic surgeons who carried out the operation on the patient at the
hospital and the third defendant is the anaesthetist assigned by the hospital
for the said operation. C
Briefs Facts
(The original action in relation to the outstanding medical bills).
[8] On 2 June 2008, Kee Jun Hui (“the patient”) was admitted to the
Penang Adventist Hospital (“the hospital”) for spinal surgery which was D
scheduled on the 3 June 2008.
[9] As the patient’s parents, the first and second defendants had financial
difficulties to bear the costs for the surgery, the hospital, under the Dr Earl
Gardner Fund agreed to contribute RM55,000 towards the cost of the
E
surgery which was about RM70,000. Subsequently, the hospital agreed to
grant a 30% coverage of the medical bills under the Sabbath Fund for a
period of one year which was until 26 May 2009.
[10] In any event, the hospital did not impose any charges against the
defendants until after the expiry of the period given in its letter to the F
defendants dated 23 December 2010 informing that the patient was
medically fit to be discharged from the hospital.
[11] Except for the deposit of RM20,000, the medical bills for the period
of 31 July 2011 to 31 January 2012 for the amount of RM218.606.10, the period
of 31 January 2012 to 26 February 2013 for the amount of RM537,477 and G
the period of 29 February 2013 to 30 September 2014 in the sum of
RM873,553.65 were not paid by the defendants. As the medical charges is
continuing on a daily basis, the total amount claimed by the plaintiff from
the period of 31 July 2011 to 31 March 2015 is RM1,900,013.85.
Plaintiff’s Contention H
[12] The plaintiff submitted that the outstanding medical charges to be

paid by the defendants were supported by the medical bills found in bundle
‘G’, bundle “I” and document “annexure A”.
Defendant’s Position I
[13] The plaintiff’s claim for the said outstanding medical bills is not
disputed and the defendants’ counsel agree that the said claim is to be allowed
as mentioned in his oral submission and as stated at para. 177 of the
defendants’ written submission.
A Decision Of The Court

[14] It is trite law that the party who alleges a fact must produce evidence
in proof of it as clearly stated under s. 103 of the Evidence Act 1950.
[15] In the present case, the plaintiff had established its claim for the
B medical charges by tendering all the medical bills through the plaintiff’s
witness, Lim Fong Cheng (PW1), the Senior Manager of Customer Affairs,
Relation and Experience of the hospital.
[16] PW1 testified that the unpaid medical charges for the period 31 July
2011 to 31 January 2012 is RM218,606.10 and from 31 January 2012 to
C 28 February 2013 is RM537,477. She then identified all the medical bills in
bundle “G” as the bills for the said period.
[17] PW1 in her evidence also confirmed that the outstanding medical
charges to be paid by the defendants for the period from 29 February 2013
to 30 September 2014 is RM873,553.65 by referring to the medical bills at
D pp. 30 to 114 of “bundle I”. Therefore, the total outstanding medical bills
from 31 July 2011 to 30 September 2014 is RM1,629,636.75.
[18] Apart from that, the medical bills incurred from 30 September 2014
to 31 March 2015 in the sum of RM270,377.10 was shown by referring to
the documents in “annexure A”. Therefore the total outstanding medical
E
charges which has been proven from 31 July 2011 to 31 March 2015 is
RM1,900,013.85.
[19] However, with regard to the medical charges after 31 March 2015,
no medical bills were presented in this court and the testimony of PW1 only
F stated that the average cost for the care and management of the patient is
about RM50,000 to RM60,000 per month. No evidence was adduced for the
daily cost incurred by the hospital or specific amount incurred monthly. In
any event, as it is not disputed that the hospital incurred cost for the care and
management of the patient, the reasonable cost is RM50,000 monthly. The
month of January 2012, where the medical bills was RM49,803.54 is one of
G
the basis for me to decide the amount of RM50,000 as the average monthly
medical charges for the patient. Therefore, on the reasonable assumption that
the patient will be discharged six months from the date of judgment, the
amount of medical charges after 31 March 2015 will be nine months x
RM50,000 which is RM450,000. As such I allow the plaintiff’s claim for the
H total medical charges in a sum of RM1,900,013.85 + RM450,000 =
RM2,350,013.85.
Defendants’ Counterclaim
[20] In the counterclaim, the defendants and Kee Jun Hui are the plaintiffs
I and the plaintiff in the original action is the first defendant with
Dr Cheok Chee Yew as the second defendant, Dr Patrick Tan Kee Seng as
third defendant and Dr Wong Chung Chek as the fourth defendant.
[21] The plaintiffs’ claim is for damages for medical negligence by the A
defendants in respect of the care, management and treatment of Kee Jun Hui,
the third plaintiff at Penang Adventist Hospital .
[22] The second and fourth defendants are consultant orthopaedic and
spine surgeons whilst the third defendant is the consultant anaesthetist.
B
Brief Facts
[23] On 2 May 2008, the first plaintiff brought his 12 years old daughter,
the third plaintiff (“the patient”) to Penang Adventist Hospital (“the
hospital”) for consultation for the patient’s spinal deformity. At the hospital,
the patient was attended by Dr Cheok Chee Yew, the second defendant. C
[24] The second defendant then conducted physical examination on the

patient and found the presence of a higher left shoulder with a stiff right
thoracic hump and a plump line 2cm off centre. There was no neurological
deficit. The x-ray of the patient revealed that the patient had a double thoracic
curve with cobb’s angle: T1 - T5 = 62 degrees and T6 - T12 = 100 degrees. D
The second defendant then concludes that the patient had Idiopathic Scoliosis.
[25] Thereafter, the second defendant informed the first plaintiff about the
surgery that the patient requires and due to the high costs for the surgery, the
second defendant suggested the surgery to be done at Penang General
E
Hospital. Earlier, prior to the meeting with second defendant, the patient was
brought by first plaintiff to Penang General Hospital for consultation for the
patient’s spinal deformity.
[26] However, the first plaintiff preferred the surgery to be done at the
hospital. The second defendant then recommended the first plaintiff to seek F
financial assistance from the welfare body of the hospital. Upon application
made, the hospital agreed to contribute RM55,000 for the cost of the surgery
under Dr J Earl Gardner Fund and subsequently agreed to grant a 30%
coverage of the medical bills for a period of one year under the Sabbath Fund.
[27] On 2 June 2008, the patient was admitted into the hospital with the G
operation scheduled on the 3 June 2008. The second defendant then obtained
the approval from the hospital for the fourth defendant to assist him to
perform the surgery.
[28] On the same day, 2 June 2008, the first plaintiff signed a consent
form for the said surgery. H
[29] The third defendant is the anaesthetist who was assigned by the
hospital to perform the anaesthetic for the patient in respect of the said spinal
surgery which was scheduled on the 3 June 2008.
[30] On 3 June 2008, the surgery was carried out by the second and fourth I
defendants with the third defendant as the anaesthetist. The surgery took
about seven hours from 9am to 4pm.
A [31] The surgery was performed with the patient in the prone position and
hypertensive anaesthesia was administered with a view to reduce the bleeding.
The surgery was uneventful.
[32] After the surgery, whilst the patient was still in the Intensive Care
Unit (ICU), the second defendant instructed the patient to move her legs
B
which the patient was able to do.
[33] On the 4 June 2008 at 11.15am the second defendant noted in the
Nursing Report ‘T/O to Paed’s ward’ which indicates the instruction to
transfer the patient out of the ICU to the paediatrics general ward. This was
C
confirmed by the second defendant in his evidence. The patient was then
transferred to the general ward.
[34] At the general ward, on the same day, when the patient was awake,
the first and second plaintiffs spoke to her. The patient then became drowsy
and the second plaintiff tried to wake her up but there was no response from
D her. The first plaintiff then called the nurse who came but told the plaintiffs not
to worry as it was only due to the pain relief medication given to the patient
and said that the patient needed a lot of rest. The nurse then left the room.
[35] On the same day, at about 2.50pm the ward nurse informed the
second defendant that the patient had collapsed in the ward and when the
E second defendant arrived at the ward, he was informed by the staff nurse that
the ward nurses had carried out active resuscitation by way of cardiac
massage, ambu-bagging and cardio-pulmonary resuscitation (CPR) and that
the patient had regained her heartbeat and respiration.
[36] The patient was then transferred back to the ICU for further
F observation and was put on a ventilator.
[37] On 5 June 2008, the neurological assessment of the patient showed
no movement of the patient’s upper and lower limbs. The second defendant
then discussed with Dr Khaw Poh Guan, the consultant paediatrician and
Dr Samuel Easaw, the consultant neurologist at the hospital and two other
G
spinal surgeons. It was the consensus of the doctors that the implants be
removed from the patient to exclude any possible cause of the neurological
deficit.
[38] Thereafter the first plaintiff was informed by the second defendant
H the decision and the rationale to remove the implants and a written consent
was obtained from the first plaintiff. On the same day 5 June 2008 at 4pm,
the second defendant removed all the implants from the patient.
[39] After the implants were removed, there was no neurological
improvement of the patient’s condition.
I
[40] The x-rays and MRIs done after the removal of the implants showed
as follows:
(i) MRI of the brain on 11 June 2008 showed ‘diffuse acute infarction of A
the spinal cord/medulla with hemorrhagic transformation’;
(ii) MRI of the cervical spine on 11 June 2008 showed ‘extensive acute
infarction of lower medulla and cervical spinal cord with hemorrhagic
transformation in the central cord’; and
B
(iii) MRI of the thoracic spine on 17 June 2008 showed ‘extensive cord
oedema and infarction’.
[41] The patient was quadriplegic. She was paralysed from the neck down
and was dependent on a ventilator for breathing.
C
Issues To Be Tried
[42] The issues to be tried in this case are as follows:
(i) whether the second, third and fourth defendants had acted with due care
and skill in treating the patient, the third plaintiff;
D
(ii) whether the second and fourth defendants had acted in accordance with
the standard of care expected of an orthopaedic and spine surgeon;
(iii) whether the third defendant had acted with the standard of care expected
of an anaesthetist;
E
(iv) whether the first defendant was negligent and in breach of its contractual
duty in the treatment and management of the patient;
(v) whether the first defendant is vicariously liable for the negligence of the
second, third and fourth defendants;
(vi) whether the injuries suffered by the patient were caused or materially F
contributed by the negligence of the defendants; or
(vii) whether the plaintiffs are entitled to special damages, general damages,
interest and cost as pleaded.
The Plaintiffs’ Contentions G
[43] Basically, the plaintiffs contended that the negligence of the
defendants occurred at three stages which were:
(i) the pre-operation;
(ii) during operation; and H
(iii) the post operation.

[44] At the pre-operation stage, the plaintiffs submitted that the doctors
had failed to obtain an informed consent from the parents and failed to advice
the parents and the patient the material risk of quadriplegia. I
A [45] It was also submitted that there was no medical indication for the
operation to be carried out and the said operation was only a cosmetic
procedure. Counsel then contended that the parents were influenced and
persuaded by the second defendant that the patient needed the operation.
[46] Counsel for the plaintiffs also contended that the doctors had failed
B
to observe the progression of the patient’s scoliosis over a period of time
before giving advice for the patient to undergo the operation. Furthermore,
it was argued that the doctors had failed to obtain any medical report or
clinical information from Penang General Hospital knowing that the patient
had earlier been referred to Penang General Hospital.
C
[47] During the operation, the plaintiffs submitted that as the patient was
put in a prone position and subjected to hypertensive anaesthesia which can
cause vascular problems, the spinal cord monitoring (SCM) should have been
used continuously during the operation. However, in this case no spinal cord
monitoring was used during the said operation.
D
[48] With regard to the post operation, the plaintiffs contended that the
premature transfer of the patient out from the ICU to the general ward and
failure to undertake close observation of the patient had led to the patient’s
collapse and consequence quadriplegia. The plaintiff also submitted that the
second defendant had failed to consult the anaesthetist, the third defendant
E
before giving the instruction to transfer the patient to the general ward. The
second defendant was also said to have failed to give any instruction to the
nurses for the care and management of the patient.
[49] The plaintiffs further submitted that the nurses of the hospital were
F negligent in failing to inform the doctors about the complaint that the patient
being drowsy in the ward.
[50] The plaintiffs also argued that the hospital was directly liable for the
hospital’s organisational and system failure. It was submitted that there was
lack of proper safety protocols, inadequate facilities and insufficient numbers
G of experienced and trained nurses at the hospital.
[51] Counsel for the plaintiffs also contended that the hospital owed
the patient a non-delegable duty of care as the hospital itself is a provider of
healthcare.
H [52] On the issue of vicarious liability, it was submitted that the first
defendant is vicariously liable for the negligence of its staffs which are the
nurses. As for the second, third and fourth defendants, it was argued that the
doctors are the hospital’s agents in providing the healthcare to the patient and
as such the first defendant is vicariously liable for their negligent.
I [53] The plaintiffs then submitted that the negligence of the defendants
had caused the patient to suffer quadriplegia.
[54] The plaintiffs further contended that the patient is entitled to the A
damages and costs as pleaded based on inter alia, the testimony of Dr Balwant
Singh Bains (PW5) and Dr Mohd lzmi bin Ahmad (PW6).
The First Defendant’s Contentions
[55] Firstly, the first defendant submitted that the plaintiffs’ pleading only B
pleaded causation against the three doctors and not against the hospital. As
such, the plaintiffs are bound by the pleading.
[56] Secondly, it was contended that the doctors are not agents or
employees of the hospital. They have entered into a contract for services with
the hospital and therefore the issue of vicarious liability does not arise. C
[57] The first defendant then submitted that the plaintiffs are not entitled
to claim for general damages against the hospital in respect of pain and
suffering in relation to the quadriplegia as it was not pleaded and the plaintiffs
have not adduced medical evidence to establish that the patient’s quadriplegia
was caused by the hospital. D
[58] As regards the special damages, the first defendant contended that the
plaintiffs’ claims have not been proven and disputed the claims made by the
plaintiffs.
The Contentions Of The Second, Third and Fourth Defendants E
[59] Firstly, counsel for the second, third and fourth defendants
contended that the care and management of the patient on the part of the
doctors preoperatively, intra-operatively and post-operatively had not caused
or contributed to the patient’s quadriplegia.
F
[60] It was also submitted that informed consent of the father had been
obtained and the common foreseeable risks and complications of the scoliosis
surgery had been explained to the father. The father had been informed about
the risk of paraplegia, infection, bleeding and non-union.
[61] Counsel also submitted that the indication for surgical interventions G
to correct the thoracic scoliosis is very clear as the S shaped curve was larger
than 45 degrees. It was further argued that the thoracic curve at near 100
degrees in this case if left uncorrected would affect the patient’s lung and
cardiac functions.
[62] Counsel for second, third and fourth defendants also contended that H
the patient had to be placed in a prone position during surgery as the
corrective surgery for double cures is only possible through a posterior
approach to the spine. Furthermore it was argued that all precautionary
measures had been taken to prevent direct pressure on the patient’s eyes,
abdomen, elbows, knees and ankles. I
A [63] It was also submitted that the use of hypertensive anaesthesia is a

common practice in spinal surgery to reduce bleeding and the patient’s
quadriplegia was not caused or relates to the hypertensive anaesthesia
administered during the surgery. Furthermore, it was submitted that the
patient was able to move her limbs and breaths on her own after the surgery.
B
[64] Apart from this, counsel for the doctors contended that the doctors’
post operative care and management of the patient is not within the plaintiffs’
pleaded case against the doctors and therefore the plaintiffs’ case should be
dismissed.
C
[65] It was further argued that even if the negligence of the doctors post
operatively is within the plaintiffs’ pleaded case, it was submitted that there
had not been any want of care and management on the part of the doctors.
[66] Counsel for the doctors also submitted that the premature transfer of
the patient from ICU to the paediatric ward does not reflect any want of care
D on the part of the second defendant and did not cause the patient’s respiratory
arrest or quadriplegia.
[67] Counsel for the doctors then contended the premature transfer, the
respiratory arrest and events leading to the patient’s quadriplegia are matters
within the hospital’s system of post operative health care for which the
E hospital is not only directly responsible for organisations failure but
accountable for its non-delegable duty of care.
[68] It was further submitted that the hospital is vicariously liable for the
act and omissions on the part of the doctors irrespective of whether they are
independent contractor. Counsel then argued that the provisions in the
F agreement entered between the doctors, the hospital and the consultant
company further confirmed that both the second and third defendants are not
independent contractors but are employees of the hospital.
[69] In respect of the special damages, it was submitted that the damages
should not be assessed on the basis of homecare but on the basis of
G
institutional care in a hospital or medical centre.
[70] As to the general damages, it was contended that the amount of
RM350,000 is a reasonable amount taking into account the award for a
patient who was not only quadriplegia but mentally retarded in the case of
H Ku Jia Shiuen & Anor v. Kerajaan Malaysia & Ors [2013] 9 CLJ 489; [2013]
4 MLJ 108.
Findings Of The Court
[71] It is settled law that a doctor owes a duty of care to his patient. This
duty arises out of the relationship with the patient when the doctor provides
I
advice, diagnosis or treatment to the patient.
[72] The often-quoted Federal Court case on this issue of duty of care is A
Foo Fio Na v. Dr Soo Fook Mun & Anor [2007] 1 CLJ 229, [2007] 1 MLJ 539
where it stated:
That duty of care has been aptly described by Lord Hewart CJ in
R Bateman (4925) 94 LBKB 79 to be as follows:
B
If a person hold himself out as possessing special skill and
knowledge and he is consulted, as possessing such skill and
knowledge by or on behalf of a patient, he owes a duty to the
patient to use due caution in undertaking the treatment and the
patient submits to his direction and treatment accordingly, he owes
a duty to the patient to use diligence, care, knowledge, skill and C
caution in administering the treatment. No, contractual relation is
necessary nor is it necessary that the service be rendered for
reward.
[73] It is also clear that the Federal Court in Foo Fio Na’s case accepted
the test in Rogers v. Whitaker [1992] 175 CLR 479 and elaborated the D
principle of duty of care as follows:
Therefore, there is a need for members of the medical profession to stand
up to the wrong doings, if any, as is the case of professionals in other
professions. In so doing people involved in medical negligence cases
would be able to obtain better professional advice and that the courts
E
would be appraised with evidence that would assist them in their
deliberations. On this basis, we are of the view that the Rogers v Whitaker
test would be a more appropriate and viable test of this millennium then
the Bolam test. To borrow a quote from Lord Woolfe’s inaugural lecture
in the new Provost Series, delivered in London in 2001 the phrase
“Doctor knows best should now be followed by the qualifying words 'if F
he acts reasonable and logically and get his facts right”.
[74] Thus, it is the duty of the court to determine the standard of care to
be observed by doctors or medical practitioners in a medical negligence case
by evaluating the evidence presented by parties which includes the opinion
and practices of members or body of that profession. G
[75] After having mentioned the principle of standard of care, the next
question for determination is whether there was any breach of duty of this
standard of care by the defendants.
[76] In the present case, I will address the relevant issues raised by parties
H
especially at the three stages as contended by the plaintiffs where the negligence
of the defendants were said to had occurred. The stages as mentioned earlier
are the pre-operation, during operation and the post operation.
The Pre Operation
[77] Firstly is the issue of informed consent. The rationale of this doctrine I
of informed consent is to give the patient sufficient information about the
proposed medical treatment so as to unable the patient or the parents to make
A an informed decision as to whether to proceed with the treatment or

otherwise. This certainly involved the explanation as to the risks of the
proposed treatment.
[78] This issue of informed consent has been explained by Siti Norma
Yaakob FCJ in Foo Fio Na’s case as follows:
B
That said, we are of the opinion Bolam Test has no relevance to the duty
and standard of care of medical practitioner in providing advice to patient
on the inherent and material risks of the proposed treatment. The
practitioner is bound by law to inform his patient who is capable of
understanding and appreciating such information of the risks involved in
C any proposed treatment so as to enable the patient to make an election
of whether to proceed with the proposed treatment with knowledge of the
risks involved or decline to be subjected to such treatment.
[79] Having read the statement of law by Siti Norma FCJ in Foo Fio Na’s
case, I am of the view that the words “the risks” mentioned by the judge
D refers to the risks mentioned at the beginning of the statement which are
‘inherent and material risks’.
[80] In any event, as the Federal Court in Foo Fio Na’s case applied the
principles established in Rogers v. Whitaker (supra), it is clear that only material
risks of injury arising out of the treatment need to be disclosed to the patient.
E
[81] On the same issue, the principles in Rogers v. Whitaker which was
quoted in the case of Dr Ismail Abdullah v. Poh Hui Lin [2009] 7 CLJ 167;
[2009] 2 MLJ 599 are relevant in this case. At para. 20, p. 608 it says:
Some very important principles are established in Rogers v. Whitaker. A few
F of them, in so far as they are relevant to the present case, are:
(i) only material risks of injury arising out of treatment or surgery need
to be disclosed to a patient;
(ii) the materiality or non-materiality of a risk often requires expert
evidence; and
G
(iii) the therapeutic privilege allows a surgeon to withhold disclosure a
material risk in the best interest of a patient.
[82] Therefore, it is the duty of medical practitioners to inform and
explain the material risks of the proposed treatment to patients unless it falls
under therapeutic privilege which the non-disclosure is for the best interest
H
of the patient.
[83] In the present case, the first plaintiff who signed the consent form
was not called to testify on this issue. Be that as it may, it is not disputed
that the second defendant did not advise or explain the risk of quadriplegia
I to the patient or her parents as clearly noted on the consent form. It only
stated the risk of paraplegia.
[84] In relation to this issue, the plaintiffs called an expert Dr Kuldip A

Singh (PW2) who inter alia testified as to the risk of quadriplegia in a spinal
cord surgery. In his testimony he said this:
If you look at TWIA, Q23, he had obtained consent from the father,
explained to the risk of surgery which included paraplegia,
B
... The other is Quadriparesis, that means you become paralysed from the
neck downwards. Although it is rare, but it is important for the father to
know before he make an informed decision whether to go for surgery. It’s
not here
[85] The risks of quadriplegia is not something new in the spinal cord
C
surgery as mentioned in the literatures cited by PW2 in bundle ‘M’ which
among others are:
(i) ‘Anaesthesia In The Prone Position’; and
(ii) ‘Quadriplegia After Lumbar Disc Surgery’.
D
[86] As one of the principles established in Roger v. Whitaker (supra) is that
the materiality or non-materiality of a risk requires expert evidence,
therefore the evidence of Dr Kuldip (PW2) is of significance to assist this
court on this issue. In this case, PW2 testified that the risk of quadriplegia
in the surgery is material risk and ought to be explained to the father for him
E
to make an informed decision.
[87] In his expert report dated 19 June 2012, PW2 said this:
The cause of the quadriplegia is due to a cervical cord and medulla infarct.
This complication is not idiopathic or of unknown cause. Although rare,
this has been reported in literature. F
PW2 also was not cross-examined by counsel for the defendants and his
evidence to my mind is not obviously indefensible.
[88] In Majuikan Sdn Bhd v. Barclays Bank PLC [2014] 9 CLJ 337 the Court
of Appeal stated this:
G
We are in agreement with these principles and in our view, a judge who
is not an expert himself, should defer to expert opinion unless that
evidence is obviously indefensible and is not supported by the basic facts
of the case. Where there are conflicting expert opinion, the judge is of
course entitled to bring to bear his own judicial appreciation of the matter,
and choose one over the other, but where there is only one expert H
opinion, he should not as a rule reject that opinion outright without
judiciously considering whether it is obviously indefensible and
unsupported by the basic facts of the case. Such a principle is in accord
with the principle that the court is the final obiter, as stated on
Dr. Shanmuganathan v. Periasamy Sithambaram Pillai [1997] 2 CLJ 153;
[1997] 3 MLJ 61; I
A ... the principal object of expert evidence is to assist the court to form its
own opinion. An expert, should give his reasons. The court is the final
arbiter, not the experts or witnesses ... The learned Judge should have
considered the reasoning given by the expert and with that assistance
arrive at the conclusion. In failing to do so the learned Judge had
abdicated his function. The learned Judge is entitled to reject the evidence
B but not before considering such evidence ...
[89] Therefore, having considered the evidence, the opinion of PW2 and
having read the literatures before this court, I am of the view that the risk
of quadriplegia in spinal cord surgery as in this case is a material risk which
the second defendant had failed to explain to the father. The facts also shows that
C
third and fourth defendants did not explain the risks to the father before they
were involved in the said surgery for whatever tasks assigned to them.
[90] As such there was a breach of duty of care on the part of the doctors
for failing to obtain an informed consent from the father, the first plaintiff
D
before the said surgery.
[91] The next issue in respect of the pre-operation stage is the doctor’s
failure to observe the progression of the patient’s scoliosis before giving
advice to the father for the patient to undergo the surgery. It was also the
plaintiffs’ contention that the surgery is only a cosmetic procedure and there
E was no medical indication to perform the surgery.
[92] On this issue, the second defendant, having met the patient for the
first time on the 2 May 2008 noted in his record as shown at p. 2 of bundle
‘B’ as follows:
Idiopathic Scoliosis
F
- noted deformity 1 year ago.
- no symptom - able to participate in school activity.
- normal development mile-stone.
G - Follow up in Penang GH for scoliosis.

- Advised for surgery.
- Awaiting for financial assistance.
[93] There is nothing on the second defendant medical records, the
H contemporaneous document, that shows any medical indication for the said
surgery. As mentioned earlier, the second defendant in his testimony
however said that there was clear medical indication for the surgery and if
uncorrected would affect the patient’s lung and cardiac function. However,
this view was made without having the medical records or clinical information
of the patient from the Penang General Hospital.
I
[94] On the other hand, the expert, Dr Kuldip (PW2) was of a different
view on this issue. In his testimony, PW2 had this to say after being referred
to the medical report prepared by the second defendant on 10 February 2000.
Q: Dr. Dhillon, may I refer you to Bundle D, page 19. A
“Indication of surgery: Rapid progression of cure over one year.

Deformity Double Thoracic curve - cobbs angle: T1-T5 = 60 o;
T6 - T12 = 100°. And your recommendation is 40 to 45 is usually
recommended.
Would you agree, Dr. Dhillon, that these indications warrants B
surgical indication?
A: No. I already mentioned, its no. This patient’s plumb line is only
2 cm here. As I said, in the same page, if you see under ‘History
of Patient illness plumb line 2 cm off centre, that means very slight
tilts. It is not even a cosmetic problem, what's the need to correct C
the deformity.
Q: 60 to 100 degrees , it all over your range, Dr. Dhillon?
A: No, this is double curve ...
Q: It may be double curve but it is beyond your range, your range of D
recommendation is.
A: It is not my range, never said that.
Q: 40 to 45, which is your recommended range?
A: It is not my recommended range.
E
[95] PW2 further explained the reasons why in the present case he would
not recommend for surgery as stated at p. 123 of the notes of proceeding as
follows:
A lot of doctors will recommend surgery after the curve exceed 40, 45
degrees because they realised, they follow these patient for several years, F
the curve increased about 1 degree per year, on average. So you need to
follow up these patient over several years, you see how rapid the
progression is. Some, if progress 1 degree, by the time she is 17, she stop
growing, the curve won’t progress. So you calculate, by the time she stop
growing, how much the curve would be. If the curve, is going to 100°,
single curve, she is going to walking like this, it won’t be very good. G
If the patient has got double curve, even if it progresses, it won’t be a

major cosmetic problem. So I won’t even recommend surgery.
[96] When asked further about the condition of the patient with her curve
degrees T1 - T5 at 60°,T6 - T12 at 100° and how much longer the doctors H
have to wait before any surgical, Dr Kuldip explained as follows:
I believe that you must follow-up and see whether there is an indication.
I say the main indication is cosmetic. In this patient, there is minimal
cosmetic deformity because it is a double curve. So you don’t even need
to do any surgery. It is single curve, you are 45 degrees, she got 5 more
I
years to grow, it may become 100° you may want to consider because it
becomes a cosmetic problem.
A [97] Again PW2 was not cross-examined on this issue to challenge his
opinion. The doctors only submitted the supplementary witness statements
to put their stand on the issue. PW2 had no opportunity to respond to the
doctors’ contentions which among others with regard to the contention that
the delay in carrying out the surgery would affect the patient’s lung and
B cardiac function.
[98] The second defendant also in his evidence admitted that it is
important to observe the patient over a period of time to see the progression
of the scoliosis.
C
[99] In the present case, as there was no observation made on the
progression of the patient’s scoliosis, no medical records or information of
the patient obtained from Penang General Hospital, the contemporaneous
medical record on 2 May 2008 does not indicate any medical indication for
surgery and the evidence of Dr Kuldip on this issue was not strictly
challenged, I am of the considered view that the expert opinion of Dr Kuldip
D
(PW2) is reasonable and acceptable.
[100] Therefore, it is my findings that there was no medical indication for
the second defendant to advice for the surgery to be carried out. In advising
the first plaintiff to give his consent in this case clearly in breach of his duty
of care to the patient.
E
The Operation
[101] As regards the issue that the patient was put in the prone position and
subjected to hypertensive anaesthesia during surgery, this court had
considered all relevant evidence including the evidence of the experts.
F
[102] The doctors were of the view that the prone position and the
administering of hypertensive anaesthesia are a common practice in spinal
surgery and they have taken all the necessary precaution to ensure the
patient’s safety.
G [103] On the other hand, Dr Kuldip (PW2) in his testimony explained in
detail the risk of positioning the patient in a prone position and the
administration of hypertensive anaesthesia which could lead to
quadriparesis.
[104] PW2’s opinion is supported with the literatures presented in court
H especially, the article ‘Anaesthesia In The Prone Position’ by H Egcombe,
K Carter and S Yarrow. In this art. at pp. 169 and 170 under the heading
‘complications associated with the prone position’ the authors explain how
the spinal surgery with the prone position could lead to quadriplegia.
[105] The evidence of PW2 was supported by another expert Dr Sylvian
I
Dass and they are of the view the need to have the spinal cord monitoring
(SCM) during the operation to monitor the cord continuously as surgery with
the prone position could lead to quadriplegia.
[106] As explained by PW2 the cause of quadriparesis is not due to cord A

distraction at the time of the correction of the deformity but due to ischemic
of the cord due to a vascular event. Therefore the spinal cord monitoring may
show early signs of ischemia of the cord.
[107] PW2 then stated that doctors should not be doing scoliosis surgery
B
without having the spinal cord monitoring facilities.
[108] Professor Dr Chan Yoo Kuen, (DW3) an expert called by the
defendants also acknowledged the importance of the spinal cord monitoring
facilities in spinal surgery.
[109] In her evidence, she said this: C
Q: In a major operation like this, where the patient is put in a prone

position and subjected to hypertensive anaesthesia, how can the
spinal cord monitoring equipment assist the clinician?
A: In this particular surgery, what they are actually trying to do is to
straighten out the spine that has gone, in layman’s term crooked. D
So they would like to straighten it. But in straightening it, they can
actually stretch the bones and ultimately the cord. So the function
of the cord is to allow the nerves transmission from the lower limbs
back to the brain and also for transmission of further impulse from
the brain downwards. So, when the surgeons operate and they
E
distract the cord that means they have actually stretched too far, the
function of the cord will be compromised. So this monitoring is to
actually help us determine whether there has been a compromise at
all in this cord. And if there is a compromise then the surgeon
should use this monitor to tell him to reduce the distraction, that
means, instead of pulling that long, to reduce the distraction so that F
the injury would not be there or would be minimal.
[110] The spinal cord monitoring facilities is not new to the medical world
as it was introduced as early as in the 1970’s as confirmed by Professor Chan.
Her working place at University Malaya Medical Centre also has the spinal
cord monitoring facilities. G
[111] As all the experts, including the expert called by the doctors
confirmed the importance of having a spinal cord monitoring facilities in a
spinal surgery, I have no reason to have a different view. I am satisfied that
the opinion of the experts is capable of withstanding any logical analysis.
H
[112] I am also of the view that the wake-up test which was carried out
once in the said surgery is not an efficient method to monitor the cord
continuously during the surgery.
[113] In the present instance, as the patient was put in the prone position
during the surgery and subjected to hypertensive anaesthesia which had led I
to quadriplegia and without having the spinal cord monitoring facilities, to
my mind it is a breach of duty of care on the part of the doctors.
A [114] On top of that, on the part of the hospital as stated in its ‘mission’
which is to provide a comprehensive, competent and excellent healthcare has
failed to provide the spinal cord monitoring facilities which is important in
a spinal surgery and in the present case had led the patient to suffer quadriplegia.
[115] Dr Patrick Tan, the third defendant himself in his evidence had
B
testified that the facilities at the material time were inadequate and this affects
the performance of the doctors.
[116] As such, I am of the view that this is a breach of duty of care to the
patient by the hospital and also an organisational and system failure.
C The Post Operation
[117] Firstly, is the issue of the patient being transferred from the ICU to
the normal ward, the patient was transferred upon instruction given by the
second defendant. She was transferred out from the ICU on the 4 June 2008
about 17 hours after the surgery. The second defendant had made the
D decision to transfer the patient without informing Dr Patrick Tan, the
anaesthetist. The second defendant also did not give any instruction to the
ward nurses with regards to the patient’s care and management.
[118] The facts also shows that at the time when she was transferred out
from the ICU, the pulse rate was not normalised and the blood pressure and
E
the urine output was low. The patient’s condition was then still unstable.
[119] Professor Dr Chan (DW3), the expert called by the doctors,
confirmed the fact that the patient was then in unstable condition and of the
view that she needs closer monitoring of her blood pressure, heart rate or
F cardiovascular system. Professor Chan then agreed that the decision to
transfer the patient from the ICU to the general ward was premature.
[120] DW3 also agreed that Dr Patrick, the anaesthetist, is the qualified
person to manage the patient in the ICU and considering the condition of the
patient, DW2 said that the second defendant should have consulted
G Dr Patrick before making the decision to transfer the patient out from the
ICU to the general ward.
[121] In addition to this, DW3 also agreed that the second defendant, who
gave the instruction to transfer the patient to the general ward, should have
given the ward nurses specific instruction regarding close observation of the
H patient.
[122] Professor Chan (DW3) further testified that upon arrival of the
patient at the general ward, she must be observed closely at least 1/2 hourly.
She also agreed that apart from observing and recording the patient’s vital
parameters, the general condition of the patient also need to be observed.
I
[123] DW3 further agreed with the plaintiff’s counsel that when the first
plaintiff complained to the nurses about the patient becoming drowsy, the
nurses should have immediately informed the doctors and the doctors should
have immediately come and assess the patient’s condition. In the present A
case, the nurses had failed to so.
[124] DW3 then agreed the reasons that the patient had collapsed was
because the patient had been discharged prematurely, she was hypotensive,
she was on morphine and she had not been observed closely. Therefore the
B
patient’s collapse is expected.
[125] Beside Professor Chan (DW3), Dr Patrick Tan, the third defendant,
testified that after the said surgery, the patient should be in the ICU for at
least 24 hours for close observation and management.
[126] The third defendant also agreed that the patient’s vital parameters C
like the pulse rate, blood pressure, respiration rate, the CVP and the urine
output should be normalised before any decision can be made to transfer the
patient out from the ICU.
[127] The third defendant further agreed that disaster can happen when the
patient with morphine infusion was put in a private room away from the D
nursing counter and without any monitoring.
[128] In addition, the third defendant further agreed that the second
defendant must communicate with him before the decision to transfer the
patient out from ICU was made. In this case, the third defendant was not
E
consulted.
[129] The third defendant also testified that based on the patient’s
condition at the material time her collapse at 3pm on the 4 June 2008 was
not a surprise.
[130] Having heard the evidence of the doctors’ own expert, the testimony F
of the third defendant, the plaintiffs’ expert witnesses and the unstable
condition of the patient at the material time, it is my finding that the transfer
of the patient out from the ICU on 4 June 2008 was premature and had
caused the patient to collapse in the general ward.
G
[131] It is also my finding that there was no specific instruction given by
the second defendant to the nurses when the patient was transferred to the
general ward and no close observation and monitoring of the patient at the
general ward either by the nurses or the doctors.
[132] As such, the second defendant was negligent and in breach of duty H
of care when he gave the instruction to transfer the patient out of the ICU
prematurely and without consulting the anaesthetist. He was also negligent
for failing to give specific instruction to the nurses even though the patient
needed close observation and monitoring after the said surgery.
[133] On the part of the nurses, the failure to inform the doctors after I
having received the complaint that the patient becoming drowsy was a
negligent act of the nurses, taking into account the unstable condition of the
patient.
A [134] Apart from this, the non-observation and monitoring of the patient
at least 1/2 hourly whether by the nurses or the doctors is also another
negligent conduct by the nurses and the doctors.
[135] It is also my findings that the negligence of the doctors after the
surgery or post operation is within the plaintiff pleaded case. Among the
B
particulars of negligence pleaded by plaintiffs are as follows:
(i) failed to have in place a proper and effective system for detecting and
acting without delay on complications suffered by the third plaintiff
following such procedure, alternatively failed to follow it;
C (ii) failed to ensure that there was in place a proper and effective system for
taking precautions against causing injury such as that suffered by the
third plaintiff, alternatively failed to follow it; and
(iii) failed to have safe and a reliable system to provide sufficient and
adequate treatment to treat the injuries caused by the operation.
D
Causation
[136] The plaintiffs have to prove causation on the balance of probabilities.
In this case, it must be shown that the quadriplegia that the patient suffered
was caused or materially contributed by the defendant’s negligence. (See
E Bonnington Castings Ltd v. Wardlaw [1956] AC 613 and McGhee v. National
Coal Board [1973] 1 WLR 1).
[137] In Bennett v. Minister of Community Welfare [1992] 176 CLR 408 the
test to determine causation was explained further by taking the common
sense approach as follows:
F
In the realm of negligence causation is essentially a question of fact, to
be resolved as a matter of common sense. In resolving that question, the
but for test, applied as a negative criterion of causation has an important
role to play but it is not a comprehensive and exclusive test of causation,
value judgments and policy considerations necessarily intrude.
G
[138] In the present case, the evidence of the plaintiffs’ expert, Dr Kuldip
Singh (PW2) and corroborated by Dr Sylvian Dass has proved that the
surgery performed by the doctors had caused the patient to suffer
quadriplegia.
H
[139] PW2 also explained that the patient’s act of moving her limbs after
the surgery was not an assessment of neurological deficit. Quadriplegia could
still happen due to the surgery as materialised in this case.
[140] On the part of the hospital, the failure to provide adequate facilities
and safety protocols at the hospital had caused the patient to suffer the
I injuries, that is quadriplegia.
[141] In this case, the facts shows that there was a major problems at the
hospital during the material time which can be termed as organisational and
system failure. This is clearly admitted by the doctor who has practiced for
years in the hospital, Dr Patrick Tan. I see no reason to reject his testimony A
as his evidence is not something ‘inherently incredible’ and his main concern
is the interest of patients at the hospital.
[142] Dr Patrick Tan, the third defendant, testified that the hospital
medical administration had not set the required safety protocols or policies
B
and giving example the policy to prevent patient from being discharged
without consulting the anaesthetist. He also admitted that the nurses at the
hospital were not well trained apart from the facilities which were
inadequate. He then agreed that a failure to have appropriate safety protocols
is an indication of failure on the part of the doctors and the hospital. He also
agreed that the patient’s care has suffered due to the problems between the C
doctors and the hospital management.
[143] To me, this organisational and system failure of the hospital in the
present case give rise to direct liability on the part of the hospital as
submitted by the plaintiffs, which I agree.
D
[144] It is also my findings that causation of injuries and negligence at the
post operative stage have been pleaded by the plaintiffs against the hospital.
This can be seen at paras. 11-2 to 11-18 of the counterclaim where the
particulars of negligence by hospital were stated.
The Doctrine Of Non-Delegable Duty E
[145] As to the issue of non-delegable duty of the hospital, the first

defendant contended that there is no indication, that the appellate courts in
Malaysia have accepted this doctrine which originated from United
Kingdom. In any event, it was submitted that the doctrine is not applicable
in the present case. F
[146] The reason given by counsel for the first defendant is that the
application of this doctrine in Malaysia involves public policy consideration
as the acceptance of this doctrine will cause hospital insurance premium to
increase. Consequently, Malaysian citizen has to pay higher medical bills.
G
[147] To my mind, the paramount considerations here is the healthcare of
patients who attend a hospital for treatment. This doctrine underlines that a
hospital owes a non-delegable duty of care to patients and to ensure that the
healthcare provided either by his servant or agent under a contract of service
or contract for service is not negligent. H
[148] This doctrine of non delegable duty, to me is an extension of the
concept of direct liability of a hospital. As stated in ‘Medical Negligence by
A Jones, 2013 Edition’:
The concept of the direct liability of a hospital authority is used in two
distinct ways. First, where the authority is itself at fault in the manner in I
which it has performed its functions, although it may not be possible to
identify any particular employee who was negligent. This may be
categorised as a form of organisational failure. Second, direct liability is
A also used to describe the imposition of a non-delegable duty, for the

purpose of establishing the authority’s responsibility for the negligence of
an independent contractor.
[149] Lord Denning has explained the doctrine of non-delegable duty in
Cassidy v. Ministry of Health [1951] 2 KB 343 as follows:
B
I take it to be clear law, as well as good sense, that, where a person is
himself under a duty to use care, he cannot get rid of his responsibility
by delegating the performance of it to someone else, no matter whether
the delegation be to a servant under a contract for services ... the hospital
authorities accepted the plaintiff as a patient for treatment, and it was
C their duty to treat him with reasonable care. They selected, employed, and
paid all the surgeons and nurses who looked after him. He has no say
in their selection at all. If those surgeons and nurses did not treat him
with proper care and skill, then the hospital authorities must answer for
it, for it means that they themselves did not perform their duty to him.
I decline to enter into the question whether any of the surgeons were
D employed only under a contract for services, as distinct from contract of
service. The evidence is meagre enough in all conscience in that point. But
the liability of the hospital authorities should not and does not, depend
on nice considerations of that sort. The plaintiff knew nothing of the
terms on which they employed their staff, all he knew was, that he was
treated in the hospital by people whom the hospital authorities appointed
E and the hospital authorities must be answerable for the way in which he
was treated.
[150] On this issue, taking into account that the paramount important is the
healthcare of patients and the rationale of this doctrine of non-delegable duty
as explained in Cassidy v. Minister of Health, I do not see any reason not to
F apply this doctrine in our court. This doctrine will certainly put hospital
authority on alert to ensure excellent healthcare to patients and provide all
the required safety protocols to be followed strictly by their staffs or their
independent contractors and this certainly will help to avoid or minimise
their negligent act. In a way, this doctrine will help to improve the organisational
G and the system of a hospital.
Vicarious Liability
[151] The often-quoted case with regard to principle of vicarious liability
is Roe v. Minister of Health [1954] 2 QB 66 where Lord Denning at p. 82 stated
H
this:
In the first place, I think that the hospital authorities, are responsible for
the whole of their staff, not only for the nurses and doctors, but also for
the anaesthetist and the surgeons. It does not matter whether they are
permanent or temporary resident or visiting, whole time or part time. The
hospital authorities are responsible for all them. The reason is because,
I even if they are not servants, they are the agents of the hospital to give
the treatment. The only exception is the case of consultant or anaesthetist
selected and employed by the patient himself.
[152] Counsel for the first defendant contended that the relationship A
between the hospital and the second and third defendants is purely a
contractual relationship based on the contract for service entered into
between CY Orthospine Sdn Bhd and M Anthony LKS Tan Sdn Bhd and the
hospital. It was further submitted that the hospital is only a collecting agent
for the doctor’s fees paid by the patient and has no control over the doctors B
in their clinical judgment and the manner they conducted the surgery on the
3 June 2008.
[153] In this context, I have made my finding that the nurses of the hospital
were negligent and in breach of duty of care to the patient. As the nurses are
employees and staff of the first defendant, therefore the first defendant is C
vicariously liable for their negligent act.
[154] In Cassidy v. Ministry of Health (supra) Lord Denning at p. 586 had this
to say:
... there can be no doubt now that the nurses remain the servants of the D
hospital authorities, even when they are under the direction of the
surgeon in the operating theatre. The reason is because the nurses are
employed by the hospital authorities, paid by them, and liable to be
dismissed by them ...
[155] With regard to the position of the second, third and fourth
E
defendants, although they are not employees of the hospital and work at the
hospital on contract for service, the following clauses of the agreement as
highlighted by counsel for the doctors are pertinent to note:
(i) clause 5.4 - the doctor is automatically become member of the
Medical and Dental Staff of the Hospital and subject to the by laws
F
of the Medical and Dental Staff.
(ii) clause 5.5 - the doctor only provide his services during office hours
of working days of the Hospital.
(iii) clause 5.6 - the doctor to devote all his time, attention and abilities
to the business of the Hospital. G
(iv) clause 5.10 - the doctor to provide 24 hours coverage for all patients
admitted to the Hospital under his care and service and the doctor
must be one who his credential and approved by the hospital.
(v) clause 5.11 - the doctor must ensure the patients medical record
must be completed within 5 working days from the date of discharge H
of the patients and failing which the Hospital have the right to
withhold payment of the medical fees.
[156] As for the fourth defendant, he was involved in the surgery on the
4 June 2008 only upon the approval of the hospital and the hospital’s
executive committee agreed to give him a fee of RM5,000. I
[157] Having analysed all these facts, it shows that the hospital had some
control over the doctors in the performance of their duty in the hospital and
looking in totality the doctors are in fact the agent of the hospital in providing
A the healthcare to the patient. Therefore, the hospital is vicariously liable for
the negligent acts of the doctors.
[158] To sum up and in answering the issues to be tried in this case, my
findings are as follows:
B (i) the second, third and fourth defendants were negligent and in breach of
duty of care in treating the third plaintiff;
(ii) the second and fourth defendant were negligent and had not acted in
accordance with the standard of care expected of an orthopaedic and
spine surgeon;
C
(iii) the third defendant was negligent and had not acted in accordance with
the standard of care expected of an anaesthetist;
(iv) the first defendant was negligent and in breach of its contractual duty in
the treatment and management of the patient;
D (v) the first defendant was vicariously liable for the negligence of the nurses,
second, third and fourth defendants;
(vi) the quadriplegia suffered by the third plaintiff was caused or materially
contributed by the negligence of the defendants; and
E (vii) the plaintiffs are entitled to damages, interest and cost.
[159] As there is no material or evidence before me to apportion the
liability between the doctors and the hospital, no apportionment of liability
is made in the present case.
F
Quantum Of Damages
[160] As liability against the defendants has been proven, the next issue is
with regard to the damages.
[161] The object or purpose of awarding general damages to the patient is
to try as humanly possible to put the patient back to the position she would
G have been before the surgery. The damages must be fair adequate and not
excessive. (see Yang Salbiah & Anor v. Jamil Harun [1981] 1 LNS 106; [1981]
1 MLJ 292 and Shanmugam Gopal v. Zinal Abidin Nazim & Anor [2003] 8 CLJ
729; [2003] 3 MLJ 76).
[162] As to the special damages, it must be specifically pleaded and strictly
H
proved by the plaintiffs either by oral or documentary evidence. In Ong Ah
Long v. Dr S Underwood [1983] 2 CLJ 198; [1983] CLJ (Rep) 300; [1983] 2
MU 324, Syed Agil Barakhbah FJ emphasised this principle and stated as
follows:
I It is well-established principle that special damages in contrast to general

damages, have to be specifically pleaded and strictly proved. They are
recoverable only where they can be included in the proper measures of
damages and are not too remote (see Halsbury’s Laws of England, 4th Edn,
volume 11 p. 218, paragraph 386) That in our view is the cardinal principle
adopted by all courts both in England and this country.
[163] On the quantum of damages in the present case, the plaintiffs are A
relying on the evidence of Dato’ Balwant Singh Bains (PW5) a consultant
physiotherapist and Dr Mohd lzmi (PW6) a rehabilitation physician.
[164] Both expert had visited the patient at the hospital and made
observation and clinical evaluation. The findings are reflected in their
B
experts reports as tendered in this court. In Dr Mohd Izmi (PW6) report
dated 13 March 2015 stated among others as follows:
(i) the patient was a High Level (C4) Complete Tetraplegia;
(ii) she has been relying on continuous bladder drainage due to bladder
incontinence; C
(iii) she is unable to defecate and requires assisted bowel (digital) evacuation
by the nurses;
(iv) she is fully assisted in feeding and drinks by using a straw;
(v) she need total assistance for bathing, dressing and grooming; and D
(vi) she need total assistance for mobility in bed or indoors.

[165] PW6 then concludes that the patient is totally dependent on care
givers and requires numerous equipment and facilities for optimising her
quality of life and to prevent and manage the medical complications E
associated with her injury. PW6 also stated that the patient’s neurological
and functional status is permanent and no recovery is expected.
[166] The evaluation by Dato’ Balwant Singh (PW5) as stated in his report
dated 5 December 2014 is almost the same as PW6 with regard to the
patient’s condition. F
[167] On the other hand, the defendants did not called any expert to testify
with regard to the condition of the patient or as to the quantum of damages
in the present case.
Special Damages And Pre Trial Damages G
Medical Expenses
[168] Firstly, the plaintiffs claimed for a refund of RM20,000 which was
paid to the hospital for the surgery. I am of the view that this claim is not
justifiable having considered the fact that the surgery had been carried out on
H
the patient and the fact that the hospital did not start billing the patient until
three years after the surgery. As such this claim is disallowed.
[169] I also disallowed the plaintiffs’ claim for the unpaid medical
expenses by the patient to be awarded as special damages to the plaintiffs as
the medical expenses is not expenses incurred out-of-pocket by the plaintiffs. I
A Travel Expanses
[170] The plaintiffs claimed for the travelling and miscellaneous expenses
for the visits to the hospital from their house in Kg Veldor, Sg Bakap Penang.
The amount of claim is RM800 per month for 84 months totalling RM67,200.
B [171] I have analysed the evidence but could not find any oral or
documentary evidence to support this claim. The patient’s mother, Ang
Mooi Sim (PW3) was called to testify but nothing was mentioned about the
travelling and miscellaneous expenses incurred by the parents.
[172] Therefore, this claim is also disallowed.
C
Future Care And Expenses
[173] Before I proceed with this issue of future care and expenses, I am of
the view that the patient is entitled to be discharged back home instead of
remaining in the hospital as submitted by counsel for the doctors. To me that
D best quality life for the patient is for her to be with the family. With proper
facilities and care at home, it is possible for the patient to be placed with her
family.
Life Expectancy
[174] The cost of the patient future needs is depending on her life
E
expectancy and in this case, two experts had given their opinion on the
patient’s life expectancy.
[175] Dato’ Balwant Singh (PW5) opined that the patient’s life expectancy
to be 60 years and based his opinion on his 30 years of experience working
F with disabled persons including person who suffers tetraplagic.
[176] The other expert, Dr Mohd lzmi (PW6) is of the view that the
patient’s life expectancy is 44.9 years if the patient remains ventilator
dependant. PW6 arrived at this figure by taking the patient’s age at injury at
20 years plus additional 24.9 due to ventilator dependant.
G
[177] PW6 further opined that if the patient can be weaned off from the
ventilator her life expectancy would be 56.6 years, that is 20 years the
patient’s age at injury plus 36.6 as the patient falls under the category of High
Tetra (C1- C4).
H
[178] PW6’s calculation is based on the data from the National SCI
Statistical Centre (NSCISC) Database, Alabama, United States which was
published in 2013.
[179] PW6’s opinion was challenged by counsel for the first defendant that
he had wrongly calculated the patient’s age at injury at 20 years old although
I the patient’s age at injury was actually 12 years old.
[180] Even though PW6 admitted that he make a mistake by using the
patient’s age at injury at 20 years and not 12 years, nevertheless PW6
explained that his calculation would not be much different. He said that the
age by 12 years and 20 years are under the category of young age which do A
not usually have medical morbidities, hypertension and diabetes compared
to persons above 40 years old. Therefore, PW6 maintained that his opinion
on the patient’s life expectancy is correct.
[181] Counsel for the first defendant also referred to an article “Trends in
B
Life Expectancy After Spinal Cord Injury” which mentioned that the average life
expectancy of patients who suffered spinal cord injury is about 26.4 years
from the time of injury. To this, PW6 explained that the said article which
was published in 2006 is not the recent published article and PW6 had relied
his calculation based on the most recent publication.
C
[182] In the present instance, the facts shows that no efforts had been made
to wean the patient off the ventilator. However, as stated in PW6’s report
that in theory, a C4 tetraplegia can be weaned of ventilator because of the
innervations of diaphragm and para-spinal muscles is intact.
[183] On this issue, which related to future event occurring, that is the D
patient being successfully weaned off the ventilator, I agree with the
plaintiffs’ counsel that the plaintiffs only need to show a possible likelihood
that it would happen.
[184] In a Canada case, Schrump Et v. Koot Et Al Lexsee 18 OR (2D) 337
stated this: E
In assessing damages for personal injuries the award may cover not only
all injuries actually suffered and disabilities proved as of the date of trial,
but also the ‘risk’ or ‘likelihood’ of future developments attributable to
such injuries. It is not the law that a plaintiff must prove on a balance of
probabilities the probability of future damage; he may be compensated if F
he proves in accordance with the degree of proof required in civil matters
that there is a possibility or a danger of some adverse future development.
[185] On this issue having considered the argument by parties and the
experts opinion, I am of the view the life expectancy of the patient based on
the NSCISC database and the correct calculation would be as follows: G
(i) 12 (age of patient at injury) + 24.9 (ventilator dependent) = 36.9 years;
and
(ii) 12 (age of patient at injury) + 36.6. (High Tetra (C1-04)) without
ventilator = 48.6 years.
H
[186] Based on the evidence and having considered the experts opinion, I
am of the view that there is possible likelihood that the patient be weaned
off the ventilator. In absence of other expert opinion to the contrary, I find
that the life expectancy of the patient at 48.6 years is reasonable.
The Multiplier I
[187] Consequently, the calculation of the multiplier is as follows:

48.6 (life expectancy) - 18 (the Patient current age) - 30% (for
contingencies and vicissitudes of life) = 21.4 years
A [188] In the present case, the future general damages sought by the
plaintiffs are as follows:
(i) cost of a disable friendly home;
(ii) cost of a disabled - friendly mode of transportation;
B (iii) cost of carers; and
(v) cost of personal and hygiene supplies and facilities.
Disabled Friendly Home
[189] Counsel for the first defendant submitted that no evidence had been
C
adduced to support the claim for the plaintiff’s home renovation. However,
if the court is minded to award cost of plaintiff’s home renovation the amount
of RM60,000 was said to be fair and reasonable.
[190] Dato’ Dr Balwant Singh Bains (PW5) who had visited the plaintiff’s
D house had given an estimate of RM200,000 for the costs of the home
renovation. PW5 also testified that the estimation he made is based on his
past experience and the estimation is only the bare minimal cost as it can go
up to RM500,000.
[191] Dr Mohd lzmi (PW6) who had also visited the plaintiff’s house
E recommended modification or renovation to the entrance, doorway,
hallways, bedroom and bathroom of the house.
[192] Having considered both the expert evidence and the extensive
renovation to be carried out at the plaintiffs’ house, I am of the view that the
amount of RM200,000 for the cost of renovation is reasonable. Therefore,
F I allowed the sum of RM200,000 as claimed.
Cost Of Disabled - Friendly Motor Vehicle
[193] It was contended by counsel for the first defendant that no evidence
was adduced that the patient could not fit into a sedan car or could only fit
G into an MPV or ambulance.
[194] Here, Dato’ Dr Bains (PW5) in his report stated that the cost of
vehicle modified to lift motorised wheelchair is at the range between
RM120,000 to RM160,000. PW5 was not cross-examined on this.
[195] Dr Mohd lzmi (PW6) also in his report stated that the patient need
H
a modified van with lift facility for easy access of motorised wheelchair and
wheelchair anchoring system.
[196] From the evidence, and taking into account the patient’s condition,
I agree to allow the claim for this modified vehicle. The claim for
I RM160,000 with three renewals is reasonable.
[197] Therefore, the cost of modified vehicle with three renewals for the
total amount RM480,000 is allowed.
Costs Of Machines, Appliances And Equipment A
[198] Counsel for the first defendant submits that the amount claimed by
the plaintiffs is excessive without basis and justification.
[199] Conversely, counsel for the plaintiffs contended the need for all the
machines, appliances and equipment has been justified by both their expert B
PW5 and PW6. The plaintiffs set out the details of the machines, appliances
and equipment after avoiding any duplication of recommendation as shown
in Table 1 as follows:
Table 1
Category Items Estimated Product Number Total C
Cost Life Span of
(RM) (years) Renewals
Respiratory Ventilator 26,000.00 10 3 78,000.00

equipment (Bipap) D
Suction 700.00 5 6 4,200.00.

equipment
Tracheotomy 125.00 Every 2 648 81,000.00
tube weeks
E
Nebulizer 380.00 5 6 2,280.00
Cough assist 22,000.00 10 3 66,000.00
mechanical
insufflator/
exsufflator
F
Oxygen 5,500.00 3 9 49,500.00
generator
Philegm 10000.00 3 9 90,000.00
management
device &
vibrator G
Triflo 200.00 2 14 2,800.00

spironmeter
for breathing
exercise
Bed Fully electric 20,00.00 5 6 120,00.00 H
mobility & hospital
positioning bed
Cardiac table 380.00 10 3 1,140.00
Pressure-relieving 3,200.00 5 6 19,200.00
mattress I
S400 overlay 1,100.00 5 6 6,600.00

Repair and 500.00 5 6 3,000.00
maintenance
A Various shaped 3,000.00 3 9 27,000.00

bolsters and
wedges
Bioptron light 11,000.00 3 9 99,000.00
for bed sore
management
B
Multi stem 40,000.00 3 9 360,000.00
exercise bed
Transfer Lifting electric 10,000.00 10 3 30,000.00
equipment hoist
C Mobility Powered recline 96,000.00 Unavailable 3 288,000.00
devices & and/or fit (should be
cushion wheelchair with 10)
seating system
Pressure 2,000.00 5 6 18,000.00
-relieving
D wheelchair
cushion
Devices for Foley (silicon) 50.00 Once a 324 16,200.00
personal catheter month
hygiene
E Urine drainage 4.00 Once a 324 1,296.00
bag month
Padded reclining 1,500.00 5 6 9,000.00
commode
wheelchair with
F head support
Shower trolley 15,000.00 8 4 60,000.00
Hoist with 12,000.00 - - 12,000.00
railing and fixed
to bathroom
G Lifting garment 700.00 2 14 9,800.00
for hoist
Maintenance 500.00 1 27 13,500.00
cost
Devices to Bilateral solid 800.00 2 14 11,200.00
H prevent ankle foot
contractures orthnosis
Bilateral resting 580.00 2 14 8,120.00
hand orthnosis
Contracture 3,000.00 3 39 27,000.00
I prevention for
hand, foot and
knee
Devices Voice-activated 26,000.00 10 3 78,000.00 A

to aid devices or
communica infra-red
tion - head control
Electronic devices for
aids for computer and
daily environmental B
activities control
(‘E-ADLs’)
Physiothera Multi stem 45,000.00 3 9 405,000.00
py devices device and
management
at home C
G5 message 5,000.00 3 9 45,000.00

therapy
equipment
Home Air-conditioner 2,000.00 5 6 12,000.00
Modification D
TOTAL 2,053,836.00
[200] Having considered the expert recommendations and justification

which I am satisfied can withhold logical analysis, I am of the view that all
the items recommended shown in Table 1 is acceptable. More over, there is E
no other expert evidence before this court to contradict PW5 and PW6 views
on this matter.
[201] In any event, as the multiplier which has been decided is 21.4 years,
the numbers of renewals for the items will be different.
F
[202] In any event, as the multiplier which has been decided is 21.4 years,
the numbers of renewals for the items will be different and this will change
the total amount of cost under this head. The details of its cost are reflected
at Table 2 as follows:
Table 2
G
Category Items Estimated Product Number Total
Cost Life Span of
(RNI) (years) Renewals
Respiratory Ventilator 26,000.00 10 2 52,000.000
equipment (Bipap)
H
Suction 700.00 5 4 2,800.00.
equipment
Tracheotomy 125.00 Every 504 63,000.00
tube 2 weeks
Nebulizer 380.00 5 4 1,520.000 I
Cough assist 22,000.0 10 2 44,000.00

mechanical
insufflator/
exsuffla tor
A Oxygen generator 5,500.00 3 7 38,500.00

Philegm 10,000.00 3 7 70,000.00
management
device & vibrator
Triflo 200.00 2 10 2,000.00
B spironmeter
for breathing
exercise
Bed Fully electric 20,00.00 5 4 80,000.00
mobility & hospital bed
positioning
C
Cardiac table 380.00 10 2 760.00
Pressure-relieving 3,200.00 5 4 12,800.00
mattress
S400 overlay 1,100.00 5 4 4,400.00
D
Repair and 500.00 5 4 2,000.00
maintenance
Various shaped 3,000.00 3 7 21,000.00
bolsters and
wedges
E Bioptron light 11,000.00 3 7 77,000.00
for bed sore
management
Multi stem 40,000.00 3 7 280,000.00
exercise bed
F Transfer Lifting electric 10,000.00 10 2 20,000.00
equipment hoist
Mobility Powered recline 96,000.00 Unavailable 2 192,000.00
devices & and/or fit (should be
cushion wheelchair with 10)
G seating system
Pressure - 2,000.00 5 4 8,000.00
relieving
wheelchair
cushion
H Devices for Foley (silicon) 50.00 Once a 252 12,600.00

personal catheter month
hygiene
Urine drainage 4.00 Once a 252 1,008.00
bag month
Padded reclining 1,500.00 5 4 6,000.00
I
commode
wheelchair with
head support
Shower trolley 15,000.00 8 3 45,000.000 A
Hoist with 12,000.00 - - 12,000.00

railing and fixed
to bathroom
Lifting garment 700.00 2 10 7,000.00
for hoist B
Maintenance 500.00 1 21 10,500.00
cost
Devices to Bilateral solid 800.00 2 10 8,000.00
prevent ankle foot
contractures orthnosis C
Bilateral resting 580.00 2 10 5,800.00
hand orthosis
Contracture 3,000.00 3 7 21,000.00
prevention for
hand, foot and D
knee
Devices Voice-activated 26,000.00 10 2 52,000.00
to aid devices or
communica infra-red
tion - head control
Electronic devices for E
aids for computer and
daily environmental
activities control
(‘E-ADLs’)
Physiothera Multi stem 45,000.00 3 7 315,000.00 F
py devices device and
management
at home
G5 message 5,000.00 3 7 35,000.00
therapy
equipment G
Home Air-conditioner 2,000.00 5 64 8,000.00

Modification
TOTAL 1,496,690.00
H
[203] Therefore, the total amount for cost of machines, appliances and
equipment is RM1,496,690 which I allowed.
Cost Of Care
(i) Physiotherapy And Massage Therapy
I
[204] Both Dato’ Bains (PW5) and Dr Mohd lzmi (PW6) mentioned that
the patient needs physiotherapy. PW5 advised three visits a week for the rest
of the patient’s life at the rate of RM180 to RM200 per visit. I am of the view
A that RM180 per visit and twice a week is reasonable and as such allowed the
claim as follows:
RM180 per visit x 2 visits week x 52 weeks x 21.4 years = RM400,608
[205] PW5 also advised for massage therapy once a week for the rest of the
B patient’s life at the rate of RM180 per week which is reasonable and
acceptable. Therefore the claim allowed under this head is:
RM180 (per week) x 52 weeks x 21.4 years = RM200,304.
(ii) Cost Of Home Nursing
C [206] Dato’ Bains (PW5) stated that the patient need a trained maid and a
nurse to take care of her at home. Likewise Dr Mohd Izmi (PW6) who
mentioned in his report that the patient requires total nursing care at home
that encompasses:
(i) all aspect of her personal activities;
D
(ii) all aspect of her domestic activities;
(iii) wound dressing for the existing pressure ulcers and skin management;
(iv) respiratory management; and
E (v) range of movement activities.

[207] Having considered the argument by parties and considering the fact
that home nursing involves high cost, I am of the view that RM10,000 per
month is fair and reasonable. Therefore the total cost that I allowed for the
cost of home nursing is:
F RM10,000 x 12 months x 21.4 years = RM2,568,000.
Cost Of Future Medical Treatment /Consultations
[208] Dr Mohd lzmi (PW6) stated in his testimony that plaintiff may need
hospitalisation and the duration of the hospitalisation will depend on her
G illness. PW6 also said that if it involve minor issue she may be hospitalised
for one or two weeks but if it involves complicated problem, it may extend
beyond two weeks or months.
[209] As the future treatment is something which is not predictable to
happen consistently, I am of the view that the reasonable award would be
H RM10,000 per year and the total amount for cost of future treatment which
I allowed is:
RM10,000 x 21.4 years = RM214,000.
(iii) Cost Of Personal And Hygiene Needs
I [210] I allowed the sum of RM250 per month for this claim and the total
sum is:
RM250 x 12 x 21.4 years = RM64,200.
General Damages For Pain And Suffering And Loss Of Amenities Of Life A
[211] As stated earlier that the patient in this case is quadriplegic with the
disabilities as stated in PW5 and PW6 expert’s report.
[212] The decided cases on the quantum for such injury are as follows:
(i) Gleneagles Hospital (KL) Sdn Bhd v. Chung Chu Yin & Ors and Another B
Appeal [2013] 8 CLJ 449 ... RM350,000;
(ii) Nurul Husna Muhamad Hafiz & Anor v. Kerajaan Malaysia & Ors [2015] 1
CLJ 825 ... RM350,000;
(iii) Eddy anak Entering v. Azimudin bin Majidin & Anor [2014] 1 PIR [16] ... C
RM400,000; and
(iv) Ku Jia Shiuen & Anor v. Kerajaan Malaysia & Ors [2013] 9 CLJ 489;
[2013] 3 MLJ 108 ... RM350,000.
[213] Having considered the authorities cited above and the condition of D
the patient, the award of RM400,000 for pain and suffering and loss of
amenities is fair and reasonable in the present case.
[214] Therefore, the total award for damages to the plaintiffs are as
follows:
E
(i) General Damages - future care:
(a) Cost of Disabled Friendly Home - RM200,000
(b) Cost of Disabled Friendly - motor vehicle - RM480,000
(c) Cost of machines, appliances and equipment - RM1,496,690
F
(d) Cost of physiotherapy - RM400,608
(e) Cost of massage therapy - RM200,304
(f) Cost of home nursing - RM2,568,000
(g) Cost of future treatment - RM214,000 G
(h) Cost of personal and hygiene needs - RM64,200

RM5,623,802
(ii) General Damages for Pain and Suffering and
H
loss of amenities of life - RM400,000
Total RM6,023,802
Conclusion
[215] The plaintiff’s claim in the original action for the outstanding I
medical bills is allowed.
A [216] The defendants in the original action is to pay the plaintiff the
amount of RM2,350,013.85.
[217] I also order the defendants in the original action to pay cost to the
plaintiff in the sum of RM20,000.
B [218] The interest shall be at the rate of 5% per annum on the judgment
sum until full realisation.
[219] In the counterclaim the defendants who become the plaintiffs, claim
for damages for medical negligence. The plaintiffs claim is allowed.
[220] The defendants in the counterclaim is to pay the plaintiffs general
C
damages of RM6,023,802.
[221] The interest for the general damages of RM6,023,802 shall be at the
rate of 8% per annum from date of filing the suit until date of judgment.
[222] There shall also be an interest at the rate of 5% per annum on the
D judgment sum until full realisation.
[223] I also order the defendants in this counterclaim to pay cost to the
plaintiff in the sum of RM60,000.

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676 Current Law Journal [2015] 8 CLJ

ADVENTIST HOSPITAL & CLINIC SERVICES (M) v. A

TORT: Negligence – Medical negligence – Patient becoming quadriplegic after

A dependent on a ventilator for breathing. The issues arising for determination

Legislation referred to:

[12] The plaintiff submitted that the outstanding medical charges to be

A Decision Of The Court

[24] The second defendant then conducted physical examination on the

(iii) the post operation.

A [63] It was also submitted that the use of hypertensive anaesthesia is a

A an informed decision as to whether to proceed with the treatment or

[84] In relation to this issue, the plaintiffs called an expert Dr Kuldip A

G - Follow up in Penang GH for scoliosis.

Q: Dr. Dhillon, may I refer you to Bundle D, page 19. A

“Indication of surgery: Rapid progression of cure over one year.

If the patient has got double curve, even if it progresses, it won’t be a

[106] As explained by PW2 the cause of quadriparesis is not due to cord A

Q: In a major operation like this, where the patient is put in a prone

[145] As to the issue of non-delegable duty of the hospital, the first

A also used to describe the imposition of a non-delegable duty, for the

I It is well-established principle that special damages in contrast to general

(vi) she need total assistance for mobility in bed or indoors.

[187] Consequently, the calculation of the multiplier is as follows:

Costs Of Machines, Appliances And Equipment A

Respiratory Ventilator 26,000.00 10 3 78,000.00

Suction 700.00 5 6 4,200.00.

Triflo 200.00 2 14 2,800.00

S400 overlay 1,100.00 5 6 6,600.00

A Various shaped 3,000.00 3 9 27,000.00

Devices Voice-activated 26,000.00 10 3 78,000.00 A

G5 message 5,000.00 3 9 45,000.00

[200] Having considered the expert recommendations and justification

Cough assist 22,000.0 10 2 44,000.00

A Oxygen generator 5,500.00 3 7 38,500.00

H Devices for Foley (silicon) 50.00 Once a 252 12,600.00

Shower trolley 15,000.00 8 3 45,000.000 A

Hoist with 12,000.00 - - 12,000.00

Home Air-conditioner 2,000.00 5 64 8,000.00

E (v) range of movement activities.

(h) Cost of personal and hygiene needs - RM64,200

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