Tan Sri Datuk Seri Mohd Hussin Bin Abd Hamid XXXX

Tan Sri Datuk Seri Mohd Hussin Bin Abd Hamid XXXX

The judge would dismiss the appeal: the trial judge correctly preferred the avulsion theory on evidence, the arterial avulsion was an exceptionally rare and unforeseeable complication not attributable to breach of professional standard, the specific risk need not have been warned under Rogers v Whitaker, and the hospital did not owe a non-delegable duty because the patient had directly chosen the consultant.

Citation
W-02(NCvC)(W)-1000-06/2022 (Mahkamah Rayuan)
Parties
Appellant / Perayu: Tan Sri Datuk Seri Mohd Hussin Bin Abd Hamid; 1st Respondent / Respondent: Gleneagles Hospital (Kuala Lumpur) Sdn Bhd; 2nd Respondent / Respondent: Dr Charanjeet Singh
Court
NCvC
Jurisdiction
Malaysia
Judgment Date
19 June 2024
Case Number
W-02(NCvC)(W)-1000-06/2022 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal (medical Negligence) / Court of Appeal Judgment (dissenting)
Outcome
Appeal dismissed (dissenting judgment would dismiss appeal)
Legal Topics
Bolam Test, Rogers V Whitaker (duty to Warn), Non Delegable Duty of Care, Vicarious Liability, Foreseeability/remoteness, Expert Evidence
Source Language
Malay/English
Medical Negligence Tort Healthcare Law Civil Procedure Bolam Test Rogers V Whitaker (duty to Warn) Non Delegable Duty of Care Vicarious Liability +2 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 13 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Tan Sri Datuk Seri Mohd Hussin Bin Abd Hamid

Appellant / Perayu

Gleneagles Hospital (Kuala Lumpur) Sdn Bhd

1st Respondent / Respondent

Dr Charanjeet Singh

2nd Respondent / Respondent

Procedural Posture

Civil Appeal (medical Negligence) / Court of Appeal Judgment (dissenting)

Legal Issues

  1. 1 Whether surgeon breached standard of care in diagnosis/treatment (Bolam) despite arterial injury
  2. 2 Whether surgeon had duty to warn of exceptionally rare avulsion risk (Rogers v Whitaker)
  3. 3 Whether surgeon breached duty to warn/advice

Ratio Decidendi

The judge would dismiss the appeal: the trial judge correctly preferred the avulsion theory on evidence, the arterial avulsion was an exceptionally rare and unforeseeable complication not attributable to breach of professional standard, the specific risk need not have been warned under Rogers v Whitaker, and the hospital did not owe a non-delegable duty because the patient had directly chosen the consultant.

Court Disposition

Appeal dismissed (dissenting judgment would dismiss appeal)

Orders

  • Appellant to pay costs of MYR 50,000 to 2nd Respondent (subject to allocator)
  • Appellant to pay costs of MYR 25,000 to 1st Respondent (subject to allocator)