Arif Budiman bin Deraman 1. Dr Kishore A/L Balagangadharan 2. Pusat Pakar Tawakkal Sdn Bhd

IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF KUALA LUMPUR CIVIL SUIT NO: WA-22 NCVC-450-07/2018 BETWEEN ARIF BUDIMAN BIN DERAMAN ...PLAINTIFF (Suing in the capacity as a guardian ad-litem to an underage individual known as Nur Hana Eryna binti Arif Budiman) AND 1. DRKISHORE A/L BALAGANGADHARAN 2. PUSAT PAKAR TAWAKKAL SDN BHD ..._DEFENDANTS JUDGMENT A. Introduction [1] The Plaintiff in his capacity as guardian ad litem brought this action against the 18 and 2™ Defendant premised on the tort of negligence for the injury suffered by his child (patient) resulting from a bacterial infection known as Methicillin-resistant Staphylococcus aureus (MRSA). The 1% Defendant who is a consultant paediatrician has treated and managed the patient from 8.12.2015 to 12.12.2015 at the hospital owned and managed by the 2"¢ Defendant. B. Facts of the Case [2] The patient was admitted to the 2" Defendant's Hospital from 8.12.2015 to 12.12.2015 and was placed under the 1°! Defendant’s care throughout that material period. [3] Day 1 -8.12.2015 [a] The patient was presented at the 2"? Defendant’s Hospital Accident and Emergency Department. A medical officer examined the patient and informed the 1*t Defendant by telephone that the patient had fever for 3 days, runny nose, diarrhoea 5 times that morning and vomited twice with no cough. The 1 Defendant ordered via telephone that the patient be admitted into the Hospital and for intravenous drip and hidrasec to be administered to the patient. [b] At about 3.15 pm, the 1%* Defendant reviewed the patient at the ward and diagnosed her with acute gastroenteritis (AGE). The 1* Defendant advised the patient’s parents that breast-feeding be continued and ordered the necessary investigations to be carried out. [c] The 1s Defendant advised the Plaintiff that the patient's blood count results reported on 8.12.2015 suggested that the patient had viral aetiology for AGE of viral origin. The investigation results of the patient's stool reported on 8.12.2015 revealed that stool reducing substances was positive. The 1% Defendant then ordered that the necessary treatment be continued. [4] Day 29.12.2015 [a] The 1% Defendant reviewed the patient in the morning and noted that she had fever and diarrhoea but was otherwise active and feeding fairly well. The 1** Defendant examined the patient and noted that her abdomen and lungs were normal and ordered to continue the necessary medication. [b] At about 2.30 p.m., the 1% Defendant reviewed the patient again and noted that the patient was febrile and noted that her abdomen lungs were normal. The 1% Defendant ordered that the brannula be checked to ensure patency of the brannula as the patient was an 8 month old infant and was moving her arm constantly. The 1% Defendant also ordered that intravenous fluid be reduced to 20ml per hour. [5] Day 3-10.12.2015 [a] In the morning of 10.12.2015, the 1§* Defendant reviewed the patient and noted that she was comfortable and her stool was getting firmer. The 1st Defendant examined the patient and noted that she had intermittent fever and had a facial rash. The 1° Defendant ordered that the necessary treatment be continued. [b] At about 4.30 p.m., the 1% Defendant reviewed the patient again. The patient was febrile but otherwise alert. The 1% Defendant examined the patient’s abdomen, throat and lungs and noted that they were normal. The 1% Defendant ordered that the brannula be checked and to continue the necessary treatment. [6] Day 4—11.12.2015 fa] Around 8.30 a.m., the 1S Defendant reviewed the patient and noted that the lungs were clear and ordered the necessary medication to be administered to the patient. At about 2.10 p.m., the 1° Defendant reviewed the patient again and found that the patient was febrile and had racial rash, decreased activity in the right lower hip but could bear weight. The 18 Defendant ordered the necessary investigations including GP1J (full blood count), CRP (C-Reactive protein test), BUSE (blood, urea and serum electrolyte test), AST/ALT (liver enzymes test), dengue serology, dengue NS1 and creatinine phosphokinase (muscle enzyme test). [7] Day 5— 12.12.2015 [a] The 1% Defendant ordered Typhoid IgG/IgM investigation to be carried out in order to investigate the cause of the patient’s fever. The 1% Defendant reviewed the results of the various investigations and advised the patient’s parents that, inter alia, the patient’s fever was of a viral origin, the stool culture and sensitivity test result was negative for various bacteria and the patient did not have typhoid. [b] The patient's parent requested that the patient be discharged from the 2"? Defendant’s hospital. The 1° Defendant informed the parents that the patient required to be monitored and further investigations ought to be carried out, but the parents were keen to have the patient to be discharged. The patient was discharged with medication and a follow up appointment was scheduled on 23.12.2015 but the parents did not attend the said appointment. [8] On 14.12.2015, the patient was admitted into Gleneagles Kuala Lumpur for treatment. Investigations conducted at Gleneagles Kuala Lumpur showed that the patient had some abscess and pus at various parts of her body. The patient was discharged from Gleneagles Kuala Lumpur on 17.12.2015 due to financial constraints. [9] On 17.12.2015, the patient was transferred to Hospital Kuala Lumpur for further treatment and management. The patient was diagnosed with MRSA by the doctors in Hospital Kuala Lumpur. The patient continued to receive treatment at Hospital Kuala Lumpur and subsequently, at Hospital Serdang. C. —~Plaintiff’s Claim [10] The Plaintiff pleaded that the 1st Defendant had failed to diagnose the patient with MRSA during the said period and had negligently failing to investigate the symptoms and to conduct appropriate test. The 1st Defendant also allowed the patient to be discharged without actually accounting for the symptoms and properly advising on the patient's condition. [11] The Plaintiff also alleged that the 2nd Defendant as the premise owner is liable because the patient was infected while in the 2nd Defendant's premise. The 2nd Defendant had failed to ensure its premise is not contaminated with MRSA. [12] The Plaintiff's claims against the 1° and 2" are as follows: [a] Special Damages: - [i] Medical, surgical and treatment costs amounting to RM31,051.83; [ii] Cost of Medical Report amounting to RM1,490.00; [5] General Damages; [cl] Aggravated Damages; [d] Exemplary Damages; fe] Interest of 5% on full judgment and damages from the date of judgment until the date of full settlement; [f} Costs of this proceeding; and [g] Other reliefs deemed appropriate by the Court. D. The Defences [13] The 1st Defendant contended that there was no negligence on his part because at all material times and in the circumstances pertaining to the patient, he had diagnosed, treated and managed the patient properly, adequately and timely manner. Throughout the period, there was no medical indication that the patient had contracted MRSA including health care-associated MRSA (HA-MRSA) or community-associated MRSA (CA-MRSA). Therefore, the 1st Defendant did not cause or materially contribute to the patient medical condition or injury suffered. [14] The 2nd Defendant contended that the 1st Defendant was at all material time carrying out his practice not as an employee, agent or representative of 2nd Defendant but as an independent contractor under a contract for service. [15] [a] [b] Id] [e] [16] [a] [b] Id] fe] The 1*t Defendant's defence are summarised as follows: - No expert evidence adduced by the Plaintiff; The evidence supports the 18* Defendant's Diagnosis of Acute Gastroenteritis; No evidence that the patient contracted HA-MRSA at the hospital; No evidence to prove causation; The maxim of Res Ipsa Loquitor is not applicable in this case. The 2" Defendant’s defence are summarised as follows: - Plaintiff's failure to discharge his burden of proof; Plaintiff's failure to establish the standard of care and/or breach of duty by the 2% Defendant; The issue of vicarious liability does not apply to the 2"? Defendant; The 2"¢ Defendant does not in breach of a non-delegable duty of care to the Plaintiff; The maxim of Res [psa Loquitor does not apply in the circumstances of this case. E. The Issues [17] The main issues arose in this case are: - [a] Whether the 1st Defendant was negligent in giving medical treatment that lead to the patient to contracted MRSA? [b] Whether the 2nd Defendant as the premise owner was negligent to take reasonable step to keep the premise safe from MRSA. F. The Law [18] It is well settled law that to prove negligence, and in this case medical negligence, the following four essential elements of the tort has to be proven and established by the Plaintiff against the Defendants: [a] that the Defendants owe the Plaintiff duty of care; [b] that the Defendants had breached that duty; [c] _ that the alleged breach had caused the damage/injury, i.e. that there is a causal link the alleged cause and effect; and [d] that the Plaintiff has thereby suffered damage/injury. [19] Itis also trite that the burden to establish the above elements of negligence always lie with the Plaintiff on the part of the Defendant / 10 Defendant’s servant or agent and such burden is discharged on a balance of probability. (See section 101 & 102 of the Evidence Act 1950). [20] The law on medical negligence is clear enough but its application depends on facts and circumstances which are not the same in each case and so it must vary from case to case in determining whether the 1° and 24 Defendants are guilty of negligence. G. Analysis and Findings [21] The brief fact showed that the 18* Defendant through patient blood count result (GP1A) report on 8.12.2015 diagnosed the patient had an acute gastroenteritis (AGE) and continue the necessary treatment and placed the patient on intravenous fluids and Hidrasec. On 9.12.2015, the 1% Defendant reviewed the patient who is still having fever and diarrhoea and ordered the treatment to be continued. On the 10.12.2015 upon reviewing the patient, the 1° Defendant found her to be comfortable and her stool was getting firmer. On the 11.12. 2015, the patient noted febrile with some facial rash and decrease activity of the right lower hip. A blood test was ordered which suggest that the fever was of viral origin and the stool culture and sensitivity test was negative of salmonella and e-coli 11 bacteria. Typhoid test result was also negative. The patient then was discharged upon the request of the parents on the 12.12.2015. A follow up was scheduled on the 23.12.2015 but the patient does not turn up for the review. At the time the patient admitted at Gleneagles on 14.12.2015 she was already suffering from MRSA infection. [22] The Plaintiff pleaded the patient contracted HA-MRSA during her admission at the 2"? Defendant and it was not reasonable for the patient of 8 months old to have been affected by CA MRSA. However, the evidence revealed from SP4 report dated 7.6.2017 who diagnose the patient that the patient was infected with CA-MRSA and not HA-MRSA. However, SP4 unable to determine the source of the CA MRSA infection suffered by the patient. With this evidence and no other before me, | am fully satisfied with SP4 finding. Therefore, | am satisfied that HA MRSA contracted by the patient cannot be said to be originated from the 2™ Defendant. With this, | am left with the only issue whether the 1% Defendant was negligent in treating the Plaintiff, if so, whether the 2°¢ Defendant is liable for the 18 Defendant’s action. [23] The test for the standard of care required of a doctor or any other person professing some skill or competence is the direction to the jury 12 given by McNair J in Bolam v. Friern Hospital Management Committee [1957] 2 All ER 118, where he said: [24] [a] “But where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. ... A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that medical act... Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such practice, merely because there is a body of opinion that takes a contrary view. In essence, the Bolam test is that the law imposes a duty of care on doctors with regards to their patients but the applicable standard of care is a matter of medical judgment. The Bolam test is a singular test of a doctor's standard of care owed by a doctor to his patient.” Whether the 1°* Defendant has breached his duty. By reason of the doctor-patient relationship between the patient and the 1% Defendant, the 1** Defendant does not dispute that he owed a duty 13 of care to the Plaintiff for the period during which the patient was under his care. Further, by reason of the relationship of medical services provider and patient that exists between the Plaintiff and the 27 Defendant, the 2" Defendant also owes a clear duty of care to the patient during the pendency of that relationship to ensure that the medical professionals at the hospital have the requisite qualification and skill to attend to patients who use the services of the hospital. [b] The Plaintiff has to satisfy the Court on a balance of probability that the Defendants had breached their respective duty of care in relation to the particulars of negligence set out in the pleadings. In order to succeed in the allegations of breach of duty, the Plaintiff has to adduce sufficient evidence showing that the 1° Defendant had fallen short of the required standard of care expected of a Consultant Paediatrician at the material time and that the 2" Defendant as the hospital centre has fallen short of the standard of care that is required of it. The Defendants should have observed a particular standard of care in order to fulfil or perform that duty. Thus, a doctor's duty towards his patient is that he has to exercise a fair and reasonable standard of care and skill, i.e. the skill of an ordinarily competent medical practitioner. 14 [c] In the case of Foo Fio Na v. Dr Soo Fook Mun & Anor [2007] 1 CLJ 229, the Federal Court cited with approval the description of the common law duty of care of doctors by Lord Hewart CJ in R v. Bateman [1925] 94 LBKB 79: “If a person holds 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 caution in administering the treatment. No contractual relation is necessary, nor is it necessary that the service be rendered for reward.” [d] There is no dispute as to the various test conducted by the 1% Defendant when the patient was under his care from 8.12.2015 to 12.12.2015. During the Plaintiff first admission at the 2" Defendant premise on 8.12.2015, the result of her CRP reading was normal and within range. However, when a blood test was conducted on the 11.12.2015 showed the CRP reading was 39.43 which is 7 times higher of that the normal range (less than 5). This is an abnormal reading and it indicates early sign that the patient was suffering from some sort of infection. The Plaintiff contended that the 18' Defendant should not dismissed the importance of the patient’s CRP reading by saying that it 15 does not diagnose anything of which | am inclined to agree. In that situation together with the patient’s condition during her treatment who has developed face rashes, decreased activity of right lower limb, swelling on the wrist and joint, fever and abnormal CRP reading, the 1° Defendant should not dismiss the significant of the CRP readings and proceeded with future test to detect MRSA. Furthermore, the 1% Defendant allowed the patient to be discharge with paracetamol and set up another appointment 7 days later (23.12.2015). Even though the discharge was requested by the parent, the 1* Defendant could have reasonable advised them, that | find is absence here, the corresponding risks on the severity expected after having taking into account the symptoms suffered by the patient. The law is very clear. A doctor has the duty to advise and provide the necessary information to his patient to enable the patient (parent) to make an informed decision upon the discharge of the patient. In my opinion the MRSA infection would have been identified sooner and early treatment can be administered as what had been done by the Gleneagles (C & S test) upon the admission of the patient on 14.12.2015. In fact, SP3 also testified that the purpose of CRP reading is monitored because it acts as a marker for any inflammation or infection. 16 [e] In my opinion, the 1* Defendant, through his experience and skill, could have identified the situation especially it involves infectious diseases among children. To my mind, taking the symptoms and CRP into account, the 1° Defendant also should be aware of the possibility of the patient to contract some form of infectious disease including MRSA. In such a case, the 1 Defendant has fall short of the standard of reasonable skilful medical practice. Although there was no expert evidence by the Plaintiff but there is enough and clear evidence to show that the 1° Defendant has failed to exercise a reasonable standard of care and skill expected of competent consultant paediatrician that includes among others the duty to carry out necessary examination, to order the relevant test and investigation, to arrive at a correct diagnosis and to advice the parent of the patient of the diagnosis and treatment. Accordingly, based on the evidence of the Plaintiff and the Defence witnesses, | find that on the balance of probabilities that the Plaintiff has established a case of negligence against the 1S Defendant for the injuries suffered by the patient. 17 {25] Claim Against the 2"! Defendant. [a] The Plaintiff pleaded case against 2"? Defendant that the patient contracted HA MRSA during her admission at the 2"! Defendant. The 2™ Defendant has failed to ensure the cleanliness and sterility of its environment to avoid MRSA infection. It is clear from the evidence of SP3 that the patient suffered CA-MRCA and not HA-MRSA. SP3 also unable to determine the source of infection. There was no indication of HA MRSA bacteria throughout the patient admission at the hospital from 8.12.2015 to 12.12.2015. The only evidence available before me is that the patient had contracted CA-MRSA. There was also no evidence that the cause of infection was due to lack cleanliness and sterility of the hospital equipment including the usage of IV by the hospital employees. To my mind, the 2"¢ Defendant has at all material time discharge its duties and responsibility in accordance with the standard accepted as proper and which is accepted of a private hospital. Therefore, | find that the Plaintiff has failed to prove a prima facie case that the patient had contracted the HA MRSA whilst in the hospital and it follows that the doctrine of Res /psa Liquitor is not applicable in the circumstances of this case. 18 [b] The Plaintiff also contended that the 2" Defendant owed non- delegable duty of care towards the Plaintiff. The 18 Defendant has confirmed that he is an independent contractor. The 1% Defendant also confirmed that he is solely responsible for all clinical matters involving his patients. In the light of 1%* Defendant admission, the issue vicarious liability no longer applicable. In the instance case the 1% Defendant is an independent contractor as a treating doctor of the patient and the 2"¢ Defendant does not interfere with the 1st Defendant clinical judgement. [c] The principle of vicarious liability was explained in the Federal Court in the case of Dr Kok Chong Seng & Anor v. Soo Cheng Lin and another appeal in Court of Appeal [2017] 10 CLJ 529, where the issue was whether a hospital was vicariously liable for a doctor's negligence, the Court held that: _'[101] For these reasons, we consider Dr Kok to be an independent contractor of the hospital in conducting the operation. Bearing in mind that the expanded test in Various Claimants does not extend vicarious liability to ‘truly independent contractors’, we do not find that the relationship between the hospital and Dr Kok is sufficiently akin to employment so as to give rise to vicarious liability for Dr Kok's negligence in conducting the operation. Since there is no such ‘relationship, the stage 2 determination of the connection between the relationship and the tortious act does not arise." 19 (d] Applying the principle of law enunciated above by the Federal Court, | find that based on the facts and circumstance of this case, a non- delegable duty of care by the 2™ Defendant to the Plaintiffs does not arise. In view of the foregoing, | find the 18 Defendant solely liable for the damage suffered by the Plaintiff. H. Damages [26] According to the report of SP7 dated 6.9.2017, the patient's condition as at 5.7.2017: ia] [b] [ce] [d] [e] The patient can stand without support but move about with shuffling of the foot. Right upper limb: shoulder has no active movement. Limb length discrepancy of 6 cm between left leg (55 cm) and the right leg (61cm). One leg is longer than the other. The patient suffered from bone growth retardation because of the infection. Discrepancy is expected and the patient will have to under procedure to lengthen her leg bone. 20 [27] The Plaintiffs claims for the damages as set-out in tables below. I. Special Damages Table 1 — Special Damages Item Amount (RM) 1. Payment for Gleneagles Hospital Service 9,790.50 2. Payment to USains Biomics Laboratory 547.00 Testing 3. Payment to USains Biomics Laboratory 85.00 Testing 4. Payment for KPJ Tawakkal medical report 150.00 5. Payment for HKL medical report 500.00 6. Payment for Hospital Serdang medical 50.00 report Total RM 11,122.50 21 [28] | allowed as special damages in the sum of 11,062.50. | disallowed the payment to KPJ Tawakal in item 4 for a sum of RM150.00 on the basis that the Plaintiff went to the KPJ Tawakkal for the purpose of medical treatment. | also deducted RM10.00 and RM50.00 for the payment for Hospital Serdang Medical Report as per actual official receipt (P13). [29] | took cognizance the 1° Defendant submission that the Plaintiff did not specifically plead special damages for item [2] and [3]. However, | find that the both of the items were inclusively under medical expenses that were included in the special damages. J. General Damages Table 2 — General Damages Items Amount (RM) 1. Multiple septic arthritis with left avascular ; ; ; 40,000.00 necrosis and pathological fracture of right humerus 2. Avascular necrosis of left femoral head 75,000.00 with short left femur 22 3. Left Knee dislocation/subluxation 10,000.00 4. Left wrist contracture 10,000.00 5. Synostosis left radioulnar 50,000.00 Total RM 185,000.00 [30] It was not disputed that the patient suffered the injuries mentioned. However, | observed that the injuries suffered are essentially scaring, injury to the femur and difficulties in the movement of right shoulder. [31] Federal Court decision in Inas Faiqah Mohd Helmi v. Kerajaan Malaysia & Ors [2016] 2 CLJ 885, said: [20] It is trite that damages serve as compensation, not a reward, less still a punishment (see Ong Ah Long v. Dr S Underwood [1983] 2 CLJ 198; [1983] CLJ (Rep) 300; [1983] 2 MLJ 324). In assessing damages, the court should not be motivated by sympathy and award fair compensation based on cogent evidence. The court should not descend into a domain of speculation. The evaluation of those evidence, which form the basis of any risk of future damage, must therefore still be undertaken. And the trial judge can only evaluate such evidence based on the recognised balance of probabilities standard.” 23 [32] In the Revised Compendium of Personal Injury Awards (Revised 2018) (the Compendium), even though the Compendium acted as a guideline in determining compensation for personal injury, it can be applied by the court to ensure that the sum awarded falls within the range as stipulated in the Compendium. It would be wrong for trial courts to ignore the range of damages as recommended in the Compendium and to pluck a quantum from the air and make an award for a particular injury which does not resonate with the range in the Compendium. [33] As discussed in the Compendium, there are questions of facts that the court must also take into consideration in determining the award for damages such as:- i. Age of the Plaintiff - whether the Plaintiff is an Infant, Young Person, Middle aged or in the prime of their lives; ii. Whether Plaintiff is Male or Female: iii. | Whether the Plaintiff is married or unmarried and the extent of injuries would affect the prospects of Marriage; iv. Whether the injuries would affect the asymmetry of the lower limbs; v. The type of fracture; vi. The extent of shortening; and 24 vii. Whether the nature of the injuries would affect the squatting activities of an active sportsmen/sportswomen. [34] Having taking into account of the above, | exercise my discretion to award RM60,000.00 as a global sum for general damages based on the final diagnosis of the patient. K. Future Damages Table 3 Future Damages Cost Of Purchase and Maintenance of Disable Person Equipment Items Amount (RM) 1. Hospitalisation 70,000.00 2. Therapies 176,000.00 3. Additional cost of leaves 20,000.00 4. Purchase and maintenance of disable 89,000.00 person equipment 5. Care by parents and family members 72,000.00 Total RM 427,000.00 25 [35] In inas Faiqah case, the Federal Court also considered the question of the standard of proof for future damage. The Court held that: ‘[23] This civil standard of proof is emphasised in the recent decision of this court in Sinnaiyah & Sons Sdn Bhd v. Damai Setia Sdn Bhd [2015] 7 CLJ 584; (02(f)-72-10/2013(A), 10 August 2015), a case concerning the standard of proof for fraud in civil claims, where it was held that: At law there are only two standards of proof, namely beyond reasonable doubt for criminal cases while it is on a balance of probabilities for civil cases. As such even if fraud is the subject in a civil claim, the standard of proof is on a balance of probabilities. There is no third standard. [24] With the above proposition, we are of the view that the standard of proof with regard to the assessment of future loss or damage is on the balance of probabilities, but with a lower degree of certainty as to the occurrence of such loss or damage in the future. From the authorities, one can say that such a lower degree to be attached is best termed by the word "possibility", "chance", "risk", "danger" or "likelihood", but regardless of the words used and their semantics, they must also essentially be a substantial one and not speculative, and that the standard of proving such “possibility”, "chance", "risk", "danger" or "likelihood" of the future damage is still, in our opinion, on a balance of probabilities.” 26 [36] | observed that the Plaintiff relied solely on the case Muhammad Yassein Zuliskandar v Kerajaan Malaysia & Ors [2018] 1 LNS 1306 whereby the injuries suffered were more severe and the Plaintiff is completely dependent throughout his life. However, the present case before me, the patient is only classified as “Orang Kelainan Upaya’” and does not have any issues with managing her daily activities. On this score, | allowed the claim for future damage of item (1) Hospitalisation for future surgeries a sum of RM25,000.00 and item (2) Therapies for a sum of RM15,000.00. | disallowed the claim for items (3) and (5) since there no basis adduced for me to quantify the amount claimed. | also disallowed item (4) for lack of evidence for ilizarov device and for other purchase of disabled equipment that the patient may need in future. In the finality, the total future damages allowed is RM40,000.00. L. Aggravated Damages Table 4 Aggravated Damages of RM1,000,000.00 Items 1. Pain and Suffering 2. Embarrassment and humiliation 27 3. Deprivation of living the ordinary life experience 4. Lack of information noted by the Defendants 5. Inaccurate information by the Defendants 6. Dishonesty in documentation by the Defendants [37] In determining an amount that would be fair and reasonable in the circumstances of this case and based on the evidence adduced, | had considered the act and motive of the defendants; the plaintiffs status, position and character; the purpose of aggravated damages which is not to punish the defendants but to serve to compensate the plaintiff for injuries affecting feelings arising out of the tortious acts of the defendants; and an appropriate global sum for general damages commensurate with the injury sustained. [38] Therefore, | allowed the aggravated damages for an amount of RM50,000.00 for pain and suffering taking into account that the patient is permanently disable due to prolong series of surgeries and treatment causing severe pain and deprivation of living the ordinary life. 28 ‘M. Exemplary Damages Table 5 - Exemplary Damages of RM100,000.00 Items 1. Deference to private hospitals and medical specialist [39] | have disallowed the claim for exemplary damages as | do not see that the facts of the case warrant a claim for such damages. N. Interest [40] Interest on the various heads of damages as prayed by the Plaintiff is in accordance with the legal principles and is thus awarded as follows: [a] Interest on special damages at the rate of 4% per annum; 29 [b] Interest on general damages and aggravated damages at the rate of 8% per annum from the date of service of the writ until the date of judgment on liability; and [c] Interest on the judgment sum at the rate of 5% per annum from the date of judgment on liability to the date of payment. O. Cost [41) (a) Cost of RM50,000 to be paid by the 1% Defendant to the Plaintiff. [42] (b) Cost of RM20,000 to be paid by the Plaintiff to the 2"? Defendant. Dato’ R a Binti Ali Yusoff High Court Judge Kuala Lumpur Dated: 24 October 2020 30 Counsel for the Plaintiff: Messrs Yusfarizal & Yusoff Advocates & Solicitors No. 1-3-1, Blok C Jalan Semarak Api 2 Diamond Square Commercial Centre Jalan Gombak 53000 KUALA LUMPUR Counsel for the Defendants: 1° Defendant's Counsel Messrs Raja, Darryl & Loh Advocates & Solicitors 26 Floor, Menara Hong Leong No. 6, Jalan Damanlela 50490 KUALA LUMPUR 24 Defendant’s Counsel Messrs Azim Tunku Farik & Wong Unit 5-03, 5" Floor Wisma Badan Peguam Malaysia (formerly known as Straits Trading Building) 2 Lebuh Pasar 50050 KUALA LUMPUR 31 Case(s) referred to: 1. Bolam v. Friern Hospital Management Committee [1957] 2 All ER 118. Foo Fio Na v. Dr Soo Fook Mun & Anor [2007] 1 CLJ 229. R v. Bateman [1925] 94 LBKB 79. Dr Kok Chong Seng & Anor v. Soo Cheng Lin. Inas Faiqah Mohd Helmi v. Kerajaan Malaysia & Ors [2016] 2 CLJ 885. a aA Fk W ND Ong Ah Long v. Dr S Underwood [1983] 2 CLJ 198; [1983] CLJ (Rep) 300; [1983] 2 MLJ 324. 7. Muhammad Yassein Zuliskandar v. Kerajaan Malaysia & Ors [2018] 1 LNS 1306. Legislation(s) referred to: 1. Rules of Court 2012. 2. Evidence Act 1950. 32