GAN HONG HENG (mendakwa sebagai pentadbir harta pusaka GAN HONG WEE, simati) 1. ) DR CHANDRAN A/L GNANAPPAH 2. ) ASSUNTA HOSPITAL

BA-22NCVC-250-04/2017 Kand. 154 31/07/2023 15:31:04 IN THE HIGH COURT IN MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA CIVIL SUIT NO: BA-22NCVC-250-04/2017 BETWEEN GAN HONG HENG (suing as the administrator of the estate of Gan Hong Wee, Deceased) … PLAINTIFF AND 1) DR CHANDRAN A/L GNANAPPAH 2) ASSUNTA HOSPITAL … DEFENDANT JUDGMENT Introduction [1] This is a claim from the brother and the administrator of the estate of Mr. Gan Hong Wee (hereinafter referred to as “The Deceased”) for medical negligence and breach of contractual and other duties. [2] Plaintiff was the brother and is the administrator of the estate of The Deceased. [3] The First Defendant is and was a consultant Ear, Nose and Throat (ENT) surgeon practicing in Assunta Hospital. [4] The Second Defendant is and was a private hospital situated at Jalan Templer, Petaling Jaya, Selangor. The facts [5] The Deceased, on 27.3.2014, was brought to the Accident and Emergency Department, Assunta Hospital (the Second Defendant) by his mother, with complaints of confused behavior for the past two days with right lower limb weakness. [6] The Deceased was first attended to by a medical officer (Dr. Kalai Selvan), where he was informed that The Deceased was suffering from blurred vision in both eyes and haemetemesis (vomiting of 1 S/N gIjV8GVUkEiBuSsHEkYsXw **Note : Serial number will be used to verify the originality of this document via eFILING portal blood) on the day before. The Deceased also had an episode of fits earlier on the same day. [7] Dr. Kalai Selvan then referred The Deceased to Dr. Raihanah Abdul Kadir (hereinafter referred to as “Dr. Raihanah”), a Consultant Neurologist. On the same day Dr Raihanah referred The Deceased to Dr. Chandran a/l Gnanappah (hereinafter referred to as “the First Defendant”) for joint management. [8] The Deceased was diagnosed of severe pansinusitis with possible meningitis. The First Defendant on 28.8.2014 had informed The Deceased’s family of the sinus surgery operation which he had planned at on the same day. [9] The Deceased underwent the operation at about 2.00 pm on the same day which was performed by the First Defendant and completed at about 4.00 pm. At about 6.00 pm, The Deceased was transferred to the Intensive Care Unit (hereinafter referred to as “ICU”) and remained there until 7.4.2014. [10] On 7.4.2014 The Deceased mother requested to discharge him and transferred to Hospital Kuala Lumpur. The Deceased was at Hospital Kuala Lumpur until he passed away on 30.4.2014. The cause of death (from the death certificate), was encephalitis of unknown etiology. Issues to be tried (i) Whether the Defendants and each of them were negligence and/or in breach of contractual and other duties in managing the condition of The Deceased and whether the negligence cause or materially contributed to the injuries, loss and damages suffered by The Deceased, his dependents and his estate. (ii) Whether the plaintiff is entitled to special damages, general damages, interest and costs as pleaded. (iii) If issues 1 and 2 are in the affirmative, whether the Second Defendant is entitled to claim a complete indemnity and/or contribution from the First Defendant for any payment/losses/damages/interests and costs sustained and/or suffered by the Second Defendant. 2 S/N gIjV8GVUkEiBuSsHEkYsXw **Note : Serial number will be used to verify the originality of this document via eFILING portal (iv) Whether the Second Defendant owed a non-delegable duty to The Deceased to ensure that The Deceased would be treated with due care and skill by the healthcare personnel practicing at the hospital. (v) Whether the Second Defendant is vicariously liable for the injuries, loss and damage suffered by The Deceased, his dependents and his estate. Findings of the court [11] After having heard and considered cases from the Plaintiff, the First Defendant and the Second Defendant, the court found as follows: [12] On 26.3.2014, The Deceased experienced blurring of vision and was treated by a general practitioner at a private clinic. He was diagnosed as having high blood pressure and given a medicine. The next day (27.3.2014) The Deceased experienced generalized seizures, confused and vomited. He was taken to Assunta Hospital in the same morning and was seen by Dr. Kalai Selvan (a medical officer) at 11.00 am at the Emergency Department. [13] Dr. Kalai Selvan found The Deceased to be in confusion and slurred speech. One of the actions taken by Dr. Kalai Selvan was to send The Deceased for a CT scan of the brain. The results as reported by the radiologist were as follows: (a) no intracranial hemorrhages or space occupying lesions; (b) rhinosinusitis, most likely due to nasal polyposis. [14] Based on the results, Dr. Kalai Selvan then referred The Deceased to Dr. Rahainah (a consultant neurologist) at 1.00 pm on the same day. [15] Dr. Raihanah saw and examined The Deceased at 6.00 pm on 27.3.2014. She found The Deceased still in confusion but managed to give some history even though having difficulty in recalling events. She also done physical examination on The Deceased apart from blood test. [16] The report of the blood test stated that “the white blood cells and the inflammatory, markers were on raise, showing some form of infection”. She then made a diagnosis of “pansinusitis with possible 3 S/N gIjV8GVUkEiBuSsHEkYsXw **Note : Serial number will be used to verify the originality of this document via eFILING portal meningitis, optic neuritis and seizures”. After having made the said diagnosis, The Deceased were transferred to the High Dependency Unit (HDU). [17] Dr. Raihanah also ordered 3 different types of intravenous antibiotics to be given to The Deceased i.e: (a) IV penicillin which were given between 7.00 to 8.00 pm and need to be given every 6 hours (4 times daily). (b) IV Rocephin which were given at 8.00 pm and need to be given 2 times daily (every 12 hours), (c) IV flagyl which were given at 8.00 pm and need to be given 3 times daily (every 8 hours). [18] Apart from the actions above, on the same night Dr. Raihanah had ordered an MRI scan (magnetic resonance imaging) to be done on The Deceased. Since The Deceased was not cooperative in undergoing the MRI scanning, a second CT scan was done. The radiologist reported at 8.25 pm the result with contrast i.e. “no evidence of intracerebral abscess”. [19] After completing the procedures, Dr. Raihanah referred The Deceased to the ENT Surgeon on-call i.e. the First Defendant with a referral letter giving a reason for referral i.e. “TRO epidural abscess intracranial causes 2-degree sinusitis”. [20] The First Defendant met and examined The Deceased on the same day (27.3.2014) at 9.15 pm without the presence of The Deceased’s family members. He took the history from The Deceased and noted The Deceased to be confused (unable to think clearly). Next, the First Defendant referred The Deceased to the ophthalmologist on- call i.e. Dr. Meena. And the First Defendant also prepared a request form guarantee from The Deceased’s medical insurance firm for the sinus surgery operation (functional endoscopic sinus surgery operation) which to be done the next day (28.3.2014). [21] Following the referral by the First Defendant, Dr. Meena met The Deceased at 10.30 pm on the same day. Dr. Meena was unable to get the history from The Deceased since he is still in confusion. After examined The Deceased, Dr. Meena made a diagnosis of “pansinusitis with meningeal spread causing bilateral optic neuritis”. 4 S/N gIjV8GVUkEiBuSsHEkYsXw **Note : Serial number will be used to verify the originality of this document via eFILING portal [22] She then explained to The Deceased’s family members that she wanted to start with steroids to treat the optic neuritis but unable to do so as she need to wait until the 48 hours of the antibiotic therapy completed. She also explained to them that even though The Deceased were given the extensive treatment, there is still a risk of permanent visual loss. [23] The next day (28.3.2014) at 7.50 am, the First Defendant saw The Deceased again and found that his general condition was the same as the first time he met him. He also noted that The Deceased’s vision was poor. [24] At 9.30 am Dr. Raihanah visited The Deceased and also found that The Deceased’s general condition to be the same as the first time she met him. A portable electroencephalogram procedure (EEG) was undertaken and during the examination she found that The Deceased’s right hand was twitching. She then ordered anti- seizure medication, IV dormicum and IV epilim to be administered on The Deceased. [25] At 10.10 am the First Defendant made a third visit. Since The Deceased’s parents were there, he took the opportunity to inform them of the sinus surgery operation which he had planned at on the same day. From his notes, he had cited that (amongst others): “…. In view of pansinusitis need for culture material and drainage of sinuses. …. Risk of damage to orbit and anterior cranial fossa explained…..” [26] A nurse which were present at that material time recorded the First Defendant’s conversation with The Deceased’s parents as follows: “… Dr Chandran came by. Spoken to patient’s family regarding scan finding show severe sinusitis, blurred vision and fitting. Suggest operation: Bilateral FEES, antrostomy, KIV biopsy. Agreed by family. Consented both parties. Consent signed by patient’s father. OT booked by himself at 2 pm”. 5 S/N gIjV8GVUkEiBuSsHEkYsXw **Note : Serial number will be used to verify the originality of this document via eFILING portal [27] At 10.45 am Dr. Meena visited The Deceased again. After examining him she found that his condition was the same. She then gave advice regarding the treatment option i.e.: “… Explained to patient risk of: (1) septicemia with steroid now (2) risk of blindness with no steroid use…” [28] Since she was aware that The Deceased will undergo an MRI brain investigation soon, she then ordered an additional MRI scan of the orbit. [29] The MRI brain investigation was schedule to be done at 12.00 pm and the radiology department has ordered for The Deceased to be send to the MRI room. But the MRI was postponed until the sinus surgery operation completed as per the First Defendant’s instruction. [30] The sinus surgery operation was conducted by the First Defendant from 2.50 pm until 4.00 pm on 28.3.2014. From the intra-operative nursing care record which were written by the operation theatre nurses cited that the surgery was an elective surgery. [31] After the surgery, The Deceased became immediately restless because of the cerebral irritation until 5.45 pm despite various anesthetic drugs given. Because of the said condition, the anesthetist decided to intubate and ventilate The Deceased and send him to the ICU. [32] Based from the evidence adduced above, the court is of the view: (i) the law applicable: Zulhasnimar binti Hasan Basri & Anor v Dr Kuppu Velumani P & Ors [2017] 5 MLJ 438 FC: (a) The three categories of law on negligence of healthcare providers: (i) the provision of advice and information to patients; (ii) diagnosis; (iii) treatment. 6 S/N gIjV8GVUkEiBuSsHEkYsXw **Note : Serial number will be used to verify the originality of this document via eFILING portal (b) the standard of care as regards the provision of advice and information is the “patient” standard and as regards diagnosis and treatment is the “doctor” standard (the Bolam’s test and subjected to the Bolitho qualification.” Dr Kok Choon Seng & Anor v Soo Cheng Lin & Anor Appeal [2018] 1 MLJ 685 CA: (a) the owner and manager of a healthcare facility can be held liable: (i) directly (for breach of the non-delegable duty of care owed to its patients); (ii) vicariously (for the actions and omissions of its agent and employees, including independent contractors). Bull & Anor v Devon Area Health Authority [1993] 4 Med LR 117 and Lybert v Warrington Health Authority [1996] 7 Med LR 71: Direct liability against owners and managers of a hospital at common law for systems and organizational failures. Krishnan Nambiar s/o Perabakaran & Ors v Dr P Mahendran & Anor [2009] 4 MLJ 427; and, Shalini a/p Kanagaratnam v Pusat Perubatan Universiti Malaya (formerly known as University Hospital & Anor [2016] 3 MLJ 742 CA: The burden of proof is on the Plaintiff. Bolam v Friern Management Committee [1957] 2 All ER 118; and, Bolitho v City & Hackney Health Authority [1997] 4 All ER 771: The test in determining the standard of care expected of a medical practitioner. 7 S/N gIjV8GVUkEiBuSsHEkYsXw **Note : Serial number will be used to verify the originality of this document via eFILING portal (ii) on the issue of whether there was a failure on the part of the First Defendant and the Second Defendant to obtain an informed consent for the said surgery. For the First Defendant [33] The First Defendant after seeing The Deceased on 27.3.2014 at 9.30 pm, decided to undertake the sinusitis surgery operation the next day. He also arranged for the execution of medical guarantee insurance from The Deceased’s insurance coverage. At that material time Dr. Raihanah and Dr. Meena have yet to complete their medical treatment on The Deceased i.e. the full effect of the antibiotic given (less than 24 hours), a full MRI investigation of the brain and the orbit and also the steroids treatment. [34] When he met The Deceased’s parents on 28.3.2014 at 10.10 am, he told them that the scan finding showed severe sinusitis cause blurred vision and fitting. He also suggested a surgery. The Deceased’s father (PW1) gave evidence in court that the doctor (the First Defendant) say there is pus inside and it has to be taken out. The First Defendant made them to believed that it was the pansinusitis which caused the blindness and the seizures. And thus, the parents agreed to the said “minor” surgery. [35] In his witness statement, the First Defendant said that the said surgery was necessary as a matter of emergency in order to drain the sinuses and to obtain culture material. [36] From the evidence of the Plaintiff’s expert (Dr. Gurdeep Singh – PW2) and agreed by the First Defendant’s expert (Dr. Sing Kim Hock – DW3), the sinusitis and the brain infection were unrelated and the operation may not improve the brain infection. There was no evidence to show that this was explained and made to be understood by The Deceased’s parents. [37] In the cross examination by the Plaintiff’s counsel, the First Defendant also agreed that he did not inform The Deceased’s parents that the was a risk i.e. The Deceased can become dangerously ill after undergoing the said surgery. [38] There was also no evidence to show that the First Defendant had explained to them the alternative treatment option i.e. to continue with the medical treatment. There was a duty cast upon the First 8 S/N gIjV8GVUkEiBuSsHEkYsXw **Note : Serial number will be used to verify the originality of this document via eFILING portal Defendant to give advice and information pertaining to the reasons for the surgery proposed, the risks and benefits of surgery he proposed and the alternative treatment options available (Montgomery (Appellant) v Lanarkshire Health Board [2015] 2 All ER 1031; Zulhasnimar binti Hasan Basri & Anor v Dr Kuppu Velumani P & Ors [supra]; Muhammad Fikrey bin Bakhtiar & Ors v Dr Fatin Ahya Zulkeflee & 26 Ors [2019 MLJU 1889). [39] The court also found that the First Defendant adduced a different version pertaining to consent. Earlier in his evidence he said that his decision to undertake the surgery on the next day (28.3.2014) was made after having a discussion with The Deceased’s family and also to ensure the medical treatment to work. On the other hand, the court found that his decision to undertake the said surgery were made on the night of 27.3.2014 i.e. the first time he visited The Deceased when he ordered for a guarantee form from the The Deceased’s insurance policy to be activated for the next day surgery. [40] The court cannot accept his explanation by saying that it takes time for the insurance company to give an approval. The evidence before the court is that, actually, the First Defendant has another obligation with another health provider institution the next day. [41] Another issue pertaining to the First Defendant’s credibility is the alternative treatment option which is said to be not viable. The said answer was only raised by his expert witness (Dr. Balwant Singh – DW2) during re-examination of DW2. The court found that this piece of statement was not pleaded by the Defendants. [42] Tey Moon Kim v Hon Siew Mei [2013] 7 MLJ 528: “[19] As a corollary, every party must therefore state his whole case. He must plead all facts which he intends to rely on, otherwise he cannot strictly give any evidence of them at the trial.” [43] And thus, this court had no choice but to reject this statement. It is a fact that there are two options available before the surgery i.e. to proceed with the medical treatment or to undertake the surgery. 9 S/N gIjV8GVUkEiBuSsHEkYsXw **Note : Serial number will be used to verify the originality of this document via eFILING portal [44] Based from those evidence, the court found that the First Defendant had failed to give a correct information and advice pertaining to: (a) the purpose of the said surgery; (b) the risks and benefits of the said surgery; (c) the alternative treatment options. For the Second Defendant [45] The Second Defendant is the provider of healthcare and has a non- delegable duty of care owned to its patients i.e. has a positive duty to ensure that a reasonable care is taken. As agreed by Dr. Lourdes (DW4), the Second Defendant also has the responsibility for taking consent for treatment including surgeries based on the organizational and system of the Assunta Hospital. [46] Dr Kok Choon Seng & Anor v Soo Cheng Lin & Anor Appeal [supra]; and, Dr Hari Krishnan & Anor v Megat Noor Ishak bin Megat Ibrahim & Anor & Anor Appeal [2018] 3 281: Both cases defined a healthcare institution’s non-delegable duty of care owed to its patients’ as a positive duty to ensure that reasonable care is taken. [47] The defining features of non-delegable duties arising out of a special relationship with the client as set out in Woodland v Essex County Council [2014] 1 AA ER 482 were adopted by the Federal Court in Dr Kok Choon Seng & Anor v Soo Cheng Lin & Anor Appeal [supra]. [48] And thus, the court is of the view that there was a failure on the part of the First Defendant and the Second Defendant to obtain an informed consent for the said operation. (iii) on the issue of whether it was proper for the Defendants to have undertaken the sinus surgery operation. [49] Dr. Raihanah referred The Deceased to the First Defendant was not for a treatment of pansinusitis but for “TRO epidural abscess intracranial causes 2 degree sinusitis” i.e. to examine if The Deceased signs and symptoms were caused by some form of 10 S/N gIjV8GVUkEiBuSsHEkYsXw **Note : Serial number will be used to verify the originality of this document via eFILING portal collection within the brain. The First Defendant accepted the referral as a case of pansinusitis i.e. an inflammation of the sinuses which caused an infection into the brain. He also accepted on the history given by The Deceased which is in confusion that he had no history of sinus. [50] From the medical report of The Deceased, he was experiencing a chronic sinusitis which is not connected to the brain. And thus, the court agrees with PW2 (Dr. Gurdeep Singh) that it is proper to wait for at least 24 hours for the medical treatment to show its full result before a decision made to undertake a surgery. [51] The court also found that the is no danger yet at the material time to the life or the limbs of The Deceased. That is why the record of the operation theatre classified the surgery as an elective one and not an emergency. [52] There were also no records to show whether the First Defendant had discussed lengthy with Dr. Raihanah and Dr. Meena (both of them was still treated The Deceased) before a decision made to undertake the said surgery. [53] The court also found that The Deceased had showed a positive response (improvement) to the medical treatment before the surgery. After given the antibiotics, his blurring vision and seizures did not deteriorate. He also did not suffer seizures of the whole body but only a milder one to his right hand. He also did not experience anymore weakness of the limb. [54] Based from those findings, the court is of the view that the First Defendant had made an improper diagnosis. The evidence of both his expert witnesses also failed to support firmly on medical grounds of the diagnosis, treatment and the decision of the First Defendant to undertake the sinus surgery operation. And thus, it was improper for the Defendants to have undertaken the sinus surgery operation. (iv) on the issue of whether the sinus surgery operation caused or at least materially contributed to the injuries, loss and damage suffered (causation). [55] The court found as above that generally The Deceased’s condition had shown some improvement with the medical treatment after admitted to Assunta Hospital and before the said operation. 11 S/N gIjV8GVUkEiBuSsHEkYsXw **Note : Serial number will be used to verify the originality of this document via eFILING portal Immediately after the operation his condition deteriorated because of the stress of the operation and the anesthesia used. He was not in a stable condition, need to be sedated and has to breath with the assistance of a ventilator. His seizures again become generalized (the whole body) and did not response to medication. [56] Based from all the findings that the court has made, Plaintiff had successfully fulfilled “the material contribution test” i.e. causation is deemed proved on the balance of probability as per the Federal Court’s decision in Wu Siew Ying t/a Fuh Lin Bud-Grafting Centre v Gunung Tunggal Quarry & Construction Sdn Bhd & Ors [2011] 2 MLJ 1: "...we are of the view that the 'but for' test is not the exclusive test to be applied to determine causation of the injury. It can still be applied but not in circumstance when there are two or more acts or events or factors that could or contribute to the injury of the plaintiff This instant case is a case in point where evidence is established that there are a multiple of factors that could bring about the injury to the plaintiff. And to decide whether there is causation in these circumstances the approach of Lord Reid in Bonnington Casting Ltd v Wardlaw: whether any of these acts or events or factors has materially contributed to the plaintiff's injury should be adopted. What Is a material contribution must be a question of degree. This is for the court to decide but certainly anything that is trifle is not material. As Lord Reid in the same case expounded: 'contribution which comes within the exception of de minimis non curet lex (the law does not concerns itself with trifles) is not material' (emphasis supplied)." For the Second Defendant [57] The Second Defendant is the provider of healthcare and has a non- delegable duty of care owned to its patients i.e. has a positive duty to ensure that a reasonable care is taken. The First Defendant as “an independent contractor” or consultant was appointed by the Second Defendant to assist the owners and managers of hospitals in providing healthcare. [58] Both the Defendants has a special relationship and thus have the features of non-delegable duties arising from it as set out in Woodland v Essex County Council [supra] and adopted by the Federal Court in Dr Kok Choong Seng & Anor v Soo Cheng Lin [supra] and in Dr Hari Krishnan & Anor v Megat Noor Ishak bin 12 S/N gIjV8GVUkEiBuSsHEkYsXw **Note : Serial number will be used to verify the originality of this document via eFILING portal Megat Ibrahim & Anor [supra]. The features are summarized as follows: (a) the claimant is especially vulnerable and dependent on the defendant’s protection from the risk of injury; (b) there is an antecedent relationship between the claimant and the defendant; (c) the claimant has no control over how the defendant chooses to perform the duty assumed; (d) the defendant has delegated to a third party a function which is an integral part of its positive duty towards the claimant; (e) the third party was negligent in the performance of the very function. [59] Evaluating the evidence presented by the parties, the court found that all the five features were fulfilled and the Second Defendant is vicariously liable for the First Defendant’s action. [60] The court also found the Second Defendant had failed to make a full discovery of medical reports as required by the Plaintiff on time i.e. the ICU charts and records, and thus deprived the Plaintiff’s right. This court is unable to accept the Second Defendant’s explanation since they have ample time from October 2016 to furnished those documents (only given to the Plaintiff on 20.12.2021). And thus, the Second Defendant is directly liable to the Plaintiff on this matter. [61] On the balance of probability, the court is of the view that the Plaintiff had proved his claim against both the Defendants. Quantum For damages, The Plaintiff bears the duty of proving the damage suffered and also the amount (Lembaga Kemajuan Tanah Persekutuan (FELDA) & Anor v Awang Soh bin Mamat & Ors [2009] 4 MLJ 610). 13 S/N gIjV8GVUkEiBuSsHEkYsXw **Note : Serial number will be used to verify the originality of this document via eFILING portal Special damages [62] This court is guided by the following principles: Ong Ah Long v Dr S Underwood [1983] 2 MLJ 324: “In special damages claims the exact loss must be pleaded where the precise amount of item of damages has become clear before the trial either because it has already occurred and so become crystallised or because it can be measured with complete accuracy.” Shen & Sons Sdn Bhd v Juta Warna Development Sdn Bhd & Ors [2016] 7 183: “The principle that emerges clearly from these authorities is that special damages must be specifically pleaded and proved in order to be recoverable. The rationale for this requirement is to ensure that a defendant is not taken by surprise at the trial and would know what is the case he has to meet at the trial. Thus, a plaintiff is disentitled from adducing evidence in support of special damages where the same has not been pleaded.” (Emphasis added)” (i) hospital and medical expenses [63] Based on case laws, the Plaintiff is still entitled to this item even though it has been paid by the insurance company (Dr Kok Choong Seng & Anor v Soo Cheng Lin [supra]). Evidence had showed that the majority of the expenses were paid for the unnecessary surgery and the treatment in the ICU. As such the court awarded RM100,000 for this item. (ii) travel expenses [64] Even though the Plaintiff had failed to furnish receipts for this item, I believed, as parent, the Plaintiff will definitely visit The Deceased in the hospital every day, be it in the Assunta Hospital or Hospital Kuala Lumpur. By taking into consideration the distances between both hospitals from the Plaintiff’s home and the amount of fuel involved, the court hereby awarded RM2,000 for this item. [65] Again, the Plaintiff is not expected to behave like a book keeper in compiling bills and receipts. Those evidence can be given orally 14 S/N gIjV8GVUkEiBuSsHEkYsXw **Note : Serial number will be used to verify the originality of this document via eFILING portal (ABDA Air Freight Sdn Bhd v Sistem Penerbangan Malaysia Bhd [2001] 3 MLJ 641). (iii) expenses for conducting prayers seeking recovery [66] It is the practice of majority of our society to turn to faith when such things happened. For conducting such prayers (2 – 3 times during The Deceased were hospitalized), the amount of RM5,000 is reasonable and fair. (iv) funeral expenses [67] For this item the court took judicial notice that the funeral expenses especially for the Chinese community is very high (Pang Ah Chee v Chow Kwee Sang [1985] 1 MLJ 153 FC). And thus, the amount of RM30,000 as claimed by the Plaintiff is allowed. (v) cost of obtaining the letters of administration of The Deceased’s estate [68] Since no evidence were adduced during the trial especially the case number of the said application, this claim cannot stand and thus dismissed. (vi) cost of obtaining pre-action discovery [69] Evidence had been shown to the court that the Second Defendant had not furnished the relevant documents/records as required by the Plaintiff. And thus, the Plaintiff had to filed the pre-action discovery in court. Therefore, the court awards RM6,000 to the Plaintiff. General damages [70] For general damages, this court is guided by the following principles: Appalasamy a/l Bodoyah v Lee Mon Seng [1996] 3 CLJ 71: “Thus, one must not forget the general rule that the function of damages in tort actions is purely to put the plaintiff in the position which he would have been in had the tort not been committed in the first place and this can only be done through a reasonable award of damages. … In my judgment, public policy consideration should not be used as a barometer in 15 S/N gIjV8GVUkEiBuSsHEkYsXw **Note : Serial number will be used to verify the originality of this document via eFILING portal assessing damages. Large awards motivated by sympathy towards an injured plaintiff should not be encouraged but reasonably fair awards supported by evidence should be the correct guideline to adopt in assessing damages.” (emphasis added)” Sam Woon Hoong v Kader Ibramshah [1981] 1 MLJ 295: “General damage comprises damage for pain and suffering, loss of amenities and the like which the law implies, and in certain cases where the injuries suffered are such as to lead to continuing or permanent disability, it includes future loss of earnings and loss of earning capacity. Under the heading of pain and suffering and loss of amenities, the quantum is mainly assessed on the nature of injuries sustained and the period of hospitalization, and in arriving at a figure, the court is guided by previous awards in cases involving similar type of injuries with allowances being given as to the plaintiff’s age, marital status, his special position socially or in business, depreciation or appreciation of money value and other relevant circumstances.” (i) loss of contribution [71] In his evidence PW1 testified that The Deceased gave him and his wife (The Deceased’s mother) the amount of RM4,000 each per month. Irrespective The Deceased income per month, the court is of the view that the said contribution is on a high side and unreasonable. As such, the reasonable and accepted amount contributed by The Deceased to both his parents would be RM1,000 each per month. [72] Therefore, the calculation will be as follows: RM2,000 per month X 12 months X [(55-31 years)/2 = RM288,000 (ii) statutory bereavement [73] As provided under Section 7(3A) of the Civil Law Act 1950, the court awarded RM10,000 for this item. (iii) pain and suffering and the loss of amenities of life [74] Apart from the pain and suffering before the surgery, The Deceased had also suffered a severe one because of the unnecessary surgery and had to be restrained in bed which had caused distress to the 16 S/N gIjV8GVUkEiBuSsHEkYsXw **Note : Serial number will be used to verify the originality of this document via eFILING portal family. Therefore, for this item the amount of RM100,000 is awarded to the Plaintiff. Vincent Manickam s/o David (suing by himself and as administrator of the estate of Catherine Jeya Selllamah, deceased) & Ors v Dr S Hari Rajah & Anor [2018] 2 MLJ 497: “the patient underwent a necessary surgery but developed an unavoidable infection post-operatively. The defendant's negligence in treating the infection led her to suffer sepsis and later a cardiac arrest. She suffered hypoxic brain damage following her cardiac arrest and survived in the ICU for 10 days before succumbing. The Court awarded the sum of RM100,000-00 as general damages for pain and suffering and loss of amenities of life.” (iv) aggravated damages [75] The evidence which were put in court showed that the contumelious behavior of the Defendants had increased the pain and suffering of The Deceased. The conduct of the Defendants (especially the First Defendant) had caused The Deceased and the Plaintiff to suffered more than would normally be expected in such a case. [76] Based on the relevant case laws (Batu Kemas Industri Sdn Bhd v Tenaga Nasional Bhd & Anor [2015] 5 MLJ 52; Dato’ Stanley Isaacs (suing by himself and as the Administrator of the Estate of To’Puan Suzanne Thomas, patient) v The Government of Malaysia & Ors [2019] 8 MLJ 331), the court awarded RM350,000 for this damage. Cost and interest (i) party and party cost [77] The court took judicial notice that a medical negligence litigation is very expensive. It is a very complex litigation, difficult, time consuming, need an experience, skill and knowledgeable lawyers, voluminous bundles of documents etc., etc. And thus, for cost, the court awarded as follows: (a) RM250,000 against the First Defendant (b) RM75,000 against the Second Defendant (c) both costs will be subjected to 4% allocator. 17 S/N gIjV8GVUkEiBuSsHEkYsXw **Note : Serial number will be used to verify the originality of this document via eFILING portal (d) RM25,686.44 for the out-of-pocket expenses (to be by shared by both the Defendants). (ii) interest (a) 4% p.a. on special damages from 30.4.2014 (The Deceased’s death) to the date of judgment; (b) 8% p.a. on general and aggravated damages from the date of service of the writ of summon (21.4.2017) to the date of judgment; (c) 5% p.a. on the judgment sum from the date of judgment till the date of payment. [78] The Second Defendant indemnity claim against the First Defendant On this issue the court found both parties had entered into an agreement between them i.e. the Consultancy Agreement. The court is of the view that the terms of the said agreement (contract) especially to Clause 3 had made the First Defendant legally and contractually bound and liable to take full responsibility for his negligence. The court is also of the view that the Second Defendant has the duty of care towards The Deceased and based from the facts and evidence, the hospital is 20% liable. And thus, the court allowed the Second Defendant’s indemnity claim against the First Defendant for 80% of the amount awarded to the Plaintiff with 5% interest p.a. from the date of the judgment until the date of full payment. Dated: 29 July 2023. (ROSLAN BIN ABU BAKAR) Judge High Court Kota Bharu. 18 S/N gIjV8GVUkEiBuSsHEkYsXw **Note : Serial number will be used to verify the originality of this document via eFILING portal For the Plaintiff: Messrs P S Ranjan & Co, 17th Floor, Wisma Lee Rubber No.1, Jalan Melaka, 50100 Kuala Lumpur. For the 1st Defendant: Messrs Raja, Darryl & Loh, Level 26, Menara Hong Leong, No.6, Jalan Damanlela, Bukit Damansara, 50490 Kuala Lumpur. For the 2nd Defendant: Messrs Felix Raj Chambers, No. 8, Jalan 7/18, Seksyen 7, 46050 Petaling Jaya. 19 S/N gIjV8GVUkEiBuSsHEkYsXw **Note : Serial number will be used to verify the originality of this document via eFILING portal