1. ) Dr Premitha Damodaran 2. ) 1. Gurisha Taranjeet Kaur 2. Baljeet Kaur Grewal a/p Jaswant Singh 1. ) 1. Gurisha Taranjeet Kaur 2. Baljeet Kaur Grewal a/p Jaswant Singh 2. ) 1. Dr Premitha Damodaran 2. Pantai Medical Centre Sdn Bhd

1. ) Dr Premitha Damodaran 2. ) 1. Gurisha Taranjeet Kaur 2. Baljeet Kaur Grewal a/p Jaswant Singh 1. ) 1. Gurisha Taranjeet Kaur 2. Baljeet Kaur Grewal a/p Jaswant Singh 2. ) 1. Dr Premitha Damodaran 2. Pantai Medical Centre Sdn Bhd

On appellate review the Court found the High Court had misdirected itself in evaluating contemporaneous documentary evidence and probabilities; defendant had discussed C-section ante-natally, reasonably relied on parents' representation of prior birth weight, carried out appropriate emergency management of an uncommon shoulder dystocia (McRoberts plus manual rotation) and did not breach standard of care; accordingly the High Court's liability and damages findings against the 1st Defendant were set aside and the second appeal dismissed.

Citation
W-02(NCVC)(W)-2006-11/2019 Didengar Bersama W-02(NCVC)(W)-2018-11/2019 (Mahkamah Rayuan)
Parties
1st Plaintiff / Respondent: Gurisha Taranjeet Kaur; 2nd Plaintiff / Respondent: Baljeet Kaur Grewal a/p Jaswant Singh; 1st Defendant / Appellant: Dr Premitha Damodaran; 2nd Defendant / Respondent: Pantai Medical Centre Sdn Bhd
Court
NCVC
Jurisdiction
Malaysia
Judgment Date
11 November 2021
Case Number
W-02(NCVC)(W)-2006-11/2019 Didengar Bersama W-02(NCVC)(W)-2018-11/2019 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal (medical Negligence) / Court of Appeal Judgment (final Disposition)
Outcome
First appeal by 1st Defendant allowed in full; High Court judgment as to liability and quantum against 1st Defendant set aside. Second appeal by Plaintiffs dismissed.
Legal Topics
Informed Consent, Standard of Care, Bolam Test, Bolitho Qualification, Duty to Advise Risks, Mc Roberts Manoeuvre, Shoulder Dystocia, Vicarious Liability, Non Delegable Duty, Appellate Intervention
Source Language
Malay/English
Medical Negligence Tort Professional Negligence Civil Procedure Appeal Informed Consent Standard of Care Bolam Test +7 more

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Parties

Gurisha Taranjeet Kaur

1st Plaintiff / Respondent

Baljeet Kaur Grewal a/p Jaswant Singh

2nd Plaintiff / Respondent

Dr Premitha Damodaran

1st Defendant / Appellant

Pantai Medical Centre Sdn Bhd

2nd Defendant / Respondent

Procedural Posture

Civil Appeal (medical Negligence) / Court of Appeal Judgment (final Disposition)

Legal Issues

  1. 1 whether treating obstetrician failed to advise patient of C-section option and risks of vaginal delivery
  2. 2 whether patient misrepresented prior birth weight and whether doctor could rely on patient history
  3. 3 whether doctor breached duty in management of shoulder dystocia including performance of McRoberts manoeuvre and use/non-use of suprapubic pressure

Ratio Decidendi

On appellate review the Court found the High Court had misdirected itself in evaluating contemporaneous documentary evidence and probabilities; defendant had discussed C-section ante-natally, reasonably relied on parents' representation of prior birth weight, carried out appropriate emergency management of an uncommon shoulder dystocia (McRoberts plus manual rotation) and did not breach standard of care; accordingly the High Court's liability and damages findings against the 1st Defendant were set aside and the second appeal dismissed.

Court Disposition

First appeal by 1st Defendant allowed in full; High Court judgment as to liability and quantum against 1st Defendant set aside. Second appeal by Plaintiffs dismissed.

Orders

  • High Court order on liability and quantum against 1st Defendant set aside
  • Costs for first appeal fixed at RM160000 to be borne and paid by the Plaintiffs/Respondents to the 1st Defendant/Appellant (subject to allocator)