Dr Premitha Damodaran v Gurisha Taranjeet Kaur (W-02(NCVC)(W)-2006-11/2019 Didengar Bersama W-02(NCVC)(W)-2018-11/2019)

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1 DALAM MAHKAMAH RAYUAN MALAYSIA DI PUTRAJAYA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO: W-02(NCVC)(W)-2006-11/2019 ANTARA DR PREMITHA DAMODARAN ... PERAYU

Preamble

whereas with structural scoliosis, surgery to the spine is required to correct the spine. Dr Kavitha concluded that no surgical intervention is required to correct the functional scoliosis. It requires the strengthening of her left shoulder muscles. [223] Dr Kavitha's clinical findings contradicted with what was shown on the X-Ray of Gurisha's spine. She had stated that there is mild curve of Gurisha's spine, convex to the right. However, Dr Sivanathan testified that looking at the X-Ray the spine was convex to the left. He demonstrated during the trial with the original X-Ray film, a light box and a ruler that Gurisha's spine was shown to convex to the left. During the trial, Dr Kavitha confirmed that she agreed with Dr Sivanathan that looking at the X-Ray, the spine is indeed convex to the left. She explained that her earlier erroneous finding was based on what was stated by the radiologist. 10 [224] According to Dr Sivananthan, Gurisha does not have scoliosis presently and that her chances of developing scoliosis in the future is that of any normal girl in her age group. I find that Dr Sivananthan's expert opinion to be reasonable, responsible, respectable and stands up to logical analysis. [225] Although Dr Kavitha is of the opinion that Gurisha has functional scoliosis and Dr Sivananthan is of the opinion that Gurisha does not have scoliosis, both experts are in agreement that Gurisha does not need any corrective surgery to her spine in the future. They were both of the opinion that Gurisha would only need physiotherapy and exercise to strengthen her left shoulder muscles. [Emphasis added] [11] Though there were some differences of opinion between Dr Sivanathan and Dr Kavitha, the learned trial judge ultimately chose the opinion of Dr Sivanathan for reasons found in the above passages. This puts into perspective the nature of Gurisha’s injury arising from her birth complications. What was initially stated to be serious and permanent lifelong injuries were in fact not that serious according to the latest available medical opinion. Delivery of Gurisha [12] The evidence shows that the 2nd Plaintiff preferred a normal delivery, which was attempted after careful consideration by Dr Premitha and discussion with Mdm Baljeet. However, due to the inability of the 2nd Plaintiff to deliver normally during labour, forceps were used by the 1st Defendant. With the instrument delivery the baby’s head was delivered with one pull. However, the umbilical cord was wound around the baby’s 11 neck. The umbilical cord was cut and separated by the 1st Defendant. At this juncture, there was no further descent and the baby’s shoulders were stuck in a transverse lie. According to the 1st Defendant, McRoberts manoeuvre was initiated and the 1st Defendant rotated the stuck baby by using her hands and managed to deliver her. The baby weighed 4.01kg with an Apgar score of 8/9. The baby had suffered brachial plexus injury to her left shoulder. The 2nd Plaintiff had a 1st degree fourchette tear that was sutured in 2 layers by the 1st Defendant. Haematosis was achieved and Volteran suppositories were inserted for pain relief. A few days later the 2nd Plaintiff was discharged after having been seen and attended to by Dr Kamaljit, an obstetrician and gynaecologist, standing in for the 1st Defendant who was on leave attending a medical conference. The law on medical negligence [13] The Federal Court in Kow Nan Seng v. Nagamah & Ors [1981] 1 LNS 208; [1982] 1 MLJ 128 speaking through Salleh Abbas FCJ (as he then was) observed: 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. (R v. Bateman [1925] All ER 45). Now, what was that reasonable standard of care and skill that the medical professional owed his patient? In Malaysia, the Bolam test on the standard 12 of care was the applicable law in medical negligence until the decision of the Federal Court in Foo Fio Na v. Dr Soo Fook Mun & Anor [2007] 1 CLJ 229 FC (“Foo Fio Na”). [14] The Bolam test was formulated by McNair J in Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582; [1957] 2 All ER 118, where the learned judge made the following remarks on the standard of proof in a medical negligence suit: 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 got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. And on the duty and standard of care of a doctor vis a vis a patient, McNair J made this pronouncement: 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 particular art... Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view. [15] The Bolam test simply meant that while the law imposed a duty of care, the standard of care owed by a doctor to a patient is left to the medical fraternity i.e., the "practice accepted as proper by a responsible body of medical men skilled in that particular art". In other words, for all 13 intends and purposes the medical practitioners had the final say as to whether there was negligence and not the courts. This was reaffirmed by the House of Lords in Sidaway v. Board of Governors of the Bethlem Royal Hospital [1985] AC 871, where Lord Scarman held: The Bolam principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice. In short, the law imposes the duty of care: but the standard of care is a matter of medical judgment. [16] The Bolam test was applied by Raja Azlan Shah J (as HRH then was) in Elizabeth Choo v. Government Of Malaysia & Anor [1960] 1 LNS 24, in the following terms: The principle of law is well established that a practitioner cannot be held negligent if he treads the well-worn path; he cannot be held negligent if he follows what is the general and approved practice in the situation with which he is faced. There is the judgment of the Privy Council in Vancouver General Hospital v. MacDaniel & Anor. [1934] 152 LJ 56 for such a proposition. I might also refer to a statement which is contained in a Scottish case, Hunter v. Harley [1955] SLT 213 at p. 217 where the Lord President (Lord Clyde) said this: In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion, and one man clearly is not negligent merely because his conclusion differs from that of other professional men.... The true test for establishing negligence in diagnosis or treatment on the part of a doctor whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of it acting with ordinary care. McNair J in Bolam v. Friern Hospital Committee [1951] 2 All ER 118 at p. put the matter in this way: 14 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 particular art... Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view. I think that disposes of this matter. [17] Subsequently, the Privy Council in Chin Keow v. Government of Malaysia & Anor [1967] 1 LNS 25; [1967] 2 MLJ 45 had in allowing an appeal from Malaysia reaffirmed the application of the Bolam test in a claim for medical negligence, where Sir Hugh Wooding stated: It was not in dispute that before prescribing or authorising the injection to be given Dr. Devadason did not inquire into the deceased's medical history. On the contrary, he frankly admitted this himself. So the sole question which Ong J. had to determine was whether any duty lay on the doctor to make such inquiry. For this purpose he adopted the test, in their lordships' opinion quite rightly, which was propounded by McNair J in Bolam v. Friern Hospital Management Committee... The application of the Bolam test in Malaysia is well rooted and in essence the principle did not permit the court to find the doctor negligent in preference to one body of distinguished professional opinion to another. [18] Then in Bolitho v. City and Hackney Health Authority [1997] 3 WLR 1151 Lord Browne-Wilkinson observed that 'in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold the body of opinion is not 15 reasonable or responsible' and thus reject that body of opinion. In this regard, Lord Browne-Wilkinson stated: My Lords, I agree with these submissions to the extent that, in my view, the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of the opinion that the defendant's treatment or diagnosis accorded with sound medical practice... The use of these adjectives - responsible, reasonable and respectable - all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter. ... ... These decisions demonstrate that in cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendant's conduct, the defendant can properly be held liable for negligence (I am not here considering questions of disclosure of risk). In my judgment that is because, in some cases, it cannot be demonstrated to the judge's satisfaction that the body of opinion relied upon is reasonable or responsible. In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are questions of assessment of the relative risks and benefits of adopting a particular medical practice, a reasonable view necessarily presupposes that the relative risks and benefits have been weighed by the experts in forming their opinions. But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible. 16 I emphasise that in my view it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable. The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence. [19] Hence, the qualification to the Bolam test made by Bolitho was that, if the body of medical opinion does not withstand logical analysis, the court may hold that such opinion is not reasonable or responsible and may then depart from it. In effect, Bolitho retained the Bolam test for all purposes in respect of medical negligence, but made it subject to the condition that for the expert opinion to be acceptable to the courts, it must be capable of withstanding logical analysis and reason. [20] The Bolam test as modified by Bolitho has been applied by the Malaysian courts for some time now, and that was the state of the law until the Federal Court decision in Foo Fio Na, which followed the Australian High Court decision in Rogers v. Maree Lynette Whitaker

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(1992) 175 CLR 479 (“Rogers v Whitaker”). The High Court of Australia in Rogers v Whitaker took the view that the standard of care and factors to determine whether there was a breach of duty vary according to whether it involves diagnosis, treatment or provision of information or advise, and in that regard held that: The duty of a medical practitioner to exercise reasonable care and skill in the provision of professional advice and treatment is a single comprehensive duty. 17 However, the factors according to which a court determines whether a medical practitioner is in breach of the requisite standard of care will vary according to whether it is a case involving diagnosis, treatment or the provision of information or advice; the different cases raise varying difficulties which require consideration of different factors... There is a fundamental difference between, on the one hand, diagnosis and treatment and, on the other hand, the provision of advice or information to a patient. In diagnosis and treatment, the patient's contribution is limited to the narration of symptoms and relevant history; the medical practitioner provides diagnosis and treatment according to his or her level of skill. However, except in cases of emergency or necessity, all medical treatment is preceded by the patient's choice to undergo it. In legal terms, the patient's consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended. Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play; whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical standards or practices. Except in those cases where there is a particular danger that the provision of all relevant information will harm an unusually nervous, disturbed or volatile patient, no special medical skill is involved in disclosing the information, including the risks attending the proposed treatment. The Australian High Court then concluded: The law should recognise that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the 18 risk, would be likely to attach significance to it. This duty is subject to the therapeutic privilege. [21] The Federal Court in Foo Fia Na adopted the test set out in Rogers v. Whitaker and held: [39] ... we are of the opinion that the Bolam Test has no relevance to the duty and standard of care of a medical practitioner in providing advice to a patient on the inherent and material risks of the proposed treatment. The practitioner is duty bound by law to inform his patient who is capable of understanding and appreciating such information of the risks involved in 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. " [78] ... there is a need for members of the medical profession to stand up to the wrongdoings, 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 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 a viable test of this millennium then [sic] the Bolam Test.... [22] Following Foo Fio Na, there arose two inconsistent lines of decisions by our courts on the standard of care in medical negligence. On one hand, there were decisions of the High Court and the Court of Appeal where it was held that the Bolam test no longer applied and that it was now for the courts to decide whether there has been a breach of the standard of care by a medical practitioner. On the other hand, there were 19 decisions of the High Court and Court of Appeal which emphasised that the test in Foo Fio Na and Rogers v. Whitaker relates only to a medical practitioner's duty to advise or provide information to a patient and this does not apply to the standard of care that is expected from a medical practitioner in respect of the duty to diagnose and to treat. [23] This anomalous situation was put to rest by the Federal Court in Zulhasnimar Hasan Basri & Anor v. Dr Kuppu Velumani P & Ors [2017] 8 CLJ 605 where it was held that the test in Rogers v. Whitaker, followed by Foo Fio Na, in regard to the standard of care in medical negligence is restricted only to the duty to advise the risks associated with any proposed treatment and does not extend to diagnosis or treatment. With regard to the standard of care for diagnosis or treatment, the Bolam test still applied, subject to the qualifications in Bolitho. The Federal Court was of the view that in “respect of the standard of care in medical negligence cases, a distinction must be made between diagnosis and treatment on the one hand and the duty to advise of risks on the other. This is because diagnosis and treatment are purely in the realm of medicine and in the field of medicine, there are genuine differences of professional opinion in respect of diagnosis and treatment.” 20 [24] With that, the law as to the standard of care in medical negligence cases in Malaysia was well settled. We shall now move on to consider the issues raised in the two appeals. The law on appellate intervention [25] We are mindful of our limited role as an appellate court in relation to findings of facts made by the court of first instance, and in this regard we are reminded of the pronouncement of this Court in Lee Ing Chin & Ors v. Gan Yook Chin & Anor [2003] 2 CLJ 19; [2003] 2 MLJ 97 to the following effect: ... an appellate court will not, generally speaking, intervene unless the trial court is shown to be plainly wrong in arriving at its decision. But appellate interference will take place in cases where there has been no or insufficient judicial appreciation of the evidence. The Federal Court in Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309 clarified that the test of "insufficient judicial appreciation of evidence" adopted by the Court of Appeal was in relation to the process of determining whether or not the trial court had arrived at its decision or findings correctly on the basis of the relevant law and the established evidence. [26] The Federal Court in Ming Holdings (M) Sdn Bhd v. Syed Azahari Noh Shahabudin & Anor [2010] 6 CLJ 857; [2010] 4 MLJ 577 reaffirmed 21 the principle of appellate intervention, and it is now trite that specific finding of facts by the trial judge as a trier of facts should not be disturbed by an appellate court unless that finding was plainly wrong. There could also be appellate intervention when there is insufficient judicial appreciation of evidence, such that the inferences and conclusions drawn by the learned trial judge is unsupported by the evidence or is simply untenable in law. A. The First Appeal [27] The Plaintiffs’ claim against the 1st Defendant is summarized in paragraphs 29 to 31 of the Grounds of Judgment: [29] The plaintiffs advanced two distinct grounds of negligence against D1 they relate to (i) Mdm. Baljeet's antenatal care; and (ii) the management of Mdm. Baljeet's labour and Gurisha's delivery. [30] The particulars of D1's negligence pleaded by the plaintiffs are as follows:

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(ii) Management of labour and delivery

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(ii) whether D1 should have advised Mdm. Baljeet on the risks and benefits of a caesarean section as opposed to a vaginal delivery;

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(iii) whether D1 should have disclosed to Mdm. Baljeet that she had insufficient experience in managing shoulder dystocia cases;

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(iv) whether D1 should have suspected the possibility of a shoulder dystocia complication;

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(vi) whether D1 should have contacted Dr Gunasegaran so as to get details of Soheil's birth and weight; and

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(vii) whether Mdm. Baljeet's perineal and vaginal injuries had been sufficiently identified, treated and managed? [27] The plaintiffs' claim against D2 are as follows:

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(ii) D2 is vicariously liable for its nurses and agents; and

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(iii) D2 owed a non-delegable duty of care to the plaintiffs? 24 [29] Several issues were raised in these appeals, which mirrored somewhat the issues raised at trial. We shall deal with them in that order. 1st Issue: Did the 1st Defendant inform the 2nd Plaintiff of the Caesarean Section option? [30] The crux of the 2nd Plaintiff’s complaint is that the 1st Defendant did not discuss with the 2nd Plaintiff nor offer her the choice of a Caesarean-Section (C-Section) delivery having known that she was carrying a large baby. The learned trial judge found in favour of the Plaintiffs in this regard and held that the 1st Defendant had failed to discharge her the duty of care owed to the 2nd Plaintiff. The finding by the learned trial judge is found at paragraphs 46 to 78 of the Grounds of Judgment. [31] The 2nd Plaintiff says that the 1st Defendant did not discuss the possibility of C-Section at all. The learned trial judge also concluded that the option of a C-Section was never discussed by the 1st Defendant as the attending physician with her patient the 2nd Plaintiff. However, we find that the contemporaneous documentary evidence shows otherwise, in that the 1st Defendant did discuss C-Section with the 2nd Plaintiff. This is also seen in the 1st Defendant’s notes recorded a day before the 2nd Plaintiff was admitted for induction of labour, where it is noted that the 2nd Plaintiff was not in favour of a C-Section and preferred a normal delivery by induction 25 of labour. The learned High Court Judge had also alluded to this piece of evidence in paragraph 21 of the Grounds of Judgment, where she noted: [21] On 12 May 2014, at 39 weeks four days gestation, Mdm. Baljeet consulted D1 and informed her that she had diarrhoea and had vomited overnight. On examination, Mdm. Baljeet was found to be dehydrated. Her blood pressure was 127/72 mm Hg and her weight was 92.5kg. Vaginal examination findings were the same as during the previous consultation. The estimated foetal weight was 3.8-4kg. D1's notes state that there was a discussion about induction or waiting until 41 weeks gestation. She noted "induction as Cx still unfavourable. - Needs overnight Prostin, then Syntocinon. If still fails, for LSCS (not keen). Want to try normal. Leave alone - await labour or induce at 41/52. Prefers induction with Prostin. Admit 13 May 14 for Prostin". According to the ultrasound report, the estimated foetal weight was 3.753 plus/minus 0.548kg and 3.649 plus/minus 0.533kg. [Emphasis added] [32] So clearly, the learned trial judge had noted that a discussion between the 1st Defendant and the 2nd Plaintiff on the possibility of a C-Section had taken place. In fact the Plaintiff’s expert Dr Milton Lum (SP5) had, based on the 1st Defendant’s clinical notes, stated in his Expert Opinion that “There was documentation that Dr PD discussed induction and Caesarean section ..” The learned High Court Judge had also referred to this evidence in her Grounds of Judgment. However, despite this contemporaneous documentary evidence, the learned trial judge concluded otherwise, and stated in her Grounds of Judgment that since, “... Dr Lum had given his evidence during the trial before D1, he did not have the opportunity to hear D1’s oral testimony that contrary to what was 26 stated in her medical notes or pleaded in her Amended defence, D1 admitted that she did not in fact discuss or offer Mdm Baljeet the option of a caesarean section during the ante-natal consultation or during the process of delivery.” In fact, that part about the 1st Defendant’s admission of not discussing or offering C-Section option to Mdm Baljeet stated by the learned trial judge in the Grounds of Judgment is erroneous as there is no such admission by the 1st Defendant. [33] The testimony of the 1st Defendant in respect of not offering C-Section to the 2nd Plaintiff was during labour itself and not prior to that during the antenatal consultations. This fact is noted by the learned trial judge by reference to the Notes of Proceedings as such: “There was no need for caesarean section at that time because the head was just sitting there ... I did not offer a caesarean section.” We pause here to note the fact that the 1st Defendant candidly admitted in her testimony that on the day of the delivery she “did not offer caesarean section ... There was no need for a c-section because the head was just sitting there.” However, there is evidence that there was discussion about C-Section delivery during the 2nd Plaintiff’s ante-natal visits. [34] Thus, when the evidence as a whole is scrutinized, we find that the purported admission by the 1st Defendant that she had not discussed or offered the option of C-Section is a clear misdirection on the part of the 27 learned trial judge. The learned trial judge seems to have equated and conflated the 1st Defendant’s admission that she did not offer the option of C-Section during labour to the discussion that took place between the 1st Defendant and the 2nd Plaintiff the day before, which is documented in the 1st Defendant’s clinical notes. The 1st Defendant’s testimony cannot possibly relate to the discussion that took place the day before, because the 1st Defendant’s clear reference to the “head was just sitting there”, i.e. baby Gurisha’s head during birthing, could only mean that she was referring to what transpired during labour and delivery, and not prior to that. Hence, that testimony of the 1st Defendant cannot be construed to refer to the discussion between the 1st Defendant and 2nd Plaintiff the day before. The 1st Defendant had always maintained that she had long discussions with the 2nd Plaintiff, which included discussions on C-Section, but unfortunately only noted it once in her clinical notes. [35] Hence, we find that the learned trial judge’s conclusion at paragraph 48 of the Grounds of Judgment to the effect that the 1st Defendant’s testimony supported the 2nd Plaintiff’s contention that C-Section was never discussed is plainly wrong. The said paragraph 48 of the Grounds of Judgment reads: [48] D1's admission corresponds with Mdm. Baljeet's testimony that D1 never offered her a caesarean section. Mdm. Baljeet when questioned on this issue by D1's counsel during cross-examination, answered as follows: 28 D1's Counsel: So when she offered you C-section, why did you deny it? P2: She did not offer me a C-section, not at any point during the discussion or at any point during the delivery process itself. [36] This erroneous finding of the learned trial judge is further compounded by her finding at paragraph 68 of the Grounds of Judgment that: “The evidence shows that during the ante-natal visits, the 1st Defendant did not inform Mdm Baljeet of the option of delivery by way of caesarean section. As D1 herself admitted under cross examination, she did not inform Mdm Baljeet of the option of a caesarean and her claim that she did so in the Amended Defence was also untrue.” [37] We are of the view that that the above finding of the learned High Court Judge is contrary to the evidence that was presented at trial. In fact it does grave injustice to the professional standing of the 1st Defendant. We agree with submissions of learned counsel for the 1st Defendant that contrary to what the learned trial judge held, the evidence showed that the 1st Defendant did inform and discuss with the 2nd Plaintiff the option of a C-Section during ante-natal consultation. There is uncontroverted evidence in the 1st Defendant’s clinical notes to the effect that the 2nd Plaintiff wanted to try normal delivery via induction and was not keen on C-Section, which would have its own attendant risk. This is borne out by the following entry in the 1st Defendant’s clinal notes: 29 “... induction as Cx still unfavourable. Needs overnight Prostin, then Syntocinon. If still fails, for LSCS (not keen). Want to try normal. Leave alone – await labour or induce at 41/52. Prefers induction with Prostin. Admit 13/05/14 for Prostin.” [Emphasis added] [38] Further, there is evidence that the 2nd Plaintiff’s first child, Soheil, a large baby weighing 4.54kg (as informed by the 2nd Plaintiff to the 1st Defendant) was delivered via normal vaginal delivery. According to the 1st Defendant, the weight of the first child and the method of that baby’s delivery was an important factor that had a bearing on her clinical judgment to go for normal delivery, which was preferred by the 2nd Plaintiff. In this regard, the 1st Defendant explained at trial that since the baby (Gurisha) in the 2nd Plaintiff’s womb was estimated to weigh between 3.8kg to 4kg she had discussed the delivery option with the 2nd Plaintiff and this is recorded in the Notes of Proceedings in the following terms: “We were always looking at a vaginal delivery initially because if the fact that a 4.5kg baby can come through her, then the chances of a 3.8kgs to 4.0kgs would be quite successful. The option for a C-section was also discussed but it came out in the context of if the induction fails, then there would be the option for a C-section. She did not seem happy about it but I had to tell her that this is how it works, sometime inductions don’t work. And if induction fails, then the only way to deliver this baby would be by a C-section”. [39] However, in contrast to these evidence, the 2nd Plaintiff testified that the 1st Defendant did not “...offer me a C-Section, not at any point during the discussion or at any point during the delivery process itself.” This 30 assertion is obviously not borne out by the evidence. And in fact the contrary is evident, in that the possibility of C-Section was discussed prior to the 2nd Plaintiff’s induced labour. This fact is also borne out by the WhatsApp text message exchange between the 2nd Plaintiff and the 1st Defendant. In that text message exchange the 1st Defendant had in one of the messages said: “Hi. Just wanted you to do some reading in advance abt warts and childbirth. Most of us DO NOT do a C-section for warts unless it is blocking the vaginal passage. The risks are very very small to passage baby, I would like you to do some independent reading abt it so that both of you are comfortable abt it before we discuss it further on Monday.” And the reply to that from the 2nd Plaintiff was: “Ok thanks! I have been reading up too was a bit worried earlier. Felt a bit relieved. Its also due to extra moisture bladder control...” So, there is clear evidence that the 2nd Plaintiff and 1st Defendant did discuss the C-Section option via text messaging and in person at the 1st Defendant’s clinic before induction of labour the next day. It was only during labour that there was no further discussion of C-Section, as the need for it did not present itself then. [40] Thus, we find that there is ample evidence supporting the 1st Defendant’s contention that she did discuss the option of the C-Section 31 with the 2nd Plaintiff, and the assertion to the contrary by the 2nd Plaintiff that there was no discussion at all on C-Section is negated by credible documentary and oral evidence. [41] Hence, we find that the learned trial judge had misdirected herself when she concluded that the 2nd Defendant did not discuss nor offer the option of C-Section delivery to the 2nd Plaintiff. This plainly wrong conclusion needs to be corrected by appellate intervention. 2nd Issue – Did the 2nd Plaintiff mislead the 1st Defendant by misinforming the 1st Defendant that her earlier baby delivered by normal vaginal delivery had weighed 4.54kgs when in fact it weighed only 3.8kgs at birth? [42] Evidence showed that the 2nd Plaintiff is a highly intelligent lady, a graduate of Cambridge University with a 1st Class Honours in Economics. She had extensive experience in finance and was then the Managing Director of Strategy and Portfolio Investment of Samruk Kazyna, the Sovereign Wealth Fund of Kazakhstan. [43] The 1st Defendant testified that the 2nd Plaintiff had given a very comprehensive, exhaustive and precise medical and family history when she first consulted the 1st Defendant. The 1st Defendant states that the 2nd Plaintiff had stated quite categorically that the birth weight of her first 32 born, a boy named Soheil, was 4.54kgs, and that information is recorded in her clinical notes. The 1st Defendant further states that the birth weight of the 2nd Plaintiff’s first child is an important factor to be taken into consideration in the management of the 2nd Plaintiff’s pregnancy and delivery. The 1st Defendant stated in her Amended Defence, as she did in her testimony during trial, that Soheil’s birth weight of 4.54kgs was one of the primary considerations in she deciding that the 2nd Plaintiff would be able to deliver Gurisha, whose weight was estimated at between 3.8kgs to 4kgs, by normal vaginal delivery, which was the mode of delivery preferred by the 2nd Plaintiff. [44] However, both the 2nd Plaintiff and her husband in their oral testimony denied that assertion and said that they never told the 1st Defendant that Soheil’s birth weight was 4.54kgs, and were adamant that they had told the 1st Defendant that Soheil’s birth weight was “approximately 4kgs”. [45] The learned trial judge rejected the 1st Defendant’s assertion that she was informed by Gurisha’s parents that Soheil’s birth weight was 4.54kgs, which assertion was backed by entries in contemporaneous documents, and instead chose the oral testimony of the 2nd Plaintiff and her husband. In this regard, the learned High Court Judge said this at paragraph 132 of her Grounds of Judgment: 33 “From the evidence available before this court, I find that D1 had failed to prove on a balance of probabilities that Mdm Baljeet and her husband had informed D1 that Soheil’s birth weight was 4.54kg. D1’s contention is based on her own record of the first consultation she had with Mdm Baljeet. Both Mdm Baljeet and her husband had denied that they told D1 that Soheil’s birth weight was 5.54kg. Also. In their respective witness statements they had stated that Soheil’s birth weight was “approximately 4kg.” [46] The 2nd Plaintiff when testifying in court said that she was shocked to learn sometime in November 2016 that the 1st Defendant was claiming that Soheil’s birth weight communicated to her earlier was 4.54kgs. However, the evidence showed that apart from the initial entry in the 1st Defendant’s notes recorded on the first consultation with the 2nd Plaintiff, Soheil’s birth weight was also listed as 4.54kgs in the insurance form for the 2nd Plaintiff which was filled in by the 1st Defendant. The 2nd Plaintiff admits receipt of this insurance form on 30.3.2014 but claims ignorance of the contents. If indeed Soheil’s birth weight was wrongly stated by the 1st Defendant then the 2nd Plaintiff should have corrected it. But she did not. [47] Then at the grievance meeting called by Pantai Hospital following the 2nd Plaintiff’s complaint, the 1st Defendant brought up the fact that Soheil’s birth weight was 4.54kgs on two occasions during the meeting, but the 2nd Plaintiff did not correct the 1st Defendant by stating Soheil’s correct birth weight, which was a fact known to the 2nd Plaintiff and her 34 husband who was present at the meeting. When questioned on this the 2nd Plaintiff answered that she did not correct the 1st Defendant apparently because Soheil’s birth weight chart was at home and that it was of no relevance at the meeting. How such an important piece of information could be regarded by the 2nd Plaintiff to be irrelevant to the issue at hand is baffling, when the 1st Defendant was maintaining her stand that her management of the 2nd Plaintiff’s pregnancy and the delivery option was very much dependent on the birth weight of her first child. [48] At trial the 1st Defendant, in reasserting the importance of the correctness of Soheil’s actual birth weight, testified as to what had transpired at the grievance meeting in the following terms: “The meeting was to let both sides talk about it and Mr Taranjeet actually mentioned that he was unhappy with the way things went and things like that. And then, at the end of it, Dr Narayanan then asked me to give my opinion about the whole thing. So I went in detail and spoke to them about the antenatal, about how I was told that the baby was 4.54kgs and how my management depended on that and that this baby is 4kgs and it should actually come out because of the fact that if a 4.5kgs baby can come out, I was surprised that a 4kgs baby couldn’t come out except this baby came out with the shoulders in that transverse diameter and because of that, that’s what actually caused a lot of the problems. We discussed induction how induction was a good idea because we did not want the baby to be as big as the previous one. In no way, during that one-hour meeting, was there any objection to me mentioning that I was told that the previous weight was 4.54kgs. Mr Taranjeet did not object, neither did the father.” [Emphasis added] 35 [49] At the grievance meeting, the 2nd Plaintiff’s father, Dr Jaswant Singh, was also present. So was her husband Mr Taranjeet Singh. If indeed what the 1st Defendant had said at the meeting was untrue, as now alleged by the Plaintiffs, then it would have been incumbent upon the 2nd Plaintiff, her husband and her father to have objected to what the 1st Defendant said about Soheil’s birth weight and corrected her, and immediately taken her to task for stating something that was untrue. This, however, was not done. The 2nd Plaintiff’s husband Mr Taranjeet in cross-examination when questioned why he did not refute the 1st Defendant’s assertion of Soheil’s birth weight being 4.54kgs during the grievance meeting, he answered: “I was not there to say it was wrong, I just wanted to hear. And so, when the doctor mentioned, I was not there to argue because I could sense there will be a situation for trial, I could sense it. I am not going to go out there and display things that I have, no, of course not ... So to your question Ma’am, the answer was ‘I did not dispute this’. [50] We find the answer to be wholly unsatisfactory in the circumstances of the meeting which was called to discuss the Plaintiffs’ grievance and complaint of improper professional care given by the Defendants. Surely, the import and purpose of that meeting was to get answers as to what had transpired. If the basis of the 1st Defendant’s advice, treatment and care given to the 2nd Plaintiff was premised on the erroneous birth weight of 36 Soheil, it ought to have been corrected there and then, and the 1st Defendant confronted on such a lapse of judgment immediately. [51] Hence, the 1st Defendant’s assertion at the grievance meeting that her management of the 2nd Plaintiff was premised on the medical and family history that the 2nd Plaintiff had given, including the birth weight of Soheil, was never refuted nor challenged by the Plaintiffs. [52] Additionally, on 17 December 2014, in response to the Plaintiffs’ solicitor’s request before the suit was filed, the 1st Defendant furnished a medical report regarding the 2nd Plaintiff’s admission and treatment at Pantai Hospital and her delivery of Gurisha. The second paragraph of that medical report states: “Her first pregnancy had been in 2003. She had delivered a 4.54kg baby at Damansara ...”. Despite this assertion, the 2nd Plaintiff testified that she was shocked to find out sometime in November 2016, i.e. some two years later, that the birth weight of Soheil was noted by the 1st Defendant as 4.54kgs, when in fact that medical report was made available to the Plaintiff’s solicitors well before the Writ was filed. [53] The evidence showed that the 1st Defendant had been consistently stating Soheil’s birth weight in several contemporaneous documents as 4.54kgs and these were never refuted by the 2nd Plaintiff. In fact the Plaintiffs’ own expert witness Dr Milton Lum had stated Soheil’s birth weight in his report as 4.54kgs. At the very least one would have expected 37 the Plaintiffs to have corrected their own expert’s erroneous statement of fact in his report, and yet this was also not done. [54] Further, when the Plaintiffs filed their Writ and Statement of Claim on 7 December 2015, the Plaintiffs made no mention of this erroneous recording of Soheil’s birth weight as 4.54kgs in the 1st Defendant’s clinical notes. Neither was there a denial of the 1st Defendant’s statement in her medical report of 17 December 2014 that the 2nd Plaintiff’s “... first pregnancy had been in 2003. She had delivered a 4.54kg baby at Damansara ...”. Soheil’s birth weight is undoubtedly a crucial and pivotal point, especially when Gurisha was a larger than normal baby, yet the Plaintiffs’ Statement of Claim remained silent on it. [55] In addition to that, the 1st Defendant’s expert Dr Theva Raj after having taken history directly from the 2nd Plaintiff had also recorded Soheil’s birth weight as 4.54kgs in his report dated 7 September 2016. Neither was this ever corrected by the Plaintiffs. [56] It was only in November 2016, on the 1st day of trial scheduled before John O’Hara J that the Plaintiffs for the first time ever disclose Soheil’s birth chart. By then all Bundles of Documents had been filed including the 1st Defendant’s medical notes, the insurance document, medical reports and expert reports all containing Soheil’s birth weight as 38 4.54kgs. This eleventh hour disclosure necessitated an adjournment of the trial and the need for the 1st Defendant to amend her Defence. [57] It is common ground that the 2nd Plaintiff always had in her possession Soheil’s birth weight chart documenting his birth weight as 3.8kgs. This was however never shown to the 1st Defendant, nor produced in the Bundle of Documents, prior to that aborted 1st day of trial. In light of this eleventh hour revelation, the 1st Defendant amended her Defence, and subsequently testified at length that had she been given the correct birth weight of Soheil by the 2nd Plaintiff when she had first taken her medical history, then the entire management of the 2nd Plaintiff would have been different. The 1st Defendant said that she would have insisted on a C-Section, and there was no way she would have agreed to a vaginal delivery of a baby the size of Gurisha had she known of the weight of the 2nd Plaintiff’s first baby was 3.8kgs. The 1st Defendant had further testified: “This vital information is very important because in my mind then, she at 42 weeks had delivered a, lets out it at 4.5kg baby and thus I then would imagine that the chances of the next baby being almost the same size or even bigger is very high. So during the antenatal visits, I have to then watch the size of the baby during my ultrasound and during my measurements of her tummy to advise her accordingly of what would be the potential size of this baby at delivery because that would be then very important for the type of delivery that she is going to have. Now, during these conversations there was a lot said about how she did not wasn’t this baby, the second pregnancy, to be as big as the first one, this was emphasized over and over again.” 39 [58] In this regard, we agree with submissions of counsel for the 1st Defendant that the uncontested documentary evidence, and the conduct of the 2nd Plaintiff leading up to the trial, clearly shows that the 2nd Plaintiff had misinformed the 1st Defendant of Soheil’s birth weight right from the very beginning thus setting the 1st Defendant on a path of management of the 2nd Plaintiff’s pregnancy and delivery based on that misinformation. Hence, we find that the learned trial judge had erred and misdirected herself when she disregarded all these evidence, particularly the contemporaneous documentary evidence, and made a finding that “D1 had failed to prove on a balance of probabilities that Mdm Baljeet and her husband had informed D1 that Soheil’s birth weight was 4.54kg” based solely on the self-serving oral testimony of the 2nd Plaintiff and her husband. The learned High Court Judge had failed to critically analyse and evaluate the Plaintiffs’ contemporaneous conduct in this regard. See Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] 1 LNS 119 where the Federal Court held: Judicial reception of evidence requires that the oral evidence be critically tested against the whole of the other evidence and the circumstances of the case. Subsequently, the then Supreme Court in Eastern & Oriental Hotel (1951) Sdn Bhd v Ellarious George Fernandez & Anor [1989] 1 MLJ 35 speaking through Wan Hamzah SCJ after quoting with approval the following observation made in “The Ocean Frost” [1985] 1 Lloyd Rep 1, had stated: 40 It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents to the witnesses’ motives, and to the overall probabilities can be of very great assistance to a judge in ascertaining the truth, said: In commercial cases there is usually a substantial body of contemporary documentary evidence. This is not strictly speaking a commercial case, but the relevancy of contemporaneous documents nevertheless holds true. This was reiterated by Siti Norma Yaakob JCA (later CJM) in Guan Teik Sdn Bhd v Hj Mohd Noor Hj Yakob & Ors [2000] 4 CLJ 324, speaking for the Court of Appeal: In cases where conflicting evidence are presented before a court, it is the duty of the court not only to weigh such evidence on a balance of probabilities but it is also incumbent upon the court to look at all the surrounding factors and weigh and evaluate contemporaneous documents that may tend to establish the truth or otherwise of a given fact. The learned trial judge ought to have tested the 2nd Plaintiffs’ oral evidence, and that of her husband, against the entirety of the evidence and circumstances of the case, to draw the appropriate inference and conclusion in order to ascertain where the overall probabilities lie. However, the learned trial judge failed to do so, and merely accepted the self-serving oral testimony of the 2nd Plaintiff and her husband in contradiction to the evidence contained in the contemporaneous documentary evidence. The failure to do so indicates that there is 41 insufficient judicial scrutiny and appreciation of the evidence, which warrants appellate intervention. [59] There is a duty on the learned trial judge to consider all these pieces of credible documentary evidence instead of accepting inherently improbable and partial oral testimony, as noted by this court in Theow Say Kow @ Teoh Kiang Seng, Henry v. Graceful Frontier Sdn Bhd & Ors [2020] 1 LNS 52: “All these pieces of strong and credible evidence ought to have been considered by the learned Judge instead of accepting inherently improbable evidence, which frequently came across as contrived and partial. Having carefully perused the records of appeal and having considered the submissions and the grounds of judgment, we find ourselves in full agreement with learned counsel for the appellant that the evaluation and appreciation of evidence was not fair or balanced. Relevant contemporaneous documents such as those that we have discussed above were not considered or properly examined with the learned Judge frequently misdirecting himself. In these circumstances, the decision reached was plainly wrong and was one which no reasonable judge could have reached.” [Emphasis added] [60] We have noted that the 1st Defendant is a consultant obstetrician and gynaecologist who obtained her basic MBBS qualification from the University of Delhi in 1989. She did her district posting as Medical Officer in Malaysia in Klang and Tanjung Karang, Selangor and went on to graduate from University of Malaya with Masters of Medicine (Obstetrics and Gynaecology) in 1995. She then served for 5 years as an Associate 42 Professor in the Department of Obstetrics & Gynaecology at University Malaya. She served 11 to 12 years in total in government service before going into private practice at Pantai Hospital in 2001. [61] We have further noted that the 1st Defendant’s clinical notes on the history of the 2nd Plaintiff were comprehensive and exhaustive. The only point of contention is the birth weight of Soheil, which the 2nd Plaintiff and her husband Mr Taranjeet now contend was given merely as “approximately 4kgs” and not 4.54kgs as noted by the 1st Defendant. It is highly improbable that a physician of the 1st Defendant’s calibre and experience would have just plucked a figure of 4.54kgs out of thin air, and that too right down to 2 decimal points. [62] In this regard, we agree with submissions of learned counsel for the 1st Defendant that Soheil’s birth weight was a crucial piece of information, and if the Plaintiffs’ version that they had merely given Soheil’s approximate and not exact birth weight is correct, then it must necessarily mean that the 1st Defendant, an established and reputable medical specialist with almost 30 years’ experience still somehow managed to misunderstand the 2nd Plaintiff and her husband, and had mixed up the precise figure of 4.54kgs with “approximately 4kgs”. [63] And additionally, it would mean that this mistaken figure was then erroneously entered into the medical records by the 1st Defendant, not 43 only in the clinical notes, but also her medical report, insurance form, and orally repeated at the grievance meeting. And strangely this mistaken figure is repeated by the Plaintiff’s own expert, Dr Milton Lum, and by the 1st Defendant’s expert Dr Theva Raj, after having taken history directly from the 2nd Plaintiff, without any attempt by the 2nd Plaintiff to correct it. [64] The conduct of the Plaintiffs in not correcting all these entries, if indeed Soheil’s birth weight was wrongly stated, speaks volumes about their contention that they were shocked to find out about it only sometime in November 2016. The 2nd Plaintiff had known of it much earlier and chose not to challenge that. Hence, the irresistible conclusion to be drawn from all these evidence is that the 2nd Plaintiff had misinformed the 1st Defendant about Soheil’s birth weight, and then contrived to hide that fact when it became evident to her that the actual birth weight of Soheil was a crucial piece of information for the 1st Defendant in her management of the 2nd Plaintiff’s pregnancy and delivery. [65] Hence, had the learned trial judge applied the law correctly and asked herself the right question, that is, whether the defence version is consistent with the probabilities of the case, she would have as a reasonable tribunal rejected the Plaintiffs’ version as improbable and accepted the 1st Defendant’s version. This failure on the part of learned 44 trial judge has cause a miscarriage of justice that warrants appellate intervention. 3rd Issue – Was the 1st Defendant entitled to rely on the history provided by the 2nd Plaintiff to plan the management of the pregnancy and delivery of the baby? [66] The 1st Defendant did take a very comprehensive and detailed medical and family history of the 2nd Plaintiff, which would be necessary for the 1st Defendant’s management and treatment of the 2nd Plaintiff’s pregnancy. However, the learned High Court Judge in her Grounds of Judgment held that: “D1 as her attending obstetrician should have informed her that providing an accurate birth weight of her older son is important for D1 to advise her of the appropriate delivery options.” We respectfully disagree with that postulation. A physician is required by law to take the patient’s history. However, we do not find any principle in law that imposed a duty on the physician to explain to the patient that giving an accurate and truthful history is important. It is implicit in the history taking exercise itself that the history that is given by the patient must be accurate, otherwise it may mislead and misdirect the physician in his treatment and management of the patient. If the 1st Defendant in the course of the antenatal consultations had neglected to ask the 2nd Plaintiff 45 about her medical history and Soheil’s birth weight and the mode of delivery, then it could be said that the 1st Defendant had breached her duty of care. However, here the 1st Defendant did ask specifically for Soheil’s birth weight and mode of delivery. The issue only relates to what was the answer given by the 2nd Plaintiff, which was recorded by the 1st Defendant. The 1st Defendant recorded the answer that was given, which recording is now contested by the Plaintiffs as inaccurate. [67] The law cannot impose a burden on an attending physician to inform or warn the patient to give accurate answers to the questions posed during history taking, or for that matter to ensure that the patient’s answers are accurate and truthful. The patient ought to know of his own duty to speak truthfully and give accurate information to the attending physician, which information could form the basis of diagnosis and the treatment plan. To place an added burden on the 1st Defendant, or for that matter on any attending physician, to not only take the patient’s history but also to convince the 2nd Plaintiff that the history must be accurate is not a duty recognized in law. The duty is in fact on the patient to give accurate information and history when the same is asked by the physician. [68] We are of the considered view that it is not imperative or wise to impose a general duty on physicians to make enquiries from their patient’s previous physicians or hospitals as to the patient’s medical history. Whilst 46 there is a duty on the physician to take proper history of the patient, we cannot expand that duty to include a requirement for the physician to reach out to the patient’s previous physicians or hospitals. As explained earlier, if the facts of a particular case requires the previous medical history that the patient himself was unable to provide, or provide with some degree of accuracy or completeness, then the physician may have to reach out to the previous physicians or hospitals with the patient’s consent. That is a judgment call best left to the physician. [69] In the circumstances, we see no useful purpose in imposing a general duty on a doctor to make any enquires from the patient’s previous doctors or hospitals. Such a duty if imposed would be counterproductive as medical professionals would be obligated to spend considerable amount of time and energy tracking down physicians and hospitals from the patient’s past, failing which they would leave themselves open to allegations of malpractice. Such a burden, if imposed, would also mean that doctors would be unable to safely rely on the oral history given by a patient, even if they are properly documented and no matter how clear and exhaustive. The patients too would be inundated with increased costs arising from defensive medical practice. That cannot be in the best interest of the patient nor the medical profession. Let us be clear, the law does not 47 and would not impose such an onerous general duty on physicians that would have a crippling effect on the medical profession as a whole. [70] In this case, the 1st Defendant testified that in respect of taking patient’s history, she had done that when she first met the 2nd Plaintiff and her husband during the initial antenatal consultation. The 1st Defendant testified that she had taken a detailed history from both the 2nd Plaintiff and her husband Mr Taranjeet. She said that it was: “... told to me by Mdm Baljeet and Mr Taranjeet when I was asking them details of their previous delivery and they were very specific and I was told the weight up to decimal points. History taking in the first visit is very important and if you go back to the same page, [of D1’s notes] there were very detailed remarks about her past medical history in terms of slipped disc, about kidney stones, about how her mother’s borderline blood pressure, all these things are taken in detail during that first visit, along with details of the first delivery, where it was conducted, how many weeks pregnant she was, was it a spontaneous labour or in this case, she told me that it was an induced labour because she had gone beyond her dates.” [71] Hence, there is ample evidence showing that the 1st Defendant had discharged her duty to take proper patient’s history when she saw the 2nd Plaintiff and her husband at the first consultation. Counsel for the Plaintiffs urged this court to rule that there was a duty imposed upon the 1st Defendant after taking history from the 2nd Plaintiff to make further enquiries from the 2nd Plaintiff’s previous physician to ascertain the accuracy and veracity of the information given by the 2nd Plaintiff. We do 48 not find any cogent reason for this court to impose such a duty on an attending doctor. If the history given by the patient is sketchy or wanting in any respect, then it must be left to the doctor to make a clinical judgment as to whether such further enquiry is required. We agree with counsel for the 1st Defendant that unless there is manifest reason to suspect that the history given is materially incorrect or incomplete, doctors should be allowed to rely on their clinical judgment to decide how far one needs to go to ascertain whether the quantity and quality of the patient’s history proffered is adequate and sufficient for the doctor to give proper medical advice and to devise a plan of treatment and care that is safe and effective for that particular patient. Here, the 1st Defendant states that the 2nd Plaintiff described her first child’s birth weight right down to the decimals, and the same is recorded by the 1st Defendant in her notes. There is nothing to indicate that the 2nd Plaintiff, nor her husband, were uncertain of Soheil’s birth weight. [72] If indeed it was established that the 2nd Plaintiff had offered imprecise history with vague or ambiguous details, then perhaps it could be argued that the 2nd Defendant should have made further enquiries, including perhaps obtaining the 2nd Plaintiff’s consent to reach out to her previous obstetrician/gynaecologist who had attended to the delivery of Soheil. In rejecting this argument by counsel for the Plaintiffs, we take 49 note of the fact that the 2nd Plaintiff had given quite a detailed medical history of herself, including her mother, and the only point of contention is the birth weight of Soheil as recorded by the 1st Defendant in her notes. In the circumstances, and on the face of it, it cannot be gainsaid that the quality of history given by the 2nd Plaintiff was wanting or that the 1st Defendant had been put on notice to make further enquiries. Given the fact that the 2nd Plaintiff was a highly educated women, and that both husband and wife were present when the patient’s and family medical history was taken, and the detailed history that was given, we do not find any reason at all for the 1st Defendant to have made further enquiries with the 2nd Plaintiff’s previous physician, particularly in respect of Soheil’s birth weight, when his birth weight right down to two decimal points were given and recorded. [73] Hence, the simple answer to this 3rd issue is that the 1st Defendant was entirely justified in relying on the information given by the 2nd Plaintiff as part of her medical history, including the birth weight of Soheil and the manner of his delivery, in formulating her treatment plan and advising on the delivery option. We do not find any breach of duty in this regard by the 1st Defendant. 4th Issue – Did the 1st Defendant fail in her duty to properly advice, inform and warn the 2nd Plaintiff of the risks of a normal delivery? 50 [74] The law imposes a general duty on a physician to properly advice and inform the patient of the treatment options, and the attendant risk. Here, the 2nd Plaintiff’s preference was for a normal delivery. However, if the medical condition of the patient was such that a normal delivery would have heightened risk, then in would be incumbent upon the 1st Defendant to inform, advice and warn the 2nd Plaintiff of those risk and discuss alternative delivery options. The 2nd Plaintiff complains that the 1st Defendant did not do so considering the baby was large and there could be inherent complications in a normal delivery of such a large baby. In respect of this issue, the learned trial judge held as follows: “Therefore, based on the applicable law, whether or not Mdm Baljeet gave D1 the correct birth weight for her elder son, it does not remove D1’s duty as a doctor to advise her patient, Mdm Baljeet, of the available delivery options and the pros and cons of each option so as to enable Mdm Baljeet to make informed choice. The evidence shows that D1 did not discuss with Mdm Baljeet the option of delivery by Caesarean section and the risk of shoulder dystocia; nor did she discuss the pros and cons of vaginal delivery and delivery by way of caesarian section. Although, D1 noted that the baby in utero was a “big baby” and that the baby’s estimated feotal l weight was 3.8 – 4kgs, she failed to advise Mdm Baljeet that there is a high risk that the baby will be macrosomic. She also failed to advise Mdm Baljeet that there is a risk of shoulder dystocia during the vaginal delivery of a macrosomic baby. As the UH study concluded, macrosomia is a predictor of shoulder dystocia in babies weighing 3.5kgs or more.” The learned judge added: 51 “Also, as Dr Milton Lum testified, babies generally are larger as birth order increases. These are facts known as a consultant obstetrician and gynaecologist but not to Mdm Baljeet, who as the patient is owed a duty of care by D1 to advise her and provide her with all this information.” [75] In short the learned trial judge found that the 1st Defendant had failed to discharge her duty to properly advice, inform and warn the 2nd Plaintiff on the delivery options. [76] We agree with learned counsel for the 1st Defendant that this issue cannot be dealt with in isolation, as it is intrinsically linked to the question of whether the 2nd Plaintiff had given proper and accurate history at the outset, particularly whether the 2nd Plaintiff had given the accurate birth weight of her first born child. This information is crucial to the 1st Defendant in her management plan for the 2nd Plaintiff as the correct birth weight of the first child would have been one of the determining factors in the type of delivery option that the 1st Defendant would have recommended or taken. This was in fact confirmed by the 1st Defendant in her testimony at trial, where she said: “The issue of 3.8kg only came in 2 years later, from 14.5.14 that we were informed that the baby was 4.54kgs. It changes the whole scenario because we doctors depend on information that’s given to us during the visits to the hospital. Now, if I am told that a baby was 2 weeks post-date, that means 42 weeks of pregnancy and at that point, the baby was 3.8kgs and I’m trying to deliver a 52 baby at 40 weeks, I have to minus a few grams. Now, normally a normal baby at 40 weeks, that baby should be 3.5kgs and less. Now, she had a vacuum delivery for a 3.8kgs at 42 weeks. I cannot afford to have a baby that’s weighing 3.8kgs to 4kgs at 40 weeks of pregnancy. I would have then changed the whole scenario and said, let’s get a C-section done because it is very important that, if this baby is going to get bigger, then the chances are that you’re going to have a higher risk of instrumental deliveries, a higher risk of vaginal tears or even, in the worst case scenario, running with you for an emergency C-section and that’s not what I would have wanted for her. So information that is given to us by the patient is critical because it plays a big role in how we manage them in subsequent pregnancies.” The 1st Defendant added: “So we had a healthy young women, we had a reasonably sized baby, we were inducing at 40 weeks, the question of C-section came in only if there was an emergency. So that was the discussion that went on most of the time.” [77] Obviously, the 1st Defendant’s management of the 2nd Plaintiff was premised on the believe that if the 2nd Plaintiff had been able to give safe passage to a 4.54kgs baby, then so long as the 1st Defendant took the necessary precaution to ensure that the present baby’s weight did not exceed 4kgs then there is no appreciable or increased risk of shoulder dystocia. This is not only logical, but is medically supported. The 1st Defendant did precisely that based on the information that was given by the 2nd Plaintiff. In the circumstance, to heap blame unto the 1st Defendant for not discussing a possible C-Section because of the size of the baby, 53 is to our mind, wholly untenable self-serving post-delivery blame game, which, with respect, the learned trial judge ought to have rejected. [78] Further, it was argued that since the baby’s estimated weight was more than 3.5kgs, it was by reference to the University Hospital standards a macrosomic baby. The risk of shoulder dystocia is higher with macrosomic babies and hence a C-Section delivery would have been more appropriate. However, when this was asked of the Plaintiffs’ expert witness Dr Milton Lum, he said that whether the baby is macrosomic is relative and it depends on what definition is used. He explained: “Well it depends whether you use a western definition or Malaysian definition. In the paper that I referred to from University Malaya, which is found on page 30, they use a definition of 3.5kgs, right at the top. ‘Objective to determine if shoulder dystocia can be predicted in babies born weighing 3.5kgs or more’, so they use that definition. But if you are looking at papers from Europe, North America or Australia, they would be using a definition of 4kgs or 4.5kgs. So it depends on which setting that you are practicing in.” [79] It is obvious from the expert evidence that the definition and measure of a macrosomic baby not only refers to the foetal weight but also depends on the height and built of the mother. In Europe, Australia and North America, where the women are generally taller and bigger built, they are expected to deliver larger babies of between 4 to 4.5kgs without the risk of shoulder dystocia, and as such, babies below 4 to 4.5kgs are not considered macrosomic. However, in Asia, particularly Malaysia, 54 women are not as tall and are of smaller built and as such babies above 3.5kgs are considered macrosomic. Now, even though we are in a Malaysian setting, the 2nd Plaintiff, standing at 172cm (174cm in some other records) is not of the normal Asian built. In fact she would be more akin to European/North American women in height and built. Hence, to apply the University Hospital standards universally to all women who give birth in Malaysia would not be accurate in the circumstance. Hence, in applying the University Hospital standards on macrosomic babies, regard must be had to and consideration given to the actual height and built of the mother and the antecedent history of the mother’s previous deliveries. Thus, when viewed against the backdrop of the 1st Defendant’s understanding that the 2nd Plaintiff was able to deliver a 4.54kgs baby earlier and the fact that the 2nd Plaintiff is a tall women at 172cm, and in view of the variance in the literature of what is considered a macrosomic baby, we are of the opinion that the 1st Defendant cannot be faulted for making a clinical judgment that the 2nd Plaintiff’s baby, estimated at between 3.8 to 4kgs in weight, would not be at risk of shoulder dystocia nor would it present unusual risk to the 2nd Plaintiff such that the 1st Defendant ought to have discussed and offered the C-Section alternative to the 2nd Plaintiff. 55 5th Issue – Did the 1st Defendant undertake the correct management of shoulder dystocia during labour and delivery. [80] Shoulder dystocia occurs when, after vaginal delivery of the head, the baby's anterior shoulder gets caught above the mother's pubic bone. This is regarded as a delivery room emergency. Medical literature shows that although many factors have been associated with shoulder dystocia, most cases occur with no warning. However, calm and effective management of this emergency is possible with recognition of the impaction and institution of specified manoeuvre, such as the McRoberts manoeuvre, suprapubic pressure, internal rotation, or removal of the posterior arm, to relieve the impacted shoulder and allow rotation for spontaneous delivery of the infant. [81] The Plaintiffs alleged that after the vaginal delivery the baby’s head using forceps, and when further passage of the baby through the birth canal was obstructed by shoulder dystocia, the 1st Defendant failed to perform the McRoberts manoeuvre on the 2nd Plaintiff as an emergency intervention to help the baby’s shoulders move through so that the baby can be delivered safely and without injury. The Plaintiffs further alleged that even if the McRoberts manoeuvre was performed, it was not performed properly, thus causing injury to baby Gurisha and the 2nd 56 Plaintiff. Hence, the Plaintiffs contended that this failure was a breach of duty of care, which had caused pain and suffering to them. [82] In this regard, the learned High Court Judge found as follows: “In my view, D1’s failure to undertake the McRoberts maneuver correctly and apply the suprapubic pressure before applying traction to deliver the baby, constitutes a breach of her duty of care. As nurse Ng testified, D1 had “pulled out the baby” before the McRoberts maneuver could be undertaken. Nurse Ng’s testimony shows that the McRoberts maneuver was not undertaken although D1 had written in her clinical progress notes that “McRoberts done by nurses immediately”. The evidence shows that D1 did not apply suprapubic pressure or enlarge the vaginal opening through an episiotomy, before pulling the baby out.” In short, the finding of the learned trial judge was that the 1st Defendant had failed to undertake the McRoberts manoeuvre correctly, particularly by the failure to apply suprapubic pressure before applying traction to deliver the baby. [83] We noted that the McRoberts manoeuvre, named after William A. McRoberts, Jr., is an obstetrical manoeuvre used in case of shoulder dystocia during childbirth. The manoeuvre typically involves hyper-flexing the mother's legs tightly towards her abdomen, usually assisted by trained nurses, which effectively increases mobility at the sacroiliac joint, thus allowing rotation of the pelvis and facilitating the release of the foetal shoulder that is stuck. In the event that the manoeuvre is not successful, 57 one of the attending medical personnel applies pressure on the lower abdomen (suprapubic pressure) i.e. placing pressure on a certain area of the patient’s pelvis to encourage the baby’s shoulder to rotate. A combination of these two techniques, i.e. McRoberts manoeuvre and application of suprapubic pressure has a very high rate of success. [84] Despite at one point saying that the McRoberts manoeuvre was incorrectly carried out, the learned trial seems to conclude based on the testimony of nurse Mdm Ng Soo Ling (DW4) that the 1st Defendant did not carry out the McRoberts manoeuvre at all, even though the 1st Defendant had recorded in her notes that McRoberts manoeuvre was done. This finding of the learned judge does not seem to take into account the testimony of the 1st Defendant where she had stated that she had indeed carried out the manoeuvre. The following evidence is important in this regard: Counsel for the plaintiff asked you that there should be 3 persons doing the McRoberts and you disagreed. Please explain why. The McRoberts, if you have 2 able-bodied staff nurses next to you, you can already start off the McRoberts without delaying any further. The call bell is next to Staff Nurse Vanitha, the nursing counter is just 5 steps away. I did not waste any time. I asked them to start the McRoberts. Subsequently I put my hand into the vagina and started my rotation technique. And in less than a minute the baby actually came out. The additional nurses or any other personnel would not have any further help at that point, the baby is already out.” 58 Now Counsel for the plaintiff also asked you about suprapubic pressure being part of McRoberts and you disagreed? Again if I can go forward, McRoberts and suprapubic pressure are 2 different maneuvers, they are not part and parcel of one. McRoberts is when we flex and abduct the legs towards the mother’s body to increase diameter. That itself aids with delivery of the baby. Suprapubic pressure is then an additional maneuver to help pull the baby out. Was there any suprapubic pressure in this case? There was no suprapubic pressure and I would be wrong to put suprapubic pressure because the baby’s back is like this, if I had put suprapubic pressure, I would be putting pressure at the base of the baby’s neck and I could have caused more injuries.” [85] The evidence as a whole shows that the McRoberts manoeuvre was indeed carried out by the 1st Defendant. There is in fact evidence from the 2nd Plaintiff that two nurses were holding her legs inwards, which is part of the McRoberts manoeuvre. Further Nurse Ng said “... we had extended the leg, the diameter is wider and helped her”, which is again indicative of the manoeuvre being done. Thus, when the evidence is considered in its totality it is more probable than not that the McRoberts manoeuvre was done by the 1st Defendant when the baby had shoulder dystocia. [86] In some parts of her testimony Nurse Ng seems to be confused and she confessed to that much when she said “... I may have forgotten you see, I don’t know, sometimes you get distracted ...”. And she further 59 added “... you see during that emergency, exactly the whole scene you cannot sort of pick on every bit of it you see.” There is no denying that the medical team was dealing with an emergency, and Nurse Ng’s recollection of the events and the details during the emergency were at times wanting. Hence, for the learned trial judge to have placed too much reliance on the evidence of Nurse Ng without considering the overall evidence before the court when concluding that the manoeuvre was not done, is with respect a misdirection. [87] We find that the evidence as whole showed that the McRoberts manoeuvre was in fact carried out. The question then is whether the McRoberts manoeuvre was carried out properly? In this regard, the learned High Court Judge held that the manoeuvre was not done properly and observed as such in the Grounds of Judgment: “I find that from Nurse Ng’s testimony, it is clear that the D1 had “pulled the baby out” before the McRoberts maneuver was completed and suprapubic pressure was applied. Mdm Baljeet testified that excessive force was used when D1 had used the forceps to deliver Gurisha. When D1’s counsel suggested to Mdm Baljeet during cross examination that D1 delivered the Baby with one pull, Mdm Baljeet replied: ‘That is wrong, it was not one pull. She yanked the forceps into my vagina with such force my butt moved off the table and then she proceeded to yank me with her entire body force. And then once she had done that about 2 or 3 minutes, and the baby’s head came out. So exactly what do you mean that by one pull because that was not what 60 occurred in the delivery room, my baby was badly. This is flawed and fabricated.’ [88] We find that the learned High Court Judge’s finding that the 1st Defendant had pulled out the baby before the McRoberts manoeuvre was completed is erroneous for reasons which we have alluded to earlier, and which we shall discuss below. Firstly, the term ‘delivery by forceps’ does not refer to actual delivery of the entire baby, it only refers to the delivery of the baby’s head through the birth canal. Hence, we agree with counsel for the 1st Defendant that the learned trial judge’s finding that excessive force was used by the 1st Defendant when she used the forceps to deliver the baby is erroneous on two counts. First, the baby was not delivered using forceps, the delivery of the baby came a little later after the 1st Defendant had instructed the midwives/nurses to initiate the McRoberts manoeuvre and the 1st Defendant manually rotated the stuck baby by inserting her hands into the 2nd Plaintiff’s vagina. Secondly, there was no evidence of any bruises on the baby, which negates the 2nd Plaintiff’s assertion that the forceps were used in a violent manner. This was further corroborated by Nurse Ng’s testimony that no excessive force was used. Additionally, Dr Chai Pei Fan (PW1), the paediatrician who was on standby for the 2nd Plaintiff’s delivery, had made available his notes to the court and in it apart from shoulder dystocia, there is no indication of any bruising or injury that would be consistent with the 2nd Plaintiff’s claim that 61 she was yanked about so violently that the 2nd Plaintiff’s “butt moved off the table”. The 2nd Plaintiff’s version of what happened at the delivery room is not borne out by the testimony of the midwife/nurse or the paediatrician’s medical notes, nor by the 1st Defendant’s notes and testimony. [89] The medical evidence shows that when the 2nd Plaintiff’s legs were flexed towards her abdomen, the 1st Defendant was able put her hands into the 2nd Plaintiff’s vagina and rotate the baby using her rotation technique, and in less than a minute the baby came out. This indicates that the McRoberts manoeuvre was a success, and there was no need to apply suprapubic pressure, which is only necessary when McRoberts manoeuvre fails. This was also confirmed by the 1st Defendant’s expert witness, Dr Mureli, in cross-examination were he said that in cases of shoulder dystocia, the McRoberts manoeuvre should be employed to try to deliver the baby. If the baby is still not delivered, suprapubic pressure should then be applied when the mother is in the McRoberts position to try to free the shoulder. In fact the 1st Defendant explained that considering the position in which the baby was stuck, if she had applied suprapubic pressure she could have caused injury to the baby. This was explained by the 1st Defendant in the following terms during re-examination: 62 Now counsel for the plaintiff also asked you about suprapubic pressure being part of McRoberts and you disagreed? Again if I can forward, McRoberts and suprapubic pressure are 2 different maneuvers, they are not part and parcel of one. McRoberts is when we flex and abduct the legs towards the mother’s body to increase diameter. That itself aids with delivery of the baby. Suprapubic pressure is then an additional maneuver to help pull the baby out. Was there any suprapubic pressure in this case? There was no suprapubic pressure and I would be wrong to put suprapubic pressure because the baby’s back is like this, if I had put suprapubic pressure, I would be putting pressure at the base of the baby’s neck and I could have caused more injuries.” [Emphasis added] [90] Suprapubic pressure was clearly not indicated and the 1st Defendant had clearly explained the reason why she did not apply suprapubic pressure. The reason proffered by the 1st Defendant is well supported by medical literature and opinion, and the factual circumstance of the case did not warrant the application of suprapubic pressure. In fact, the application of suprapubic pressure may have brought about further complication and injury to the baby. [91] Nevertheless, the learned trial judge found the 1st Defendant to have breached her duty of care for failure to apply suprapubic pressure. In this respect, the learned trial judge held as follows: [115] In my view, D1's failure to undertake the McRoberts the manoeuvre correctly and apply the suprapubic pressure before applying traction to deliver the baby, constitutes a breach of her duty of care. As nurse Ng testified, D1 had 63 "pulled out the baby" before the McRoberts manoeuvre could be undertaken. Nurse Ng's testimony shows that the McRoberts manoeuvre was not undertaken although D1 had written in her clinical progress notes that "McRoberts done by nurses immediately". The evidence shows that D1 did not apply suprapubic pressure or enlarge the vaginal opening through an episiotomy, before pulling the baby out. [116] I find that based on the available evidence, the plaintiffs have proven on a balance of probabilities that the brachial plexus injury to baby Gurisha's shoulder was caused by D1's mismanagement of the shoulder dystocia, by her failure to follow established clinical protocols in dealing with cases of shoulder dystocia and by the manoeuvre she had used in pulling the baby out. I accept Dr Milton Lum's evidence that in his expert opinion that it can be inferred from the medical records that excessive traction was applied by D1 during the delivery. I find his opinion to be reasonable, responsible, respectable and stands up to logical analysis. [117] For these reasons, I conclude that D1 had breached her duty of care in managing the shoulder dystocia during the delivery and that she had failed to apply the requisite standard of care in delivering baby Gurisha and that her breach of her duty of care had caused Gurisha to suffer brachial plexus injury to her left shoulder. [118] This court concludes that but for D1's failure to advise and provide Mdm. Baljeet with the delivery options and the information necessary for her to make an informed choice and D1's failure to comply with established medical protocols and the applicable standard of care in shoulder dystocia cases during delivery, Gurisha would not have suffered brachial plexus injury to her left shoulder and Mdm. Baljeet would not have suffered the injury to her perineum. In coming to that conclusion, the learned trial judge had also relied on the evidence of Dr Milton Lum, and this noted in the Gorunds of Judgment: [103] Dr Lum concluded that Gurisha's brachial plexus injury was likely to have been caused by excess traction. He stated as follows, at para. 64 6.4.c at p. 20 of his expert's report, as regards the management of the shoulder dystocia during Mdm. Baljeet's labour: c. The management of the SD (shoulder dystocia), which resulted in GK's BPI (Gurisha Kaur's brachial plexus injury), was substandard because:

Subparagraph

(ii) Dr PD (Dr Premitha Damodaran) failed in her attempt at McRoberts manoeuvre (Paragraph 4.25). Although it is unclear whether suprapubic pressure was applied (Paragraph 5.5p), it would have been difficult for one of the two nurses present (Paragraph 4.26) to assist in the McRoberts manoeuvre and apply suprapubic pressure concomitantly. As there are fewer attendants than necessary, it is likely the McRoberts manoeuvre could not be executed properly.

Subparagraph

(iii) It is likely that GK's BPI (Gurisha Kaur's brachial plexus injury), was caused by excess traction (Paragraph 5.6c-5.6e). However, contrary to what Dr Milton Lum said, when the evidence as whole is considered, it is quite evident that the shoulder dystocia was promptly recognized by the 1st Defendant, that much is confirmed by the earned trial judge in her Grounds of Judgment. Immediately the McRoberts manoeuvre was carried out, and contrary to the opinion of Dr Milton Lum, the manoeuvre was successful in combination with the hand rotation employed by the 1st Defendant. There was no need for the application of suprapubic pressure. Hence, we do not find any evidential support for Dr Milton Lum’s opinion that baby Gurisha’s bracial plexus was caused by excess traction. 65 [92] We find that for reasons discussed earlier the finding by the learned trial judge is, with respect, untenable. We find that to fault the 1st Defendant for not applying suprapubic pressure, when the same is not indicated, is entirely misplaced. Therefore, the learned trial judge’s finding that the non-application of suprapubic pressure is a breach of the 1st Defendant’s duty of care is, with respect, untenable for it is not supported by evidence and the law. [93] It must be noted that once the baby’s head was delivered with the aid of forceps, the 1st Defendant was racing against time as the umbilical cord was wrapped tightly around the baby’s neck. Dr Milton Lum, the Plaintiff’s expert confirmed that fact. The fact of the matter is that the 1st Defendant had an emergency at hand. The umbilical cord was wrapped tightly around the baby’s neck and after the cord had been clamped the blood supply from the placenta would be interrupted. The 1st Defendant was racing against time to get the baby out. It is all very well for experts with the luxury of time to deliberate at length to find and attribute fault. The 1st Defendant had made a clinical judgment call that the 2nd Plaintiff having delivered a 4.54kgs baby previously via vaginal delivery should not have any difficulty delivering a 4kgs baby now. This should have been a straight forward delivery. Instead, the baby was stuck. The 1st Defendant had a case of shoulder dystocia at hand and an emergency situation 66 where the baby’s life was in jeopardy. There was a flurry of activities, McRoberts manoeuvre was done. The baby was still stuck in a position that the 1st Defendant had never encountered, where the baby did not face the thigh of the mother after her head came out but was instead looking down. The risk of the baby asphyxiating was very real and it needed quick action on the part of the 1st Defendant. The 1st Defendant, in combination with the McRoberts manoeuvre put her hand into the 2nd Plaintiff’s vagina and rotated the baby and managed to release and pull the baby out. In the circumstance we fail to see how the 1st Defendant could be said to have failed to discharge the standard of care that was required of her as an obstetrician. What the 1st Defendant did to attend to the emergency is in our view well within accepted medical practice and the same was confirmed by the 1st Defendant’s expert witness, Dr Mureli, an obstetrician and gynaecologist of many years standing. Hence, using the Bolam test, as modified by Bolitho, we find that the treatment and care of the 2nd Plaintiff during the delivery of the baby was well within "practice accepted as proper by a responsible body of medical men skilled in that particular art". Thus, we find that there is no breach of the standard care by the 1st Defendant. In the premise, the learned trial judge’s finding to the contrary is, with respect, plainly wrong. 67 [94] There was an issue raised by the Plaintiffs’ counsel as to the whether the 1st Defendant had a lack of experience in shoulder dystocia cases, and whether the 2nd Plaintiff ought to have been informed of such deficiency in experience. When the 1st Defendant was cross examined by the 2nd Defendant’s counsel, the following exchange took place: You have the head out but can’t tell the shoulder ...? Because when the baby rotates, the baby faces the thigh of the mother. Her baby did not face the thigh of the mother, the baby was looking down. Have you faced many similar position? I hope never to face it again. [95] The learned trial judge took this exchange to mean that: “... D1 had a duty to inform Mdm Baljeet that she had limited experience of managing shoulder dystocia complications during delivery...” However, the evidence showed that the 1st Defendant does have experience dealing with shoulder dystocia cases. The type of shoulder dystocia of baby Gurisha, where the head was facing down instead to her mother’s thigh, was something that the 1st Defendant had not encountered before, and hoped never to encounter. And as such the finding by the learned High Court Judge that the 1st Defendant had “limited experience of managing shoulder dystocia complication during delivery” is unfounded. In any event, shoulder dystocia is known to occur even in delivery of babies who are not macrosomic. During the antenatal visits, 68 there was no indication that the 2nd Plaintiff’s baby would encounter shoulder dystocia for that topic to have been specifically dealt with by the 1st Defendant, and the 2nd Plaintiff be apprised of the 1st Defendant’s experience in handling shoulder dystocia cases. 6th Issue – Were the 2nd Plaintiff’s injuries to her perineum sufficiently identified, treated and managed? [96] Nurse Ng, who assisted in the delivery of baby Gurisha, had recorded in her notes that the 2nd Plaintiff had a second degree vaginal tear, whereas the 1st Defendant had noted the injury as a “small fourchette tear” and “only a small vaginal tear, which was sutured in 2 layers”. However, when cross examined Nurse Ng said that she put it down as a second degree tear merely based on her observation and not by proper physical examination of the 2nd Plaintiff. She confirmed that to ascertain the nature of the vaginal tear, a physical examination by inserting the finger and then slowly parting the vaginal tear would be necessary to ascertain the degree of the tear. In this case, she said that she did not carry out the physical examination. [97] However, in contrast to that, the 1st Defendant actually examined the tear and categorized it as a small vaginal tear, which she sutured. Further, after the 2nd Plaintiff’s delivery of the baby, as the 1st Defendant was on leave, another obstetrician and gynaecologist, Dr Kamaljit (DW3) 69 practicing in Pantai Hospital, who stood in for the 1st Defendant had examined the 2nd Plaintiff and found her fit and proper to be discharged. Dr Kamaljit in her testimony said: “... the uterus was 16 weeks size, well contracted, lochia was normal and the perineum was clean. I also noted there were second degree hemorrhoids which were much better after Daflon, after speaking to the patient.” [98] When further questioned on this Dr Kamaljit explained: Now, when you say the perineum was clean. We have heard before this Court the definition of perineum. In your mind, what is the meaning of perineum? The area from the mons pubis right up to the buttocks, which would be the anal area which consists of labia, the vagina right up to the anus, in this case, in this context. And it was clean? Clean in the sense that there was no redness and there was no pus and there was no active bleeding. There was lochia though, lochia which would be normal for a person who just delivered vaginally or by C-section, in any case. So post-delivery, lochia would be normal. At the discharge, did you give her any advice? ... In any case the nurses don’t call her, she has the clinic number and she is still able to call the clinic in case she needs assistance. Although Dr Premitha is away, we could troubleshoot in the sense that I could cover in case she needs any assistance. 70 [99] Despite this when cross examined on the subject of her injuries and the pain from the injury to her perineum post discharge, the 2nd Plaintiff had offered the following testimony: So even though you were in pain and bleeding, you refused to tell Dr Premitha’s nurse 2 weeks after your discharge that you were in pain and bleeding? Yes ... because Dr Kamaljit told me it’s the natural course of recovery, I was doing well. But you know about the follow-up that you have to come back in 6 weeks? Dr Premitha’s nurse called me I think 2 weeks later after I had the baby to come in for a check-up. At that time Madam, did you tell the nurses about the pain and the bleeding that you were going through? No ... because I had lost complete trust in the doctor and the care the hospital provided. The foul smell came because 2 weeks after you were discharged, you already received a call from Dr Premitha’s clinic and they already asked you to come back, which you failed to Madam? Because I no longer had trust in the doctor and she gave me ample medication for that whole month. [100] The 2nd Plaintiff having had lost trust and confidence in the care given by the 1st Defendant, went to see Datin Dr Hu Shan (PW2) in another hospital for her further post-natal follow-up. Dr Hu Shan saw Mdm. Baljeet after a history of five and a half weeks of vulva and perineum 71 pain. Dr Hu Shan found on pelvic inspection, there was a 2cm hole at her perineum and on examination under general anesthetic found (i) a midline poorly healed scar close to the anus; (ii) second degree perineum muscle defect 1.5cm width and 2cm long hole in the perineum muscle; (iii) first degree high vagina tear, where active bleeding was seen; and (iv) Nabothian abscess and cervicitis. Dr Hu testified that: “When check on the perineum, the hygiene was not there, so I asked her to maintain the cleanliness. So its frequent changing of pads and also cleaning up and washing up.” This testimony was similar to that of Ms Elizabeth Pithchaimuthu (SD6), the lactation consultant, who had visited the 2nd Plaintiff post-delivery. She testified that: “And when I checked her perineum, I did ask her to maintain hygiene because there was a bit smelly...” Now, the 2nd Plaintiff’s injury to her perineum was first attended to by the 1st Defendant who had sutured the tear. The 2nd Plaintiff was then seen by Dr Kamaljit at Pantai Hospital who had examined her before discharge. There was no indication that there was anything wrong with the treatment that the 2nd Plaintiff had received from the 1st Defendant for the injury to her perineum. The foul smell that came from that area some weeks later has been attributed by Dr Hu, as well as the lactation consultation, to the 72 2nd Plaintiff’s failure to maintain proper standards of hygiene. Dr Hu also confirmed that wound breakdown is very common where hygiene is an issue. Therefore, we find that to attribute blame unto the 1st Defendant for these wound is flawed, as the causal link between the care and treatment given by the 1st Defendant up to the point when the 2nd Plaintiff was discharged and the injury complained of much later had not been established. We find that there is insufficient evidence showing that the 2nd Plaintiff’s post-delivery injuries had been sufficiently identified, treated and managed by the 1st Defendant. The evidence showed that it was more probable than not that the injuries identified and treated by Dr Hu Shan were exacerbated by the 2nd Plaintiff’s poor hygiene in the affected parts, coupled with her indifference to seek treatment immediately when she was in pain and bleeding some two weeks after delivery, and not because of the 1st Defendant’s failure to properly identify and treat the injuries. 7th Issue: Quantum of damages. [101] We are of the view that since the finding of liability against the 1st Defendant is wrong in law and ought to be set-aside, the issue as regards the quantum of damages need not be addressed by us. In any event, even if the finding of liability were to stand, we find that the damages assessed and awarded by the learned High Court Judge were fair and reasonable. However, as we have allowed the 1st Defendant’s appeal 73 against both liability and damages, we also set aside the damages awarded. 8th Issue: The dismissal of the Plaintiffs’ case against the 2nd Defendant. [102] Corollary to our finding that the 1st Defendant was not negligent in her care of the Plaintiffs, nor that she had breached her duty of care towards the Plaintiffs, we are constrained to rule that the claim against the 2nd Defendant cannot be sustained. Conclusion [103] We had earlier alluded to the duty and function of an appellate court and in that regard, we are once again reminded of the valuable advice of Lord Pearce in his dissenting speech in Onnasis & Anor v. Vergottis [1968] 2 Lloyds Rep. 403, 430; which was referred to with approval by this court in Sivalingam v Periasamy [1996] 4 CLJ 545: The function of a Court of Appeal is to set aside a judgment that should not be allowed to stand because it occasions a substantial wrong or a miscarriage of justice. That wrong or miscarriage of justice may consist of a judgment in favour of the wrong party. It may also consist of a failure in the judicial process to which both parties are entitled as of right, namely, the weighing of their respective cases and contentions. Such failure may constitute a wrong or miscarriage of justice even though it may appear that the appellant may in the end fail to secure a judgment in his favour: But the fact that the right party seems to have succeeded in the Court below will naturally make a Court of Appeal extremely 74 reluctant to interfere, and it would only do so in the rarest cases. Such matters are questions of degree. See also Len Min Kong v United Malayan Banking Corp Bhd & Anor Appeal [1998] 2 CLJ 879, and Majlis Perbandaran Seremban v Era Baru Sdn Bhd & Another Appeal [2018] 1 LNS 829. We find that the learned trial judge had completely overlooked the inherent probabilities of the case in entering judgment for the Plaintiffs. We are fully conscious that this is an appeal that turns primarily upon the findings on questions of fact, and we ought to be slow in disturbing such findings except in circumstances where intervention is warranted. In the present case, for reasons discussed earlier, we find that appellate intervention is necessary. A careful perusal of the learned trial judge's Grounds of Judgment shows that the process of reasoning adopted by her for preferring the evidence of the plaintiffs’ witnesses is based upon wrong premise and does not accord with well-established principle that goes to form the fulcrum upon which the scales of justice turn. The conclusion drawn by the learned trial judge also goes against the grain of evidence. We are under a duty to intervene in a case where, as here, the trial court has so fundamentally misdirected itself, that one may safely say that no reasonable Court which had properly directed itself and asked the correct questions would have arrived at the same conclusion. 75 [104] Hence, we allowed the first appeal, i.e. Civil Appeal No: W- 02(NCVC)(W)-2006-11/2019, by the 1st Defendant against the entirety of the High Court’s judgment, i.e. both in respect of liability and quantum against the 1st Defendant, and the High Court Order in respect of liability and quantum against the 1st Defendant is set-aside. And we dismissed the second appeal, i.e. Civil Appeal No: W-02(NCVC)(W)-2018-11/2019, by the 1st and 2nd Plaintiffs. [105] Costs here and below was fixed at RM160,000.00 to be borne and paid by the Plaintiffs/Respondents to the 1st Defendant/Appellant in respect of the first appeal. Costs of the second appeal in the sum of RM20,000.00 to the 1st Respondent and RM30,000.00 to the 2nd Respondent to be borne and paid by the Appellants/Plaintiffs. All costs are subject to allocator. Orders accordingly. Dated this 23rd day of December 2021. -sgd-Vazeer Alam Mydin Meera Judge Court of Appeal Putrajaya 76 Counsel for the Appellant: Sreether Sundaram (together with him Narandra Kangatharan & Vhimall Murugesan) Messrs. Murali B. Pillai and Associates Suites 1504/5, 15th Floor Wisma Lim Foo Yong 86, Jalan Raja Chulan 50200 Kuala Lumpur Counsel for the Respondent: M.S Dhillon (together with him Desmond Mun, Jeremy & K.B Karthi) Messrs. P S Ranjan & Co 17th Floor, Wisma Lee Rubber No. 1, Jalan Melaka 50100 Kuala Lumpur Felix Raj (together with him Ahmad Aizek Busu) Messrs. Felix Raj Chambers No. 8, Jalan 7/18 Seksyen 7 46050 Petaling Jaya Selangor