Mohd Shaufi Bin Saman (Mendakwa Sebagai Pentadbir Harta Pusaka Kepada Estet Saman Bin Abdullah, No. Kp: 561023015839, Simati) v Dato Dr. Ahmad Murtazam (WA-23NCvC-30-09/2017)

MOHD SAUFI BIN SAMAN (NRIC No.: 840209-14-5035) [Suing as the Administrator of the Estate of SAMAN BIN ABDULLAH (NRIC No.: 561023-01-5839/5132939 (Deceased)]

FAHARIAH BINTI ABD HAMID (NRIC No.: 571208-01-5914/5369368)

AIDA SOFIA BINTI SAMAN (NRIC No.: 880928-56-5796) …PLAINTIFFS

1.

2.

AMPANG PUTERI SPECIALIST HOSPITAL SDN BHD (Co. No.: 115517-A) …DEFENDANTS JUDGMENTS (After Trial) Introduction [1] Mr. Saman Abdullah (“the Deceased”) felt uncomfortable one night. He was rushed to the Ampang Puteri Specialist Hospital (“the 3rd Defendant Hospital”) after series of vomiting, headache, and weakness. He was given immediate attention and surgery procedure was conducted by the specialist Dato’ Dr. Ahmad Murtazam (“1st Defendant”) and Dato’ Dr Samina A. Ghani (2nd Defendant”). The surgery was successful, and the Deceased had since lived for another 11 years before his demise at the end of this trial. However, the Deceased and the family felt that they were not given proper treatment during the surgery. Hence, this action 19/02/2024 15:25:49 WA-23NCvC-30-09/2017 Kand. 298 (“this Action”) was filed against the 1st Defendant, the 2nd Defendant, and the 3rd Defendant Hospital. Brief Facts of the Case [2] The 1st, 2nd and 3rd Plaintiffs consist of the son, the wife, and the daughter of the Deceased, respectively. All of them together with the Deceased during his lifetime filed this Action alleging medical malpractice against the Defendants. [3] On 22.09.2011, complaining of headache, vomit, weakness and severe chest pain, the Deceased was rushed to the 3rd Defendant Hospital. Upon examination, the Plaintiffs were informed that the Deceased needed an urgent surgery to replace the valve in his heart. [4] The 1st Defendant is a cardiologist who had carried out coronary angiogram on the Deceased. The 2nd Defendant is a cardiologist consultant who had carried out an Aortic Valve Replacement (‘AVR’) open heart surgery and Coronary Artery Bypass surgery (‘CABG’) on the Deceased. [5] However, when the Deceased was brought back from the surgery, the Plaintiffs were informed that the Deceased had also undergone CABG surgery. The Plaintiffs claimed they were not informed and had never consented to this. [6] The Plaintiffs then requested for the Deceased to be transferred to Serdang Hospital, where the Deceased was treated and finally regained consciousness. He lived on until the end of the trial of this Action. [7] Upon his passing, the other Plaintiffs have continued this Action claiming damages from the Defendants. The Plaintiff’s Case [8] The Plaintiffs’ claim is premised on medical negligence of the Defendants whereby they had alleged, inter alia, that: a) the 1st and 2nd Defendant had breached the duty of care by failing to give proper diagnosis and treatment to the Deceased, which materially contributed to the Deceased’s suffering post-surgery; b) the 1st and 2nd Defendant had breached the duty of care by failing to explain the risks associated with the surgery to the Deceased; c) the 1st and 2nd Defendant had breached the duty of care by failing to obtain consent for the procedures undertaken by them, particularly on the CABG procedure carried out to the Deceased; and d) the 3rd Defendant Hospital had breached the standard duty of care by failing to treat the Deceased post-surgery. The 1st Defendants’ Case [9] In his defence, the 1st Defendant asserted that the Plaintiffs’ claim occurred mainly on the AVR and CABG. None of these procedures were carried out by the 1st Defendant. Hence, there is no legal basis to impose on him the duty to advice or warn the Deceased of the risks. [10] Besides, no harm had ever resulted from the coronary angiogram carried out by the 1st Defendant. The Deceased had survived against all odds after the procedure at that time. [11] Furthermore, it was argued that no expert evidence was led by the Plaintiffs about any breach of standards on the part of the 1st Defendant. The 2nd Defendant’s Case [12] It is the 2nd Defendant’s case that the Plaintiffs have failed on the balance of probabilities to prove that the 2nd Defendant had in fact breached his duty of care towards the Deceased. [13] The Plaintiffs have failed to prove any causation between the alleged sub-optimal standard to the Deceased’s complications and death more than 10 years after the procedure on 22.9.2011. [14] The 2nd Defendant maintained that there was initially no indication for the CABG and thus the consent obtained was for the AVR only. When the need arose following what was found intra-operatively, it would be unethical for the 2nd Defendant not to undertake the bypass procedure. The 3rd Defendant Hospital’s Case [15] The 3rd Defendant Hospital’s counsel postulated that the Plaintiffs have failed to prove that the 3rd Defendant Hospital had been negligent in the care, management and treatment rendered to the Deceased during his stay there. The Trial [16] The Plaintiffs had called 7 witnesses to testify during trial, including few subpoena witnesses. They were: SP1 – Aida Sofia binti Saman, the 3rd Plaintiff, SP2 – Mohd Shaufi bin Saman, the 4th Plaintiff, SP3 – Kushairi bin Badiuzaman, an engineer, SP4 – Fahariah binti Abd Hamid, the 2nd Plaintiff, SP5 – Saman bin Abdullah, the Deceased, SP6 – Dr. Sa’ari bin Mohamad Yatim, subpoenaed witness, and SP7 – Dr. Abdul Muiz bin Jasid, subpoenaed witness. The Deceased was initially named as the 1st Plaintiff. Upon the demise of the Deceased, SP2, as the administrator of the estate, had replaced the Deceased as the 1st Plaintiff in this Action. [17] The witnesses who gave evidence for the 1st Defendant are: SD1 – Dato’ Sri Dr Azhari Rosman, the expert witness, and SD2 – Dato’ Dr Ahmad Murtazam, the 1st Defendant. [18] The witnesses who testified for the 2nd Defendant are: SD3 – Dato’ Dr Samani A. Ghani, the 2nd Defendant, and SD4 – Dr Balaji a/l Badmanaban, expert witness. [19] The witnesses who gave evidence for the 3rd Defendant Hospital are: SD5 – Nik Izhar bin Nik Mohammed, Operational Manager of 3rd Defendant Hospital, SD6 – Dr Kamaraj a/l Selvaraj, an expert witness, SD7 – Dr Siti Salma binti Yusoff, retired medical officer, and SD8 – Noor Afnie binti Darus, a nurse. Issues to be Tried [20] In summary, the main issues before this Court are as follows:

Whether the Defendants have been negligent in carrying out the treatment on the Deceased;

Whether the Defendants have a duty of care towards the 2nd, 3rd, and 4th Plaintiffs;

Whether the Defendants have caused or materially contributed to the loss or damage suffered by the Deceased;

Whether the Plaintiff is entitled to general damages, special damages, costs, and the damages claimed in the Statement of Claim;

Whether the 2nd Defendant has performed the surgical procedures in accordance with accepted medical procedures and standards;

Whether the 2nd Defendant has provided appropriate advice to the Plaintiffs on behalf of the Deceased;

Whether the surgery performed on the Deceased was necessary; and 8. Whether the 3rd Defendant Hospital has, at all material times acted in accordance with the expected standard of care imposed by a private hospital. Findings of the Court [21] After perusing the cause papers, the witnesses’ statements, the notes of proceeding, and the written and oral submissions and replies by the parties, I dismiss the Plaintiffs’ action. Herein are my reasons. [22] The principle of law concerning medical negligence is that the Plaintiffs bear the burden of proving negligence on the balance of probabilities. Fundamentally, the Plaintiffs bear the burden of proving their claim against the Defendants as stated in Krishnan Nambiar s/o Perabakaran & Ors v Dr P Mahendran & Anor [2019] 4 MLJ 267 and Tey Moon Kim v Hon Siew Mei [2013] 7 MLJ 528. [25] Furthermore, it is established that it is not for the Defendants to disprove the allegations of negligence argued by the Plaintiff (See Wu Siew Yong v Pulau Pinang Clinic Sdn Bhd [2011] 3MLJ 506). [26] In this regard, relevant guidance can be adduced from Shalini Kanagaratnam v Pusat Perubatan Universiti Malaya & Anor [2016] 6 CLJ 225 where Hamid Sultan JCA held at pp.225 & 226: “It is well-established that (i) the doctrine of res ipsa loquitur is not a rule of law but rule of evidence; (ii) the mere happening of an accident is not, in general, prima facie evidence of negligence on the part of the respondents which caused the accident; and (iii) the circumstances of the accident may raise sufficient presumption of negligence. In cases of professional negligence and/or medical negligence, the appellant has to prove that there was: (i) duty of care; (ii) breach of standard of care; (iii) breach of duty of care; and (iv) the breach caused the damages. Therefore, the appellant had to lead evidence to show that the standard of care had been breached. The doctrine of res ipsa loquitur will not ordinarily apply as the appellant will have to discharge the legal burden.” [27] To succeed on their medical negligence claim against the Defendants it is incumbent upon the Plaintiffs to prove firstly that, the Defendants owe the Plaintiffs a duty of care and that the Defendants have breached that duty of care in failing to provide required standard of treatment to the Plaintiffs. Lastly, resulting from that breach the Plaintiffs suffered damages which are not too remote (Section 101 & Section 102, Evidence Act 1950). [28] The case Matthew Scott Oakley & Ors v Dr George Varughese & Anor, Dr Rajakumar Rajendren [2010] 10 CLJ 322 provides a good illustration regarding duty and standard of care in such circumstances. Harmindar Singh Dhaliwal JC (as he then was) at p.328 held that: “In relation to the plaintiffs' claim, the burden is on them to prove negligence on the part of the defendants on a balance of probabilities. In the instant case, there is no question that the defendants owed a duty and standard of care to the deceased. So, the plaintiffs will have to prove that the defendants had breached this duty. The plaintiffs will also have to prove that it was this breach that caused the death of the deceased. This means that the plaintiffs must prove that it was the negligence of the defendants rather than some other factor which cause her death. In a nutshell, the burden was on the plaintiffs to prove breach of duty and causation on a balance of probabilities.” [Emphasis added] [29] Hence, based on the authorities, not only the Plaintiffs have to prove that the Defendants had breached their duties, but they must also prove that it was this breach that caused the damage to them. [30] At the outset, learned counsel for the Plaintiffs relied on the Federal Court case of Foo Fiona v Dr Soo Fook Mun & Anor [2007] 2 MLJ 593. The Plaintiffs submitted that the Bolam test imposes a standard of a reasonable professional of similar calling. Hence, under Bolam test, a medical practitioner is not negligent and has not breached his duty if the action taken is according to the practice accepted by the “responsible professional board” even though the duty is lower than the standard. The learned counsel for the Plaintiffs added that the test does not make any distinction between diagnosis, treatment, or the duty to advise of risks. The Bolam principle has been overruled by Rodger v Whitaker (1992) 67 ALJR 47 in which the court held that the standard of care of a medical practitioner is to be determined by the court by considering the opinion of the medical body as part of evidence which was adopted by our Federal Court in Foo Fiona (supra). Therefore, the Plaintiff argued that the court should apply the principle in Rodger v Whitaker (which was entirely concerned with the duty to advise and no more) in determining whether the Defendants had breached duty of care owed to the Deceased. [31] Verily, the applicable test in determining the standard of care expected of a medical practitioner in respect of diagnosis, treatment and management is propounded in Bolam v Friern Management Committee [1957] 2 ALL ER 118, where McNair J held (at 1st para of p 122) that: “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.” [32] The Bolam test, on the other hand, was qualified later by the decision of the House of Lords in Bolitho v City & Hackney Health Authority [1997] 4 ALL ER 771 wherein it was opined by Lord Browne-Wilkinson of the House of Lord (at the 2nd last para of p 779) that: “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… It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the benchmark by reference to which the defendant’s (doctor’s) conduct falls to be assessed.” [33] However, in Malaysia, the Bolam test applied in the realms of diagnosis and treatment. The Bolam test demands medical expert evidence to be led to support a claim in medical negligence. I am indeed guided by the succinct ratio laid down in Zulhasnimar Bt Hasan Basri & Anor v Dr Kuppu Velumani P & Anor [2017] 5 MLJ 438. In this case, the Apex Court revisited the case of Foo Fiona (supra) and Raus Shariff PCA (later, CJ) held at p.473: “[94] Thus, it is our judgment 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 that in the field of medicine, there are genuine differences of professional opinion in respect of diagnosis and treatment. Although as a discipline, medicine involves specific knowledge, its practice, however, often does not admit to scientific precision. It is not always the case that there is a definite answer one way or the other. In fact, medical experts do genuinely and frequently differ in opinion on diagnosis and treatment. [95] Given the fact that there are genuine differences in opinion in diagnosis and treatment, it is therefore not a matter that the court can, or is, equipped to resolve. It is in this context that the Bolam test makes good sense. It requires the court to accept, not just the views of medical experts simpliciter, but the views of a responsible body of men skilled in that particular discipline. It removes from the courts the responsibility of resolving a dispute that is not equipped to resolve.” [Emphasis added] [34] In other words, the medical practitioners had the final say whether there was negligence and not the courts. [35] The Apex Court in Zulhasnimar (supra) further held that: “[57] Based on the above, we are of the view that the decision of this Court in Foo Fio Na must necessarily be limited only to the duty to advise of risks, this is because in coming to the said decision, it had made specific reference to Rogers v Whitaker, acknowledging it to be the applicable test. This Court in Foo Fio Na however dealt only with a medical practitioner’s duty to advise of risks associated with a proposed treatment. It did not deal with the standard of care expected in respect of either diagnosis or treatment.” [Emphasis added] [36] This is, indeed, different from our present case where the issue arose is not only limited to the duty to advice of risk as this case covered the duty to diagnosis and treatment by the 1st and 2nd Defendant. [37] The Court of Appeal in Dato’ Dr V Thuraisingam & Anor v Sanmarkan Ganapathy & Anor [2016] 3 MLJ 227 had echoed the same test where Abdul Hamid JCA held at p.261: “[56] In essence, the Federal Court decision in Foo Fio Na 's case is clear that the guidelines for advice will not be predicated on the principle laid down in Bolam 's case and the preferred principles is related to Rogers v. Whitaker 's case. However, whether the Bolam or Rogers v. Whitaker principle is applicable, the overriding consideration for the courts is not to compromise its pedestal and its role on finding of facts as well as law, and not to find the doctor liable if he had acted reasonably and logically and got his facts right, a proposition which was not anchored in Bolam or Bolitho or Rogers v. Whitaker case. The Federal Court's case of Foo Fio Na does not compromise the patient's right or doctor's role and maintains the 'relevant standard', taking into consideration the rider as well as a higher threshold for the patient to satisfy to find liability against doctors when it relates to diagnosis and treatment and a lower threshold to satisfy when it relates to medical advice. The difference is like an apple and orange and in scientific sense both the principles cannot be married together. When it relates to diagnosis and treatment, the Bolam principle is a factor to be considered, taking into consideration the Bolitho's principle and ensuring the doctor is not found liable when he had acted reasonably and logically and got his facts correct”. [Emphasis added] [38] Based on the above authorities, it is clear that the Bolam test still applies with regard to the standard of care for diagnosis or treatment as in our case herein. [39] On this, I have to agree with the Defendants that the Plaintiffs’ failure to produce any expert evidence during trial means that the expert report and expert evidence from the 3 experts for the Defendants remain unrebutted and unchallenged by the Plaintiffs. [40] To begin with, the 1st Defendant impressed upon this Court that the Plaintiffs have failed to establish the standard of care expected of the Defendants for there was no expert evidence led by the Plaintiffs. In other words, in order for the Plaintiffs to succeed in its claim, expert evidence must be led to establish the standard of care and demonstrate that the standard of care has been breached with expert evidence as prescribed in Shalini a/p Kanagaratnam (supra). [41] The Plaintiffs have called two (2) subpoena witnesses, SP6 and SP7, both of whom were the doctors who had treated the Deceased at Hospital Serdang following the Deceased’s discharge from the 3rd Defendant Hospital. Having said that, as confirmed by the Plaintiffs’ counsel during trial. these doctors are witnesses of fact, and not expert witnesses. [42] Without adducing and calling any expert witness, the Plaintiffs have failed to discharge their burden of proof for it cannot be proven that the Defendants had fallen below the standard of care expected as highlighted in the case of Payremalu Veerappan v Dr Amarjeet Kaur & Ors [2001] 4 CLJ 380 at p.744: “It is important for the plaintiff to have adduced medical or expert evidence to support his/her allegations against the defendants to assist the Court in arriving at its decision. Unfortunately, no such evidence was given’. … “The evidence to establish a causative link between the injury that was sustained by the plaintiff prior to seeking medical treatment and the acts of the 1st and 2nd Defendants was lacking. Further, there were no positive proved facts from which the Court could draw an inference of causation. The plaintiff failed to prove causation on the balance of probabilities”. [43] Hence, the determination of whether a doctor can be made liable for medical negligence is dependent on expert evidence. It is therefore imperative for the Plaintiffs to bring expert evidence to support its claim (See also Abdul Ghafur Mohd Ibrahim v Pengarah Hospital Kepala Batas 1 Ors [2010] 6MLJ 181, Matthew Scott (supra), Dr Quah Thong Sai v Manonmoney Subramoney & Anor [2012] 4 CLJ 853) [44] The 1st Defendant further premised that no evidence was led by the Plaintiffs to establish the standard care owed by the 1st Defendant and the other Defendants. Without doing so, the Plaintiffs are not able to prove that the 1st Defendant and the other Defendants fell below the standard of care expected of him and of them. [45] The Court of Appeal case of Dato’ Dr V Thuraisingam & Anor (supra) could not be clearer where Hamid Sultan JCA observed at p.262 that: “[57] In the instant case three medical experts had given their opinion: PW1 for the respondents and DW3 and DW4 for the appellants. None of the expert evidence was discredited or expunged from the records. It was a grave misdirection on the part of the trial judge to have disregarded the medical expert opinion on the subject in issue to deal with ‘standard of care’ in particular relating to medical negligence, in breach of established guidelines set out in Bolam v Friern Hospital Management Committee [1957] 2 All ER 118; [1957] 1 WLR 582, Bolitho v City and Hackney Health Authority [1997] 3 WLR 1151 as well as Foo Fio Na’s case. In addition, it also did not subscribe to the Evidence Act 1950. The trial judge’s attempt to single-handedly deal with the issue of ‘standard of care’ without weighing all the medical experts’ evidence undermined the integrity of the decision-making process requiring the appellate court to give no other alternative but to quash the decision in limine.” [Emphasis added] [46] Therefore, the Plaintiff’s allegation of breach of duty on the part of the Defendants cannot be sustained since the Plaintiffs have failed to produce any medical expert evidence before this Court. I shall now delve into the details of the Plaintiff’s claims against each of the Defendants and their replies as well as my findings thereto. [46] The Re-amended Statement of Claim (Encl. 255) provides that the allegation of negligence against the 1st and 2nd Defendant, are inter alia: a) That there was a failure to provide advice about the procedure and the risk of the procedure for the procedure undertaken by the 1st and 2nd Defendants; and b) That there was a failure to obtain specific consent for the procedure undertaken by the 1st and 2nd Defendants. [47] Primarily, the Plaintiffs’ case is that the 1st and 2nd Defendant had never explained the risk associated with the surgery. All that was explained to the Deceased’s family was on the AVR procedure and the risk is about 5%. [48] I shall now discuss about the Plaintiffs’ claim against the Defendants and their respective defences and my findings thereon separately. The 1st Defendant [48] Concerning the claim against the 1st Defendant, the gist of the 1st Defendant’s defence is as follows: a) The Deceased was admitted into the 3rd Defendant Hospital following complaints of chest pain, vomiting and dizziness. The 1st Defendant attended to the Deceased shortly thereafter. The working diagnosis was acute ST elevation myocardial infarct complicated by hypotension and heart block. This was explained by the 1st Defendant to the Deceased and his family. b) After a discussion with the Deceased and his family and consent was obtained, the 1st Defendant carried out a coronary angiogram on the Deceased at around 1.20 am on 22.9.2011. A temporary pacing catheter was inserted via the right femoral vein and positioned at the right ventricle. The results of the angiogram were made known to the Deceased. c) The 1st Defendant then recommended that an AVR be undertaken and referred the Deceased to the 2nd Defendant. d) At or around 3.40am, the Deceased developed and sustained ventricular tachycardia. The 1st Defendant immediately attended to the Deceased and was able to stop the ventricular tachycardia using the pacemaker to support the Deceased’s heart rate. The 1st Defendant also started an intravenous cordarone infusion. e) Consent for the AVR was then obtained by the 2nd Defendant and the surgery was carried out thereafter on the Deceased. f) The 1st Defendant maintained that he was no longer involved in the treatment and management of the Deceased ever since. [49] It is undisputed that the 1st Defendant had performed coronary angiogram to the Deceased in the ICU and no harm resulted from the procedure. Coronary angiogram is just a procedure using x-ray imaging to assess the heart blood vessels. The Plaintiffs have not tendered any evidence to establish any breach of duty by the 1st Defendant here. Nor have them adduced any evidence to show cause any damage therefrom. [50] Also, the 1st Defendant argued that no issue was raised at trial about the consent for coronary angiogram as candidly testified by the Deceased himself. [NOP (Vol.1) p.9] Tak soalan saya Cuma boleh En. Saman sahkan bahawa pembedahan yang dimaksudkan iaitu pembedahan yang dilakukan tanpa izin adalah pembedahan coronary artery bypass dan penukaran injap jantung yang dilakukan di Hospital Defendan Ketiga. Betul ya? SAMAN Betul. [51] However, the upshot of the Plaintiffs’ argument seems to be that the 1st Defendant had allegedly failed to disclose information gained as a result of the angiogram. It was also alleged that at this juncture, the 1st Defendant should have informed the Deceased that he may need the CABG. This, according to the Plaintiffs is a failure to diagnosis and treatment. The 1st Defendant postulated that there is no failure on his part to advice on the CABG. [52] The evidence led at trial demonstrated that the 1st Defendant had in fact disclosed the findings of the angiogram to the Deceased. The argument that the 1st Defendant should have at that stage informed the Deceased that he would or may require a bypass surgery would have to be confirmed by medical expert evidence. To be successful in their claims, the Plaintiffs must bring medical expert. Evidence is required to inform and convince this Court that there had already been an indication for a CABG at this time and the 1st Defendant had failed to diagnose this. [53] I am in agreement with the Defendants that the indication for a CABG is a matter to be opined on by expert evidence. Only medical expert could provide clear medical opinion regarding this. Without any medical opinion to suggest otherwise, all evidence shows that prior to the surgery carried out by the 2nd Defendant, there was no medical indication for a CABG to be carried out on the Deceased. [54] It is apt to note that the 1st and 2nd Defendants maintained at all times that the indication for a CABG was only occurred intra-operatively, which was carried out by the 2nd Defendant. Relying on the clinical notes, their experts also concurred to this. Mere allegation by the Plaintiffs without the support of any medical experts render this argument unsubstantiated. [55] The Plaintiffs further argued that at all material times, the 1st Defendant has the relevant indications that there is a blocked artery which would and may require a bypass surgery and that the 1st Defendant had failed to confirm this since he was unable to cannulate or perform Computed tomography angiography (CTA). The Plaintiffs added that under such circumstances as a prudent doctor, the 1st Defendant ought to have informed the said findings to the Deceased or his family and stated that he might need a CABG and there was no other method to identify the same. According to the Plaintiffs, the 1st Defendant had wilfully disregarded the fact that the right coronary artery was heavily blocked and only suggested for AVR. [56] During cross-examination, Dr Azhari (SD1), the 1st Defendant’s expert, had testified that a CABG may be needed. The Plaintiffs thus relied on this heavily to support their case. Having said so, they had ignored or disregarded the fact that SD1 had clarified later that based on the information available at that time, the indication for surgery was only the AVR. [NOP (Vol.2) pp.34 & 35] [57] This is consistent with Dr Balaji (SD4) (the 2nd Defendant’s expert) testimony during trial. [NOP (Vol.2) p 25] So, because of that, your view is, therefore there was no medical indication at that point of time to advice the patient that he needs a CABG, at that time, correct? Yes. [58] In other words, the 1st Defendant could not have referred the Deceased for the CABG as it was not medically indicated at that time when the Deceased had undergone an angiogram by the 1st Defendant. [59] Both the experts further elucidated that there was insufficient information to conclude with certainty that a CABG was medically indicated. [NOP (Vol.2) p.35] Now, Doctor, you would agree with me, that because there was no indication for CABG at that point of time, after the coronary angiogram, if not, the cardiologist, which is Dr Murtazam, would have referred the patient for Dr Samani for both AVR and CABG, and he would z have written, the plan was, will need AVR and CABG, but there’s no indication for CABG. Correct? Correct. Because not enough information was available. That’s all. [NOP (Vol.2) p.25] No CABG mentioned anywhere in this plan. Yes. Even though – It’s not indicated because you couldn’t cannulate, you can’t be sure whether there is a blockage or not. [60] In fact, being an expert witness, SD4, testified that it would have been contrary to accepted medical practice if the 1st Defendant had advice the Deceased to go for CABG. [NOP (Vol.2) p.38] So it was within the accepted medical practice at that time, in fact let’s put it in the other way, Dr. It would have been contrary to accepted medical practice, at that time, to advice the patient that he had, he would need a CABG, correct? Yes. [61] In any event, even if a CABG were indicated, it would not have been the 1st Defendant’s responsibility to obtain consent from the Deceased, as it lies within the surgeon performing the surgery. [NOP (Vol.2) p.47] I’m asking, sorry. I’m asking about the written consent, Dato’ because that was the question that was asked. Will be taken by the surgeon. [62] Malaysian Medical Council (MMC) in the Malaysian Medical Council Guideline Consent for Treatment of Patients by Registered Medical Practitioner at p.7 provides that: “11. Responsibility of Medical Practitioner Taking Consent … It is generally required that only fully registered medical practitioners may take consent for a procedure, examination, surgery, or treatment - from a patient, and also perform the procedure, examination surgery, or treatment-for which that consent has been taken. The primary responsibility and vicarious liability in the event of complaints rests on the practitioner who has taken the consent and who additionally has himself performed the procedure, surgery, treatment, or examination. This is based on the requirement that the practitioner taking the consent and performing the procedure, examination, surgery, or treatment - will be able to explain to the patient all details of the proposed procedures as above, which would include possible unexpected findings, risks and complications, and the remedial actions that will be taken.” [Emphasis added] [63] Based on the above, the primary responsibility of taking consent lies within the doctor performing the procedure. [64] During trial, the 2nd Plaintiff confirmed that the surgeon performing the AVR, and the CABG was the 2nd Defendant, and not the 1st Defendant. [NOP (Vol.1) p.46] Dan pembedahan tersebut, yang selepas pun, suami Puan memang dibedah ya? Memandangkan tersebut saya, saya memang tak tahu. Saya rasa yang pembedahan itu dilakukan Dr Ahmad ya? FAHARIAH Bukan. Bukan ya. Dilakukan oleh Dr Samani. Betul ya? FAHARIAH Dr Samani. [65] Since the 1st Defendant did not perform the AVR and CABG, he is not under any duty to obtain the Deceased’s consent for those procedures. The duty to obtain consent, if at all, falls on the surgeon, namely the 2nd Defendant. [66] Based on the elaboration above, I am convinced that from the information he had at that time, the 1st Defendant should not be faulted for not referring the Deceased to the CABG. It was not medically indicated. It was not even his duty to obtain the consent for any of these procedures because he was not the one conducting the procedures. The Plaintiffs’ claim against the 1st Defendant is obviously a non-starter. The 2nd Defendant [67] The 2nd Defendant’s pleaded case or defence against the Plaintiffs’ claim are as follows: a) The 2nd Defendant was called in by the 1st Defendant, at midnight to the cath lab since the Blood Pressure (“BP”) did not respond to the intravenous Inotropes. The BP was maintained at 70/40mmHg despite the IV Dopamine. Echocardiogram confirmed severe clacified Aortic Valve Stenosis; thickened Left Ventricular wall and Ejection Fraction of 45%. b) During the coronary angiogram, the Deceased vomited many times, raising the probability of lung aspirations. The emergency coronary angiogram revealed LAD muscle bridging, normal circumflex artery with no retrograde filling to the Right coronary artery (‘RCA’). The orifice of the RCA could not be visualized nor cannulated. With these findings there was an indication to perform AVR Open Heart surgery but there was no indication to do simultaneous CABG surgery. c) Around 3.40am when the Deceased was in the ICU, he developed ventricular tachycardia with heart rate of 160 per minute and BP was down to 80/40mmHg but was overriden with temporary pacing wire which had been inserted when the Coronary Angiogram was successful. d) Despite of double Inotropes of Dopamine/Levopad and IV Cordarone, the haemodynamics remained unstable with deteriorating Hepato-Renal function. e) The decision to do immediate AVR surgery was made after discussion with family members regarding the risks, the costs and consent. Although the usual risk was estimated to be about 5-10% in a standard AVR surgery but in this case the risk was explained to be higher. The consent was obtained to perform the best to save the Deceased’s life. At that point of time, there was no radiological evidence to indicate simultaneous CABG surgery. f) The surgery was undertaken on 22.9.2011 around 2.20pm whereby on opening the chest, it was noted that there was gross massive RV and inferior LV recent infarcts. Following cardioplegia and aortotomy, the RCA opening was found to be occluded by the calcified valve. The LAD was noted to have plaque externally at mid segment. The aortic valve was replaced with St. Jude mechanical valve. Two Saphenous Vein grafts were also performed on RCA and LAD. g) However, despite these procedures, the heart could not be weaned off from cardiopulmonary bypass (‘CPB’) and there was no other choice but to immediately insert the Intra-Aortic Balloon Pump (IABP) intra-operatively before the heart can be weaned off bypass with high inotropic support. h) The procedures were necessary to salvage the heart. While the heart was stopped on CPB, it was certainly risky to leave the Deceased in the OT to search for the Deceased’s relatives for added consent. At that point, saving his life was priority and time was of the essence. i) After the surgery ended, the Deceased was taken out of Cardiac OT around 9.30pm and he was transferred to ICU with IABP and Inotropic support. He was fully sedated and paralyzed for full mechanical ventilation. j) On the 18th post-operative day, the patient was noted to progress well clinically, more conscious following the reversal of sedation. [68] Primarily, the Plaintiffs alleged that the 2nd Defendant’s justification of performing the CABG to save the Deceased’s life cannot be sustained. The Plaintiffs further asserted that at all material times the 2nd Defendant was present during the medical procedure of angiogram and had information on the condition of the Deceased. The fact that there was findings of major coronary problem and right coronary artery blockage, shows that the 2nd Defendant ought to have anticipated the need for a CABG in case of emergency and explain the same to the Deceased and get all the relevant consent. [69] However, as in the case against the 1st Defendant, the Plaintiffs had not led any expert evidence to support this contention and I find that the failure to do so is fatal to the Plaintiffs’ case. [70] The second issue is with regard to the question as to whether there is any breach on the part of the 2nd Defendant in his management and care of the patient (the Deceased). The 2nd Defendant argued that the Plaintiffs have failed to prove the allegations of negligence pleaded against the 2nd Defendant. [71] During the trial, the Plaintiffs were shown medical records (Bundle B1, p.105) which showed that discussion took place with the 2nd Defendant whereby based on the condition at the material time, AVR was recommended and the same was explained by the 2nd Defendant. It is an undisputed fact that the 2nd Defendant was the one who carried out an AVR surgery on the Deceased. This brings us to the crux of the case: the Plaintiffs alleged that the 2nd Defendant should have obtained a separate consent or a consent specifically for a CABG. [72] When challenged as to why CABG was not stated in the consent form, the 2nd Defendant premised that there was no indication for CABG at the material time and so the consent obtained was for AVR only. The expert witness SD1 also confirmed this. [NOP (Vol.2) pp.36 to 38] Now, Doctor, you were asked questions about this consent form being taken. So, you have given evidence to say that, if you’re undertaking two separate procedures because these procedures are different and distinct? Then yes, you should take two separate consents for it. But can I ask you then this question, Doctor? That if the referral was for AVR and CABG, meaning that there was indication for both AVR and CABG, then the surgeon would take, should and would take the consent for AVR and CABG. Correct? Yes. That would be the gold standard, isn't it? Correct. But here, Doctor, since the indication after the coronary angiogram and the referral also was only for AVR, so the consent was taken only for AVR. Correct? Correct. And, again, Doctor, I may be at the risk of repeating myself, but just to put the case, as both Dr Murtazam and Dr Samani found, there was no evidence or indication to support simultaneous CABG at that point of time. Correct, Doctor? Correct. Now, Doctor, you can maybe explain because you are giving evidence as an expert, based on the medical practice, Doctor, would you agree with me that if there was no indication or justification for a procedure, then you cannot simply take the consent unnecessarily from the patient, because you will put the patient for fear and there is no indication for the said surgery. Correct? Correct, yes. Now, Doctor, having looked at the documents, the medical reports, and the operation record as well, you would agree that intraoperatively, the heart could not be weaned off, Doctor? Yes. And, Doctor, again, if intraoperatively, in fact, you have given quite a good explanation earlier. You said that, look, it would be unethical of the doctor to not undertake the bypass when you find that there is a disease, coronary parts. Correct? You said that? Correct. Now, I then put it to you, Doctor, would you agree to me that intraoperatively, as what you said, evolving circumstances, noticed the coronary disease part which could not be seen earlier, if there is a need then to undertake lifesaving procedures, then it must be undertaken immediately instead of leaving the patient to take the added consent for CABG. Would you agree with me? Correct. That is the standard practice. [73] Apart from the evidence above, SD4 and SD6 also testified that there was no clinical or radiological evidence to suggest that a CABG would be required for the Deceased and that the indication was only for the AVR. [74] This would mean that there are 5 medical opinions from SD1 (expert witness), SD2, SD3, SD4 (expert witness) as well as SD6 (expert witness) that there was no justification or indication for a CABG and the clinical evidence justified only for AVR at that point of time. [75] Leaving aside the medical evidence from the 1st Defendant and the 2nd Defendant, there are still 3 independent medical experts who had given evidence that there was no wrongdoing on the part of the Defendants as seen through Bundle B11 and Bundle B12. [76] And there is not even one medical evidence produced or medical expert called by the Plaintiffs to support their contention that there was clinical evidence or indication for CABG, but it was missed out by the 1st Defendant and/or the 2nd Defendant as alleged by the Plaintiffs. [77] Therefore, what was apparent during the trial was that all 3 independent medical experts have given clear evidence supported by medical evidence and medical literature which show that: a) the indication was only for AVR at the material time and there was no indication for CABG, b) intra-operatively there was an indication to undertake the CABG and it would be unethical not to do so, c) there was no time for the 2nd Defendant to leave the patient in the OT to go and speak to the family members to obtain additional consent as what was utmost importance at that point of time was to get the patient’s heart working again, and d) the CABG procedure conducted intra-operative in this case was a lifesaving procedure. [78] It is undisputed and unchallenged by the Plaintiffs that there was an absolute necessity for the CABG to be undertaken once the issue was identified intra-operatively and it has not been proven by the Plaintiffs either that the indication for CABG was present much earlier or it was missed out by the 2nd Defendant. [79] The High Court case of Lechemanavasagar a/l S Karrupiah v Dr Thomas Yau Pak Chenk & Anor [2008] 1 MLJ 115 is instructive where Rohana Yusuf J (later, PCA) held at p.123: “…The Plaintiff has failed to produce any evidence to support such contention or to suggest that the operation conducted by the first defendant was unnecessary and alternative treatment was available. In fact, all medical witnesses who had been questioned on this point concluded that the fish bone has to be removed by surgery. As such, even if I have been wrong in my finding that the first defendant has explained the risk involved, I see no merit in the Plaintiff’s allegation on this point given the circumstances of the present case. Besides, counsel for the plaintiff has not submitted the relevance of his contention of unexplained risk in a case where election does not even arise. That apart, Dr Thomas Yau in his testimonies explained that it would be incorrect and unethical for him not to treat and remove the fish bone from the plaintiff because leaving the fish bone there would be even more devastating to the plaintiff.” [Emphasis added] [80] Similarly in our case, the Plaintiffs had failed to prove to this Court that

the CABG could be detected earlier but overlooked by the 2nd

(ii) the CABG was unnecessary;

(iii) any other surgeons in the shoes of the 2nd Defendant would stop the operation upon realising the need of CABG intra-operatively and seek the consent of the patient family; and

(iv) it is logical practical to seek consent for CABG instead of proceeding with the lifesaving procedure then. The Plaintiffs’ assertion was, therefore, baseless, unsupported with any medical evidence. [81] The Supreme Court of UK in the case of Montgomery v Lanarkshire Health Board [2015] UKSC 11 at para 88 had stressed that: “The doctor is also excused from conferring with the patient in circumstances of necessity, as for example where the patient requires treatment urgently but is unconscious or otherwise unable to make a decision.” [82] As such, I am with the Defendants on this point. It is my finding that the management and treatment of the Deceased by the 2nd Defendant did meet the standard accepted practice as supported by the experts’ evidence and also established principles of law. [83] The Plaintiffs further accused that there was a gap or a window of period where consent of the family could have been obtained. However, SD4, an independent medical expert disagreed with this assertion as he maintained that he would have done the same, to do the bypass and only after that would he speak to the family once the patient stabilized. [NOP (Vol.2) p.30] Judge Alright. Dr, then what is your answer? He’s saying that you did not consider. So, what is your response to that? Ok. If you could just listen to me for a second? And if I was doing this operation and if I have that, I would have gone on to replace the, to do a bypass for both the arteries. After that, when I’ve stabilised the patient, I may have told the anaesthetist or other people to get the families, so, I can go and update them. But I am not going to go and tell them when I have something to do, to sort the patient’s life. That’s what you would have done, Dr. Alright. We are not here about you would have done. Here, it is what the attending surgeons and doctors did at that particular time. Now, my instructions are – Which is what I would have done. [84] More importantly, SD4 gave evidence that it would be unethical to leave the patient and speak to the family while the patient was in a devastated condition. [NOP (Vol.2) p.48] Right, Dr. Can you explain to the Court perhaps so that we can understand the intensity that would apply in the moment had the surgeon decided to leave the patient, and go outside to speak to the family and come back, because you’ve read the records, so you know what the situation like in the OT? No, you can’t do that. It’s unethical. You can’t do that. You have to do the operation. It’s…you have stopped the patient’s heart. You have to do what you need to do and get the heart working again. [Emphasis added] [85] This was also echoed by the other expert, SD1 who also testified that it would be unethical to not undertake the CABG once the problem is identified intra-operative. He has also affirmed that the CABG actually improved the patient’s survival chances. [NOP (Vol.2) p.31) Right. So, would I then be right to try to summarise based on what you have said? That, in effect, the CABG actually improves his chances of survival? Definitely. No one, no surgeon would leave that alone if they see the intra operative problem with the coronary arteries. So, the coronary arteries, it’s unethical to leave the coronary arteries disease when this patient has had a heart attack and you have opened up a chest. [Emphasis added] [86] As much as the need for a proper and well-informed consent is a requirement, the fact is clear that the need for the CABG procedure be taken was only found intra-operative. At that juncture, without the CABG, the heart was not working. In such circumstance, the need for a consent is surely overridden by the necessity to resuscitate the heart in the operation theatre at that very moment. That is a life and death situation. It is not practical nor sensible to expect the surgeon (as alleged by the Plaintiffs) to stop the operation just so to enable him meeting the patient’s family, explaining to them, and then obtaining their consent for this before resuming the operation or before rescheduling another operation. To do so is actually putting the patient’s life at stake. It is the heart that was in focus and not any other organ of the body. The medical experts of the Defendants have all confirmed that they would have taken the same action as the 2nd Defendant has taken here: to proceed with the CABG to get the heart working again. Emotion and grudge aside, the Plaintiffs must beware of the fact that, as submitted by the Defendants, the prompt action of the 2nd Defendant in proceeding with the surgery and undertaking CABG had restarted the heart successfully and the Deceased then went on living for a solid 11 years before passing. Unless there is any medical evidence to convince this Court that there has been any malpractice here, I could not accept baseless allegation and I could not hold the 2nd Defendant liable for any wrongdoing. [87] As mentioned earlier, it is imperative for the Plaintiffs to challenge these experts’ evidence with their own expert evidence or show during their cross examination that the expert’s evidence does not stand the test of logic as decided by the Federal Court in the Zulhasminar(supra) case. This they had never done. How then would this Court be able to consider their bare accusation without any medical expert confirming their allegation? Thus, again, the Plaintiffs’ claim against the 2nd Defendant had failed. The 3rd Defendant Hospital [88] The Plaintiff alleged that the 3rd Defendant Hospital had breached its duty by failing to promptly execute priority patient care procedures upon the arrival of the Deceased at the Hospital's emergency department. The Plaintiff submitted that based on the evidence by SP4 and SP5, the Deceased was brought to the Hospital at 9.30pm, however the treatment was only given at 11.15pm. The Plaintiff further added that the Deceased came to the 3rd Defendant Hospital with a severe chest pain, but the agent or representative of the 3rd Defendant Hospital refused to treat him until deposit payment was made. [89] However, the 3rd Defendant Hospital asserted that the Plaintiffs’ claim is baseless for it devoid of merits. Dr Salma, SD7, has testified during cross examination that since the Deceased required urgent inotropes, he was pushed to the ICU within 20 minutes upon arrival at the emergency department. SD7 has confirmed that the reason the Deceased was pushed immediately to the ICU was to cut short any delay in the emergency department. [NOP (Vol.2) p.384] So, Dr would you agree with me by the time when you sent him to ICU, you still had not increased his blood pressure yet? Yes, that’s why we need to push straightaway to ICU to start the inotropes in ICU because to cut short the delay in A&E. And did Dr Ahmad come and see you in the… Yes, I think he saw in ICU because he was in…if straightaway saw in ICU, that means he should be in the hospital because it’s very short while, he straightaway sees in ICU. We pushed – But he didn’t come to A&E? Because we want to reduce the time, we straightaway pushed up to ICU to start the dopamine infusion, the Inotropes in ICU. [90] In fact, Dr Ahmad Murtazam, SD2, has testified and confirmed that the steps taken by Dr Siti Salma was most appropriate at that time. [NOP (Vol.2) pp.162 & 163] And Dato’, Dr Salma upon eliciting the patient history had proceeded to carry out her clinical examination on the patient? That’s correct. And she had ordered for some tests and investigation to be carried out including an electrocardiogram? That’s correct. And based on the results of her clinical examination as well as the findings of the test and investigation, Dr Salma called you almost immediately? That’s correct. And she had informed you of her provisional diagnosis of the patient? That’s correct. Dr Salma informed you that the patient had an acute ST Elevation Myiocardial infa. That’s correct. Doctor Salma also informed you that the patient was ill. Yes. The patient had low blood pressure. Yes. And a slow heart rate. That’s correct. And Dr Salma also administered some medication to the patient? That’s correct. Dr Salma then referred the patient to you for further treatment and management? That’s correct. Dr Salma transferred the patient almost immediately to the ICU? Yes. And you had also immediately attended to the patient once he was in the ICU. That’s correct. And Dato’, based on our examination of the patient, as well as the results of the test and investigation, you had confirmed the provisional diagnosis made by Dr Salma? Yes. And Dato’, would you agree that the steps taken by the medical officer Dr Salma was appropriate? Yes, it’s most appropriate. [Emphasis added] [91] In short, it is pertinent to note that the 1st Defendant has acknowledged the following:

based on Dr Siti Salma’s clinical examination of the Deceased coupled with the findings of the tests and investigations, she called the 1st Defendant almost immediately;

Dr Salma had informed the 1st Defendant that the Deceased had an acute ST Elevation Myocardial Infarct;

Dr Salma also informed the 1st Defendant that the Deceased was ill with low blood pressure and a slow heart rate;

Dr Salma had administered medication to the Deceased;

Dr Salma had referred the Deceased to the 1st Defendant who is the specialist consultant for further treatment and management;

Dr Salma transferred the Deceased almost immediately to the

the 1st Defendant confirmed the provisional diagnosis made by Dr Salma. [92] In light of all the evidence, I am inclined to accept the 3rd Defendant Hospital’s case. This Court is of the view that the 3rd Defendant Hospital had done the best that it could to attend to the Deceased at the time he arrived at the 3rd Defendant Hospital. The fact is: the patient survived that night and lived on for another 11 years. That in itself is a clear rebuttal of the Plaintiffs’ allegation. If the Plaintiffs so adamant about any wrongdoings by the 3rd Defendant Hospital, they must bring independent witness/ expert to inaugurate such mishandling here. To establish any case of medical malpractice, it is crucial for the claimants to adduce medical evidence and opinion to substantiate it. Without the assistance of such medical experts’ evidence, the courts would not be able to arrive at any finding in favour of the claimants. He who alleges must bear the burden of proof. [93] Next, this Court will deal with the Plaintiffs’ allegation pertaining to the 3rd Defendant Hospital’s failure in providing appropriate advice and/or warn about the risks of surgery as well as alternative treatment options in a timely manner, considering the potential consequences that would occur to the Deceased. [94] To this, the 3rd Defendant Hospital asserted that the Plaintiffs have not led any credible evidence to prove their averments above. In any event, the giving of advice is purely a clinical matter, the duty and/or responsibility for which lay with the 1st and 2nd Defendant, both of whom are specialist doctors practising as independent contractors in the 3rd Defendant Hospital at the material time. [95] In fact, both the 1st and 2nd Defendant had acknowledged and accepted this as their responsibility. For example, the 1st Defendant had admitted this at NOP (Vol.2) pp.164 & 165. [96] In addition, the Plaintiff had also claimed that the 3rd Defendant Hospital had failed to treat the Deceased post-operative in a conducive facility: i) The Deceased was treated in ICU for 1 week and then was transferred to ambulatory ward since the air conditioning in ICU Ward was not functioning; ii) It is important to ensure that ICU ward to be equipped with air conditioning to prevent infections on the patient post operative; iii) Due to the improper ICU facility, Deceased constantly had fever which was indication of infection; and iv) In the event that the 3rd Defendant Hospital was unable to provide the proper ICU service post-surgery, the 3rd Defendant Hospital should have provided a best alternative and not simply placed the Deceased in an ambulatory ward. [97] After perusing all contemporaneous documents and testimonies by the witnesses, this Court is of the view that there are no merits in the Plaintiffs’ claim for they have failed to convince the Court with evidence regarding this serious allegation. Herein are my reasons. [98] First, the Plaintiffs’ witness, SP4 testified during trial that she has no evidence to prove that the air condition has affected the Deceased’s condition post-surgery. [NOP (Vol.1) pp.211 & 212] Tidak setuju, ya? Puan ada apa-apa bukti di hadapan Mahkamah untuk mengesahkan jawapan Puan, bahawa disebabkan oleh penghawa dingin yang rosak, ia menjejaskan kesihatan suami Puan? FAHARIAH Saya tidak ada bukti. [99] The 3rd Defendant Hospital submitted that, and I agree, there is no iota of evidence led to show that the Hospital’s ICU ward was not equipped with air conditioning. What had transpired was that the Deceased was transferred to the ambulatory ward as the air-conditioning system in the ICU was undergoing duct cleaning and preventive maintenance. [100] Moreover, it is pertinent to note that the ambulatory ward was equally equipped with air conditioning, as testified by SD5 during cross-examination. [NOP (Vol.2) p.317] MNY Tak tahu. Jadi, bila ditransfer ke wad ambulatori, wad ambulatori ini ada air-cond tak, En Nik? IZHAR Ada. [101] Most essentially, the Plaintiffs have failed to adduce any credible medical evidence to prove the allegation that the problematic air conditioning has caused the Deceased to suffer fever post-surgery. [NOP (Vol.2) p. 212] …Puan ada apa-apa bukti di hadapan Mahkamah untuk mengesahkan jawapan Puan, bahawa disebabkan oleh penghawa dingin yang rosak, ia menjejaskan kesihatan suami Puan? FAHARIAH Saya tidak ada bukti. [102] I am guided by the judgment in Dennis Lee Thian Poh & Ors v Dr Michael Samy & Anor [2013] 3 MLJ 857, wherein Abdul Wahab Patail JCA observed that: “[25] Gleneagles has been sued by the second defendant on the ground it had failed to provide the standard of services expected of a private hospital. [26] There is, however, no evidence to enable a fair and just determination of what is the accepted standard of services and facilities of a private hospital. Such standard can be expected to vary according to the level the private hospital pegs itself to. There is, however, no evidence of any standards.” [Emphasis added] [103] Likewise, in this case, the Plaintiffs had failed to lead any evidence to prove that the care, management, and treatment rendered by the 3rd Defendant Hospital, was not in accordance with acceptable medical practice. [104] I find that the Plaintiffs to their own peril have failed to commission an independent expert opinion on their behalf. In contrast to the Plaintiffs’ bare allegation, the Defendants have commissioned their respective independent expert opinions. This makes the Plaintiffs’ case fall short of any balance of probabilities. [105] The Plaintiffs, beside pleading the above, have also raised their issues on vicarious liability, non-delegable duty of care and incompetent consultants. [106] The 3rd Defendant Hospital rebutted these claims by vehemently argued that the Plaintiffs did not specifically/expressly pleaded the above issues in their Statement of Claim. These issues were only raised for the first time in their Reply to the 3rd Defendant Hospital’s Statement of Defence. [107] Broadly speaking, it is trite that in a Statement of Reply, a Plaintiff cannot plead a new cause of action or raise any new ground or a claim inconsistent with the statement of claim. This principle can be seen from the judgment of International Shipcare Sdn Bhd v The Owner of and other persons interested in the ships or vessels MV ‘EL HADJAR’ [2015] 7 MLJ 753, where the High Court adopted the English case of Herbert and another v Vaughan and others [1972] 3 ALL ER 122, and ratio of Goff J that : “although the statement of claim should not anticipate the defence, if the defence gives reasons for setting up a new cause of action the proper course is to amend the statement of claim and not to deliver a reply.” [108] In any event, even if I were to allow the Plaintiffs raising these issues through their replies, I still find no merit in the Plaintiffs’ claim in these few issues due to numerous reasons. [109] On the issue of vicarious liability, the Plaintiffs alleged that the 3rd Defendant Hospital and the 1st and 2nd Defendants had worked together in providing healthcare to the Deceased. Any contractual or commercial arrangement between the Defendants has no bearing on whether the 1st and 2nd Defendants were independent contractors or otherwise. In short, the Plaintiffs submitted that the relationship between the 1st, 2nd and 3rd Defendants is ‘inextricable’. [110] The 3rd Defendant Hospital maintained that at all material times, the 1st and 2nd Defendants were not employees of the Hospital as they were both carrying out their respective practices in the Hospital as ‘independent contractors’. [NOP (Vol.2) p.165] Dato’, in your witness statement you have confirmed that you are not an employee of the hospital? Precisely, yes You are an independent contractor? Yes [NOP (Vol.2) p.217] Dato’ can you confirm that you are not an employee of the hospital? You’re an independent contractor. SAMANI Yes. [111] The Plaintiffs then argued that the arrangement between the Defendants was not disclosed to the Plaintiffs at the material time nor was it mentioned in the Hospital information leaflet. The Plaintiff cited the case of Vincent Manickam S/O David (Suing by Himself and as the Administrator of the Estate of Catherine Jeya Sellamah, Deceased) & Ors v Dr S Hari Rajah & Anor [2018] 2 MLJ 497 to support their case. [112] However, the 3rd Defendant Hospital premised that the Hospital ought not to be held vicariously liable for the negligence of the 1st and/or 2nd Defendants. [113] I am guided by the decision of our Apex Court case in The Tun Hussein Onn National Eye Hospital v Megat Noor Ishak [2018] 3 CLJ 427 which had emphasized on the tests for imposing vicarious liability at p.469: “[114] …In summary, the test for imposing vicarious liability in a defendant (D2) for the tortious act of a tortfeasor (D1) comprises of 2 stages:

The relationship between D1 and D2 must be one of employment or sufficiently akin to employment; and

There must be a sufficiently close connection between that relationship and D1’s tortious act.” [Emphasis added] [114] It is crucial to note that both the 1st and 2nd Defendants have testified and confirmed during trial that the 3rd Defendant Hospital does not interfere with the clinical management involving their patients. [NOP (Vol.2) p.167] I’m referring to Clause 6.9.2, that you should be responsible for any claims, suits, action, and litigation in respect of any negligence action against you arising directly from your own negligence or the negligence of your employee. Correct, Dato’? Correct. Dato’, as an independent contractor you would also agree that the hospital does not interfere with your clinical judgment involving your patient? Say again. As an independent contractor, the hospital does not interfere with your clinical judgement involving the patient. That’s correct. [NOP (Vol.2) p.220] You agree that you’ll be responsible for any claim suit, action, and litigation in respect of any negligence against you arising from your own negligence. SAMANI Yes. Dato’, as an independent contractor, you would also agree that the hospital does not interfere with your clinical judgement involving the patient? SAMANI Yes. [115] In The Tun Hussein Onn (supra), Md Raus Sharif CJ held at p.470: “…where the doctor is ascertained to be a truly independent contractor in the circumstances, the private hospital cannot be held vicariously liable for the sole negligence of that doctor. The true relationship between a private hospital and a doctor practising therein must be determined from the relevant contractual terms and the factual circumstances of the case”. [Emphasis added] [116] Meanwhile, the Court of Appeal case of Kee Boon Suan & Ors v Adventist Hospital & Clinical Services (M) & Ors and Other Appeals [2018] 6 CLJ 334 lays a great reference for our case. In this case, Yeoh Wee Siam JCA observed that: “[53] From a perusal of contract entered into by the hospital with Dr Cheok and Dr Patrick respectively, it is clear that the contract was one for services, and both doctors are independent contractors, and not agents or employees of the hospital. As submitted by the hospital, both doctors operated independent business free from control, interference, and/or obstruction by the hospital management. We note that in fact both Dr Cheok and Dr Patrick have specifically pleaded that they were independent contractors. Therefore, the learned JC had erred in holding that the hospital was vicariously liable for the alleged negligence of these two doctors.” [Emphasis added] [117] Based on the above authorities, in order for the Hospital to be held vicariously liable for the negligence of doctors, the question to be posed is whether the Hospital had exerted control over the 1st and 2nd Defendants’ advice and conduct of the AVR and CABG procedures to the Deceased and to the overall clinical management of their patients. There has not been any evidence to even reasonably suggest or confirm this. Hence, the 3rd Defendant Hospital cannot be held vicarious liable for any wrongdoing, if at all, of the 1st and 2nd Defendants. Conclusion [118] In view of the foregoing, this Court, on the balance of probabilities, find that the Plaintiffs have failed to prove that the Defendants had in fact breached their duty of care towards the Deceased and the Plaintiffs. Besides, no expert evidence was led by the Plaintiffs about any breach of standards or duty on the part of the Defendants. [119] Consequently, this Court dismissed the Plaintiffs’ claim with costs. Date : 14th February, 2024 Dr John Lee Kien How @ Mohd Johan Lee Judge High Court Malaya Kuala Lumpur For the Plaintiffs Rejinder Singh & Mohammed Nasser The Law Chambers of Fauzi & Nasser Advocates & Solicitors For the First Defendant Raja Eileen Soraya & Melanie Lim Messrs Raja, Darryl & Loh Advocates & Solicitors For the Second Defendant Barvin Punnusamy Messrs Jayadeep Hari & Jamil Advocates & Solicitors For the Third Defendant Amos Siew & Tan Pui Yi Messrs Azim, Tunku Farik & Wong Advocates & Solicitors Table of Authorities Cases Abdul Ghafur Mohd Ibrahim v Pengarah Hospital Kepala Batas 1 Ors [2010] 6MLJ 181 Bolam v Friern Management Committee [1957] 2 ALL ER 118 Bolitho v City & Hackney Health Authority [1997] 4 ALL ER 771 Dato’ Dr V Thuraisingam & Anor v Sanmarkan a/l Ganapathy & Anor [2016] 3 MLJ 227 Dato’ Dr V Thuraisingam & Anor v Sanmarkan Ganapathy & Anor [2016] 3 MLJ 227 Dennis Lee Thian Poh & Ors v Dr Michael Samy & Anor [2013] 3 MLJ 857 Dr Quah Thong Sai v Manonmoney Subramoney & Anor [2012] 4 CLJ 853 Foo Fiona v Dr Soo Fook Mun & Anor [2007] 2 MLJ 593 International Shipcare Sdn Bhd v The Owner of and other persons interested in the ships or vessels MV ‘EL HADJAR’ [2015] 7 MLJ 753 Kee Boon Suan & Ors v Adventist Hospital & Clinical Services (M) & Ors and Other Appeals [2018] 6 CLJ 334 Krishnan Nambiar s/o Perabakaran & Ors v Dr P Mahendran & Anor [2019] 4 MLJ 267 Lechemanavasagar a/l S Karrupiah v Dr Thomas Yau Pak Chenk & Anor [2008] 1 MLJ 115 Matthew Scott Oakley & Ors v Dr George Varughese & Anor, Dr Rajakumar Rajendren [2010] 10 CLJ 322 Montgomery v Lanarkshire Health Board [2015] UKSC 11 Payremalu Veerappan v Dr Amarjeet Kaur & Ors [2001] 4 CLJ 380 Rodger v Whitaker (1992) 67 ALJR 47 Shalini Kanagaratnam v Pusat Perubatan Universiti Malaya & Anor [2016] 6 CLJ 225 Tey Moon Kim v Hon Siew Mei [2013] 7 MLJ 528 The Tun Hussein Onn National Eye Hospital v Megat Noor Ishak [2018] 3 CLJ 427 Vincent Manickam S/O David (Suing by Himself and as the Administrator of the Estate of Catherine Jeya Sellamah, Deceased) & Ors v Dr S Hari Rajah & Anor [2018] 2 MLJ 497 Wu Siew Yong v Pulau Pinang Clinic Sdn Bhd [2011] 3MLJ 506 Zulhasnimar Bt Hasan Basri & Anor v Dr Kuppu Velumani P & Anor [2017] 5 MLJ 438 Statute Evidence Act 1950 Treaty Malaysian Medical Council (MMC), Malaysian Medical Council