1. ) Yap Sao Leong v 1. Kerajaan Malaysia (JA-21NCVC-15-06/2019)

YAP SAO LEONG [No. K/P: 880328-23-5793]

HO SHI HUI [No. K/P: 940318-01-5086] (Both Suing As Administrators to the Estate of Yap Yi Hong, Deceased) …PLAINTIFFS

KERAJAAN MALAYSIA 2

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DR NORAIN BINTI OMAR 2

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LIM SIN PEI …DEFENDANTS 3 GROUNDS OF JUDGMENT Introduction [1] The Plaintiffs are the parents to the deceased child, a boy, Yap Yi Hong (deceased, YYH) and the administrators to his estate. YYH was born on 15-2-2014 and passed away on 4-6-2016. The cause of death was aspiration pneumonia with underlying cerebral palsy. [2] On 14-2-2014 at 2130 hours, the 2nd Plaintiff (Ho Shi Hui, HSH) who is the mother to the deceased, was admitted to Hospital Enche Besar Hajjah Kalsom, Kluang (Kluang Hospital). On 15-2-2014 at 1830 hours, HSH had an emergency lower segment section Caesarean (ELSCS) done whereupon YYH was delivered at 1839 hours. YYH was discharged on 15-3-2014. [3] This is a claim by the Plaintiffs essentially in negligence against the Defendants. The 1st Defendant is the Government of Malaysia and the 2nd to 42nd Defendants the doctors and nurses of Kluang Hospital. In paragraph 16 of the statement of claim it was pleaded the Defendants had failed to act with reasonable care and skill, diligence and the breach of the duties of candour and to act in good faith and in the best interests of the deceased, which caused or materially contributed to the death, loss and damage suffered by the deceased and his estate and by the Plaintiffs. Trial dates [4] On 19-1-2020, the Court fixed 7th to 9th September and 21st to 22nd September 2020 for trial and further directed expert reports to be filed by 2-2-2020 and rebuttal reports by 2-3-2020. The 7th to 9th 4 September 2020 dates were vacated by the Court upon the application of the Defendants’ counsel. Admission of liability [5] On the day of trial on 21-9-2020, the Defendants formally informed the Court of its intention to admit liability and would proceed with trial on quantum. The Plaintiffs withdrew its claim against the 2nd to 42nd Defendants such that the claim against them was struck out. The 1st Defendant admitted liability Quantum [6] On the issue of quantum, the Plaintiffs had 2 witnesses, its expert in PW1 (Dr Milton Lum, consultant Obstetrician and Gynaecologist and witness statement and expert medical expert report marked as WSP1) and HSH as PW2 (witness statement marked as WSP2). Award of the Court [7] The Court inter alia awarded RM200,000 for pain and suffering and loss of amenities of life and RM300,000 for aggravated damages. The 1st Defendant has appealed against these 2 heads of damages. Effect of admission of liability [8] In paragraph 16.1 of the statement of claim (which ran from paragraph 16.1.1 to 16.1.26 the Plaintiffs had particularized the negligence of the Defendants. These were summarized in its submission dated 29-9-2020 as follows- “9.1 the vicarious liability for the negligence of its employees, the Defendant doctors and nurses;

9.2 the direct liability for organisational and system failures to provide safe and effective treatment to its patients; and 5

9.3 the direct liability for the breach of its non-delegable duty of care owed to its patients.”. [9] The particulars of injury suffered by the deceased were set out in paragraphs 16.2 to 16.4 of the statement of claim as follows- “16.2 hypoxic ischemic encephalopathy stage II with quadriplegic cerebral palsy;

16.3 global developmental delay; and 16.4 premature death.” [10] The admission of liability effectively meant the 1st Defendant had admitted to the particulars of negligence and injury suffered by the deceased. Effect of the 1st Defendant not calling any witness [11] The 1st Defendant had elected not to call any witness such that all evidence led for the Plaintiffs must be assumed to be true. In Jaafar bin Shaari v Tan Lip Eng & Anor [1997] 3 MLJ 693 it was said at page 712 that “For, once a defendant in civil proceedings elects not to call evidence, than all the evidence led by the plaintiff must be assumed to be true”. [12] The above proposition was particularly so for the evidence of PW1 on the clinical events and the medical condition of the deceased. What was cross examined of PW1 was a question posed to him that the best way to assess the deceased medical condition was to have him examined by a team consisting of rehabilitation and all multi-disciplinary therapists including the pediatrician to which PW1 replied that was his recommendation at paragraph 132 of his report (NOP/14). [13] The Court will subsequently consider PW1’s evidence in the light of his unrebutted evidence. 6 [14] Insofar as PW2 evidence on the condition, care and treatment of the deceased was concerned, she was cross examined on certain aspects which this Court will also subsequently consider. Pain and suffering and loss or amenities i. Unrebutted evidence of PW1 [15] The expert medical opinion of PW1 can be found in exhibit “MLS-1”. [16] In relation to YYH the following was said- “36. YYH had an Apgar score of 3 at 1 minute of life and was intubated at 3 minutes of life (MRY page 135).

The cord blood gas studies revealed metabolic acidosis with a pH of 6.95 and base excess of -22,1 (MRY page 137) …

YYH’s subsequent diagnosis was documented in medical reports at discharge on:

21 July 2015: HIE grade III with evolving cerebral palsy (MRY page 20);

29 February 2016: HIE grade II and global development delay (MRY page 22);

4 June 2016: HIE grade III with quadriplegic cerebral palsy and global development delay (MRY page 24)”. Note: MRY refers to medical records and report of YYH. [17] In paragraph 89 was stated the cord gas analysis revealed severe metabolic acidosis. In his further examination in chief as to that meant, he referred to paragraphs 84 to 88 that this indicated hypoxia which is insufficient oxygen getting to the baby and that metabolic acidosis is often associated with sub optimal care (NOP/11). 7 [18] At paragraph 114 his comments on CTG (cardiotocograph) were as follows- “(a) The nurses documented they informed Dr MV that the CTG was suspicious at 1700 hours (Paragraph 17);

The foetal heart was not documented from about 1658 to 1727 hours (Paragraph 26);

The CTG from 1727 to 1737 hours was suspicious (Paragraph 25);

There was no CTG from 1737 hours still delivery at 1839 hours, a period of 62 minutes. …”. [19] As to the meaning of a suspicious CTG, PW1 cross referred to his paragraph 55 where CTGs are classified as normal, suspicious or abnormal with the features stated therein. The further question was as follows- “Qn : Dr, child being born with severe metabolic acidosis, what does that tell you of this period, from 5 p.m. to when there were no CTGs or hardly any recording of the fetal heartbeat? Ans : Well, it tells me that… I think the court has to find out reasons why the CTGs were not made available and the court can make its interpretation on that but it also tells were indications that there were… That the child, the fetus was facing problems and was not acted upon.”. (NOP/11) [20] His findings were as stated in paragraph 133 and in particular the Court noted the following- “(c) The CTG monitoring from 1658 hours was sub-standard;

The decision delivery interval was more than the audit standard of 30 minutes; 8

YYH had all the essential criterial for defining a casual relation between acute intrapartum events and cerebral palsy;

No specialist attended to HSH when the foetal heart rate abnormalities occurred;

The specialist only came into the picture after the adverse event to YYH occurred;

YYH’s injuries could have been avoided or, at least, ameliorated had there been exercise of due care and skill.”. [21] All the above evidence was unrebutted and therefore assumed to be true. ii. Evidence of PW2 [22] PW2 had given evidence that YYH was under the daily care of her grandmother who fed him milk using a tube every 3 hours; he had no normal response and would lie with eyes opened only able to move his hands and legs slightly. On days when he was unwell he would often cry and not take his milk (Q&A 28-30). He was unable to eat on his own as his fingers could not open and he had never held a bottle or anything (Q&A 38). [23] The 1st Defendant counsel had referred to PW2’s evidence that as YYH was being taken care of daily by her grandmother and she only visited once a week during the weekend and that her evidence was based on what her grandmother said (NOP/28-31) was therefore hearsay and inadmissible. [24] The Court was unable to accept this contention as in re examination PW2 explained she knew of her son’s condition as follows- “Sebab I setiap hari, waktu rehat pukul 12 untuk lunch, I mesti ada call balik nenek tanya keadaan anak I macam mana. Sampai lepas kerja, I 9 pun akan call I punya nenek, tapi I punya nenek dia biasa akan cakap I lah. I punya anak dia special sikit. So apa yang I cakap, ikut apa yang I ajar dia, dia ikut jer. Sebab orang tua dia tak tahu macam mana nak jaga satu anak pakai ryles tube. Susah. Bila dia nak belajar, so I macam mana ajar dia, dia just follow jer. Ikut jer. Dia tak berani kurang dari masa itu. Dia mesti tepat, 3 jam dia mesti tukar. 3 jam mesti bagi susu, kalau tak, dia takut dia kurang sikit I punya anak akan lapar ke, punggung dia akan merah ke. Sebab dia tak tahu nangis. Dia pun tak bagi efek dekat kita, dia senyum ke tak tahu. Langsung tak tahu.”. (NOP/35). [25] These were by video calls. She also explained that on Sundays she would take care of YYH at her grandmother’s house where she stayed overnight. [26] It could not therefore be said PW2 had no personal knowledge of her son’s medical condition. It is not “hearsay evidence” if it was within the personal knowledge of the person making the said statement. The Court of Appeal had in Hassan bin Hj Ali Basri v Public Prosecutor [2019] 1 MLJ 390 held as follows at pages 404 to 405- “[44] So, ‘hearsay evidence’ and ‘information’ are two different kettles of fish altogether. The information that PW1 gave to the appellant was not hearsay evidence for the simple reason that it was within his own personal knowledge. It was not something that he came to know of from a third party not called as a witness. It was what he saw with his own eyes and heard with his own ears and not what a third party told him. Learned counsel was therefore misconceived in contending that the information that PW1 gave to the appellant was hearsay evidence.”. [27] The photographs in bundle B5/1-17 bears evidence to the physical condition of YYH in a malnourished state and an overall global development delay. 10 [28] In any event, the 1st Defendant in admitting liability had admitted to YYH suffering from hypoxic ischemic encephalopathy stage II with quadriplegic cerebral palsy; global development delay; and premature death. [29] Even if as agreed by PW1 there ought to be a team to assess the deceased condition, this does not negate the deceased pain and suffering as testified by PW2 and documented in PW1’s expert medical opinion. [30] Upon birth, YYH was admitted to the Neonatal Intensive Care Unit. Upon discharge he continued seeking medical care from private hospitals, clinics as well as Kluang Hospital. This is evident from the claim on hospital and medical expenses and the travelling expenses which was allowed and HSH evidence that YYH had obtained treatment at Kluang Hospital (NOP/22). iii. Award [31] The deceased passed away aged 2 years and 4 months. [32] The Defendant cited Wong Li Fatt (Infant) v Haidar bte Bolhen [1994] 2 MLJ 497; Tan Cheong Poh & Anor v Teoh Ah Keow [1996] 3 CLJ 665; and Inas Faiqah Mohd Helmi v Kerajaan Malaysia & Others [2016] 2 CLJ 885 where there was a range of RM190,000 for severe brain damage and epilepsy (Wong), RM100,000 for severe neurological disabilities (Tan page 675) and RM350,000 for quadriplegic spastic cerebral palsy (Inas). It was then submitted as the deceased had died young and future damages not being an issue, RM50,000 would be an appropriate sum. [33] The Plaintiffs referred to cases for brain damage awards involving infants as follows- 11 i. Harraz bin Abdul Halim & Anor v Dr Azlina binti Abdul Aziz & 13 Ors in Kuala Lumpur High Court Civil Suit No. WA-21NCVC-18- 02/2017 - RM400,000; ii. Farah Ahmad Naji Al-Sahnaf v Dr Lee Weng Seng & Anors [2017] MLJU 1725 - RM400,000; and iii. Muhammad Fikrey bin Bakhtiar & Ors v Dr Fatin Ahya Zulkeflee & 26 Yang Lain [2019] MLJU 1889 - RM800,000. An award of RM225,000 was proposed. [34] In a way, YYH’s passing away at such a tender age meant he was spared the agony of further years of pain and suffering. It can never negate the pain and suffering he underwent. His life from birth until death was one of pain and suffering. From the range of awards, the Court was of the considered opinion that RM200,000 was appropriate, under the circumstances. Aggravated damages [35] The Plaintiffs had highlighted the conduct of the Defendant as to why aggravated damages ought to be awarded. These were attributing blame to the mother (paragraphs 86 to 91), concealing the truth – obstruction and oppression (paragraphs 92 to 100), false pleading (paragraphs 101 to 103) and prolonged litigation and delayed admission of guilt (paragraphs 104 to 107). [36] The Defendant contended the above had not been proved. [37] The Court was of the considered all the above conduct of the Defendant had been proved, other than false pleading. 12 i. Blaming the mother [38] On blaming the mother not being able to deliver vaginally and then by vacuum extraction, this was evident from how PW2 was being cross examined when she was asked she could not deliver normally because she could not push and even though vacuum extraction was used, she still was unable to push (NOP/20-21). This was not to show the Defendant did all it could to save PW2 and YYH; on the contrary it showed the Defendant attributing blame to HSH not being able to deliver normally and then by vacuum extraction. [39] The unrebutted evidence of PW1 was that it was due to cephalo pelvic disproportion. It was noted that HSH height was 1.48 meters and in further examination in chief it was stated that any person less than 1.5 meters is considered short and the likelihood of cephalo pelvic disproportion where the child may experience difficulty in getting delivered is increased. There was an assessment of this disproportion when HSH was admitted but PW1 stressed it has to be a continuous assessment and not a one off. His further evidence was that when the attempt to undertake delivery by vacuum was done at 5.50am there was no documentation that the pelvic was adequate then. Given the difficulty in undertaking the delivery and the failed vacuum extraction, his opinion was there was probably cephalo pelvic disproportion. Refer to NOP/8-9. [40] PW2 had given evidence in her Q&A 56 “saya dimarah dan ditengking tanpa sebab dan prosedur-prosedur yang dijalankan di atas saya tidak diterangkan terlebih dahulu, tidak diterangkan terlebih dahulu bahawa kehamilan saya adalah berisiko tinggi”. Further in Q&A 59 she stated that it was from PW1’s expert medical opinion she came to know of the Defendant’s negligent acts. 13 ii. Concealing the truth-obstruction and oppression [41] The act of concealing was self evident from the undisputed fact that the Plaintiffs had to obtain pre action discovery. It was unclear whether there was an inquiry into the adverse event. [42] PW1 gave evidence on this issue. On paragraph 133(k) of his expert medical opinion that the audit report on the management of HSH and the adverse event that YYH sustained was not available and its relevance to the duty of candour and good faith with healthcare providers, he explained that when an adverse event occurs there is usually an external inquiry to determine the factors that could have influenced the event and that doctors and hospitals have an ethical duty to be frank with their patient when an adverse event occurs. The Malaysian Medical Council has no specific guidelines on the duty of candour but its good medical practice has a statement that when an adverse event occurs the doctor is under an obligation to inform the patient and/or relative, the causes and what happened. The report was not made available and he would not know the findings and the information provided to the patient and husband. Refer to NOP/12-13. [43] It was most probable that as the report was not made available despite there being pre action discovery that there was no such inquiry held on the adverse event. The Defendant had therefore not informed the Plaintiffs as to what caused the adverse event and this tantamounts to concealing the truth. iii. Prolonged litigation and delayed admission of guilt [44] The claim was filed on 4-8-2019. The defendants filed a joint defence on 17-9-2019 denying any liability. Various pre-trial documents were prepared by the Defendants denying liability. On 19-1-2020 the Court ordered the Plaintiffs to disclose their expert report to the 14 Defendants. Even then, the Defendants maintained that they will be calling an expert to dispute liability. The Plaintiffs’ expert report was produced on 2-2-2020 and there was none from the Defendants. [45] The trial of this action was fixed for 6 days in September 2020. Despite having the Plaintiffs’ expert report for more than 7 months, the Defendants made no effort to resolve the case or at very least admit liability. This necessitated the Plaintiffs, their solicitors and their external leading counsel to undertake getting up to be ready for a trial on liability and quantum. [46] It was submitted by the Defendant it had informed the Court of its intention to admit liability on 14-9-2020. From the NOP/2, it was recorded “it was told to the Registrar but it was not formally recorded”. On 21-9- 2020 the admission of liability was formally recorded. Although the Defendants eventually admitted liability they were not able to make any concession as regards quantum. Each and every item of special damages were disputed. iv. Award [47] There were 3 authorities cited by the Plaintiffs wherein aggravated damages were awarded in which this Court found most instructive. These were as follows-i. Nur Syarafina binti Sa’ari v Kerajaan Malaysia & Ors [2018] MLJU 1158 - RM200,000 - following the defendants’ conduct in delaying the disclosure of copies of medical records until the limitation period had expired; ii. Ahmad Radhiq Arbee bin Ahmad Rejal Arbee (as a husband and dependant of Sharifah Shalihah bt Sayed Abdullah, 15 deceased) & Ors v Kerajaan Malaysia & Ors [2020] 10 MLJ 459 – RM300,000; and iii. Norfatehah Alias Alor Setar High Court KA-21NCVC-08/2017- RM450,000.00 for bad conduct of the defendants in a medical negligence claim where the infant suffered brain damages and survived for more than 2 years before succumbing to the injuries. [48] In Ahmad Radhiq it was stated at pages 468 and 469 as follows- “[24]…the court has to take serious note of what was said in the leading authority on this area of the law, Thompson v Commissioner of Police of the Metropolis where at p 516, the English Court of Appeal held as follows: Aggravating features can also include the way the litigation and trial are conducted. [25] Among the chief reasons why the courts are inclined to award AD is when the defendants refuse to admit liability in clear cases as in this instance and instead file their defence and cause the matter to be set down for trial and protracted. … [28] In my considered view, the plaintiffs were correct in submitting that the contention by the defendant in putting the blame on the deceased in their defence has affected and injured the feelings of the plaintiffs since the truth is that the deceased died due to the negligence of the defendant’s hospital as admitted by the defendant themselves when they conceded on liability which admitted only after all the documents for trial had been filed in court and this matter was fixed for full trial.”. [49] The same too in this case where the conduct of the Defendants as outlined above all point towards aggravated damages being appropriate to be awarded. Similar to Ahmad Radhiq the truth of the matter was that the Defendants were negligent and yet attempted to blame HSH when blame fell at the Defendants’ door and surely this would have affected and 16 injured the feelings of the Plaintiffs. This was coupled with the attempt to conceal the truth, the prolonged litigation and delayed admission of liability. Taking into account the range as awarded by the courts, this Court took the position that RM300,000 was reasonable to be awarded. Conclusion [50] For the above reasons, the Court awarded RM200,000 for pain and suffering and loss of amenities and RM300,000 as aggravated damages. Dated: 29th January 2021 See Mee Chun Judge High Court Johor Bahru Counsel for the Plaintiff Mr Karthi Kanthabalan and Mr Manian Marappan Messrs Manian K. Marappan & Co. Batu Pahat Counsel for Defendants