Afiq Bin Azman v Maryani Binti Ahmad (KA-12B-4-02/2025)

1.

MARYANI BINTI AHMAD

3.

PENGARAH HOSPITAL SULTANAH BAHIYAH KERAJAAN MALAYSIA …RESPONDENTS [In the Sessions Court at Alor Setar In the State of Kedah Darul Aman, Malaysia Civil Suit No: KA-A51-2-11/2019] between Afiq bin Azman [NRIC No: 930507-14-5171] …Plaintiff and

Maryani Binti Ahmad

Ketua Jabatan Hematologi & Transfusi Hospital Sultanah Bahiyah

Pengarah Hospital Sultanah Bahiyah

Kerajaan Malaysia …Defendants 09/07/2026 01:00:52 Kand. 39 …page 2

This appeal brings before this Court a claim for medical negligence originating from what should have been a routine act of altruism: a blood donation procedure. The Appellant, then a student and first-time donor, suffered significant complications shortly after a venepuncture was performed on his right arm. This judgment resolves a pivotal evidential conflict between a treating physician and an independent expert witness, specifically examining whether a plaintiff is legally obligated to adduce ad hoc expert counter-evidence where objective contemporaneous documentation independently establishes corporate or clinical negligence. Facts and Background 2. The Appellant was a student at the Institut Kementerian Belia Malaysia in Jitra at the time of the incident. On 29 November 2015, the Second and Third Respondents organised a blood donation campaign held at the Foyer of Perpustakaan Institut Kementerian Belia Malaysia. Approximately 50 donors participated in this program, including the Appellant, who was a first-time donor 3. Prior to the donation, the Appellant underwent a mandatory health screening and interview. He was examined by a medical officer, Dr Muzameer bin Mokhtar (SD2), who confirmed that the Appellant was in good health and fit to donate blood. Consequently, the Appellant signed the Donor Registration Form (D15). …page 3

The Appellant was placed under the care of the First Respondent for the blood collection. The First Respondent performed a venepuncture procedure on the Appellant's right arm. While the specific conduct of the procedure is in dispute, it is agreed that the First Respondent performed the needle insertion and completed the blood collection.

Following the procedure, the Appellant was directed to remain in a rest area for observation. While the parties differ on the exact duration, the Appellant remained under the Respondents' supervision for a period before being cleared to return to his campus room.

Shortly after returning to his room, the Appellant’s right arm exhibited significant swelling and turned blue. The subsequent timeline of treatment is agreed upon:

(i). On 29 November 2015, at approximately 4:00 PM - 5:00 PM, the Appellant sought treatment as an outpatient at Hospital Jitra with complaints of swelling.

(ii). On 30 November 2015 at 12:45 AM, due to persistent pain and worsening swelling, the Appellant went to the Emergency Department of Hospital Sultanah Bahiyah (“HSB”).

(iii). Later in the morning, the Appellant sought further treatment at …page 4 the Kedah Medical Centre (“KMC”).

The Appellant was admitted to KMC for a period of seven days, from 30 November 2015 to 7 December 2015. Following clinical examinations and an ultrasound, he was diagnosed with two specific conditions:

(i). Pseudoaneurysm of the right brachial artery; and

(ii). Compartment syndrome of the right forearm.

At the time of his discharge, it was noted that the significant swelling in his right arm had begun to subside.

Some 4 years later, the Appellant initiated this legal action against the Respondents. The Sessions Court Decision 10. After a full trial was conducted, the learned Sessions Court Judge (“SCJ”) ultimately dismissed the Appellant's claim on both liability and quantum. His core findings of fact and law are summarised as follows.

The trial judge concluded that the First Respondent was a qualified …page 5 and competent phlebotomist, otherwise known as a “bleeder”, a finding substantiated by her professional certifications and training logs. Consequently, it was held that the venepuncture procedure performed on the Appellant was carried out in strict accordance with the Ministry of Health's established Standard Operating Procedures.

Regarding the issue of risk disclosure, the lower court determined that the Appellant had received adequate information and understood the potential complications, thereby providing valid informed consent when he signed the requisite donor forms.

Crucially, the learned judge relied upon contemporaneous medical notes from the initial post-incident examination to find that only a single injection mark was present, which effectively negated the Appellant’s allegation of multiple traumatic punctures.

Furthermore, the court placed significant weight on the Appellant’s refusal to be admitted to Hospital Jitra for observation on the day of the incident, concluding that this voluntary decision to prioritise his examinations over clinical care contributed to the worsening of his condition. The injuries sustained, specifically the arterial involvement, were characterised by the court as known and rare complications inherent to the blood donation process rather than the result of a negligent act.

Ultimately, the learned trial judge found that the Respondents had discharged their duty of care and that the Appellant had failed to …page 6 prove his case on the balance of probabilities.

On appeal, it is not disputed by the Respondents that these complications occurred following the blood donation. The core legal conflict this Court must now resolve is whether these injuries were the direct result of a breach of the duty of care by the Respondents, or whether they represent known, non-negligent complications inherent in the procedure. Decision of this Court 17. This Court, sitting as an appellate court, proceeds with the appeal through the submissions by the parties, their replies and oral submissions. It is trite law that on hearing the appeal, intervention is warranted only if the trial judge was plainly wrong in his/ her findings of fact or misapplied established legal principles.

In our present case, it is manifest that the SCJ was plainly wrong on two fundamental issues: first, in failing to appreciate the true nature of the injury and the corresponding standard of care; and second, in applying the jurisprudence on expert evidence.

Judicial Misappraisal of Contradictory Diagnoses 19. The evaluation of the court below was fundamentally undermined by a critical misappraisal of the medical evidence. The learned …page 7 Sessions Court Judge ('SCJ') summarily adopted a preliminary diagnosis of a transient hematoma, failing to accord due weight to the definitive clinical diagnoses of a severe right brachial artery pseudoaneurysm and concurrent compartment syndrome of the right forearm.

By erroneously premising liability on the fiction of a mere hematoma, the trial court disregarded the uncontroverted testimony of the treating surgeon (SP3). SP3 established that the Appellant suffered an objective structural tear to the brachial artery directly inflicted by the venepuncture needle—a pathology distinct from a localised hematoma. This severe vascular injury formed the core of the cross-examination of the Respondents’ own expert (SD6), rendering the trial court's baseline factual conclusion a clear mutation of the record.

Before embarking on an analysis of the regulatory breaches, a preliminary issue concerning the temporal applicability of the medical frameworks must be resolved. The Appellant explicitly relied upon the 3rd Edition of the Transfusion Practice Guidelines

as the legally operative baseline, introducing it to confront the testimony of SD2, who claimed no guidelines existed in 2015. Conversely, the Respondents faintly alluded to a subsequent 'new protocol' introduced via the 4th Edition in 2016, effectively seeking to insulate their 2015 conduct from contemporary regulatory benchmarks. The court below completely omitted to resolve this competing clash of frameworks, summarily concluding that 'established Standard Operating Procedures' were followed without …page 8 identifying which specific edition applied. It is a foundational tenet of systemic evaluation that a tortfeasor's clinical and procedural liability must be assessed strictly against the regulatory frameworks in force at the material time. Consequently, this Court explicitly corrects the SCJ's omission, excludes the 2016 Edition from its consideration, and holds that the 3rd Edition (2008) constituted the sole legally operative standard governing public blood donation drives on the date of the injury.

1.1. There is a breach of the Standard of Care in the Management of Adverse Donor Reactions 22. The evidence reveals an extraordinary departure from routine clinical protocols at the inception of the procedure. The First Respondent (SD1) spent approximately twenty minutes attempting to locate a patent vein prior to needle insertion. According to the Respondents’ own medical officer (SD2), locating a vein routinely takes mere minutes; any attempt that exceeds 10 minutes constitutes a clinical complication, mandating immediate cessation and referral to a medical officer.

The Appellant testified that he experienced significant pain during the needle insertion and subsequent collection process. He further asserted that the phlebotomist performed several traumatic punctures. While SD1 denied multiple separate insertions, she admitted during cross-examination that she "adjusted the angle" of the needle by partially withdrawing and re-inserting it without completely removing it from the arm. The Appellant maintains he …page 9 complained of pain during this manipulation, although this was disputed by SD1.

Based on the testimony of SP1 and under cross-examination, SD1, the total time taken to complete the blood donation was approximately 40 minutes, consisting of 20 minutes to search for a suitable vein and, based on records in D15, another 10 minutes to complete the collection process. SD1 explained that the unusually long duration of 40 minutes is due to differences in the donor’s blood flow, which can affect overall timing. Accounting for twenty minutes of localisation and ten minutes of collection recorded in Exhibit D15, an interval of ten minutes remains wholly unexplained by the adduced evidence. While this Court declines to make a definitive finding on this temporal gap, its absence heavily undermines the credibility and completeness of SD1's professional logbook (Exhibit

It is undisputed that the Appellant was directed to remain in a rest area for an additional 30 minutes of observation. The Appellant highlights that the standard observation period for donors is typically 10 to 15 minutes and argues that SD2’s specific instruction for him to rest for double the usual time indicates their awareness that a complication had occurred. SD2 explained that the 30-minute period is a general period provided to donors for observation in case adverse effects materialise post-donation. The Appellant testified during re-examination that swelling actually began to manifest during the donation itself. He noted that, while it was not severe at that moment, the medical staff informed him that such minor …page 10 swelling was considered normal.

There were apparent symptoms of arterial puncture. As testified by SD6 and according to the Ministry of Health’s Transfusion Practice Guidelines for Clinical and Laboratory Personnel (“the 2008 Guidelines”), arterial puncture should be suspected whenever the following signs are present: • A duration of less than 3 minutes. • The collection of bright red blood. • A pulsating needle or pulsating tubing system. • Difficult venepuncture or excessive manipulation of the needle. • The rapid development of a large hematoma immediately after donation.

Two out of five symptoms, namely difficult venepuncture, excessive manipulation of the needle and development of a large hematoma immediately after donation, manifested in this case. Although the precise timing of hematoma development is disputed (between immediately and 30 minutes post-collection), it is undisputed that the symptoms exhibited were consistent with hematoma, as both SD1 acknowledged swelling and SD3 medically diagnosed it as hematoma when the Appellant presented himself at Hospital Jitra. These should have been warning signs to the medical staff seeing the Appellant that this was possibly an arterial puncture. …page 11

As a whole, the record validates the Appellant's contention that there is a gap in the established standard operating procedures stipulated within the 2008 Guidelines and the practices of SD1 and SD2, especially in the documentation of any complaints by donors or adverse effects.

The law is trite that misdiagnosis is a breach of duty of care (see decision in Dr Hari Krishnan v Megat Noor Ishak bin Megat Ibrahim [2018] 3 MLJ 281). SD1 and SD2 failed to adduce any evidence demonstrating that their diagnostic and therapeutic interventions conformed to the Ministry of Health's Transfusion Practice Guidelines ('the 2008 Guidelines'). It is a legal error to summarily dismiss an objective vascular injury—let alone a severe pseudoaneurysm and compartment syndrome—as an ordinary, exculpatory complication of blood donation without validating the clinical methodology deployed. The 2008 Guidelines explicitly identify these severe conditions under specific clinical risk categories, mandating rigorous operational care and administrative compliance, which was patently absent or unrecorded here.

1.2. The First Defendant is properly certified, credentialed, and privileged to perform Phlebotomy 30. The Appellant attempted to attribute this breach to SD1, claiming that she was not properly credentialed and privileged according to the 2008 Guidelines, as she was privileged before completing her training. The Respondents disputed the Appellant’s certification sequence as misguided, arguing that bleeders must be identified …page 12 before any training can be conducted. This reasoning is logically sound and is accepted by this Court. This is coupled by the fact that SD1, by training and by trade, is a nurse stationed at the High Dependency Ward (HDW) Unit, where she manages semi-critical and critical cases. Hence, phlebotomy is a routine task for SD1. In addition, SD1 held an Advanced Diploma in Coronary Care.

The general clinical experience of SD1 as a staff nurse in a High Dependency Ward must be strictly distinguished from her legal and procedural authorisation under the 2008 Guidelines. Professional competence in an intensive care setting does not confer a license to bypass the mandatory safety, training, and credentialing protocols uniquely governing public blood donation drives.

1.3. The Respondents failed to manage the Appellant based on established Procedures 32. Be that as it may, it is an undisputed fact that the Appellant was medically diagnosed (as is consistent with the 2008 Guidelines) to have ultimately suffered from a severe aneurysm of the right brachial artery and compartment syndrome of the right forearm post-donation.

The 2008 Guidelines established that an arterial puncture is an adverse effect of the venepuncture procedure for blood donation, falling within the category of ‘adverse events’ (refer Encl. 3, page 202 [2176 physical]) while brachial artery pseudoaneurysm and …page 13 compartment syndrome are defined as a “rare, serious condition” under the category of ‘other major blood vessel injury’ (refer Encl. 3, page 205 [2179 physical]). The undisputed evidence of an arterial tear resulting from a venepuncture procedure constitutes strong prima facie evidence that the standard of care was breached.

It is obvious that the 2008 Guidelines mandate that the Respondents ensure all donors receive 'standard care' and that their 'experience of donation is safe, efficient and pleasant' (refer Appendix 1, Para 6). Having failed to suspect the arterial puncture despite the manifestation of two key warning signs (difficult venepuncture and large hematoma), the Respondents failed to provide the necessary clinical monitoring and management required to safeguard the Appellant’s health after a traumatic procedure.

Furthermore, the 2008 Guidelines emphasise that personnel must be 'adequately and properly trained' to recognise and manage adverse reactions, including 'nerve or vessel injuries' (refer to Appendix 1, Paras 6.9-6.11). The failure of SD1 and SD2 to recognise the symptoms of a 'rare, serious condition' (Pseudoaneurysm) and their failure to implement follow-up care— as they incorrectly informed the Appellant that the swelling was 'normal'—constitutes a direct breach of their duty to provide standard care under the 2008 Guidelines.

Consequently, a stark contradiction emerges between the theoretical assertions of the defence expert (SD6) and the plain text …page 14 of the 2008 Guidelines. Where standard operating procedures are proven by internal reference to have been violated, a court cannot rely on an expert's blanket exoneration. This Court accepts the evidence of the treating surgeon (SP3); the objective medical evidence confirms that the injury was directly caused by the First Respondent's failure to observe the overarching mandates to ensure standard care, operational safety, and proper adverse-reaction protocols as prescribed by the 2008 Guidelines.

A plaintiff can establish breach of duty of care by relying on the evidence of treating doctors. This is in line with Loo Chooi Gaik v. Dr Loh Lay Soon [2019] 4 CLJ 281, where the Court of Appeal held that the plaintiff had no obligation to engage separate medical experts. Unfortunately, the SCJ did not properly consider these inconsistencies and erred in relying completely on SD6’s testimony.

The jurisprudence articulated by the Federal Court in Zulhasnimar Bt Hasan Basri & Anor v Dr Kuppu Velumani P & Ors [2017] 5 MLJ 438 and Foo Fio Na v Dr Soo Fook Mun & Anor [2007] 1 MLJ 593 establishes a foundational constitutional baseline: the determination of the standard of care is an exclusively judicial function that cannot be abdicated or delegated to the medical profession. An expert witness provides an opinion to assist the court, but that opinion carries zero evidential weight if it is built on an illogical foundation or ignores primary contemporaneous data. The court is legally bound to subject medical opinions to strict logical analysis. Where an expert report completely overlooks the physical realities of the injury or relies on an incomplete medical record, it …page 15 fails the threshold test of logical sustainability.

Therefore, relying on high authority on the issue, when an expert’s evidence is rendered unreliable due to a lack of contemporaneous documentation or biased assumptions, the factual and unimpeached evidence of the treating doctor ought to prevail and is able to establish the standard of care, and whether such standard has been breached—such as that in this case.

1.4 Breach of Duty to Advise on Material Risks (Informed Consent)

The learned SCJ erred in law and fact by concluding that the Appellant had provided valid informed consent merely by appending his signature to the Donor Registration Form (Exhibit D15). In evaluating the standard of care governing risk disclosure, this Court adopts the principles articulated in Rogers v Whitaker [1992] 109 ALR 625, as affirmed by the Federal Court in Foo Fio Na (supra). This threshold dictates that the scope of a medical practitioner's duty to warn is determined not by peer practice, but by judicial assessment of what a reasonable person in the patient's specific position would deem significant.

While transient bruising or localised hematomas represent common, 'generally known' incidents of blood donation, a structural arterial puncture culminating in a pseudoaneurysm and acute compartment syndrome constitutes a severe, rare, and life-altering risk. Applying …page 16 the Rogers framework, the judicial determination of a risk's materiality turns on patient autonomy and the individual's specific circumstances. While minor ecchymosis or transient vasovagal episodes represent ordinary, expected risks of venepuncture, an arterial puncture culminating in a pseudoaneurysm and secondary compartment syndrome constitutes a severe, limb-threatening hazard. A reasonable person in the Appellant’s position—a young student and a first-time donor—would unquestionably attach profound significance to a risk that carries a latent threat of permanent functional impairment to his dominant upper limb. The medical profession cannot unilaterally reclassify a structurally destructive complication as a 'minor inherent risk' to bypass a patient's constitutional right to self-determination.

Misplaced Reliance on Expert Evidence 42. Besides, the learned SCJ erred in law by holding that the Appellant's failure to call a separate expert mandated the acceptance of the Defence expert SD6's testimony. Following appellate precedents in Mohamad Rafiq Faudzil v. Dr Adzleen Mahmood & Ors [2022] CLJU 3027; [2023] 2 MLRA 370 and Loo Chooi Gaik (supra), a plaintiff is not obliged to call separate independent medical experts if the testimony of the treating doctors and contemporaneous documentary evidence are sufficient to prove the claim. The Respondents' reliance on Shalini a/p Kanagaratnam v Pusat Perubatan Universiti Malaya (formerly known as University Hospital) & Anor [2016] 3 MLJ 742; [2016] 6 CLJ 225 and Pengarah Hospital Gua Musang & Ors v Abdullah bin Mat …page 17 (menuntut sebagai bapa yang sah dan benefisiari kepada si mati, Tik Syariah binti Abdullah) [2017] 5 CLJ 335 is misplaced and distinguished; those authorities govern contexts devoid of conclusive, contemporaneous documentary evidence—such as the 2008 Guidelines here—which independently and objectively establish a structural departure from the standard of care.

The expert report (D23) did not appraise the difficult venepuncture when SD1 required 20 minutes to find a suitable puncture point and manipulation of the needle in order to begin the bleeding process. The report also did not appraise the final diagnoses of brachial artery pseudoaneurysm and compartment syndrome by SD3 for accuracy or determine whether they were caused by the venepuncture procedure. It only superficially appraised the blood donation process, without material specifics regarding the allegation of negligence.

Further, the expert report did not contain any comprehensive analysis of symptoms exhibited by the Appellant, the appropriateness of medical procedure and treatment conducted by SD1 and SD2, the complications suffered by the Appellant and whether SD3’s diagnosis of brachial artery pseudoaneurysm and compartment syndrome was attributed to venepuncture. Under cross-examination, SD6 admitted that it is a rare condition to develop a brachial artery pseudoaneurysm and compartment syndrome post-donation—so rare that there are no reported cases in Malaysia. However, arterial puncture is not as rare as the condition being diagnosed and could have been identified by trained …page 18 medical personnel. SD6 also did not readily agree under cross-examination that a hematoma is a reason to suspect that an arterial puncture had occurred. This is contrary to the 2008 Guidelines, in which hematoma is one of the signs of arterial puncture, and in this case, difficult venepuncture and excessive needle manipulation.

This Court rejects the Respondents' contention that a pseudoaneurysm is merely an 'unavoidable known complication' (Encl. 21, Para 96). While medical literature recognises such vascular risks, the 2008 Guidelines mandate that the needle be inserted cleanly into the vein. SP3's uncontroverted factual testimony established that the pseudoaneurysm resulted from an objective, mechanical tear in the brachial artery. A 'known' complication does not confer legal immunity from negligence when objective clinical data establish that the complication was the direct consequence of a procedural failure to distinguish between a vein and an artery. The Appellant has thus discharged the burden of proof not by asking this Court to speculate on medical theory, but by demonstrating a fatal variance between the mandatory operational requirements of the 2008 Guidelines and the physical trauma documented by the treating surgeon.

The reason for this absent analysis was due to incomplete documentation provided to SD6. As mentioned by SD6 both in her report and testimony, the only documents provided as references were the bundle of pleadings, medical reports at HSB, KMC, and Loh Guan Lye Specialists Centre, the investigation report produced by HSB, report by the Transfusion Centre at HSB, internal …page 19 investigation report by Hospital Jitra, the Applicant’s Donor Registration Form, the Hospital Jitra Outpatient Card, and a flowchart of the blood donation process. Under cross-examination, SD6 admitted she did not receive a medical report from HSB with a diagnosis of right arm hematoma after the venepuncture. Although not necessarily the Achilles' heel of the expert report, it forms part of the larger fabric of the expert report’s unreliability in proving the standard of care was not breached.

In conclusion, the testimony of SD6 reveals that her expert opinion, which concluded that 'no negligence was identified,' was reached entirely without a review of the contemporaneous medical reports from the two government hospitals involved or the legally operative 3rd Edition (2008) Guidelines. By ignoring the 2008 framework— under which the Appellant's severe injuries are classified as known major complications demanding active clinical monitoring—SD6 applied a disconnected or retroactive standard. An expert opinion built upon a regulatory vacuum or an inapplicable post-incident framework carries zero evidential weight, rendering the trial court's total dependency on her testimony a clear misdirection in law and fact.

While the Appellant did not call a medical expert to testify, there is a crucial factual witness, SP3, who has seen the Appellant at the time of the incidents and had found him to have suffered not merely a hematoma but a severe aneurysm of the right brachial artery and compartment syndrome of the right forearm. This is the finding of an unimpeached treating doctor. The learned SCJ has not made any …page 20 observation to deny the credibility of SP3; rather, he opts to rely on SD6 purely on the basis that she is an expert. This is contrary to the solid documentary evidence and the treating doctor's testimony. Therefore, the Court is with the Appellant on this.

The Respondents’ contention that SP3’s evidence is inadmissible to establish negligence is legally flawed. SP3 is a treating doctor whose evidence pertains to primary facts (the existence of an arterial tear and compartment syndrome). Following the principle in Dr KS Sivananthan v. Kerajaan Malaysia [2001] 1 MLJ 35, a court must prefer the contemporaneous, factual findings of a treating surgeon over the theoretical opinions of a non-treating expert whose report is based on incomplete documentation. SP3's findings are not mere 'opinion' but unimpeached medical facts that establish the breach of the standard of care.

Thus, this Court concludes that the Appellant has successfully discharged their legal burden by proving specific procedural breaches by SD1 where the documented difficulty, long duration, and the resulting arterial puncture confirm a failure by SD1 to meet the required standard of care during venepuncture. For the above reasons, this Court holds that the trial judge's exclusive reliance on SD6's expert evidence represents a clear misdirection in law and in fact, failing to consider the contemporaneous evidence from other medical reports or the actual diagnoses of brachial artery pseudoaneurysm and compartment syndrome. …page 21

The lower court's reliance on Exhibit D22 misapprehended the medical reality. A summary notation of a 'single injection mark' made during a rapid outpatient encounter cannot displace the objective, post-operative proof of a pseudoaneurysm. A routine, non-negligent venous puncture does not culminate in an arterial laceration. The profound objective trauma to the artery is incomparably more probative of the mechanical nature of the venepuncture than a sparse, cursory clinical note.

This Court also notes that there is a severe breach of the 2008 Guidelines. The breach of the 2008 Guidelines regarding staff competency is not merely technical; it is substantial. SD1 admitted under cross-examination that she was appointed as a 'bleeder' on 4 July 2014, yet she did not obtain the requisite 'privileging' until 4 November 2014. This reveals a four-month period during which the Second and Third Respondents permitted SD1 to perform high-risk venepunctures without formal certification of competency. This systemic failure in credentialing and privileging directly contributed to the risk of the arterial puncture that occurred here.

The failure to adhere to the 2008 Guidelines extended to the medical officer in charge. SD2 (Dr Muzameer) admitted that he did not verify or confirm the specific procedural steps carried out by SD1 as listed in the 'Procedure' box of Exhibit D15 (Encl. 10, p. 223). This lack of contemporaneous oversight by the supervising physician allowed the negligent arterial puncture to go undetected until the Appellant had significantly deteriorated. …page 22

The Respondents’ failure to produce SD1’s complete, original logbook (Exhibit D12) triggers a robust adverse inference under Section 114(g) of the Evidence Act 1950. In medical negligence litigation, where clinical notes form the primary contemporary record of a disputed procedure, the non-production of an essential operational logbook amounts to a spoliation of vital evidence. Given that the precise duration, mechanical difficulty, and anatomical site of the venepuncture were heavily contested primary facts, the unexplained withholding of this mandatory statutory record allows this Court to safely presume that its contents would have decisively refuted the Respondents’ assertion that standard operating procedures were observed.

This statutory omission extends to the post-donation observation records. SD1 admitted during cross-examination to her failure to complete the mandatory observation forms, thereby shifting the administrative burden to the supervising medical officer (SD2). The wholesale absence of these contemporaneous monitoring metrics deprives the Court of the means to verify whether the Appellant was monitored in accordance with protocol, thereby directly validating the inference of systemic post-procedural neglect.

Causation and Contributory Negligence 56. In determining liability, the threshold question is whether the injuries sustained by the Appellant were directly caused by the actions of the First Respondent during the venepuncture procedure. This …page 23 Court applies Lord Denning’s "but for" test as established in Cork v Kirby Maclean Ltd [1952] 2 All ER 402, which posits that a fault is the cause of damage if that damage would not have occurred but for said fault or tortious act.

The facts reveal that the Appellant, previously in good health, suffered a pseudoaneurysm of the right brachial artery and compartment syndrome immediately following the blood donation. The treating doctor, SP3, confirmed via ultrasound that an arterial tear existed in the brachial artery caused by the venepuncture needle. This provides definitive evidence that the primary cause of the injury was a puncture that missed the intended vein and struck the artery.

The trial court clearly erred in characterising this injury as a general complication. On the contrary, the evidence demonstrates that such a vascular injury is rare and results from a failure to adhere to the reasonable standard of care during the procedure. Consequently, the chain of causation between the First Respondent's actions and the Appellant's injury is established on a balance of probabilities.

The Respondents contend that the Appellant’s refusal to be admitted to the ward at Hospital Jitra, citing upcoming examinations, constitutes a novus actus interveniens that broke the chain of causation.

This Court rejects the contention that the Appellant's departure …page 24 broke the causal chain. For a plaintiff's own conduct to sever the chain of causation, it must be so anomalous or inherently unreasonable as to completely eclipse the original tortious act. Here, the clinical advice proffered at Hospital Jitra was itself structurally compromised, predicated on an erroneous diagnosis of a simple hematoma rather than an evolving arterial laceration. But for the negligent venepuncture performed by SD1, the arterial tear would never have occurred. The Appellant's refusal to stay in the hospital did not cause the pseudoaneurysm; it merely failed to mitigate an injury already set in motion by the Respondents. Therefore, the causal nexus remains intact, and the appropriate judicial response is an apportionment of fault under mitigation rather than a total dismissal of the claim.

While primary liability rests with the Respondents, the Appellant maintains a legal obligation to take reasonable steps to mitigate his losses. This Court refers to the principles in Yoong Leok Kee Corporation Sdn Bhd v. Chin Thong Thai [1981] 2 MLJ 21 and Tan Ah Kau v The Government of Malaysia [1995] MLJU 183, that a patient who discharged himself against medical advice is responsible for a portion of the deterioration of his condition. In the present case, the Appellant’s refusal to be monitored in the ward, despite his exams, prevented the early detection of rapidly worsening complications.

While this refusal does not break the chain of causation, it represents a failure to mitigate an existing injury. Weighing the hospital's diagnostic failure against the Appellant’s non-compliance, …page 25 liability for the ultimate severity of the condition must logically be shared. In Tan Ah Kau, a 20% liability was apportioned to the defendant. This percentage serves as the baseline for the self-discharge. On the other hand, since the Plaintiff/Appellant's rash action contributed significantly to the outcome, a higher percentage ought to be imposed (see Suzilawati Ali v Dr Alif Al Ain Mohd Fathilah [2023] 8 MLJ 110).

Following the principles in Tan Ah Kau (supra), where a failure to mitigate justifies a reduction in damages, a fair and equitable apportionment dictates 70% liability on the Respondents (for the initial negligent puncture and misdiagnosis) and 30% contributory negligence on the part of the Appellant (for the failure to mitigate by refusing admission).

Crucially, the Respondents' contention that the Appellant left 'at his own risk' is entirely unsupported by their own administrative records. SD3 admitted under cross-examination that no 'At Own Risk' (AOR) discharge form was signed by the Appellant (Encl. 10, p. 327). The failure to secure a formal AOR discharge further corroborates the Appellant's testimony that he was not fully apprised of the gravity of the risk (pseudoaneurysm), which led to his refusal to be admitted.

Quantum of Damages 65. This Court, having already established that the Respondents are 70% liable for the medical negligence arising from the venepuncture …page 26 procedure performed, now proceeds to determine the appropriate quantum of damages.

It is to be noted that the Appellant had submitted and prayed for this Court to determine a specific amount and assessment. The adduced evidence is sufficient to determine the final quantum on the main heads of damages.

4.1. General Damages 67. The learned SCJ’s conditional award of RM5,000.00 was predicated upon a misdiagnosis of a simple hematoma. The lower court's assessment is demonstrably flawed, as it failed to provide sufficient judicial appreciation of the definitive diagnosis made by SP3, the treating surgeon at KMC. As discussed above, the undisputed clinical evidence confirms that the Appellant suffered a pseudoaneurysm of the right brachial artery and compartment syndrome of the right forearm. SP3, SD6, and the 2008 Guidelines recognise this as a severe vascular injury involving a tear in the parent artery.

According to a medical report from Loh Guan Lye & Sons prepared by Dr Kevin Moissinac, a general and vascular surgeon, the swelling resolved after one month, and at the time of consultation in 2018, the Appellant suffers from episodic painful episodes on the right arm but is able to work as an e-hailing driver. …page 27

In assessing the quantum for general damages relevant to similar injuries, this Court is guided by the following:

(i). In Mohd Azdi bin Mohd Mustafa v Mohamad bin Hassan Bakri & 5 Ors [2019] 2 PIR 47, the court awarded RM70,000.00 for acute compartment syndrome involving paralysis and scarring.

(ii). In Muhammad Izwan bin Jamaludin v Muhammad Israf bin Ismail & Anor [2016] 2 PIR 22, an award of RM80,000.00 was granted for multiple injuries including compartment syndrome of the hand.

(iii). In Nurul Liyana binti Ahmad Dawam v Mohamad Reedzuan bin Mohd Nordin & Anor [2022] 2 PIR 51, the High Court awarded RM100,000.00 for an aortic pseudoaneurysm, which this Court notes was a systemically life-threatening central vascular injury.

Given that the Appellant's injury is a serious localised vascular tear on his dominant arm requiring surgical management and seven days of hospitalisation, an award of RM80,000.00 for general damages stands as fair, reasonable, and consistent with the upper range for complex limb injuries. This will be subject to the final distribution of ratios. …page 28

This Court notes the Respondents’ submission that the Appellant’s subsequent employment as an e-hailing courier or delivery rider implies an absence of functional impairment. However, the assessment of general damages is directed fundamentally at pain, suffering, and the objective loss of amenities. That a litigant demonstrates economic resilience in maintaining a livelihood despite a severe vascular injury does not mitigate the clinical severity of the initial trauma or insulate the tortfeasor from the long-term sequelae of a pseudoaneurysm.

4.2. Special Damages 72. It is trite law that special damages must be strictly proven by documentation or cogent oral testimony.

In total, this Court awards RM8,463.83 in special damages as follows.

(i). For hospital and medical expenses, the full sum of RM7,803.83 as per the KMC bills proven via Exhibit P6(a)-(e).

(ii). For travel and incidental expenses, the Appellant proved RM320.00 through oral testimony (RM280.00 for family visits and RM40.00 for discharge). The claim for RM14,300.00 is rejected as speculative because the Appellant has failed to provide evidence of travel beyond the acute 7-day period (see Hasniyati bt Hassan & Anor v Kerajaan Malaysia [2022] 10 …page 29 MLJ 469). Thus, this Court only awards RM320.00 under this heading.

(iii). Regarding the fees for the medical reports, only the administrative fee, namely, RM340.00, is allowed. The claim for the cost of pre-action discovery in the amount of RM7,420 is not proven and is not allowed.

The above total sum of RM8,463.83 as special damages is subject to the contributory ratio. Therefore, the total compensatory damages are RM88,463.83, subject to the contributory ratio. For the avoidance of doubt, the total gross compensatory damages amount to RM88,463.83, which reduces to a net award of RM61,924.68 after applying the contributory ratio, representing the aggregate of the awarded General Damages and Special Damages, after the 30% reduction for contributory negligence. This subtotal reflects the final sum the Respondents must pay to compensate the Appellant for his physical injuries and out-of-pocket financial losses, distinct from the global award of costs and the statutory interest.

4.3. Exemplary Damages 75. The conduct documented does not meet the necessary threshold for oppressive or arbitrary actions against the Appellant as described in Sambaga Valli A/P KR Ponnusamy v Datuk Bandar Kuala Lumpur & Ors and another appeal [2018] 1 MLJ 784. Thus, nothing is awarded under this heading. …page 30

4.4. Getting-up Costs 76. The Appellant argued for RM100,000 as getting-up costs, justifying it as a complex medical negligence litigation, despite the trial originating from the Sessions Court. The Appellant relied on the decision of Yusnita Bt Johari (suing through her husband and litigation representative Khairil Faiz Bin Rahamat) v Dr Jerilee Mariam Khong & Ors [2023] 9 MLJ 629 to support their claim for the RM100,000 sum.

In total, the trial proceeded for 21 days with a total of 11 witnesses, where 5 witnesses were for the Appellant and 6 witnesses for the Respondents, involving orthopaedic and trauma, general and vascular, and transfusion practice specialities. Although on the surface this case seems comparable to Yusnita in terms of sheer statistics: both required over 20 days of trial and more than 10 witnesses, when examined more deeply, these two cases are not similar. In Yusnita, the case concerns a catastrophic brain injury from a caesarean section involving multiple disciplines, namely obstetrics, anaesthesiology, and rehabilitation. In comparison, the case before this Court concerns a singular incident of venepuncture involving orthopaedic and trauma, general and vascular, and transfusion practice specialities. It is apparent that Yusnita was much more complex (brain injury vs limb injury). Notwithstanding that, the 21 days of trial and 11 witnesses in this case still entitled it to be categorised as a complex litigation, justifying the RM80,000 global fee awarded by this Court. …page 31

The principles articulated by Tee Geok Hock JC (as he then was) in Abdul Halim A Tambi v. Yong Kim Moon & Ors [2021] MLRHU 33 lend highly persuasive guidance. Given that this litigation spans an extensive trial below and a subsequent appellate challenge, a global assessment of costs—encompassing getting-up fees for both tiers—is entirely equitable. Conclusion 79. This appeal is therefore allowed with costs together with interest thereon. The decision of the learned SCJ on 20 January 2025 in dismissing the Appellant's claim is hereby set aside. Judgment is entered in favour of the Appellant against the Respondents jointly and severally.

Applying the 70% liability ratio (reducing 30% for Appellant's contributory negligence), the final awards are as follows:

General Damages: RM56,000.00 (from RM80,000.00 base).

(ii) Special Damages: RM5,924.68 (from RM8,463.83 base). (namely, total compensatory damages: RM61,924.68, together with interest) …page 32

(iii) Combined Costs: RM80,000.00 (assessed globally for trial at the court below and for the appeal). Dated 7th July 2026 ..................................................................................... YA Dr Hj. John Lee Kien How @ Mohd Johan Lee Judge High Court of Malaya Alor Setar For the Appellant: M Humavathi A/P Manikavelu Messrs. S. Raman & Co. Advocates & Solicitors For the Respondents: Nurul Waheda Abd Rahman and Abdul Rahman Md Zuki Federal Counsels Attorney General Chambers Authorities Cases referred to: Abdul Halim A Tambi v. Yong Kim Moon & Ors [2021] MLRHU 33 Cork v Kirby Maclean Ltd [1952] 2 All ER 402 Dr Hari Krishnan v Megat Noor Ishak bin Megat Ibrahim [2018] 3 MLJ 281 Dr KS Sivananthan v. Kerajaan Malaysia [2001] 1 MLJ 35 Foo Fio Na v Dr Soo Fook Mun & Anor [2007] 1 MLJ 593 Hasniyati bt Hassan & Anor v Kerajaan Malaysia [2022] 10 MLJ 469 Loo Chooi Gaik v. Dr Loh Lay Soon [2019] 4 CLJ 281 …page 33 Mohamad Rafiq Faudzil v. Dr Adzleen Mahmood & Ors [2022] CLJU 3027; [2023] 2 MLRA 370 Mohd Azdi bin Mohd Mustafa v Mohamad bin Hassan Bakri & 5 Ors [2019] 2 PIR 47, Muhammad Izwan bin Jamaludin v Muhammad Israf bin Ismail & Anor [2016] 2 PIR 22 Nurul Liyana binti Ahmad Dawam v Mohamad Reedzuan bin Mohd Nordin & Anor [2022] 2 PIR 51 Pengarah Hospital Gua Musang & Ors v Abdullah bin Mat (menuntut sebagai bapa yang sah dan benefisiari kepada si mati, Tik Syariah binti Abdullah) [2017] 5 CLJ 335 Rogers v Whitaker [1992] 109 ALR 625 Sambaga Valli A/P KR Ponnusamy v Datuk Bandar Kuala Lumpur & Ors and another appeal [2018] 1 MLJ 784 Shalini a/p Kanagaratnam v Pusat Perubatan Universiti Malaya (formerly known as University Hospital) & Anor [2016] 3 MLJ 742; [2016] 6 CLJ 225 Suzilawati Ali v Dr Alif Al Ain Mohd Fathilah [2023] 8 MLJ 110 Tan Ah Kau v The Government of Malaysia [1995] MLJU 183 Yoong Leok Kee Corporation Sdn Bhd v. Chin Thong Thai [1981] 2 MLJ 21 Yusnita Bt Johari (suing through her husband and litigation representative Khairil Faiz Bin Rahamat) v Dr Jerilee Mariam Khong & Ors [2023] 9 MLJ 629 Zulhasnimar Bt Hasan Basri & Anor v Dr Kuppu Velumani P & Ors [2017] 5 MLJ 438 Statutes Section 114(g) of the Evidence Act 1950 Ministry of Health Transfusion Practice Guidelines for Clinical and Laboratory Personnel (2008)