Dato' Loo Son Yong v 1. Vista Laser Eye Center Sdn Bhd (BA-22NCVC-51-01/2015)

DR CHOONG YIH SHENG ... DEFENDANTS 15 JUDGMENT The Parties [1] The Plaintiff was a patient of the 2nd Defendant, an ophthalmologist, 20 who was at the material practicing at the 1st Defendant’s medical center located at The Curve, Mutiara Damansara, Selangor. The facts [2] The Plaintiff had on 2.6.2007 sought consultation at the 1st Defendant’s Eye Center and was examined by the 2nd Defendant for left eye cataract and 25 refractive error. [3] The 2nd Defendant, following an examination of the Plaintiff, had recommended cataract surgery on the Plaintiff’s left eye. The Plaintiff agreed, and on 14.2.2007, the Plaintiff signed the “Informed Consent: Cataract Surgery 2 Form” and underwent a left eye phacoemulsification cataract surgery with multifocal intraocular lens implantation performed by the 2nd Defendant at the 1st Defendant’s eye center. [4] Phacoemulsification is the most common and advanced cataract surgery technique performed currently. Using this technique, the surgeon first makes a 5 small incision at the edge of the cornea and then creates an opening in the membrane that surrounds the cataractous lens. He then inserts a small ultrasonic probe through the opening in the cornea and capsule, which is the membrane surrounding the cataractous lens. The probe’s vibrating tip breaks up or “emulsifies” the cloudy lens into tiny fragments that are suctioned out of 10 the capsule by an attachment on the probe tip. After the lens is completely removed, the probe is withdrawn leaving only the clear (now empty) bag-like capsule, which will act as support for the intraocular lens. Phacoemulsification allows cataract surgery to be performed through a very small incision in the cornea. Stitches are seldom needed to close this tiny entry, which means that 15 there is less discomfort and quicker recovery of vision than with other surgical techniques. This is what the 2nd Defendant had done. [5] The Plaintiff was discharged on the same day of the surgery, and had follow-up examinations on 15.6.2007, 20.6.2007 and 31.7.2007. Thereafter, on 7.12.2007 the Plaintiff had seen Dr Choong Yean Yaw (PW1) at another 20 3 medical center for consultation on his left eye. PW1 was the consultant ophthalmologist who had carried cataract surgery on the Plaintiff’s right eye some months earlier. [6] The Plaintiff had after passage of almost a year after surgery called again at the 1st Defendant’s eye center on 8.6.2008 and 15.6.2008 for treatment on 5 his left eye as he felt some discomfort. The Plaintiff was attended to by Dr Alloysius Joseph Low (PW8), as the 2nd Defendant was no longer practicing at the 1st Defendant’s medical center. Apart from some edema in the left eye and inflammation, Dr Alloysius did not notice any untoward. Dr Alloysius gave topical eye drops to be applied for inflammation of the left eye. After the 10 consultation on 15.6.2008, the Plaintiff did not come back to the 1st Defendant’s eye center. [7] Thereafter, the Plaintiff had gone for consultation with several other ophthalmologists from 12.8.2008 to 26.2.2016, primarily because of complaint of poor vision and discomfort on his left eye. On 12.8.2008 Dr Lim Thung Kiat 15 (PW3) at another eye center examined the Plaintiff and found the left eye vision to be 6/24 with localized bullous keratopathy. Bullous keratopathy is caused by edema of the cornea, resulting from failure of the corneal endothelium to maintain the normally dehydrated state of the cornea. 4 [8] The Plaintiff had then consulted Datin Dr Teoh Su Lin (PW4) an ophthalmologist at the Subang Jaya Medical Centre on 13.8.2008, who upon examination found the Plaintiff’s left eye vision to be 6/18 with central stromal opacity with endothelial striae. The Plaintiff consulted Datin Dr Teoh Su Lin on a total of 3 occasions, i.e. on 13.8.2008, 9.10.2008 and 24.12.2008. The 5 Plaintiff’s vision improved and stabilized. [9] The Plaintiff then, upon referral by Datin Dr Teoh Su Lin, consulted Dr Michael Law Sie Haur (PW5) a corneal and refractive surgeon, on 3.2.2009, and the examination of the Plaintiff’s left eye revealed localized temporal bullous keratopathy with underlying detached Descemet’s membrane (“DMD”), which 10 extended from the temporal cornea incision wound. The left eye vision was 6/20. The Plaintiff then underwent a left eye “C3F8 gas injection intracamerally” on 3.12.2009, to reattach the DMD. Following that procedure, Dr Michael Law in his report at page 12 of Bundle B had noted at follows: “The left eye DM was successfully reattached within 2 months. However, the left 15 bullous keratopathy did not resolve. He missed subsequent follow ups between April and Sept 2009.” [10] The Plaintiff saw Dr Michael Law again sometime in September 2009 with recurrence of discomfort in his left eye. Examination of the left eye revealed a fully attached DM but with persistent “epithelial bullae over the 20 5 previous detached area”. The Plaintiff underwent left eye localized Anterior Stromal Puncture for symptomatic relief on 10.9.2009. His symptoms improved, however, he once again defaulted subsequent follow ups until March 2010 when he returned with a reduction in his vision. He was advised that a corneal transplant was likely necessary. The Plaintiff once again 5 defaulted on follow ups from March 2010 till February 2011, where his left eye vision had dropped to finger counts only. In February 2011 the Plaintiff once again consulted Dr Chong Yean Yew (PW1), who noticed cornea decompensation and very poor vision on the Plaintiff’s left eye. [11] The Plaintiff then reconsulted Dr Michael Law, who then carried out 10 corneal transplant on the Plaintiff’s left eye on 19.4.2011 (“First Corneal Transplant”). Dr Michael Law has made the following note in his report at page 18 of Bundle B: “The left eye recovered well and in June 2011 his BCVA in his left eye was 6/20 with a clear graft. Unfortunately he missed his appointments from June 2011 till October 2011, possibly also discontinuing his 15 medications prematurely.” [12] When the Plaintiff returned to see Dr Michael Law sometime in October 2011, and Dr Michael Law noted that the Plaintiff had “reduced vision on his left eye and was noted to have a slightly hazy cornea graft, possibly due to unrelated graft rejection”. Dr Micheal Law attempted to treat the problem, 20 6 but the condition did not improve despite intensive medications to reverse the graft rejection. [13] Dr Micheal Law then carried out a repeat corneal transplant on the Plaintiff’s left eye (“Second Corneal Transplant”) on 22.5.2012. The Plaintiff recovered well and on 29.6.2012 his left eye vision had improved to 6/38. 5 However, the Plaintiff developed a new episode of graft rejection in October

He responded well to intensive anti-rejection treatment and UCVA recovered to 6/24 in November 2012. The Plaintiff again defaulted follow up until November 2013, with indeterminate use of his anti-rejection eye drops. The second corneal graft also failed by March 2013, when the Plaintiff was last 10 reviewed by Dr Michael Law. [14] The Plaintiff then consulted Dr Shamala a/p Ratnasabapathy (PW6) at the Sungai Buloh Hospital on 20.8.2013. He subsequently saw Dr Shamala on 5.12.2013, and Dr Chong Yean Yew on 9.4.2014. On 19.3.2015, as his left eye vision was only 1/60, the Plaintiff was offered a third corneal transplant by Dr 15 Shamala. On 26.1.2016, Dr Shamala performed the third corneal graft (“Third Corneal Transplant”) on the Plaintiff’s left eye, and on his last recorded follow up on 26.2.2016, his left eye vision had improved to 6/36. And up till the trial in 2018, he had good vision on his left eye. 7 The Plaintiff’s claim [15] The Plaintiff claims special damages for medical cost and expense incurred following the surgery, and general damages for pain and suffering, and exemplary damages, against the Defendants grounded on the tort of negligence. The Plaintiff main allegations are:

firstly, that the Defendants failed to disclose the risk involved in the cataract surgery that was carried out by the 2nd Defendant at the 1st Defendant’s medical center on14.6.2007;

secondly, that the 1st Defendant non-delegable duty of care to ensure that the 2nd Defendant had the requisite skill and qualification in 10 attending to the Plaintiff was breached; and

thirdly, that the 2nd Defendant had failed to exercise proper standard of care in performing the cataract surgery and in providing proper post-operative care, and in particular to correctly diagnose the Plaintiff’s condition when the signs and symptoms of DMD were present. 15 [16] The specific particulars of negligence against the 2nd Defendant are set out in paragraph 20 of the Plaintiff’s Re-amended Statement of Claim, which are as follows: 8

failed to take care when performing the cataract surgery;

failed to take adequate measures to ensure that the other parts of left eye are not injured during the cataract surgery;

causing the bullous keratopathy during the cataract surgery and the ensuing detachment of the Descemet’s membrane in the left eye;

failed to give appropriate and proper advice before and after the cataract surgery; and

failed to properly treat and rehabilitate the left eye upon finding that the left eye was injured after the cataract surgery. [17] The particulars of negligence pleaded against the 1st Defendant, as in 10 paragraph 21 of the Re-amended Statement of Claim, are:

that the 1st Defendant failed to exercise proper diligence in appointing the 2nd Defendant, who was incompetent, as a medical consultant at its eye center;

the 1st Defendant failed to appoint medical consultants who were 15 knowledgeable and competent in their fields of expertise when giving treatment to the Plaintiff; and 9

the 1st Defendant had failed to provide proper and efficient level of service that was systematic and effective to treating the Plaintiff’s eye problem. [18] The Plaintiff further pleads that the 1st Defendant is vicariously liable for the negligence of the 2nd Defendant. 5 The Defendants’ defence [19] The Defendants have denied any breach of their duty of care to the Plaintiff. The Defendants further contend that there is no causal link between surgery performed by the 2nd Defendant and the injury to the Plaintiff’s left eye leading to the DMD and the three corneal transplants. 10 [20] The 1st Defendant also contends that the 2nd Defendant is an independent contractor and as such there is no vicarious liability for the acts or omission of the 2nd Defendant. [21] Further, both Defendants have pleaded that the Plaintiff’s claim is time-barred. 15 The issues [22] There are several issues to be dealt with in this case and they are:

did the Defendants owe a duty of care to the Plaintiff; 10

if so, did the Defendants breach that duty of care, particularly in the manner in which it is particularized in paragraphs 20, 21 and 22 of the

whether there is any causal link between the cataract surgery performed by the 2nd Defendant, and the DMD in the Plaintiff’s left eye that was 5 detected some years later, and the ensuing triple corneal transplant;

whether the 1st Defendant is vicariously liable for the actions of the 2nd

whether the Plaintiff’s claim is time-barred under section 6(1) of the Limitation Act 1953? 10 Elements of negligence [23] It is well settled law that to prove negligence, and in this case medical negligence, the following four essential elements of the tort has to be proven and established by the Plaintiff against the Defendants: a. that the Defendants owe the Plaintiff duty of care; 15 b. that the Defendants had breached that duty; c. that the alleged breach had caused the damage/injury, i.e. that there is a causal link the alleged cause and effect; and 11 d. that the Plaintiff has thereby suffered damage/injury. Burden of proof [24] It is also trite that the burden to establish the above elements of negligence always lie with the Plaintiff. See section 101 & 102 of the Evidence Act 1950 and the cases of Shalini Kanagaratnam v. Pusat Perubatan Universiti 5 Malaya (2016) 6 CLJ 225; Wu Siew Yong v Pulau Pinang Clinic Sdn Bhd (2011)1 CLJ 255; Mohd Yusof bin Mohd Rakim & Anor v Shanta a/p Periasamy & Anor [2006] 5 MLJ 251; Nanyang Development (1966) Sdn Bhd v How Swee Poh [1966] 1 MLJ 145; and Jaswant Singh v Central Electricity Board & Anor [1967] 1 MLJ 272. 10 The 1st Issue - Duty of care [25] By reason of the doctor-patient relationship between the Plaintiff and the 2nd Defendant, the 2nd Defendant does not dispute that he owed a duty of care to the Plaintiff for the period during which the Plaintiff was under his care. Further, by reason of the relationship of medical services provider and patient 15 that exists between the Plaintiff and the 1st Defendant, the 1st Defendant also owes a clear duty of care to the Plaintiff during the pendency of that relationship to ensure that the medical professionals at the medical center 12 have the requisite qualification and skill to attend to patients who use the services of the medical center. [26] This would include a non-delegable duty, i.e. a positive duty to ensure that reasonable care is taken such that the Plaintiff does not suffer any damage whilst receiving treatment at the 1st Defendant’s eye center. The 5 principle of non-delegable duty heightens the standard of care so that the requirement of reasonable care is not met simply by delegating the function to a competent contractor, but by ensuring that due care is exercised in the performance of that function by whomever is appointed to do so. Hence, in this case, the 1st Defendant would have a non-delegable duty to ensure that 10 the doctors/ consultants and other medical professionals, including the 2nd Defendant, working at or from its medical center, have the necessary qualification, skill and competence to carry out their tasks, and to ensure that they do not breach their duty of care owed to the patients who use their medical facilities. See: Dr Kok Choong Seng & Anor v Soo Cheng Lin and another 15 appeal [2018] 1 MLJ 685 FC. The 2nd Issue - Breach of duty/standard of care [27] The Plaintiff has to satisfy the Court on a balance of probability that the Defendants had breached their respective duty of care in relation to the 13 particulars of negligence set out in the pleadings. In order to succeed in the allegations of breach of duty, the Plaintiff has to adduce sufficient evidence showing that the 2nd Defendant had fallen short of the required standard of care expected of an ophthalmologist at the material time and that the 1st Defendant as a medical center has fallen short of the standard of care that is 5 required of it. [28] The Federal Court in Zulhashimar binte Hasan Basri v Dr Kuppu Velumani [2017] 5 MLJ 438 re-stated the law as regards the standard of care in medical negligence as follows:

In respect of the standard of care in medical negligence cases, a 10 distinction should be made between diagnosis and treatment on the one hand, and the duty to advise of risks on the other.

In regard to the standard of care for diagnosis or treatment, the test as expounded in Bolam v Friern Hospital Management Committee (1957) 2 All E.R 11, and as further ‘glossed’ and explained by the House of Lords 15 in Bolitho v City and Hackney Health Authority (1997) 3 W.L.R. 1151 still applied. In Bolam the court held that: ... in the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men. That is a perfectly accurate statement, as long as it is remembered that there may be one or 20 14 more perfectly proper standards; and if he conforms with one of those proper standards, then he is not negligent.. The House of Lords in Bolitho added a ‘gloss’ over the Bolam test and stated that in applying that test the court had to be satisfied that the exponents of a body of professional opinion relied upon by the medical 5 professional had demonstrated that such opinion had a logical basis and capable of withstanding logical analysis by the Court.

In cases of duty to advice of risks, the position in Australia in Rogers v Whitaker (1992) 175 CLR 479 would apply, namely it is now for the courts (rather than a body of respected medical practitioners) to decide 10 whether a patient has been properly advised of the risks associated with a proposed treatment. The 3rd Issue - The allegation of breach of duty by failure to exercise competence and skill during and after surgery [29] The Plaintiff has alleged that the 2nd Defendant had injured the 15 Descemet’s membrane during the cataract surgery and thereafter had failed to treat the detached Descemet’s membrane after having noted the injury post-operatively. 15 [30] The Plaintiff had called Dr. Ahmad Fauzi Md. Shariff (PW7), an ophthalmologist and Vitreo-Retinal Surgeon attached to KPJ Klang Specialist Hospital, as the ‘body of professional opinion’ to discharge the burden that the Descemet’s membrane may have been injured by the 2nd Defendant during the cataract surgery and that it went undetected by the 2nd Defendant. PW7 5 had mainly relied on the factual history provided to him by the Plaintiff on 21.2.2018 to form his opinion, and has paid very little attention to the contemporaneous medical notes of the 2nd Defendant and the medical reports of the several other ophthalmologists who had treated the Plaintiff. [31] The relevant factual history relied upon by PW7 as noted in his written 10 opinion reads as follows: “6. On the 14th June 2007, Dato’ LSY underwent a left eye phacoemulsification with posterior chamber intraocular lens (Multifocal Restor).

He was subsequently seen on the 15th and 20th June as part of a routine post-surgery review. On both occasions, it was recorded that Dato’ LSY was 15 comfortable and had no complaints. His eye examination showed clear cornea with well apposed wounds with no leakage. The intraocular lens was stable and well positioned. His vision was 6/9.6 and correctable to 6/7.5. The near vision was also good.

However, Dato’ LSY mentioned in my interview that in both occasions, he had 20 complaint that his eye was uncomfortable with tearing and imperfect vision. He was able to notice the difference in the recovery and clarity when compared to his right 16 eye that was done about 4 months earlier. He was informed by CYS that this is normal after surgery.

Dato’ LSY was then seen again on 31st July 2007 during which it was recorded that his eyes were healing well and no abnormalities were noted. He was instructed to stop his medication (Gutt Vigamox and Maxidex) and to continue with only Gutt 5 Acular until it finishes. He was not given any more review dates and was only instructed to return is there were any problems. Again, during the interview, Dato’ LSY said he was still experiencing discomfort and his vision was not good.” [32] However, there is much factual variance between the factual history that PW7 seems to have obtained orally from the Plaintiff and 10 contemporaneous medical notes done by the 2nd Defendant and other medical professionals who had attended to the Plaintiff. PW7 seems to have accepted the historical and factual version of the Plaintiff without proper verification of these facts with those recorded in the contemporaneous medical notes. [33] In this regard, I agree with submissions of counsel for the 2nd Defendant 15 (and I have reproduced counsel’s written submissions in this regard) that the following contemporaneous written notes in the medical documentary evidence are contradictory of the facts as recorded by PW7 in his report:

pre-operative left eye cataract evaluation (see page 67 Bundle B) showed that the Plaintiff’s uncorrected visual acuity (UCVA) was “6/30 – 20 Double”; 17

post-operatively for a period of about 1 ½ months (from 14.07.2007 to 31.07.2007) his uncorrected vision in the left eye had improved and was consistent at 6/9.6 without deterioration and his near vision had improved from N5 to N4 on 15.06.2007, N4 at a distance of 35cm on 20.06.2007 and N4 improved to 30cm on 31.07.2007;

the operative notes (at page 75 Bundle B) revealed that the 2nd Defendant had reviewed the left eye immediately following the cataract surgery and did not find any complications (i.e. he had noted “cornea clear. No. complications”);

if the Plaintiff’s allegation of pain, discomfort with tearing in the eye and 10 imperfect vision from the date of the cataract surgery are true, he would have sought treatment with another consultant but did not do so for a period of about 6 months. Post-operatively the Plaintiff consulted Dr. Choong Yean Yaw (PW1) only on 7.12.2007, and PW1 in his medical report dated 18.7.2014 [see page 17 Bundle B], which PW7 would have 15 had access at the time of preparing the expert written opinion, inter alia, merely stated as follows: “…On 7/12/07, he came for an eye examination. Examination then showed that he had left cataract surgery done in another centre not long ago. The best corrected vision in the right eye was 6/7.5 with refractive error of 20 18 +0.75/-1.25 x 75 and the best corrected vision in the left eye was 6/12 with refractive error of +2.00/-075 x 90.”

Dr. Choong Yean Yaw (PW1) did not make any notation of the alleged complaints of pain, uncomfortableness and tearing or corneal edema or Descemet’s membrane detachment in his medical report dated 5 18.7.2014. It was only in his oral evidence (see page 21 NOE dated 1.3.2018) that PW1 had stated from his clinical notes that there was slight localized cornea edema. Therefore, at the time when PW7 interviewed and prepared his expert written opinion, PW7 had the benefit of Dr Choong Yean Yaw’s medical report and yet did not find it 10 necessary to clarify and/or highlight the inconsistency in his written opinion;

the Plaintiff next consulted with Dr. Alloysius Joseph Low (PW8) on 8.6.2008 and 15.6.2008 (which was about 1 year after the cataract surgery and 6 months subsequent to the consultation with PW1) and on 15 both occasions PW8 had only noted ‘cornea haze’ or ‘edematous’. The clinical notes of PW8, which would have been available to PW7 at the time of preparing his written expert opinion, does not reveal any Descemet’s membrane detachment; 19

the next consultation was with Dr Lim Thung Kiat (PW3) and PW3’s medical report dated 7.9.2015 (see page 23 Bundle B) indicates that the Plaintiff had consulted PW3 on 12.08.2008 (which is about 1 year and 2 months after the left eye cataract surgery). PW7 in his written opinion report, as well as in his subsequent oral evidence in chief (see pages 22 – 5 55 NOE dated 15.3.2018 and pages 3 – 20 NOE dated 5.4.2018) had omitted to make any reference or consider the consultation and findings by PW3. On 12.8.2008 the only complaint which the Plaintiff had provided PW3 was ‘blurring of left eye over a period of 6 months (which would mean since March 2008) and the examination by PW3 only 10 revealed localized cornea edema and more importantly PW3 had noted ‘No other abnormal findings was noted’ and ‘no medication was prescribed’;

as an expert witness, PW7 has an obligation to the Court to put forward in its entirety all the factual findings and his opinion must be based on 15 those factual findings. PW3’s medical report is crucial to discredit the Plaintiff on the history provided by him to PW7 because the only complaint which the Plaintiff had some one plus years later was ‘blurring of vision in the left eye for a period of 6 months’ and no other complaints. Whereas PW7 was informed by the Plaintiff that he was 20 20 experiencing pain, uncomfortableness and imperfect vision since the date of the cataract surgery on 14.6.2007. Further, PW7 had ignored PW3’s examination and finding that he did not note any Descemet’s membrane detachment and noted ‘no medication was prescribed’;

PW7 had made reference to the medical report dated 14.9.2015 issued 5 by Datin Dr Teoh Su Lin (PW4) (see page 24 Bundle B). However, he had in his written expert opinion ignored the fact that when PW4 examined the Plaintiff’s left eye on 13.8.2008 she did not find Descemet’s membrane detachment but only a central stromal opacity with endothelial striae. PW4 was recalled on 4.5.2018 and she had confirmed 10 that:

subsequent to 13.8.2008, she had seen the Plaintiff on 10.9.2008 and 24.12.2008 and on both these consultations, the Plaintiff was recovering very well (see page 15 NOE dated 04.05.2018);

(ii) on 24.12.2008, there was no corneal edema nor complaint of pain 15 and the Plaintiff was no longer put on any medication. The Plaintiff was merely recommended to wear a reader or glasses (see page 1 Bundle J and page 19 NOE dated 4.5.2018); 21

(iii) the Plaintiff’s uncorrected vision had also improved from 6/18 to 6/12 and with readers and the Plaintiff could see well (see page 20 NOE dated 04.05.2018);

(iv) on all the three occasions, that is on 13.8.2008, 10.9.2008 and 24.12.2008, she had examined the left eye and did not make any 5 diagnosis of Descemet’s membrane detachment (see page 13 NOE dated 4.5.2018);

with regard to the initial referral to Dr Michael Law (PW5), when PW4 first saw the Plaintiff on 13.08.2008 (see medical report dated 14.09.2015 at page 24 Bundle B), PW4 had clarified that the 10 referral to Dr Micheal Law was made on a need basis because she only noted opacity on the left cornea, and at that moment since the Plaintiff was comfortable and had no pain, the Plaintiff need not proceed with a graft (see page 8 NOE dated 4.5.2018). [34] When these obvious factual inconsistencies are taken into consideration, 15 it is apparent that PW7 had based his opinion on erroneous assumptions of facts based purely on his history taking from the Plaintiff. Thus, PW7 had not exercised caution in providing the expert opinion, based primarily on the Plaintiff’s version, which was taken some 10 years after the cataract surgery, 22 and had completely failed to evaluate the Plaintiff’s version with that of the contemporaneous facts as stated in the medical reports issued by PW1, PW3, PW4 and PW8, as well as the medical notes of the 2nd Defendant. [35] Thus, I find that PW7’s opinion has very little probative value in the court’s determination of the issue of whether the DMD was caused by injury to 5 the eye from the cataract surgery. Any expert who comes to court to assist the court in making findings of fault as regards professional conduct must be fully cognizant of the underlying facts, both agreed and disputed, before proffering their opinion. It must be gainsaid that any opinion based on one-sided or disputed facts, or one that not based on the full range of facts, would do great 10 disservice to the parties and to the court as well. [36] In addition to that, I also noticed further shortcomings in PW7’s oral testimony, when his findings and opinion were tested during cross-examination. In particular, the following testimony is not helpful to the position advanced by PW7, i.e. that the DMD was allegedly caused by the 15 inappropriately done cataract surgery and the improper post-operative care and treatment, namely:

PW7 relied on two journal articles titled “Descemet’s membrane detachments post cataract surgery: a management paradigm” by 23 Chameen Samarawickrama (2016), and “Descemet’s membrane detachment after cataract extraction” by Jessice Potter (2005), to state that Descemet’s membrane detachment is common and occur in up to 43% of cataract operations. However, this assertion is far from accurate because both these articles had made reference to a literature by 5 “Monroe WM ; Gonioscopy after cataract extraction (1971)”, and when this primary source by Monroe WM (marked as exhibit D4) is examined it shows that the study in 1971 was based on patients selected at random from several weeks to more than 20 years post-operatively. This meant that the study was based on patients who had undergone 10 cataract extraction/surgery from 1951 to 1971. The techniques for cataract surgery in 2007, such as the phacoemulsification technique, was far superior advanced from those used in 1950s to 1970s. The incidents of post-operative complications, including Descemet’s membrane detachment were more pronounced. Thus, these studies cannot be 15 made the basis to assert that DMD is a common occurrence from cataract surgery in present times.

On the other hand, PW7’s evidence and own literature titled “Repeat Descemetopexy after Descemet’s Membrane Detachment following Phacoemulsification” by Sameer Datar (2014) at page 205 suggests that 20 24 Descemet’s membrane detachment is rare and the incidence varies between 0.5 and 2.6% intraoperatively or postoperatively following cataract surgery. Further, the journal article “Spontaneous Resolution of Corneal Oedema after Inadvertent Descemetorhexis during Cataract Surgery” by VK Srivastava (2010) at page 179 relied upon by Dr. Chua 5 Chung Nen (DW3), the 2nd Defendant’s expert, also show that the incidence of Descemet’s membrane detachment following phacoemulsification surgery, i.e. the technique used by the 2nd Defendant is very low, i.e. only 0.5%.

PW7 stated in his evidence that because most of the Descemet’s 10 membrane detachment are subclinical and resolved themselves spontaneously, he will not actively look for it unless he sees other signs, like in this case when the cornea become edematous without explanation (see page 50 NOE dated 5.4.2018). On the other hand, with regard to the management undertaken by the 2nd Defendant, despite 15 the fact that the 2nd Defendant had made entries in the clinical notes for 14.6.2007, 15.6.2007, 20.6.2007 and 31.7.2007 that there were no complaints and complications, PW7 is of the opinion that the 2nd Defendant ought to have still looked for Descemet’s membrane detachment. I find this suggestion to be unreasonable. That just doesn’t 20 25 make any sense. Why would a consultant look for something when there are no indicative clinical symptoms or underlying cause shown for such an examination or probe?

PW7 also maintained in his oral testimony that the Optical Coherence Tomography (Anterior) of the left eye, showed persistent corneal edema 5 with the central cornea thickness about 700 to 800 microns as opposed to the right which is clear with corneal thickness 500 to 600 microns. (see page 4 of written opinion and pages 56 – 57 NOE dated 5.4.2018). However, a review of the tomography images clearly shows that the measurement for the right eye was central but for the left eye the 10 measurement was much higher and closer to the upper eyelid. Hence, it was not an apple to apple comparison. DW3 in his evidence had highlighted the discrepancy in the measurements taken (see pages 8 – 9 NOE dated 20.9.2018) and the reasons for it. I find DW3’s explanation to be well founded and reasonable.

PW7 is of the opinion that the operation notes prepared by the 2nd Defendant (see page 75 Bundle B) does not state the length of the surgical incision. However, the 2nd Defendant had noted in the operation notes “2.75 Ozil” which represented the size of the blade and the length of the incision (see pages 108 – 109 NOE dated 05.04.2018). 20 26 The 2nd Defendant and his expert witness DW3 had confirmed in their testimony that “275” would be the length of the incision and that’s the manner in which the medical notes are usually written. The size of the incision at 275 was the accepted incision size for cataract surgeries, such as the one done on the Plaintiff.

PW7 had agreed in cross-examination that based on all the medical literature tendered by the 2nd Defendant, it seems that Descemet’s membrane detachment occurs within a few dates of surgery and when one of the literature titled “Unusually delayed presentation of persistent Descemet’s membrane tear and detachment after cataract 10 surgery” by Melina I Morkin & Ors (2014) (marked as exhibit D5) where at page 1631 the authors have highlighted that the reported case is the first case of delayed Descemet’s tear and detachment occurring 11 months after the cataract surgery, was referred to PW7, he was evasive in his reply and stated (see page 127 NOE dated 05.04.2018): 15 “Based on their appearance, they know all the cases in the world. Not all cases are reported or published. For what they research, this is what they found. Doesn’t mean the entire world nothing happened. So you cannot take the findings from a study to generalize like that. It is not good.”

Even if I were to give some credence to PW7’s aforesaid testimony 20 regarding generalization of a single case report, in another journal article 27 titled “Descemet Membrane Detachment After Phacoemulsification Surgery: Risk Factors and Success of Air Bubble Tamponade” by Seng-Ei Ti (2013) (marked as exhibit D3) where a retrospective analysis of 16 patients with Descemet’s membrane detachment were managed with Air Bubble Tamponade within 42 post-operative days, the irrefutable 5 inference was that the detachment had occurred within the said 42 days of the cataract surgery and not much later as is suggested by PW7.

Further, PW7 had also confirmed that based on the information contained in the surgical and clinical notes of the 2nd Defendant, the management and treatment of the Plaintiff was fine and normal [see 10 pages 31, 32 and 34 NOE dated 15.03.2018]: ‘Based on the records, everything was fine. He’s progressing as we expect after cataract surgery on the first day. The cornea is noted to be clear…. The eyesight was good, 6/9 which is not surprising first day. So there is no indication of any problem…. Almost a week later on the second follow up, 15 similar. The vision improved to 6/7.5 with refraction with glasses. And then the cornea was again noted to be clear. The lens stable no leakage … The eye pressure is basically normal. “…. And then the technique that was used. They put there soft shell technique… is just one of the methods that people use not everybody use 20 this. The idea of this technique is of course to protect the cornea…. And he mentioned that clearly, that is written there, cornea is clear and there is no problem, no complications during surgery. So generally from the surgical reports, everything looks very normal.” 28

PW7 in his written expert opinion had stated that a majority of Descemet’s membrane detachment are subclinical in nature and it can happen while the surgeon is inserting the intra-ocular lens at the end of the surgery or due to inadvertent injection of viscoelastic material between the membrane and the cornea stroma. He had thus made an 5 assumption that this is what happened in the present case. However, in cross-examination PW7 had agreed that there is no apparent clinical medical evidence in this case to support his finding that these incidents had happened during the cataract surgery. [see page 123 NOE dated 5.4.2018]. 10 [37] In contrast to the testimony and opinion of PW7, the 2nd Defendant had testified as follows:

Post cataract surgery, he had examined the left eye and noted that it was clear with no complications and the Plaintiff was discharged the same day with advice to contact the center if there is any problem.

During the review on 15.6.2007, 20.6.2007 and 31.7.2007, he had examined the left eye with the aid of a slit lamp and noted that the left eye was healing quite well with good vision and the cornea wounds, i.e. surgical wounds, were intact and the different layers of the cornea were 29 anatomically normal i.e. all in all, it was a straightforward procedure with no complications post surgically.

If there had been Descemet’s membrane detachment the slit lamp examination would have revealed the same. The use of the slit lamp examination is accepted as the standard practice for examination 5 because both PW3 and PW7 had also used similar method of examination when they examined the Plaintiff’s left eye. [38] Further, the 2nd Defendant’s findings that there was no Descemet’s membrane detachment is corroborated by the medical evidence and testimony of the other Consultants who had examined the Plaintiff over a 10 period of time from December 2007 to the date when Dr. Michael Law diagnosed the detachment in January 2009. Thus, it is improbable that the surgery in 2007 had caused the DMD and that it remained undetected by so many consultants over a period of some one and a half years, especially when medical literature shows that DMD mainly happens shortly after cataract 15 surgery and not after a prolong period. [39] The 2nd Defendant’s expert, DW3, Dr Chua Chung Nen, a well-regarded ophthalmologist and formerly professor at University Malaysia Sarawak and practicing at Sarawak General Hospital, had in his written expert opinion 30 dated 16.9.2015 reviewed all the medical reports issued by the various consultants who had examined and/or treated the Plaintiff, including the clinical notes of the 2nd Defendant and concluded as follows:

from the notes, the steps of the cataract surgery was clearly stated and there was no evidence of carelessness and the use of soft shell 5 technique of using combined Viscoat and Provisc provided good endothelial protection;

from the notes, there was no mention of any untowardness during the operation and the cornea was reported as clear at the conclusion of the surgery;

it is likely that the Descemet’s membrane detachment developed after the Plaintiff was discharged and the delayed development may have been provoked by other factors such as eye rubbing, which is medically accepted as a cause of DMD. The Descemet’s membrane is attached to the cornea, if one were to rub very hard, there is a risk of the 15 Descemet’s membrane detaching, especially if cataract surgery had been done to that eye or if there was past trauma to the eye; and

there is no evidence of any injury to the eye during the surgery and the cornea was clear at the follow-up; 31

there is no evidence to support the allegation of failure by the 2nd Defendant to correct any injuries sustained during cataract operation or at the post-operative follow-ups. [40] The counsel for Plaintiff submits that when the testimony of each of the doctors who treated the Plaintiff is weaved together, it can only lead to one 5 conclusion, i.e. the edema and the opacity of the cornea came from the cataract surgery. In this respect counsel refers to following the testimony of Dr Micheal Law as regards his answer to the question as to when will bullous keratopathy (edema) be detected after a cataract surgery: “It depends on the cause, there are various causes, in very acute or severe cases 10 even it can occur right on the day after surgery itself, in very extreme cases for other reasons but it can also develop many years later if there was a slow insult to the cornea, so the timeline varies. ... Well assuming like I said there are no other procedure that was doe between the 15 cataract surgery and between him seeing me, the cataract surgery was the only surgery that he had done yes, then there is a likely cause of the Descemet detachment. However, Dr Michael Law also said in cross examination that the DMD would have occurred closer to the time of surgery. Now, if this was so, then surely 20 the other doctors who had examined the Plaintiff prior to Dr Michael Law 32 would have detected it, but they did not. Hence, logic dictates that there must have been some other reason for the DMD to present itself some [41] But, DW3 in his testimony differed as to the cause of the DMD. In his expert report DW3 states: “Cataract surgery is the most common cause of descemet membrane detachment 5

(DMD). It is reported to occur in 0.044-0.5% in phacoemulsification. Most cases of Descemet membrane detachment are detected at the time of surgery or immediately after the operation during follow-up. Delayed Descemet membrane detachment is rare but has been reported with 11 months after the initial phacoemulsification being the longest in medical literature. Reported causes of 10 DMD include use of blunt keratomas, shelved or anterior chamber, inadvertent injection of saline, viscoelastic or antibiotics at the pre-descemetic space such as during irrigation-aspiration, stromal hydration, intraocular lens insertion and intracameral antibiotic injection. Pre-existing endothelial disease is also found to be significantly associated with DMD. 15 ... ... There was no mention of DMD during the surgery or follow-up so it was likely that the DMD developed after he was discharged. In my opinion, the cataract surgery predisposed the eye to DMD but the delayed development of DMD may be provoked by other factors such as eye rubbing.” 20 There is support for this opinion in the medical journal article titled “Unusually delayed presentation of persistent Descemet’s membrane tear and detachment after cataract surgery” by Melina I Morkin & Ors (2014) where the learned authors state: 33 “When apparent, Descemet’s membrane tears and detachments may cause decreased vision and corneal edema in the first few days or weeks after surgery. Few cases of Descemet’s detachments occurring late in the postoperative period have been reported, and very rarely months after surgery. ... 5 Many mechanisms have been easily attributable to the occurrence of early detachments after cataract surgery. However, the scarce literature on the very few late presentations does not methodically discuss mechanisms responsible for delayed cases, especially when they present with tears. Why had this patient developed Descemet’s membrane tear several months after cataract surgery? A 10 logical explanation for this unusually late presentation is that he might have traumatized his cornea, eg, by eye rubbing or unnoticed trauma, to a point that he caused further disruption of an already susceptible Descemet’s membrane and acute onset of edema in this area.” [42] In addition to his written report, in his oral testimony DW3 stated that 15 the Descemet’s membrane was successfully reattached by Dr Michael Law but the Plaintiff defaulted follow up, and subsequently, the reattachment failed. DW3 opined that the failure could be due the toxicity of the gas used by Dr. Michael Law and/or because the Plaintiff defaulted medical treatment after reattachment. In this regard I agree with counsel for the 2nd Defendant that 20 post-operative follow-up was an essential part of treatment and was necessary to achieve the best results after any surgery. [43] Thus, having considered the medical evidence and medical literature I find that the probable cause of the delayed detachment of the Descemet’s 34 membrane was the Plaintiff rubbing his eye (Dr Alloysius did notice the eye to be inflamed in June 2007). The eventual non-attachment of the Descemet’s membrane, after treatment by Dr Michael Law, and the subsequent corneal graft failures were not the result of the Defendant’s breach of duty of care but are in fact attributable to the Plaintiff’s own lackadaisical attitude in not 5 following up on and keeping to the post-surgery treatment plan. [44] DW3 further added that Descemet’s membrane detachment can be detected by slit lamp examination. And all the other doctors, including a few who were cornea specialists, had examined the Plaintiff’s eye using the slit lamp and they did not mention any Descemet’s membrane detachment in the 10 Plaintiff’s left eye. Thus, DW3 was of the opinion that it was unlikely to have happened during surgery or as a result of the surgery in 2007. I find this this to be logical and well supported by the medical evidence and the various medical literature referred to earlier. DW3 was extensively cross-examination by counsel for the Plaintiff on this issue, and in reply to a suggestion that because 15 of the swelling and haziness noted by PW1 and PW8 about 6 months and 1 year after the cataract surgery respectively, there is probability of there being Descemet’s membrane detachment, DW3 stated [see pages 40-14 NOE dated 20.09.2018]: 35 “Is possible but these two doctors, they are cornea specialists, they did not notice any Descemet Membrane Detachment. I think that is why Dr Alloysius gave Maxidex and Nevanac thinking it could be inflammation of the cornea instead of Descemet Membrane Detachment. I will assume that Choong YY would have noticed the Descemet Membrane Detachment because he is quite a well-known Cornea 5 Specialist.” [45] In addition to this, PW7 had in his report alleged shoddy treatment by Dr Alloysius Joseph Low (PW8). Now, PW8 was a consultant ophthalmologist and cataract refractive sub-specialist who was employed by the 1st Defendant at the material time. On 8.6.2008, the Plaintiff had called at the 1st Defendant’s 10 eye center and was seen by Dr Alloysius, as by that time the 2nd Defendant was no longer with the 1st Defendant. Thereafter, the Plaintiff saw Dr Alloysius once more on 15.6.2008. PW7 questions the treatment and advise given by Dr Alloysius, and in his report he says: “By the time he was seen again in June 2008, it was noted by AL that he had corneal 15 oedema and his left eye vision is worst. Unfortunately, apart from restarting topical medications, he was not referred elsewhere for further treatment. Instead he was apparently told to look for CYS in ISEC. A referral and proper treatment by a corneal specialist at this stage may have given Dato’ LSY a better prognosis for his visual outcome.” 20 [46] Now, both Defendants vehemently challenge this narrative and conclusion of PW7. Firstly, the 1st Defendant states that the Plaintiff did not plead any allegations of missed diagnosis or ill advise by Dr Alloysius. And hence this matter should not be raised in trial. Secondly, both Mr. Lim Boon 36 Siong (DW1) and Dr Alloysius had explained that they did not ask the Plaintiff to go and look for the 2nd Defendant at his new place of work. Dr Alloysius had merely informed the Plaintiff of the 2nd Defendant’s new place of work when the Plaintiff had enquired about the 2nd Defendant’s whereabout. Both Defendants also contend that at the point when Dr Alloysius examined the 5 Plaintiff in June 2008, there was no clinical indication for the Plaintiff to be immediately referred to a cornea specialist. Dr Alloysius saw some edema and inflammation in the left eye and had treated them conservatively with topical eye drops. PW7 states that in June 2008, it was noted by Dr Alloysius that the Plaintiff had corneal edema and his left eye vision had worsened. The 10 Defendants refute PW7’s assertion that the Plaintiff’s vision had worsened. Before seeing Dr Alloysius on 8.6.2008, the Plaintiff visited Dr. Chong Yean Yaw (PW1) on 7.12.2007 and the Plaintiff’s left eye vision as recorded by Dr. Chong Yean Yaw was also 6/12, i.e. the same as recorded by Dr Alloysius. This indicates that the Plaintiff’s vision did not worsen from December 2007. After 15 15.6.2008, the Plaintiff went on to visit Dr. Lim Thung Kiat on 12.8.2008 and the Plaintiff’s left eye vision was recorded as 6/24, which is worse than before. Hence, if there was any deterioration in the Plaintiff’s left eye vision, it was after his visit to Dr. Chong Yean Yaw on 7.12.2007, and not before. Despite the Plaintiff’s worsened left eye condition on 12.8.2008, Dr Lim Thung Kiat did not 20 37 refer the Plaintiff to any corneal specialist either. As such I accept the Defendants’ assertion that medically there was no need to refer the Plaintiff to a cornea specialist when Dr Alloysius saw him in June 2008, as there were no discernable clinical signs for such a referral to be made. [47] In any event, after the visit to Dr. Lim Thung Kiat, the Plaintiff went on 5 to visit Datin Dr Teoh Su Lin on three separate occasion, i.e. on 13.8.2008 (Vision 6/18), 10.9.2008 (Vision 6/18) and 24.12.2008 (Vision 6/12). Datin Dr Teoh Su Lin managed to treat his condition and found his vision to have improved. Datin Dr Teoh Su Lin in her testimony stated that the Plaintiff’s condition was fairly stable and he was comfortable during that time. She only 10 referred the Plaintiff to a cornea specialist (Dr. Michael Law) much later. She also confirmed that during the three visits by the Plaintiff there was no diagnosis of DMD. Now, if PW7’s allegation against Dr Alloysius is allowed to stand, then the same allegation could be made against Dr Lim Thung Kiat and all the other consultants who saw the edema but did not diagnose DMD on the 15 Plaintiff’s left eye. And they would be equally liable for the missed diagnosis. And that surely cannot be the case. [48] Hence, I find that the all-important causal link between the cataract surgery and DMD, and the subsequent corneal grafts, has not been established by the Plaintiff. Nor has the Plaintiff established that the surgery materially 20 38 contributed to the DMD. I also find that the evidence in its totality does not support the Plaintiff’s contention of negligence in the treatment and management of the Plaintiff by the 2nd Defendant during surgery or thereafter. I agree with submissions of counsel for the 2nd Defendant that PW7, the expert called by the Plaintiff, had completely ignored the clinical findings of the 2nd 5 Defendant, and the other consultants who had examined the Plaintiff after surgery, and had relied mainly on the history provided by the Plaintiff to come to his erroneous conclusion that the 2nd Defendant had injured the Descemet’s membrane in the left eye during the cataract surgery and had failed to diagnose and treat it subsequently. 10 Allegation of failure to give proper and appropriate advise before and after the surgery [49] The Plaintiff alleges that both Defendants had failed to give proper and appropriate advise before and after the surgery. The Defendants refute this. The evidence by the Plaintiff is that he was given a copy of the standard form 15 “Informed Consent: Cataract Surgery” to sign on 14.6.2007 just prior to the cataract surgery. He says that he did not understand the contents of the said consent form because it was in English, and that he had in the “Patient Profile” form stated that his preferred language is “Mandarin”. However, it must be pointed out that in the Re-amended Statement of Claim, the Plaintiff 20 39 had not pleaded any facts regarding his inability to understand the English language. This matter only came up in trial. Hence, the Defendants were denied their right to plead the necessary facts to refute this assertion. [50] In any event, during cross-examination the Plaintiff conceded that when he signed the Consent Form, he had read and understood its content and also 5 that the 2nd Defendant had explained the content thereof to him. The following excerpt from the Notes of Proceedings, when the Plaintiff was cross-examined by Mr Sagadeva, counsel for the 2nd Defendant, on the signing of the Consent Form, is relevant to the issue: “TS: You can see a signature Dato’ on the left side? 10 LOO: Ya, ya Ya, Just at the side of the signature, “please initial after reading this page”. Do you see that? LOO: Ya, correct. You must have read that before you signed. 15 LOO: Yes, correct. Yes, and if, dan juga di mukasurat 72, 73 dan 74, in all these pages semua mukasurat ini, ada nota bahawa Dato’ perlu baca sebelum menandatangani dokumen-dokumen ini, betul? LOO: Ya, betul. 20 40 Now mukasurat 71 juga diatas, perenggan 1, sebelah, somewhere in the middle “Please read the following pages carefully and initial and sign where indicated. Please do not sign any section that you have not read or do not understand. LOO: Ya. 5 Yes, so saya cadangkan kepada Dato’ alright, Dato’ hanya sign take it for granted to sign, tidak benar. Sebenarnya Defendan Kedua, Dr. Choong dan juga Dato’ telah membaca dokumen ini, memahami risiko dan komplikasi dan lepas itu juga bersetuju untuk cataract surgery. Setuju atau tidak? Dato’ you understand my question? It’s quite long, I know. You understand my question 10 Dato? LOO: Ya. Do you agree or disagree? LOO: Ya, agree” [51] Further, Mr. Lim Boon Siong (DW1), the Chief Executive Officer of the 1st 15 Defendant, testified that as matter of standard operating procedure, a copy of the said consent form is given to all patients in advance so that they can read and understand it. This was also confirmed by the 2nd Defendant. In addition to that the 2nd Defendant testified that he uses diagrams and models to explain the cataract surgery and its associated risks to all his patients. He also uses the 20 Consent Form as a checklist when explaining the procedure to his patients. The 2nd Defendant said that the explanation to the Plaintiff was given on 2.6.2007 and a copy of the Consent Form was given to the Plaintiff to take back 41 and return it on the date of surgery. The Defendants refute the Plaintiff’s claim that he was given a Consent Form to be signed just before the surgery on 14.6.2007. [52] The 2nd Defendant also stated that in the case of the Plaintiff, his explanation would have been in Mandarin and English with the aid of diagrams 5 and that the Plaintiff did not at any stage during the discussion of the procedure, risks and complications say that he did not understand what was being explained to him. [53] The contemporaneous documentary evidence, i.e. the Consent Form, shows that the Plaintiff had signed it after reading and understanding the 10 contents. The Plaintiff had signed each and every page of the Consent Form after having confirmed that he had read the respective pages and understood the content. The column where the Plaintiff is required to endorse his signature at every page expressly provides as follows:- “Please initial after reading this page” 15 Further, in Paragraph 1 at page 1 of the Consent Form there is clear notice to the patients that they should not sign any page/section of the form if they have not read or understood them. In this regard, it would be useful to reproduce that notice: 42 “This consent form, in combination with the extensive educational materials provided and the entire consultation process is designed to enhance your understanding of the Cataract Surgery so that you can make an informed decision about having cataract removal with an implantation of artificial lens or intra-ocular lens (IOL) to restore your vision. Please read the following pages carefully and initial 5 and sign when indicated. Please do not sign any section that you have not read or do not understand. Take as much time as you wish to make your decision before signing this informed consent. You have the right to ask any relevant question before agreeing to have the Cataract Surgery.” Thus, the overall evidence shows that the Plaintiff was adequately informed 10 and explained about the surgical procedure and its attendant risks both vide the express instructions and explanation in the Consent Form, as well as orally by the 2nd Defendant with the aid diagrams and models. Thus, I find that the allegation by the Plaintiff that he was not given proper and appropriate advise before the surgery is dispelled by the Plaintiff’s own evidence ad the 15 contemporaneous documents; and allegation is nothing but a fabrication and an afterthought. [54] As to the Plaintiff’s allegation that no proper and appropriate advise was given after surgery, I also find this to be unsubstantiated. Both DW1 and the 2nd Defendant testified that patients are given a “Before and After” document 20 to explain to them what to do before and after the cataract surgery. The document also provides the 24 hours emergency number for the medical center, as well as the mobile phone number of the 2nd Defendant, so that they 43 can call for assistance and advise in the event they feel any discomfort or encounter any problem after the cataract surgery. [55] The 2nd Defendant added that post-operatively, the routine orders given to all patients, including the Plaintiff, were:

not to rub or traumatize the eye;

(ii) keep the eye clean and maintain good hygiene; and

(iii) to return to the 1st Defendant’s eye center immediately if there were any problems. [56] Hence, I find that the evidence clearly refutes the Plaintiff’s allegation that he was not given proper post-surgery advice. Proper and adequate advise 10 had been given. The Plaintiff was seen by the 2nd Defendant on three follow-up appointments and the Plaintiff was seen to be recovering well from the surgery. The Plaintiff did not come for any further follow ups after that. He only came to see Dr Alloysius sometime in June 2008, which was a year after surgery. And that could only mean that the Plaintiff’s left eye had healed well 15 after surgery and the Plaintiff did not feel any discomfort or face any problems or complications post-operatively for a year. 44 4th Issue – Time Bar [57] The last issue that needs to be addressed is the issue of statutory time bar raised by the Defendants. The law relating to limitation in a claim based on negligence well settled. Section 6(1)(a) of the Limitation Act 1953 provides that an action founded in tort shall not be brought after the expiration of 6 5 years from the date on which the cause of action accrued. For ease of reference section 6(1)(a) reads:

Save as hereinafter provided the following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say- 10

actions founded on a contract or on tort; And it is well settled that the cause of action in tort accrues when there has been a wrongdoing by the defendant from which loss or damage is suffered by the plaintiff, irrespective of his knowledge of such loss or damage. This principle was reaffirmed by the Court of Appeal in Ambank (M) Bhd v Abdul 15 Aziz Hassan (2010) 7 CLJ 663, where it was held: “It has been submitted that in determining as to when the alleged causes of action in contract and in tort first accrued against the respondent, the date as to when the appellant discovered the alleged causes of action is totally irrelevant. The date of discovery of the alleged cause of action is only relevant under section 29 of the 20 Limitation Act 1953 if the cause of action was based on fraud or mistake or is concealed by fraud. Here, no such plea or averment was made by the appellant……. 45 In so far as section 6(1) (a) of the Limitation Act 1953 is concerned, we are of the view ………an alleged cause of action based in tort first accrued when the Plaintiff suffers damage.” [58] Now, the Plaintiff’s case is that the left eye cataract surgery was done by the 2nd Defendant on 14.6.2007 and the last follow-up review date was on 5 31.7.2007. The Plaintiff then consulted Dr Alloysius at the 1st Defendant’s eye center on 8.6.2008 and 15.6.2008. The Plaintiff alleges that the Descemet’s membrane detachment was the result of the cataract surgery and that the 2nd Defendant had failed to properly treat the problem after the surgery. Further he alleges that the 2nd Defendant did not properly and adequately explain the 10 surgical risks and post-surgery complications. The Plaintiff’s allegation against the 1st Defendant is that they did not ensure that only persons with proper medical knowledge, experience and skill were allowed to operate at their eye center and that the 2nd Defendant does not have the requisite qualification, experience or skill. Hence, from the pleadings it must be noted that the 15 Plaintiff’s claim is not for a continuous tort but rather based on specific acts or alleged breaches of duty of care by the Defendants on specific occasions. [59] In Kerajaan Malaysia v Lay Kee Tee (2009) 1 MLJ 1 [see TAB I D2 BOA] Justice Nik Hashim FCJ in delivering the decision of the Federal Court in respect of a claim for negligence against the government of Malaysia, where the 20 limitation period is 3 years, stated at page 15: 46 “… I agree with the appellants that the respondents’ pleadings reveal that the claim is not one of continuous tort but relates to specific acts or omissions, namely: failing to take steps to determine the cause of the outbreak of the virus; acting on erroneous assumptions; failing to give consideration to virologist, Jane Cardoza; failing to refer or send samples to the right experts for examination; implementing 5 unsuitable measures to manage and control the virus (see paras 88, 90, 96, 97, 124.3 and 124.13 of the Statement of Claim). All these events happened earlier than 1 March 1999 when the virus was isolated. The decision made on 18 March 1999 and 19 March 1999 to cull the pigs were actually not challenged. Therefore, since the suit was filed on 20 March 2002, the action was clearly time barred as it was filed out of 10 time.” Thus, the cause of action against the 1st Defendant would accrue at the latest on 15.6.2008, and against the 2nd Defendant at the latest on 31.7.2007. That is when the Plaintiff suffered the injury or damaged complained off. It does not matter that the Descemet’s membrane detachment was only diagnosed or 15 ‘discovered’ by Dr Michael Law on 3.2.2009. The time to file the action would start to run from the date the injury is caused and not from the date when the damage is discovered. If I were to agree with submissions of counsel for the Plaintiff, that a cause of action for medical negligence accrues from the date a patient discovers his injury and/or loss, it will open the floodgates for medical 20 negligence cases, as a suit will be filed with unknown time limits, based on the fact that the injury was discovered at a much later date. [60] Even assuming that the Plaintiff’s alleged complaints of post-surgery pain and discomfort, and his assertion that he was looking for an eye specialist 47 to treat the condition are true and do not amount to ‘broad term’ knowledge of some damage to the left eye, certainly the Plaintiff would have had specific or actual knowledge of the alleged damage when he consulted Dr Choong Yean Yaw (PW1) on 7.12.2007 or at the least when he consulted Dr. Alloysius Joseph Low (PW8) on 8.6.2008 or 15.6.2008. Now, even if these later dates are taken 5 as the accrual date for the cause of action, the Plaintiff’s claim would still be time barred by the 6 years period of limitation because the suit was only commenced on 29.1.2015, which is well after the 6 years. Hence, I agree with submissions of counsel for the Defendants that the Plaintiff’s action is time-barred by section 6(1) of the Limitation Act. 10 Conclusion [61] In the overall, apart from the fact that the Plaintiff’s claim is time-barred and ought to be dismissed in limine, I find that the Plaintiff has failed to prove his case against both Defendants. In particular, I find that the Plaintiff has failed to prove that the loss of vision in the left eye and the need for the repeat 15 corneal graft was caused by the 1st and/or 2nd Defendants’ breach of the required standard of care. I also find that on the issue of causation, the eventual non-attachment of the Descemet’s membrane and the subsequent graft failures were not the result of the Defendants’ breach of duty of care, but are in fact attributable to the Plaintiff’s own lackadaisical attitude in not 20 48 following up on treatment which was necessary to achieve the best results after any surgery. I further find that the Plaintiff’s allegations of negligence in the treatment and management by the 2nd Defendant is unsubstantiated and without merit. As for the allegation of failure to give proper and appropriate advise before and after the surgery, the evidence shows that the Plaintiff had 5 been properly advised on the risks associated with the cataract surgery and was also given proper and adequate advise on post-operative care. Hence, I find this allegation to be also unsubstantiated and without merit. [62] Wherefore, I dismissed the Plaintiff’s claim against both Defendants with cost of RM20,000.00 for the 1st Defendant and RM45,000.00 for the 2nd 10 Defendant. Dated this 11th day of July 2019. Vazeer Alam Mydin Meera 15 Judge High Court in Malaya Shah Alam 20 49 Counsel for Plaintiff Pn Hazniza Teh Hassan Messrs Tee Tai Tzian & Sim Advocates & Solicitors No. 52B, 2nd Floor 5 Pelangi Avenue, Jalan Kelicap 42A/KU1 Off Jalan Meru 41050 Klang, Selangor Tel : 03 3342 5226 Fax : 03 3342 5221 10 Ref : TS.L.15.LSY-CYS&VLECSB.294 Counsel for 1st Defendant Ms Eunice Ong & Ng Wei Ying Tetuan Eunice Derek & Co 15 Suite D-07-05 Block D, Level 7 Plaza Mont Kiara No. 2, Jalan Kiara 50480 Mont Kiara 20 Tel : 03 62014087 Fax : 03 6201 4085 Ref : EDCO/524/VISTA/2015/EO Counsel for 2nd Defendant 25 Mr T Sagadevan & Ms Nurulhuda Mansor Shearn Delamore & Co Tingkat 7, Wisma Hamzah Kwong Hing No. 1, Leboh Ampang 50100 Kuala Lumpur 30 50 5 10