Juwariyah binti Sal Hamid @ Ahmad v Dato' Dr Shahrudin bin Mohd Dun (BA-23NCvC-10-03/2022)

The plaintiff filed a claim for medical negligence against the defendant.

On 6 February 2025, the High Court dismissed the plaintiff’s claim with costs following the full trial.

This outlines the rationale for the decision.

This the court refers to the material facts presented by the plaintiff’s counsel in their written submissions. 14/04/2025 15:44:46 BA-23NCvC-10-03/2022 Kand. 72

The plaintiff, Juwariyah binti Sal Hamid @ Ahmad, is an employee of the TNB Repair & Maintenance Sdn Bhd as Finance Manager.

The defendant, Dato’ Dr. Shahrudin bin Mohd Dun, is a Consultant General Surgeon practicing at KPJ Selangor Specialist Centre (KPJ Selangor).

The plaintiff, who was suffering from recurrent abdominal pain, consulted the defendant at KPJ Selangor on 24 May 2017. The defendant examined the plaintiff and noted tenderness in the plaintiff’s right hypochondrial region. A CT scan conducted on 22 May 2017 revealed that the defendant diagnosed gallstone disease and recommended that the plaintiff undergo a laparoscopic cholecystectomy to remove the plaintiff's gallbladder.

On 25 May 2017, the plaintiff underwent a laparoscopic cholecystectomy (the first operation) at KPJ Selangor, performed by the defendant. The plaintiff was discharged from KPJ Selangor on 28 May 2017.

The plaintiff was readmitted to KPJ Selangor on 31 May 2017 due to symptoms indicating obstructive jaundice. Dr. Lim Yaw Tzong, a Consultant General Surgeon, performed an endoscopic retrograde cholangiopancreatography (ERCP) the following day. The ERCP was unsuccessful, and Dr. Lim could not cannulate the common bile duct.

On 7 June 2017, the plaintiff underwent surgery to explore the cystic duct and common bile duct, which was performed by the defendant (the second operation).

Based on the defendant’s report, a one cm-sized impacted cystic duct stone was compressing the common bile duct. The stone was removed, and a stent was placed in situ in the common bile duct.

The plaintiff was discharged from KPJ Selangor on 13 June 2017. On 23 August, 2017, the defendant removed the stent via an endoscopic daycare procedure.

On 8 September 2017, during a follow-up appointment with the defendant, the plaintiff’s liver function test results were normal, and she reported no complaints. No additional appointment dates were scheduled after that date. 2020

In early April 2020, the plaintiff began experiencing pain in the tip of her right shoulder and the upper right quadrant of her abdomen. Sensing that something was not quite right, she decided to undergo a liver function blood test at a general practitioner (GP) clinic, which revealed elevated liver enzymes.

The plaintiff was referred to a Consultant Physician and Gastroenterologist, Dr. Shanthi Palaniappan (Dr. Shanthi) at Pantai Hospital Kuala Lumpur (Pantai Hospital) for further management.

On 16 April 2020, the plaintiff consulted Dr. Shanthi at Pantai Hospital KL, who noted that the plaintiff had complained of pain in the right shoulder tip and the right upper quadrant of the abdomen for two weeks. Dr. Shanthi ordered a CT scan of the plaintiff’s abdomen and pelvis, which was performed on the same day. The scan revealed a mildly dilated common bile duct of 5 to 6 mm.

Following this consultation, the plaintiff continued to follow up with Dr. Shanthi. On 16 May 2020, the plaintiff underwent a magnetic resonance cholangiopancreatography (MRCP) investigation at Pantai Hospital, revealing a focal short stricture in the common hepatic duct.

Upon reviewing the MRCP findings, Dr. Shanthi referred the plaintiff to Consultant Gastroenterologist and Physician Dato’ Dr. Mahendra Raj (Dr. Mahendra) for an ERCP. Dr. Mahendra performed the ERCP on 29 May 2020. During the procedure, Dr. Mahendra noted that he encountered a very tight stricture at the junction of the common hepatic duct and the common bile duct.

Dr Mahendra referred the plaintiff to Consultant General & Hepatobiliary Surgeon Dr Lim Kin Foong (Dr Lim KF). Upon reviewing the plaintiff, Dr Lim KF had advised the plaintiff to undergo surgery for biliary reconstruction.

On 3 June 2020, the plaintiff underwent an operation (the third operation) at Pantai Hospital, performed by Dr. Lim KF. A Roux-en-Y hepaticojejunostomy and repair of a paraumbilical hernia were conducted during this procedure. Dr. Lim KF’s operative notes for 5 the third operation confirmed the presence of a stricture in the common hepatic duct.

Following the third operation, the Plaintiff continues to have regular periodic follow-ups with Dr. Mahendra at Pantai KL to this day.

The plaintiff called the following witnesses to give evidence: i. Dr Lim Yaw Tzong (SP-1); ii. Mohd Arrafat Hajah Mohaijadeen (SP-2) – the plaintiff’s husband; iii. Dr Lim Kin Foong (SP-3); iv. Consultant General & Hepatobiliary Surgeon Dr Krishnan Raman (SP-4) – the plaintiff’s expert witness on liability and quantum; v. Juwariyah binti Sal Hamid @ Ahmad (the plaintiff) (SP-5); and vi. Dato’ Dr Mahendra Raj Sundramoorthy (SP-6).

The defendant called the following witnesses to give evidence: i. Dato’ Dr Shahrudin bin Mohd Dun (the defendant) (SD-1); and ii. Consultant General & Hepatobiliary Surgeon Dr Robert Patrick Jalleh (SD-2) – the defendant’s expert witness on liability. C. SUBMISSION BY THE PLAINTIFF

The plaintiff suffered a biliary stricture, which was diagnosed and treated at Pantai Hospital Kuala Lumpur in the year 2020. The stricture was treated by way of an extensive and complex reconstructive surgery. Following the said surgery, the plaintiff developed numbness at the site of the surgical scar, which she continues to experience to this day.

The plaintiff is restricting her claim to the following issues –

The defendant’s failure to undertake a cholangiogram following the removal of the biliary stent during the stent removal procedure; and

(ii) Following the biliary stent removal procedure on 23 August 2017, the defendant failed to undertake regular periodic follow-ups of the plaintiff, including blood liver function tests and/or abdominal ultrasound investigations. [26] The plaintiff asserts that, on the balance of probabilities, had a cholangiogram and/or regular follow-up been performed, the plaintiff’s stricture would have been diagnosed earlier. It could have been treated through endoscopic procedures rather than open surgery, which carries a higher risk of complications. [27] The plaintiff will not contest the care provided by the defendant during the first and second operations or the interval between those two operations. [28] The plaintiff also submitted that the defendant's duty of care arose from the doctor-patient relationship. The standard of care applicable to the defendant is that of a reasonably competent practitioner in the defendant’s position, who must exercise specialised skills and knowledge, i.e., the Bolam standard. D. SUBMISSION BY THE DEFENDANT [29] The defendant is a qualified specialist in General Surgery, with a master's degree from University Malaya in 1994. He practices as a general surgeon specialising in hepatopancreatic (HPB) surgery, for which he trained for two years at the Hammersmith Hospital, London, UK. The defendant has been in private practice since 1998. [30] The plaintiff came to see the defendant with a referral letter, and the guarantee letter stated that her employer was Tenaga Nasional Berhad. [31] The defendant submitted that the plaintiff's claim that a longer-term follow-up would have been required is an afterthought, particularly since the follow-up also addressed the fatty liver and diabetes after the 2020 surgery. E. LEGAL PRINCIPLES [32] Under the Bolam principle, a medical practitioner is not negligent if their conduct is consistent with a practice accepted by a responsible body of medical professionals skilled in the relevant field (Bolam v Friern Hospital Management Committee [1957] All ER 118 at 121, [1957] 1 WLR 582). [33] In Foo Fio Na v. Dr Soo Fook Mun [2007] 1 CLJ 229, the Federal Court clarified that the Bolam test does not apply to risk disclosure or the process of obtaining informed consent. Additionally, it was determined that courts must independently assess whether the patient was adequately informed of material risks, applying a standard that preserves patient autonomy. [34] Diagnosis and treatment decisions should be assessed under the Bolam test and not Foo Fio Na’s case. The courts must not substitute their own opinion over that of qualified medical professionals where a body of opinion supports the practice. The Federal Court in Zulhasnimar bt Hassan Basri v Dr Kuppu Velumani P & Ors [2017] 8 CLJ 605 reaffirmed the Bolam principles and stated in paragraphs 94-97 on page 641- 642 that- [94] Thus, it is our judgment that in respect of the standard of care in medical negligence cases, a distinction must be made between diagnosis and treatment on the one hand and the duty to advise of risks on the other. This is because diagnosis and treatment are purely in the realm of medicine and that in the field of medicine, there are genuine differences of professional opinion in respect of diagnosis and treatment. Although as a discipline, medicine involves specific knowledge, its practice, however, often does not admit to scientific precision. It is not always the case that there is a definite answer one way or the other. In fact, medical experts do genuinely and frequently differ in opinion on diagnosis and treatment. [95] Given the fact that there are genuine differences in opinion in diagnosis and treatment, it is therefore not a matter that the court can, or is, equipped to resolve. It is in this context that the Bolam test makes good sense. It requires the court to accept, not just the views of medical experts simpliciter, but the views of a responsible body of men skilled in that particular discipline. It removes from the courts the responsibility of resolving a dispute that is not equipped to resolve. [96] On the other hand, different consideration ought to apply to the duty to advise of risks as opposed to diagnosis and treatment. That duty is said to be noted in the right of self-determination. As decided by the Australian High Court in Rogers v. Whitaker and followed by this court in Foo Fio Na, it is now the courts’ (rather than a body of respected medical practitioners) which will decide whether a patient has been properly advised of the risks associated with a proposed treatment. The courts would no longer look to what a body of respectable members of the medical profession would do as the yardstick to govern the standard of care expected in respect of the duty to advise. [97] Based on the foregoing, we will answer question 1 in the following manner. The test propounded by the Australian case in Rogers v. Whitaker and followed by this court in Foo Fio Na in regard to standard of care in medical negligence is restricted only to the duty to advise of risks associated with any proposed treatment and does not extend to diagnosis or treatment. With regard to the standard of care for diagnosis or treatment, the Bolam test still applies, subject to qualifications as decided by the House of Lords in Bolitho. F. ISSUES TO BE DECIDED [35] Experts for the plaintiff and defendants agree that the treatment provided by the defendant was in accordance with the standard of care and that a stricture is a normal sequel of the first and second operations. [36] Nonetheless, this Court needs to examine the facts, evidence from the witnesses and expert opinions regarding the treatment prior to 2020 to guide this Court in assessing the two primary issues raised by the plaintiff. The issues to be decided here are as follows:

Whether Dr. Shahrudin’s decision to perform laparoscopic cholecystectomy on 25 May 2017 was clinically justified.

(ii) Whether the sequence of postoperative investigations (ERCP prior to MRCP) constituted a breach of the standard of care.

(iii) Whether a cholangiogram was necessary following the second operation done by the defendant following the removal of the stent.

(iv) Whether the discharge of the plaintiff on 8.9.2017 with not to return (PRN) when necessary was an appropriate standard of care.

Whether the standard of care provided by Dr. Shahrudin fell below what is expected of a reasonably competent general surgeon. G. ANALYSIS AND FINDINGS [37] The plaintiff called Dr. Krishnan Raman, Consultant General and Hepatobiliary Surgeon (SP-4) as the plaintiff’s expert witness on liability and quantum. SP4’s expert opinion in summary are as follows – a) The laparoscopic cholecystectomy on 25 May 2017 was justified due to symptomatic gallstones. b) No intraoperative cholangiogram was performed, which is considered a missed opportunity to prevent post-op complications. c) The plaintiff was re-admitted 6 days post-op with obstructive jaundice. MRCP should have been done before ERCP. d) The second surgery (7 June 2017) found a stone. However, there was no documentation of cholangiogram or bile duct repair. e) The stent was removed on 23 August 2017 without follow-up imaging, which was considered a major lapse. f) The development of a bile duct stricture was likely related to the surgery and inadequate post-op follow-up. g) SP4 concludes that the care provided by the defendant did not meet a reasonably competent standard. [38] The defendant’s expert witness on liability is Dr Robert Patrick Jalleh, Consultant General & Hepatobiliary Surgeon (SD2). His expert opinion can be summarised as follows-a) The initial surgery was justified, and standard care was followed. b) An intraoperative cholangiogram was not indicated based on normal pre-op tests. c) Post-operation management, including the sequence of ultrasound, ERCP and MRCP, was standard and reasonable. d) The second surgery (7 June 2017) correctly identified and the defendant removed the cystic duct stone, and then a stent was placed. e) Follow-up appointments were held on 4 occasions and blood tests were normal. f) No follow-up imaging was necessary post-stent removal due to the patient's stable condition. g) The bile duct stricture diagnosed in April 2020 is unlikely to be related to any negligence and is attributed to delayed fibrosis. [39] The expert reports submitted by the plaintiff indicate different opinions about the defendant’s clinical management, particularly concerning the omission of an intraoperative cholangiogram, the sequence of post-operative investigations, and the lack of a follow-up cholangiogram after stent removal. [40] In contrast, the expert opinion from SD2 supports the view that the defendants’ decisions fell within acceptable medical practices. The choice not to perform an intraoperative cholangiogram, reliance on ERCP prior to MRCP and discharge following stent removal without imaging are practices that a responsible group of general surgeons may endorse. Whether Dr. Shahrudin’s decision to perform laparoscopic cholecystectomy on 25 May 2017 was clinically justified. [41] The initial surgery conducted by the defendant was justified based on expert reports from the plaintiff and the defendant. [42] It is this Court's considered opinion that although both experts agree that the procedure was medically necessary, this issue establishes the foundation for assessing the subsequent clinical decisions. Whether the sequence of postoperative investigations (ERCP prior to MRCP) constituted a breach of the standard of care. [43] SP1 performed an ERCP on the plaintiff following the gallstone procedure conducted by the defendant. This was necessary because the plaintiff had jaundice after the first operation. SP1 also confirmed, based on Dr. Haris's radiology report, that there are no stones in any of the plaintiff’s ducts. [44] During cross-examination, SP1 gave the following evidence – Q: Ok. Now, I’m taking you through this because from this report, you couldn’t see anything. You had a procedure, then the patient came back with jaundice. Now, could you explain why ERCP was indicated and not a MRCP at that point in time? JUDGE: ERCP indicated and not MRCP, yes? Defendant’s counsel: Yes. SP1: MRCP is just the imaging. It’s not a therapeutic procedure. ERCP, since the patient is having jaundice with abnormal liver enzyme, this means that there must be definitely some form of obstruction in which ERCP will have options of therapeutic procedure I can do to determine and also sometimes to solve the cause of obstruction. Q: Thank you. I’m going to rephrase that in a layman’s term, so you just tell me whether you agree or disagree. Would you say the ERCP was the preferred form for the condition that she was in because ERCP would give you the option to identify and solve the cause of the obstruction? Would that be correct? A: Not always, but possible. Q: Possibly. And in comparison, MRCP would just be an image. It will be similar to the ultrasound on page 266 or x-ray which will show what, where, if at all, there is an obstruction. Would that be correct? Q: Ok, so the reason why in this case, the ERCP was preferred, there was a possibility that while going in identifying the obstruction, there was a possibility that the obstruction could have been alleviated. Q: Yes. And as you said earlier today, it’s not 100%. Like every procedure, there is a 5% to 10% failure rate. Q: Ok. So, ERCP, I’m going to rephrase that again, ERCP was preferred because of the 90% to 95% chance that this one procedure called ERCP would resolve the jaundice and clear the obstruction. A: Yes. [45] When SP1 was asked what the most common cause of jaundice among adults is, SP1 replied as follows: SP1: Post laparoscopic cholecystectomy, that means the gallstone surgery, if there is a remained stones in the common bile duct, it can be… the remained stone, it can be missed before the surgery or during the surgical procedure because we need to manipulate the gallbladder, the stone can drop down. [46] SP1 stated in his evidence that when he conducted the ERCP, he was unable to cannulate the common bile duct (CBD). He believed the likely cause of the obstruction was anatomical abnormalities and the acute angulation of the CBD's insertion into the second part of the duodenum, i.e., the small bowel. For SP1 to perform further procedures, he must be able to insert a guide wire to place the catheter inside. He also admitted that the reason he was unable to continue cannulating the CBD during the ERCP was due to the anatomical issue rather than encountering any obstruction. [47] SP1 also informed the Court that on 1 June 2017, he explained the ERCP findings and discussed further action plans with the defendants. His additional evidence is as follows – Q: Can I ask Dr, what was this further action plan that was discussed with Dato’ Dr Shahrudin? SP1: In order for us to assess and visualise the common bile duct, we can do either MRCP, that means it’s magnetic resonance imaging, to see the bile duct or we can do another procedure, we call it endoscopic ultrasound. That is what I mentioned there, EUS. … Q: No, Doctor. Maybe you answer first, then you can clarify. Which procedure was Dr Shahrudin in favour of? SP1: MRCP. [48] During the examination in chief, when the defendant was asked to explain why an ERCP was performed instead of an MRCP, he responded as follows – SD1: No. 1 it is in my practice and other surgeons in my hospital when the patient presents with jaundice, the first thing we do would be ultrasound of the abdomen and blood test. The next step if the ultrasound abdomen shows an obstruction or suggestion of obstruction, the next step would be an ERCP because as a, in practice, the ERCP will provide investigation and also a diagnostic tool plus also therapeutic tool in one sitting. Q: How would it be a therapeutic tool? SD1: Common cause of obstruction after cholecystectomy operation be it laparoscopy of open cholecystectomy could be a stone somewhere in the common bile duct. There is one of the common causes. Now, this can be removed, most of the time the problem can be solved by doing ERCP and removing the stone at the same time. So, this is how it becomes a therapeutic procedure. [49] It is important to note that, according to SP1's evidence, he did explain the ERCP procedure and its complications to the plaintiff and her husband. This can be shown in the notes, which stated, ‘Post ERCP pancreatitis risk explained.’ [50] The MRCP findings were also explained to the plaintiff. Prior to that, SP1 mentioned that he and the defendant discussed determining the exact diagnosis using the MRCP after the ERCP. [51] The plaintiffs’ expert witness, SP4 opined that the post-operative complication, where the plaintiff suffered jaundice, is likely due to a retained common bile duct stone or bile duct injury. Therefore, MRCP should have been performed prior to ERCP. [52] The defendants’ expert witness, Dr. Robert Patrick Jalleh (SD-2), established in his report that the correct approach is ultrasound followed by ERCP rather than MRCP, with ERCP remaining the gold standard even if unsuccessful. [53] Both experts agree, however, that the defendant's initial treatment met the standard of care and that the prescribed procedure is appropriate, as a stricture is a common consequence of the first and second operations. Whether Dr. Shahrudin negligent in discharging the patient without a post-stent removal cholangiogram and/or adequate follow-up monitoring. [54] This issue examines whether monitoring the patient's recovery was insufficient and if this contributed to the development of subsequent complications. According to the plaintiff's expert, no cholangiogram was conducted during the stent removal phase, which was a significant oversight. [55] In support of the defendants' conduct, SD2 testified that it is acceptable not to perform a cholangiogram when liver function tests are normal and no symptoms are present. For SD2, the follow-up care is considered adequate. Whether a cholangiogram was necessary after the second operation done by the defendant following the removal of the stent. [56] The plaintiff submitted that the defendant did not perform a cholangiogram after removing the biliary stent during the stent removal procedure. [57] To establish negligence, the plaintiff must show, based on the balance of probabilities, that the defendant breached a duty of care, that this breach caused the injury, and that the injury was a reasonably foreseeable consequence. [58] Factual causation is evaluated by asking whether the injury would have occurred 'but for' the act or omission. Legal causation requires determining whether the injury was a reasonably foreseeable consequence. [59] The Federal Court in Zulhasnimar bt Hassan Basri v Dr Kuppu Velumani P & Ors [2017] 8 CLJ 605 held that - 26] The approach of the Bolam test practically meant that while the law imposed a duty of care, the standard of care owed by a doctor to a patient is left to the medical fraternity ie, the "practice accepted as proper by a responsible body of medical men skilled in that particular art". In other words, the medical practitioners had the final say whether there was negligence and not the courts. [27] The Bolam test as formulated was wide enough to encompass all aspects of medical practice. It made no distinction between diagnosis, treatment or the duty to advise of the risk. Instead, the test offered a single all- encompassing and comprehensive test to be applied to medical practitioners in the discharge of every aspect of the duty of care they owe to their patients. [60] The Federal Court clarified that a rare or serious complication on its own does not prove negligence, especially if the medical care provided was reasonable under the circumstances. [61] SD2 argues that the bile duct stricture was not due to any surgical negligence. He points out that the stricture developed about 34 months after the surgery, suggesting a delayed fibrotic response or a natural progression rather than an immediate post-operative complication. He asserts that the defendant acted reasonably and that follow-up care at discharge revealed no signs of biliary complications. [62] SP4 contends that failure to perform a post-stent removal cholangiogram or adequate follow-up, likely contributed to the development of a bile duct stricture. He asserts that this omission constituted a breach of duty and that proper post-operative imaging and monitoring could have prevented the stricture. [63] Based on Bolitho (Administration of the Estates of Bolitho (deceased) v City & Hackney Health Authority [1977] 4 All ER 771 this Court is permitted to reject the expert opinion if it is demonstrated to be illogical or unreasonable. However, SD2’s rationale seems sound and logical based on the timeline and clinical findings. [64] Regarding this issue, SP4 asserts that this represented a departure from standard procedures, resulting in complications. In contrast, SD2 contends that it was unwarranted, given the preoperative observations. [65] This Court refers to the expert opinions of the plaintiff and the defendant. The SP4 believes performing a cholangiogram after biliary stent removal is standard practice in such procedures. According to SP4, a cholangiogram is performed following biliary stent removal to check for early signs of narrowing, stricture, or other issues, and it should have been done in the plaintiff’s case. [66] In support of SP4’s evidence, both SP3, Dr. Lim Kin Foong, a hepatobiliary surgeon, and SP6, Dato’ Dr. Mahendra Raj Sundramoorthy, a gastroenterologist, testified that conducting a cholangiogram after the removal of a biliary stent is part of their standard practice. [67] On the other hand, the defendants’ expert witness, Dr. Robert Patrick Jalleh (SD-2), has offered his expert opinion that the plaintiff experienced no issues related to the bile duct for nearly three years following the second operation. Therefore, it is irrelevant whether a cholangiogram was performed after the removal of the stent approximately two and a half months post-operation. [68] Regarding the operation on 22 May 2017, SD2 opined that there was no reason to perform an intra-operative cholangiogram during the initial procedure because the operative assessment, which included a normal liver function test and ultrasound, did not reveal any dilation of the biliary tree or disease of the bile duct. [69] The learned counsel for the plaintiff refers to SD2’s expert report in paragraph 6, page 35, Encl. 46 which states, It is fair to state that the cause of the stricture at presentation at Pantai was fibrosis (scarring), as reported by Dr. Lee Bang Rom. [70] However, learned counsel for the plaintiff didn’t mention that SD2 stated that page 2 of histopathology report from Pantai Hospital was not in the bundle sent to this report and only page 1 was available. According to the plaintiff, SD2 agreed that he mentioned in his report that this fibrosis was caused by the scar tissue formed during the second operation. [71] I refer to paragraph 7 of SD2’s report, which stated – There are many factors which could have contributed to the formation of this delayed fibrotic stricture such as infection, the inflammatory process generated by the previous cystic duct stone, inflammatory process due to sutures used at the 2nd operation and the body’s healing process. The time factor of 34 months between the second operation and the presentation of jaundice does not support the hypothesis that the stricture was caused by any presumed operative injury caused by the defendant. [72] SP4 in his evidence, testifies during examination in chief as follows- Q: The first paragraph, My Lady, on page 9. I will start with the sentence on the first line, that starts with “The stent”. Dr, you have stated “The stent was removed on 23/08/2017 by Dr Shahrudin. And here there is no record of a cholangiogram being performed after stent removal. This is a crucial step when a stent is removed following bile duct expiration and repair, especially in a normal duct.” Dr, could you please tell the Court why did you opine that it is crucial to perform a cholangiogram at the time of stent removal? SP4: So, this would have picked up if there was any narrowing of the bile duct at the time of stent removal. And especially in normal ducts, following a repair of a normal duct, we anticipate that there might be narrowing of the duct. So, when we place the stent as a protective mechanism, and when we remove the stent, we always do a cholangiogram to see if there is any evidence of an early stricture formation at that time so that if there was a stricture, then we could start implementing treatment to dilate the stricture or to place a stent again so that the stricture does not get worse. [73] I also refer to evidence by SP4, which states that the plaintiff’s pain at the right shoulder tip, occurring in early April 2020, is directly related to the biliary stricture she was experiencing. SP4's testimony indicated that any liver-related issues could cause referred pain to the right shoulder. He then says – I’m assuming that because of the stricture, there was obstruction of bile flow, which could have caused the referred pain to the shoulder. [74] The plaintiff argues that the stricture diagnosis is likely the result of earlier surgical mismanagement and the defendant's lack of proper duct monitoring. This Court is unable to accept the plaintiff’s submission. SP4’s opinion on this matter appears to be based on assumption. [75] With regards to the necessity for cholangiogram, this Court refer to the evidence by SD2 in which he said – I did not mention there was no necessity for cholangiogram during the stent removal operation in my report. The facts of the case are clear. The patient did not have any problems related to the bile duct for close to three years after the second operation. It’s therefore immaterial if a cholangiogram was or was not done after the removal of the stent two and a half months after the second operation. Theoretical possibilities such as early strictures always exist, but it’s not borne in this particular case. [76] In her testimony, the plaintiff admitted that she did not undergo a single blood liver function test over 31 months after the last appointment with the defendant. [77] After comparing the opinions of SP4, SP6 and SD2 along with the facts of this case, I accept the defendant’s version and SD2’s expert opinion on the necessity for a cholangiogram. At this point, the plaintiff’s claim of negligence has not been established. Whether the discharge of the plaintiff on 8.9.2017 with not to return (PRN) when necessary was an appropriate standard of care. [78] Regarding the follow-up given to the plaintiff, this Court refers to the defendant's notes stating prn—as and when needed. [79] The facts of the case clearly indicate that when experiencing symptoms, the plaintiff visited the GP for a liver function test. The defendant’s testimony states that he advised the plaintiff to return for a liver function test if she experienced any symptoms. [80] The defendant’s testimony is both plausible and credible. This is due to the unlikelihood that the plaintiff recognise of the need to perform a liver function test immediately upon experiencing any symptoms. [81] Regarding his opinion on follow-up, SP4 testifies in the examination in chief as follows: Q: Dr, still on page 9 of Bundle E, the expert report bundle. Can I take you to the second paragraph, to the second line with the sentence starting, “A patient”. Do you have that, Dr? SP4: Yes. Q: You stated there, “A patient subjected to repair of the bile duct would require long term follow-up as complications are known to occur many years after surgery.” SP4: Yes. Q: “These patients require regular blood test, liver function test and ultrasound examinations ideally at three to six months intervals, so that any complication may be detected early and remedial measures taken.” SP4: Yes. Q: Dr, how long should these three to six monthly follow-ups need to be undertaken? SP4: So, in Selayang, it’s our policy to keep patients on follow-up following bile duct repair for at least 10 years after surgery if they are within the Klang Valley. But if they were referred to us from hospitals outside, then we will send them back with a letter advising follow-up. [82] SP4 explained that the reason for keeping patients on follow-up for a long time is to detect abnormalities early. [83] Further to that, during cross-examination, SP4 also explained as follows – Q: Dr, as to the type of follow up that each patient requires, it’s also something that as a surgeon, you are able to tell. As much as you will give a standard 10 years, but sometimes when you do the surgery, you are able to say this surgery to the best of your knowledge went as planned and… SP4: Yes. Q: What is the duration on which the follow-up would be required. SP4: Yes. Sometimes we expect complications and we see them more frequently. Q: Frequently SP4: Sometimes we don’t expect. So, we see them at a longer duration. Q: Thank you, Dr. So, that is actually a clinical decision by the surgeon. [84] In my view, the SP4 testimony indicating that the decision regarding the duration of seeing patient is a clinical decision made by the surgeon corresponds with the defendant’s follow-up method in the plaintiff’s scenario. After the second operation and 4 times he follow up session on 8.9.2017, he discharged the plaintiff with a recommendation not to return (PRN). [85] The learned counsel for the plaintiff argued that there is no evidential or factual basis to support the defendant’s claim that he advised the plaintiff to undergo regular liver function tests. Concerning the defendant’s testimony that he recommended a liver function test if the plaintiff experienced pain, the plaintiff's counsel characterised this as an afterthought. [86] Considering the defendant's medical record, which stated PRN, I agree with SD2 that the defendant did not say no follow-up. The defendant said to see the plaintiff when problems arise, which is either pain or fever. Also, for 34 months, the plaintiff didn’t visit any doctor for any related medical problems. [87] On the balance of probabilities, this Court accepted the defendant’s evidence. This is because the plaintiff offered no other evidence as to why she would immediately undergo the liver function test when she was experiencing pain. It is more probable that her decision to see the GP for the liver function test was based on the advice given by the defendant during the last appointment. [88] As emphasised in Zulhasnimar bt Hassan Basri v Dr Kuppu Velumani P & Ors (supra), differing expert opinions on treatment strategies do not, on their own, indicate negligence. This Court should not penalise the defendant merely for choosing one reasonable course of action over another. [89] I also agree with the defendant’s counsel that the 34-month gap before a stricture was diagnosed following the plaintiff's symptoms cannot be attributed to the defendant. This was an anticipated risk of the surgery, which was explained to the plaintiff and her husband, and they understood it. The defendant made no significant contribution to the stricture. Considering the evidence and applying the Bolam test, there is no indication that the defendant’s discharge decision or follow-up care fell below the expected standard. [90] In summary, supported by SD2’s expert opinion and reinforced by legal precedent in Zulhasnimar bt Hassan Basri v Dr Kuppu Velumani P & Ors (supra), this Court finds that the defendant was not negligent for failing to perform a post-stent cholangiogram or to schedule further follow-up in the absence of clinical symptoms. Whether the standard of care provided by Dr. Shahrudin fell below what is expected of a reasonably competent general surgeon. [91] In applying the principle in Foo Fio Na v. Dr Soo Fook Mun (supra), the court is tasked to determine whether the defendant fulfilled his legal obligation to inform the patient of material risks. If evidence shows that the patient was not informed of potential complications, such as bile duct stricture or the need for extended monitoring, the omission may constitute a breach of duty regardless of prevailing medical practice. However, if the patient was adequately briefed on risks and the injury was not due to failure of disclosure, the principle may not apply adversely. [92] There was sufficient risk disclosure to the plaintiff and her husband, supported by SP1's testimony and evidence from both the plaintiff and the defendant. [93] When viewed holistically, the care provided by the defendant fell within the range of what a reasonably competent general surgeon would have done. While SP4 critiques several of the defendant's decisions, SD2 offers a strong and logical defense grounded in accepted medical practice. [94] Applying the Bolam test and in accordance with the principles from Zulhasnimar bt Hassan Basri v Dr Kuppu Velumani P & Ors (supra), this Court finds that the defendant did not breach the standard of care for the plaintiff's overall management. [95] SD2’s extensive experience in general and hepatobiliary surgery is evident in his CV, which suggests that his expert opinion carries weight and credibility. In his conclusion, SD2 forms his opinion as follows:

The defendant acted as expected of a competent general surgeon in the medical and surgical management of Juwariyah binti Sal Hamid @ Ahmad during the entire period when she was under the defendant’s professional care.

(ii) All investigations, procedures and operations were done in keeping with what was expected of a surgical specialist treating a patient with such medical conditions as described in the report at every step of the patient’s clinical presentation.

(iii) It is not possible to ascribe the plaintiff’s biliary stricture (manifested as obstructive jaundice), which occurred some 34 months after the plaintiff’s second operation, to any wrongdoing or neglect on the defendant's part.

(iv) The defendant has the proper training, qualifications and experience to conduct the operations he performed on the plaintiff. He did so in keeping with the high professional standards demanded of a consultant general surgeon. H. CONCLUSION [96] After considering the evidence presented by all witnesses, reviewing both parties' cause papers and written submissions and hearing the oral submissions from both learned counsels for the plaintiff and the defendant, I am with the defendant. [97] I conclude that the defendants' professional conduct and management of the treatment provided to the plaintiff met the acceptable standards of medical practice and adhered to the appropriate standard of care expected from the defendant as specialists. [98] On the balance of probabilities, the plaintiff’s claim is dismissed with costs of RM35,000.00, subject to allocator fees. Dated: 14th April 2025. Signed ........................................................... HAZIZAH KASSIM Judicial Commissioner Shah Alam High Court (NCvC10)

For the Plaintiff : Ramakrishna Tharini Messrs Ram & Low (Federal Territory of Kuala Lumpur)

For the Defendant : Anit Kaur Randhawa Messrs Asbir Hira Singh & Co. (Federal Territory of Kuala Lumpur)