The slide numbers, if disclosed, will easily tell this Court as to whether all the slides have been disclosed or only some of them have been disclosed. It was obvious from Ms Puspa’s evidence and also from every other witness who had testified thereafter, that the “internal nursing review” which Prince Court had disclosed was not and can never be referred to as an internal nursing review document. [Emphasis added] [55] Counsel for the plaintiff further contends that the internal nursing review “document” was either incomplete and/or edited or completely “cooked up” for the following reasons [See Enclosure 196 plaintiff’s written submissions paragraph 36]– i. that the document did not state the “root cause” of the Patient’s fall despite it being the purpose of such review; ii. that the document was not dated; iii. that the document was not paginated; iv. that the date on which the nursing review was conducted was not stated; v. that the names of the participants of the nursing review were not stated; vi. that Ms Puspa (DW10) who produced the document had no personal knowledge of the document as she was not involved in the review at the material time; S/N E7pOeoFfekWk1XakKVxaeg vii. that Ms Puspa (DW10) testified that the said document was in fact “slides” which were prepared for a presentation to Prince Court’s management; viii. that it was unclear as to what the document actually was; and ix. that it was unclear as to who prepared (or edited) the said document. [56] There is much force in the contention of learned counsel for the Patient. Ms Puspa (DW10) from Prince Court who had testified on the internal nursing review documents had candidly admitted that an internal nursing review must include a root cause analysis and finding. Dr Nick Chong’s expert consultant physician Dr Tan Li Ping (DW11) in fact testified to the same. Cross-Examination of DW10, Miss Puspa a/p Tharmalingam by Counsel for the plaintiff, Mr Karthi Kanthabalan (‘KK’) at Enclosure 184 Jilid 4/4 Notes of Proceedings page 1173 of the One of the most important purpose of a review of an incident like this is to find out the root cause, correct? Agree. The review will not conclude unless and until a cause is identified, correct? Correct.” Re-Examination of DW11, Dr Tan Li Ping by Counsel for the 2nd defendant, Raja Eileen Soraya Bt Raja Aman (“RES”) at Enclosure 184 Jilid 4/4 the Notes of Proceedings page 1301 “Court So what else is missing? Would you know from your normal typical review, other than what you said, the summary? S/N E7pOeoFfekWk1XakKVxaeg Generally there’s some attempt at doing an RCA, a root cause. My Lord, this witness mentioned there should be an RCA. Can he explain that, it’s an abbreviation I believe? RCA is a Root Cause Analysis. Court Root cause analysis, meaning what? So there should be an attempt by the team to list the various factors that were at play that resulted in the eventual event. [57] Ms Puspa (DW10) conceded that an internal nursing review cannot conclude before the root cause of an incident had been identified. Cross-Examination of DW10, Miss Puspa a/p Tharmalingam by Counsel for the plaintiff, Mr Karthi Kanthabalan (‘KK’) at Enclosure 184 Jilid 4/4 the Notes of Proceedings page 1174 Madam, not you, what did the review committee conclude in this case as the root cause of the fall? No conclusion. Madam, I just asked you earlier, a meeting like that cannot conclude and until and unless a cause is found, correct? Correct.” [58] When confronted about the lack of details, including the names of attendees in the internal nursing review document, Ms Puspa was economical with the truth. Cross-Examination of DW10, Miss Puspa a/p Tharmalingam by Counsel for the plaintiff, Mr Karthi Kanthabalan (‘KK’) at Enclosure 184 Jilid 4/4 the Notes of Proceedings page 1177 S/N E7pOeoFfekWk1XakKVxaeg And all you’ve given us was a chronology, which is a summary of the medical records. Madam, from pages 4 to 12, can you tell the Court who was involved in this review committee? Who are the persons who interviewed the nurses, who studied the records, who checked the protocols to see whether the protocols were fulfilled and concluded that they could not find a root cause for this fall? Where is it, Madam? Where is the details of the nurses or nursing manager or whoever who undertook these review meetings, the details of the people who were interviewed for this review and their conclusion that they cannot find any root cause for this patient’s fall on 26.09.2018? Where is it? It’s not here, right? It’s not here, yes. But it’s somewhere in Prince Court, correct? No.” No Pagination [59] The internal nursing review document was not paginated. When confronted about there being no page numbers in the document, Ms Puspa attempted to justify it by attributing the blame to the previous “very limited system”. Cross-Examination of DW10, Miss Puspa a/p Tharmalingam by Counsel for the plaintiff, Mr Karthi Kanthabalan (‘KK’) at Enclosure 184 Jilid 4/4 the Notes of Proceedings pages 1183, 1184 and 1187 S/N E7pOeoFfekWk1XakKVxaeg Now, you notice, Madam, it’s printed on 28.12.2021. Why Madam? This was the previous system, the system which has limited information to show us when we print out or when we enter. This was the previous system. So after we have migrated with ...[unintelligible].. so we have another system, so that’s where we see the full details on the entry date, entry time, printing date, printing time, review date and review time, so the details is there. So this is a very limited system that we had … So, 1 to 3 is limited and 4 to 12 is what, ultra limited is it? You look at 4 to 12, no incident report ID given, no page numbers, it doesn’t even tell us how many pages are in total, at least page 1 to 3 says page 1 of 2, 1 of 3, 2 of 3 and 3 of 3. Pages 4 to 12, you had deliberately not even given page numbers? This is prepared for the review, chronologically … Yes, there will be a page number, right? Are you telling me you prepare documents in Quality and Assurance in a premier hospital like Prince Court without giving page numbers? Is that your evidence? You know, right, when you print out PowerPoint slides, it will mention at the bottom how many pages, right? Yes. But you all printed it out in such a way that none of the page numbers are there, correct? I didn’t print this, so I am not sure why the number did not come into this.” [60] When pressed during cross-examination about the absence of pagination, Ms Puspa admitted that the documents should have been paginated but was unsure as to why Prince Court Medical Centre’s S/N E7pOeoFfekWk1XakKVxaeg solicitors printed it out in such a way that the slide numbers were obscured. Cross-Examination of DW10, Miss Puspa a/p Tharmalingam by Counsel for the plaintiff, Mr Karthi Kanthabalan (‘KK’) at Enclosure 184 Jilid 4/4 the Notes of Proceedings pages 1187 to 1189 You didn’t do it but I’m telling you, if it was properly printed from the system, it should have page numbers, can you agree on that? Agree. … We provided in a softcopy, I’m not sure why it’s not … there’s no number Madam, I’m trying to understand, that means you provided this softcopy to who? To Miss Sharmini. So when you sent it, it had page numbers, correct, because the PowerPoint slide will have page numbers, slide numbers, correct? I didn’t send that, so I didn’t see. So whoever who sent it from Prince Court’s Quality and Assurance, if it was sent as PDF, it will have slide numbers, correct? Yes. But the way it’s printed out and presented to Court in this bundle does not carry that slide numbers, correct? Yes.” S/N E7pOeoFfekWk1XakKVxaeg Cross-Examination of DW10, Miss Puspa a/p Tharmalingam by Counsel for the plaintiff, Mr Karthi Kanthabalan (‘KK’) at Enclosure 184 Jilid 4/4 Notes of Proceedings page 1189 of the Therefore, Madam, I am suggesting to you again, what has been given to Court is only a fraction of the entire review that was undertaken in this case, you can agree or disagree with me? I disagree.” The Attendees – Not Recorded [61] The minutes of the “internal nursing review” conducted by Prince Court Medical Centre to identify the root cause of the patient’s fall do not state those who had attended the meeting. Further Cross-Examination of DW10, Miss Puspa a/p Tharmalingam by Counsel for the plaintiffs, Mr Karthi Kanthabalan (‘KK’) Enclosure 184 Jilid 4/4 the Notes of Proceedings pages at pages 1217 to 1218 “Court Look at page 4. Why are the names of the team who conducted the review not in the report? I am not sure, My Lord. Court The date of the review is also not stated there. You don’t know? This was just the sequence of events they prepared during the informal nursing review. Court So it’s a sequence of events. So where is the review then, where is the review assessment? S/N E7pOeoFfekWk1XakKVxaeg I don’t have any evidence to show you that, My Lord. Whatever they have discussed, that is what been documented in the incident reporting on the control measures. Court Who are they? Nursing team. Court Give me the names? Sister Norzila, Nurse Manager, Staff Nurse Zulia and Director of Nursing, Miss Tan Peck Hong.” Adverse inference drawn [62] Illustration (g) to section 114 of the EA provides as follows- “The court may presume that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it.” [63] Adverse inference under section 114 Illustration [g] of the Evidence Act is drawn against Prince Court Medical Centre for failure to call witnesses to shed light on the non-disclosure of the incident reports prepared by the nurses on duty and an internal nursing review conducted after the fall despite opportunity given by the Court. [See Sabah Shell Petroleum Co Ltd & Anor v The Owners of and/or Any Other Persons Interested in the Ship or Vessel the ‘Borcos Takdir’ [2012] 5 MLJ 515 at [92] HC per Nallini Pathmanathan J and Marappan A/L Muthusamy v R Sivam A/L Ramasamy [2014] 4 MLJ 428 at [28] CA per Rohana Yusuf JCA]. S/N E7pOeoFfekWk1XakKVxaeg [64] The witness Miss Puspa a/p Tharmalingam [DW10] called by Prince Court Medical Centre has testified she has no knowledge of the events and had no actual knowledge of the documents that were produced in Court in B 29 Enclosure 166. [See Enclosure 184 Jilid 4/4 the Notes of Proceedings pages 1165 – 1170] I find this witness unreliable. In any event, I find she had not made any efforts to ascertain all the facts before coming to court to testify. Prince Court Medical Centre failed to report the fall to the Ministry of Health [“MOH”] [65] Besides the non-disclosure of the incident reports prepared by the nurses on duty and an internal nursing review conducted after the fall, Prince Court Medical Centre had also breached a clear statutory duty to report the fall to the MOH. Counsel for the Patient contends they did not want scrutiny because the MOH would have undertaken an inquiry into the fall. Such a report can also be used as an admission in a Court suit by the Patient. [66] The statutory duty to report the fall to the MOH has been set out above by me as part of the Material Background Facts. According to the MOH Director General Directive No. 1 of 2010- i. The Goals of Incident Reporting are, inter alia, to improve the safety and quality of patient care, to focus the attention of private healthcare facility or service [PHFS] that has experienced the incident on understanding the causes and on making changes to reduce or eliminate the probability of the incident occurring in the S/N E7pOeoFfekWk1XakKVxaeg future. [See paragraph 2 Manual on Incident Reporting dated December 2010]. ii. The report on the fall would be reviewed by the Incident Reporting Working Committee [Ministry of Health] who would discuss the findings in the said incident report and make conclusions and recommendations. [See paragraph 4.3 Manual on Incident Reporting dated December 2010]. iii. All incident reporting forms and its findings are retained for such period as specified under any written law pertaining to limitation period. [See paragraph 6.5 Manual on Incident Reporting dated December 2010]. [67] As stated by me above, from the MOH website there is a version 2.0 of the Incident Reporting guideline titled “Guidelines on Implementation - Incident Reporting and Learning System 2.0 for Ministry of Health Hospitals First Edition 2017 dated 2017”. It is unclear if this version 2.0 is also applicable to all private healthcare facilities in Malaysia. What is clear is that version 2.0 merely expands on the detailed steps to be taken. The goals of Incident Reporting etc remain the same as spelt out in the Manual on Incident Reporting dated December 2010. DW10 testified the fall was not reported to MOH [68] Witnesses for Prince Court Medical Centre never explained satisfactorily why no report was made to MOH on the fall. Miss Puspa a/p Tharmalingam [DW10] under cross-examination conceded she knew the requirement under the law to report but initially said she was S/N E7pOeoFfekWk1XakKVxaeg not sure if it was reported or not. When pressed by counsel, she finally admitted it was not reported to MOH. Cross-Examination of DW10, Miss Puspa a/p Tharmalingam by Counsel for the plaintiff, Mr Karthi Kanthabalan (‘KK’) at Enclosure 184 Jilid 4/4 the Notes of Proceedings pages 1165 - 1170] Madam, are you familiar with quality and assurance protocols that they had in Prince Court? Yes. Madam, you know that incident reporting is a requirement under the Private Healthcare Facilities & Services Act? Yes. … Now, you would also know any falls in the hospital that results in injury, even a concussion, you must undertake incident reporting, correct? Yes. And you know this, following the incident reporting, there should be a review or sometimes more than one review is needed to find out what happened, correct? Yes. Now, this review that is being undertaken, the minutes of these reviews are recorded, correct? Yes. Now, one of the purposes of the review is to find out the cause of it, correct, what caused the patient to fall? Yes. In fact, the term used in hospitals is root cause analysis? S/N E7pOeoFfekWk1XakKVxaeg Yes. So, whatever the cause of the patient falling, whether there was a mechanical failure, there was a drug overdose, adverse reaction or the patient just decided to jump over, there must be a finding made as regards what happened, correct? Yes. Now, that report, Madam, there are two broad responsibilities for the quality and assurance. One is to send that report to the Director-General of Health, correct? You mean MOH? Yes, MOH. So, Ministry of Health has got an incident reports committee, correct? Yes. You know, the requirement is, the incident report itself must be sent within 24 hours of the incident, correct? Yes. In this case, a report was sent, correct? To MOH? Yes, MOH. I’m not sure. … If you don’t know, just say you don’t know because we accept, when it happened, you were not there, you were still a nurse in the ICU … Yes. But we would have expected you to check the documents before coming to Court because you are here as a witness on behalf of the quality and assurance … So, in that case, it is not reported to MOH. Why Madam? This was the very first fall with injury we had. So, the team were more into looking at the patient’s condition and S/N E7pOeoFfekWk1XakKVxaeg stabilizing the patient. So, there were no trigger point that we have to report to MOH. Well-rehearsed answer but you’ve not answered my question. Why was this not reported because it’s a requirement by law for Prince Court to report within 24 hours? There are penal sanctions if you don’t. Are you telling me that they disregarded the law in this case and not report this case to MOH? In 2018, I wasn’t in the Quality, so I am not sure why it was not … Adverse inference drawn [69] In any event the person [or persons] in Prince Court Medical Centre who made the decision not to report was never called to testify. The Court will draw an adverse inference under section 114 Illustration [g] EA against Prince Court Medical Centre for failure to call this witness. [See Sabah Shell Petroleum Co Ltd & Anor v The Owners of and/or Any Other Persons Interested in the Ship or Vessel the ‘Borcos Takdir’ [2012] 5 MLJ 515 at [92] HC per Nallini Pathmanathan J and Marappan A/L Muthusamy v R Sivam A/L Ramasamy [2014] 4 MLJ 428 at [28] CA per Rohana Yusuf JCA]. Counsel’s explanation [70] Counsel for Prince Court Medical Centre justified the non-reporting on the basis the reporting must be done within 24 hours and it was not reported as the seriousness of the fall was not known till after the 24 hours. [See Notes of Proceedings dated 22-08-2024]. S/N E7pOeoFfekWk1XakKVxaeg [71] Counsel for the Patient in rebuttal showed the Court evidence that Prince Court Medical Centre was indeed aware within 24 hours. He pointed out the evidence in Enclosure 37 Ikatan Dokumen Bersama (Bah B) Jilid 3/9 Bundle B 3 at pages 584, 586, 589 and 592 which are Physician Progress Notes which show the recording of the doctors’ notes that the Patient’s CT brain scan shows intracerebral bleeding. I accept the submissions of learned Counsel for the Patient and commend him for his mastery of the facts to assist the Court. Blaming the Patient and the family [72] After the fall it is clear to me that Prince Court Medical Centre tried to shift the blame to the Patient and the family and hid the cause of the fall. In a letter to Mr Goh Seng Kok dated 26-10-2018 the Chief Executive Officer Mr Mahenthiran Thanapal (DW8) said- “We have conducted a thorough investigation and discussed your concerns with her nursing team… In view of Mdm Lim’s fall at home on her admission day and her general health condition, family members were encouraged to room in with her…All 4 side rails were up…”. [Emphasis added] [See: Enclosure 47 Ikatan Dokumen Tambahan Bersama (Bah. B) Bundle B11 page 58] [73] This letter was contradicted by a subsequent letter from Prince Court Medical Centre to Mr Goh Seng Kok dated 09-01-2019. This letter was S/N E7pOeoFfekWk1XakKVxaeg again written by the Chief Executive Officer Mr Mahenthiran Thanapal (DW8)- “However, we regret to note that the hospital or the doctors were not informed by family members that the patient has had fall or falls at home just prior to her admission to Prince Court Medical Centre for dengue. This fact was only informed after the incident. If it was made known to the Hospital or the Doctor that she had a fall or falls at home just prior to admission, her admission would have been different.” [Emphasis added] [See: Enclosure 47 Ikatan Dokumen Tambahan Bersama (Bah. B) Bundle B11 page 61] [74] When confronted with the contradicting contents of the two letters and also Dr Shamin’s note in the medical records which recorded the info from the Patient’s family of the fall at home [page 583 of Bundle B3], Mr Mahenthiran attempted to justify the contradiction by saying that “This is the fall on the day of the admission, we’re referring to other falls than this.” I find Mr Mahenthiran is not a credible witness. Cross-Examination of DW8, Mr Mahenthiran Thanapal by Counsel for the plaintiff, Mr Desmond Mun Ching Yong (“DM”) at Enclosure 184 Jilid 4/4 the Notes of Proceedings pages 1045 to 1050 of the Notes of Proceedings “DM Mr Mahenthiran, I refer you to a letter sent by Prince Court at Bundle B11, page 58. This was a letter signed-off by you as well? S/N E7pOeoFfekWk1XakKVxaeg Yes. At page 58, paragraph 6, on 25.09.2018, it says, ‘… In view of Madam Lim’s fall at home, on her admission day and her general health condition, family members were encouraged to room in with her’. This letter was from you and this was sent out much earlier, 3 months before your January letter where you said that the doctors and the hospital were not informed of the fall. Do you agree now that your January letter was not accurate? No, I disagree. And why do you disagree? This is the fall on the day of the admission, we’re referring to other falls than this. I don’t follow, Mr Mahenthiran. Can you …? This letter states the fall at home on her admission day. Based on the information that the nursing team informed us when I signed-off second letter was referring to other falls prior to this. Let’s go one by one. Page 58, you’re saying what is this statement referring to? This is referring to the fall on the admission day whereas the other letter, page 61, is with reference to other falls other than the fall on the admission day that we were not aware of. Mr Mahenthiran, page 61, it says, ‘If it was made known to the hospital or the doctor that she had fall or falls at home just prior to admission …’, isn’t it the same thing? No. This is based on what was informed to me. If you allow me to explain, these letters are prepared by a team, Jenny that you just mentioned, after consulting various other teams of caregivers, including the doctors who treated her and then it comes to me, I’m at the final end. So investigation everything has been done before I signed-off. S/N E7pOeoFfekWk1XakKVxaeg So based on information given to me, this is with reference to other falls other than the fall on the admission day. I’m sorry, Mr Mahenthiran, I beg to differ. The letter is quite clear, it doesn’t seem to…. Mr Mahenthiran, I’m just going to put it to you, based on your October letter where you had said that there was a fall and then later on at page 61, you had changed your position saying that you were not informed of any falls. I am putting it to you that there has been a change in position by the hospital and basically it is really to shift the blame onto the patient and the family, for the fall. I disagree.” [Emphasis added] Court’s conclusion on the cause of the fall [75] Taking into account the evidence adduced, in particular the two self-contradicting letters from Prince Court Medical Centre to the Patient’s family dated 26-10-2018 and 09-01-2019 [page 58 and 61 of Bundle B11], the Incident Report dated 26-09-2018 and PCMC Nursing Team Review [Enclosure 166 Ikatan Dokumen Defendan Pertama dan Defendan Ketiga (2) Bundle B29]; and after hearing the witnesses in particular Dr Nick Chong and Nurse Zulia it is my considered view the fall was due to a malfunctioning of the “old paramount bed” in the sense that there was a mechanical malfunctioning of the cot side whereby it went down and the Patient must have rolled over or fallen off the bed. Mechanical failure of the cot side S/N E7pOeoFfekWk1XakKVxaeg [76] Dr Nick Chong testified under cross-examination on 26-04-2024 [Notes of Proceedings pages 1097 & 1098] that the Patient could have fallen due to a mechanical failure of the cot side. He testified- “…the cot side when it’s put up can suffer mechanical failure. I have seen it many times before that is you lean on the cot side, I was doing my ward round, the whole thing just gave way. That’s a possibility as well, it’s a common problem.” [Emphasis added] [77] I note that this testimony of Dr Nick Chong that he has seen many times the cot side just giving way due to mechanical failure was not contradicted by witnesses from Prince Court Medical Centre or in the cross-examination of him by counsel for Prince Court Medical Centre. Patient was just too weak [78] Dr Nick Chong also testified the Patient was just too weak to climb over the guard rails and the spacer. Continued Cross-Examination of DW9, Dr Nick Chong Chung King by Counsel for the plaintiff, Mr Karthi Kanthabalan (‘KK’) at Enclosure 184 Notes of Proceedings Jilid 4/4 the page 1128 of the Notes of Proceedings Doctor, on the last occasion when I asked you, if at all this patient had suffered the adverse reactions to these two drugs, Tramadol and Stilnox, on the fateful early morning of 26.08.2018, the only plausible explanation is if she S/N E7pOeoFfekWk1XakKVxaeg were to jump over her cot side and I distinctly remember you saying that’s not possible? Why Doctor, could you explain? It takes a lot of effort to climb over the guard rails and the spacer and if she’s already needing help to sit up as alluded by the nurse who actually saw her before, I don’t see her being able to climb over the guard rail. I have no further questions, My Lord.” [79] Nurse Zulia DW5 testified that the Patient was too weak to climb out of bed on her own if the cot sides/guard rails were up and the bed spacer was in place. Re-examination of Nurse Zulia DW5 by her counsel Enclosure 183 Jilid 3/4 the Notes of Proceedings pages 1014 - 1016 and 1019 Cik Zulia, walaupun terdapat bed spacer, bolehkah seorang pesakit turunkan kaki beliau? Agak susah untuk Madam Lim Yoke Har sebab dia mengalami lemah dekat kaki dia. Kalau patient yang normal macam saya yang boleh bergerak kiri dan kanan, mungkin boleh. … Yang Arif, Puan tanya saya, kalau duduk boleh tak dia keluarkan kaki dia melalui bed spacer itu kan. Boleh, tapi agak susah untuk Madam Lim Yoke Har lah. Kalau macam saya, keadaan normal macam saya, yang awake, yang boleh pusing kiri kanan ini, saya boleh keluarkan kaki, Yang Arif. Tapi kalau untuk Madam Lim Yoke Har, kalau S/N E7pOeoFfekWk1XakKVxaeg dia kuat, kekuatan dia, mungkin dia boleh keluarkan kaki sedikit tapi bukan semua lah masudnya, Yang Arif. Mungkin keluarkan tapi kena angkat lah, Yang Arif. Dia perlukan daya dia, Yang Arif. Jawapan itu saya macam tak tahu macam mana nak jawab, Yang Arif, untuk dia boleh ke tak boleh. Itu atas daya kekuatan dia, Yang Arif. … So you tidak tahu bagaimana cara dia jatuh dari katil? Saya tidak tahu. Change to new bed [80] In the Incident Report, the two nurses who were stated to have investigated the fall, one Ms Deborah and Norzila Ghani (DW4) recommended the following “controls” to be “implemented”: “Reinforced all staff nurses in ward if MFR high risk patient change to new paramount bed”. [Emphasis added] See: Enclosure 166 Ikatan Dokumen Defendan Pertama dan Defendan Ketiga (2) Bundle B29 page 2. MFR stands for Morse Fall Risk scale. It is a scale used to predict a patient's likelihood of falling by evaluating individual risk factors. [81] This is consistent with the entry in the PCMC Nursing Team Review that states the “patient placed on old paramount bed”. [Emphasis added] [See: Enclosure 166 Ikatan Dokumen Defendan Pertama dan Defendan Ketiga (2) Bundle B29 page 5 under the heading Outcomes]. S/N E7pOeoFfekWk1XakKVxaeg Nurse Zulia Q and A 25 – 26 [82] I am aware that Nurse Zulia did say in her witness statement Q and A 25-26 that immediately after the fall she had asked the Patient “aunty nak pergi ke mana?’ and Nurse Zulia said the Patient answered “saya mahu pergi ke tandas” and “anak saya di mana?” [83] The Patient’s answer “saya mahu pergi ke tandas” does not necessarily mean that the Patient is saying she fell because she got up of bed by climbing over the cot side to go to the toilet. The Patient’s answer “saya mahu pergi ke tandas” can simply mean that she told Nurse Zulia she wants to go to the toilet. Taking into account the totality of the evidence one cannot read too much into the answer “saya mahu pergi ke tandas” for these reasons-i. In the Re-examination of Nurse Zulia DW5 by her counsel, Nurse Zulia testified candidly that the Patient was too weak to move her legs in between the bed spacer and she doesn’t know how the Patient fell off the bed. Re-examination of Nurse Zulia DW5 by her counsel Enclosure 183 Notes of Proceedings Jilid 3/4 pages1014 - 1016 and 1019 Cik Zulia, walaupun terdapat bed spacer, bolehkah seorang pesakit turunkan kaki beliau? Agak susah untuk Madam Lim Yoke Har sebab dia mengalami lemah dekat kaki dia. Kalau patient yang normal macam saya yang boleh bergerak kiri dan kanan, mungkin boleh. S/N E7pOeoFfekWk1XakKVxaeg … Yang Arif, Puan tanya saya, kalau duduk boleh tak dia keluarkan kaki dia melalui bed spacer itu kan. Boleh, tapi agak susah untuk Madam Lim Yoke Har lah. Kalau macam saya, keadaan normal macam saya, yang awake, yang boleh pusing kiri kanan ini, saya boleh keluarkan kaki, Yang Arif. Tapi kalau untuk Madam Lim Yoke Har, kalau dia kuat, kekuatan dia, mungkin dia boleh keluarkan kaki sedikit tapi bukan semua lah masudnya, … … So you tidak tahu bagaimana cara dia jatuh dari katil? Saya tidak tahu. ii. Nurse Zulia’s testimony in Q and A 25 - 26 that she asked the Patient “aunty nak pergi ke mana” is not stated in both the Incident Report dated 26-09-2018 and PCMC Nursing Team Review [Enclosure 166 Ikatan Dokumen Defendan Pertama dan Defendan Ketiga (2) Bundle B29] which are contemporaneous reports. What was stated in the Incident Report dated 26-09-2018 [at B29 page 2] is “Patient verbalizes told, she want to go to toilet. Quick assessment done”. What was stated in the PCMC Nursing Team Review [at Enclosure 166 Ikatan Dokumen Defendan Pertama dan Defendan Ketiga (2) Bundle B29 page 11] is “Patient verbalized that she wanted to go to toilet.” Therefore, the correlation between the reason for the fall and the words “Patient verbalized that she wanted to go to toilet.” is missing. iii. Both the Incident Report dated 26-09-2018 and PCMC Nursing Team Review [Enclosure 166 Ikatan Dokumen Defendan Pertama dan Defendan Ketiga (2) Bundle B29] which are S/N E7pOeoFfekWk1XakKVxaeg contemporaneous reports do not state that Patient told Nurse Zulia that she fell because she got up of bed by climbing over the cord side to go to the toilet. Neither was there a finding or conclusion that the Patient fell because she got up of bed by climbing over the cot side to go to the toilet. iv. Dr Nick Chong had also testified that the Patient was just too weak to climb over the cot side and the spacer. Continued Cross-Examination of DW9, Dr Nick Chong Chung King by Counsel for the plaintiff, Mr Karthi Kanthabalan (‘KK’) Enclosure 184 Notes of Proceedings Jilid 4/4 at page 1128 of the Notes of Proceedings Doctor, … the only plausible explanation is if she were to jump over her cot side and I distinctly remember you saying that’s not possible? Why Doctor, could you explain? It takes a lot of effort to climb over the guard rails and the spacer and if she’s already needing help to sit up as alluded by the nurse who actually saw her before, I don’t see her being able to climb over the guard rail. v. In both the Amended Nursing Report [Enclosure 39 Ikatan Dokumen Bersama (Bah B) Jilid 5/9 Bundle B5 page 1422] and the original unamended Nursing Report [Enclosure 39 Ikatan Dokumen Bersama (Bah B) Jilid 5/9 Bundle B5 page 1424] Nurse Zulia did not state the exchange of words between her and the Patient. These are contemporaneous reports. S/N E7pOeoFfekWk1XakKVxaeg vi. It is also significant that Nurse Zulia did not write in her original and Amended Nursing Reports that the Patient fell because she got up of bed by climbing over the cot side to go to the toilet. Her failure to write is consistent with her Q and A 25 and 26 where she did not state that the Patient fell because she got up of bed by climbing over the cot side to go to the toilet. vii. Nurse Zulia had testified under cross-examination [Enclosure 183 Notes of Proceedings Jilid 3/4 page 893] that the Patient was way too weak to walk unaided-She can ambulate. Dia boleh bergerak, aunty boleh bergerak, cuma badan dia sangat lemah … Sorry, minta maaf, 2:45 dia masih sedar, dia masih tahu apa jadi dengan dia Yes, but she was not in a position to walk ...? Yes, I agree, betul. viii. There is no reason for the Patient to get up of bed on her own, climb over the cot side or slip between the bed spacer to go to the toilet. Nurse Zulia had attended to her at 2.00 a.m. She fell down 5 minutes later. If she had wanted to go to the toilet she would have already asked Nurse Zulia to take her at 2.00 a.m. ix. In any event the evidence shows she always asked the nurses to take her to the toilet. She would be brought on a commode. There is no testimony by witnesses for Prince Court Medical Centre that she had even once walked herself to the toilet. The evidence shows-S/N E7pOeoFfekWk1XakKVxaeg Nurse Zulia under cross-examination Enclosure 183 Notes of Proceedings Jilid 3/4 pages 817, 898 - 899 Dan mengikut apa yang Puan telah beritahu dalam jawapan untuk soalan No.6 adalah Puan telah menjawab loceng. So pesakit ini bila dia nak pergi toilet, dia ada tekan loceng memanggil nurse, betul? Betul. Dan Puan telah membawa beliau ke tandas menggunakan kerusi commode? Betul. Sila jelaskan kepada Mahkamah apa kerusi commode ini? … Soalan saya, sebelum incident jatuh itu, daripada masa Puan start 19.09.2018, memang daripada nota dan daripada keterangan Puan, Puan tahu bahawa pesakit bila dia nak pergi toilet, dia akan panggil call bell, betul? Betul. … Ya lah, kalau Puan ada, memang Puan akan attend tapi kalau pesakit perlukan and nurses are not there, she’ll use the call bell lah, kan? Betul Patient’s case against the 2nd defendant Dr Nick Chong [84] After the completion of testimonies by the witnesses, the Patient’s counsel in his closing submissions says Prince Court Medical Centre “is solely liable for the fall” and that Dr Nick Chong “could not be blamed S/N E7pOeoFfekWk1XakKVxaeg for the fall.” [See Enclosure 196 plaintiff’s written submissions paragraphs 3 - 4]. Patient’s case against the 3rd defendant Nurse Zulia [85] Counsel for the Patient contends that Nurse Zulia had altered the contemporaneous medical records (which were in regard to the period leading up to the fall) more than 27 hours after the fall so as to escape blame. [See Enclosure 196 plaintiff’s written submissions paragraph 33.2] [86] I have set out above the changes in the medical records. To my mind, there is nothing sinister when a nurse like Nurse Zulia amended the medical records. In my view the first duty of the nurse is to treat a patient and not to make copious notes. The fact that changes were made do not necessarily mean the amendments are false. In any event, this has not been proven. [87] Counsel for the Patient also contends that Nurse Zulia had failed to put in place the bed spacer and/or raise up the bed cod/pagar katil. At the end of the day after hearing the witnesses and studying the documents I am unable to come to this finding. [88] In the premises, I find that the Patient’s case against Nurse Zulia had not been made out. [89] I now move on the consider the quantum of the claim against Prince Court Medical Centre. S/N E7pOeoFfekWk1XakKVxaeg Quantum Law on special damages [90] If the evidence shows that the special damages are more than the amount pleaded in the Statement of claim, the Court can award the actual amount. In Mat Jusoh bin Daud v Syarikat Jaya Seberang Takir Sdn Bhd [1982] 2 MLJ 71 at 76 Salleh Abbas FJ had stated as follows- “The question which confronts me at the moment is this, i.e. whether I could increase the special damages to an amount exceeding the sum pleaded in the statement of claim. It must be observed that the amount of excess was not one that was not asked for. Counsel for the plaintiff, because of the mistaken view he formed of the matter asked for this amount as part of the plaintiff's claim for general damages and so he did not include it, nor did he rightly calculate the amount of special damages asked for in the pleadings. In my view since the amount of loss was proved by evidence justice demands that I should ignore the figure pleaded. After all, if a judge can reduce the amount pleaded because of the effect of the evidence he surely is entitled to increase the amount if the evidence warrants it.” [Emphasis added] [91] The evidence regarding expenses incurred may be given through documents or the oral testimony of the witnesses or both. The absence of documentary evidence is not fatal. The Court can accept the oral testimony of the plaintiff or a witness that a particular expense has indeed been incurred based on common sense. As example would be the plaintiff can produce a record of a visit to the doctor but can’t produce the taxi receipt. A quantum will be allowed based on a reasonable sum and justifiable in the circumstances. S/N E7pOeoFfekWk1XakKVxaeg [See definition of ‘evidence’ in section 3 of the Evidence Act 1950, Rohgetana a/p Mayathevan (an infant suing through his father and litigation representative, Mayathevan a/l Mayandi) v Dr Navin Kumar & Ors and other appeals [2017] 4 MLJ 102 CA at [16] and Air Freight Sdn Bhd v Sistem Penerbangan Malaysia Bhd [2001] 3 MLJ 641 HC at page 678 per Abdul Malik Ishak J]. Items in dispute [92] Counsel for the plaintiff and all three defendants have agreed to most of the items [See Enclosure 220 Amended Table of Comparison Dated 26 August 2024] and narrowed down the items to be decided by me as follows-i. The cost of acupuncture treatment; and ii. Future General Damages Multiplier [93] I will consider these two items one by one. The cost of acupuncture treatment [94] The plaintiff has claimed for RM 2,000 per month. Prince Court Medical Centre objected. I allow this claim at RM 1,000 per month. [95] I do not see why a Court can allow western medicine treatment but should reject a claim for traditional and complimentary medicine [“T and CM”]. After all, if one goes to the website of MOH Malaysia one can see S/N E7pOeoFfekWk1XakKVxaeg the official portal for T and CM. We even have the Traditional And Complementary Medicine (T&CM) Act 2016 (Act 775). [96] A claim for Complimentary medicine (Ayurvedic) was allowed by the Court of Appeal in Rohgetana a/p Mayathevan (an infant suing through his father and litigation representative, Mayathevan a/l Mayandi) v Dr Navin Kumar & Ors and other appeals [2017] 4 MLJ 102 CA at [16, 22- 23]. Future General Damages Multiplier [97] Dr Akmal Hafizah had in her expert report given an additional life expectancy of 7 years from 25-09-2018 for the Patient based on her first clinical assessment on 6-04- 2019. She maintained her views after her recent assessment of the patient on 01-12-2023. See: Q & A 10 of the Witness Statement (Enclosure 146). [98] Dr Theva Raj had opined in his expert report that the Patient’s additional life expectancy was 1.3 to 2.3 years from the date of his assessment of the Patient on 18-04-2021. The Patient has outlived his estimate. When asked by the Court, Dr Theva Raj undertook a further calculation in Court and gave a new estimate that the Patient may survive another 1.5 to 1.9 years from her current age of 81 years. This would result in a multiplier of 1.9. [99] Counsel for the Patient submitted that a multiplier of 3 years [a slight increase from Dr Theva Raj’s revised estimate of 1.9] is fair as the Patient had outlived Dr Theva Raj’s previous estimate and is still alive with the best of care that her family can provide for her. S/N E7pOeoFfekWk1XakKVxaeg [100] I accept the submission of counsel for the Patient. The English High Court in Robshaw (A Child) v United Lincolnshire Hospitals NHS Trust, [2015] All ER (D) 21 (Apr); [2015] EWHC 923 (QB) at p 361-362 accepted the view that the quality of care received can improve the quality of a life. The Court is never bound by scientific certainty in these matters and can adjust the life expectancy thrown up in the generality of cases based upon the available statistics. [101] I therefore award a multiplier of 3 years. What are the damages for pain and suffering and loss of amenities of life? [102] Damages for pain and suffering and loss of amenities of life consists of two components. One is pain and suffering. The second is loss of amenities of life. Loss of amenities of life means the loss in the quality of life and lifestyle changes that a patient has had to endure as a result of his or her injuries. [103] The Patient’s counsel has shown the Court seven cases where the Courts have awarded between RM 400,000 to RM 500,000 for pain and suffering and loss of amenities of life for brain injuries. [104] The Patient’s counsel submits a sum of RM 500,000 is fair in this case based on the following facts-i. The Patient was a very active and cheerful person and enjoyed cooking for her children whenever they visited. She was a very S/N E7pOeoFfekWk1XakKVxaeg independent woman and needed nobody’s assistance in any of the house chores. She also enjoyed gardening. These can be seen from the testimonies of her children and photographs produced in Court. [See: Enclosure 46 Ikatan Dokumen Bersama (Bah C) Bundle B10 pages 4 and 5] ii. After the tragic fall however, the Patient lies in bed in “a persistent vegetative state” not able to talk or recognise anyone. [See Enclosure 60 Witness statement of Goh Seng Cha PW2 Q and A 22 and 24]. Some photos of her in current condition can be seen in Enclosure 46 Ikatan Dokumen Bersama (Bah C) Bundle B10 pages 16 to 19. iii. She was no longer able to do amongst others the following: - a) To vocalize and communicate; b) To swallow and clear phlegm without assistance; c) To breathe well without support; d) To indicate her own needs; e) To move any of her limbs; f) To follow any command; g) To control her bowel and bladder movements; h) To feed herself. [See: Enclosure 71 Ikatan Laporan Pakar-Pakar Plaintif (Prof Dr Mohd Idzwan, dll) Bundle B16 page 53, pages 7 - 12, 22 of Bundle B28] S/N E7pOeoFfekWk1XakKVxaeg [105] Following the fall, she suffered from an intracerebral bleed and had to undergo a craniotomy to evacuate the haematoma on 27-09-2019. Additionally, she also had to undergo five remedial surgeries/procedures, all of which were undertaken at Prince Court Medical Centre as follows: - i. Extubation and tracheostomy insertion; ii. Replacement of tracheostomy; iii. Bronchoscopy to clear retained secretions; iv. Bronchoscopy and bronchial lavage of retained secretions; and v. Permanent tracheostomy insertion. [See: Enclosure 71 Ikatan Laporan Pakar-Pakar Plaintif (Prof Dr Mohd Idzwan, dll) Bundle B16 pages 52 to 53] [106] She was only discharged on 20-12-2018. She was in Prince Court Medical Centre for a long period of around 3 months. She spent much of that period in either the ICU or the High Dependency Unit (HDU). [107] For the 6 remedial procedures that she had to undergo following the fall as set out above where she spent a long period of around 3 months in either the ICU or the High Dependency Unit (HDU), counsel for the Patient says an additional sum of RM 100,000 should be awarded for pain and suffering and loss of amenities of life making a total of RM 600,000. [108] A sum of RM 500,000 is fair in my view. S/N E7pOeoFfekWk1XakKVxaeg Is the patient entitled to Aggravated damages? The law on Aggravated damages [109] This is a suitable case for the Court to award aggravated damages. I have to say that the facts here justify an award on the higher end of the scale. [110] A Court of law will award aggravated damages if-i. A defendant’s conduct towards the plaintiff was motivated by spite or malevolence; ii. A defendant’s conduct was high-handed so as to increase the plaintiff’s mental pain and suffering; [111] The Federal Court in Dr Hari Krishnan & Anor v Megat Noor Ishak bin Megat Ibrahim & Anor and Another Appeal [2018] 3 MLJ 281; [2018] 3 CLJ 427 at [99] FC [“Dr Hari Krishnan”] has categorically held that aggravated damages can be awarded for medical negligence cases and against a dishonest doctor or dentist who had carry out unnecessary work on a patient for profit. The Federal Court said- [98] Aggravated damages have, in fact, been awarded as a separate head of damages by Malaysian courts. In the recent decision of this court in Mohd Ridzwan Abdul Razak v. Asmah Hj Mohd Nor [2016] 6 CLJ 346; [2016] 4 MLJ 282, the High Court’s award of aggravated damages was upheld. This court held that: In appropriate cases, substantial damages may be awarded for any indignity, discomfort or inconvenience suffered; even aggravated damages S/N E7pOeoFfekWk1XakKVxaeg may be awarded in light of the motive or conduct of the tortfeasor … As an analogy, in Appleton v. Garrett [1996] PIQR P 1 aggravated damages were given to patients of a dentist for injury to feelings, mental distress, anger and indignation upon learning that much of the dental treatment given to them was unnecessary and to a large extent performed on healthy teeth. The dentist had deliberately and in bad faith concealed from them the true condition of their teeth so that he could carry out dental work for profit … In the circumstances of this case it was reasonable for the High Court to grant the general and aggravated damages for the proven tort of sexual harassment. [99] It can be seen from the above cases that aggravated damages can be and have been awarded as a separate head of damage in tort. … There is no reason to exclude this kind of damages from medical negligence cases, which involve real injury to a person’s body. In the circumstances, we answer the second question in the negative. As such, the doctors’ appeal on quantum is dismissed. [112] A defendant’s conduct will be assessed up to and including the trial itself. It will include the way the litigation and trial are conducted by his counsel. The courts will award aggravated damages if the doctor and hospital refuse to admit liability in clear-cut cases and instead file a defence which causes the matter to be set down for a protracted trial. [See Ahmad Radhiq Arbee bin Ahmad Rejal Arbee (as a husband and dependant of Sharifah Shalihah bt Sayed Abdullah, deceased) & Ors v Kerajaan Malaysia & Ors [2020] 10 MLJ 459 HC at [24 - 25] per Gunalan J]. [113] The courts will award aggravated damages when the defendant has tampered with the medical records in an attempt to conceal the truth. S/N E7pOeoFfekWk1XakKVxaeg [See Dato’ Stanley Isaacs v The Government Of Malaysia & Ors [2019] 8 MLJ 331 HC per Aliza Sulaiman JC]. Application to facts [114] The following facts in this case show that an award of aggravated damages is justified-i. The shifting of blame to the Patient for her fall. ii. The shifting of blame to the Patient’s family for her fall. This shift relied on a lie which was exposed in cross-examination. I shall elaborate more on this below. iii. The deliberate non-disclosure of material evidence i.e. incident reports prepared by the nurses on duty and the internal nursing review conducted into the fall. iv. When the Court ordered the disclosure of the incident reports prepared by the nurses on duty and the internal nursing review conducted into the fall there was a deliberate failure to disclose the complete documents. v. The suppression of evidence and knowledge of the cause of the fall had resulted in the Patient suing her doctor Dr Nick Chong and Nurse Zulia. This no doubt caused unnecessary stress to them not to mention an attack on their reputations as professionals from the time the suit was filed in 2019 to my decision on 27-08-2024. S/N E7pOeoFfekWk1XakKVxaeg vi. The failure to report the fall to the MOH within 24 hours or immediately thereafter and thereby avoiding a statutory inquiry into the fall. vii. Perversion of the course of justice. viii. According to Dr Nick Chong it was common knowledge that the cot sides suffer mechanical failures. The old beds should have been checked immediately and replaced before a tragic fall happens. It required the tragic fall in the case before me before Prince Court Medical Centre decided to replace all the old with new beds. This is a case of penny-wise pound-foolish. The shifting of blame to the Patient’s family for her fall [115] Understandably the Patient’s family sought explanations from Prince Court Medical Centre. [116] On 26-10-2018, Prince Court Medical Centre wrote to the Patient’s family to shift the blame to them for her fall. Prince Court Medical Centre referred to the Patient’s fall at home, before the admission. This is what they said: - “In view of Mdm Lim’s fall at home on her admission day and her general health condition, family members were encouraged to room in with her”. [See: Enclosure 47 Ikatan Dokumen Tambahan Bersama (Bah. B) Bundle B11 page 58] S/N E7pOeoFfekWk1XakKVxaeg [117] From this letter, it is clear that Prince Court Medical Centre was well aware that the Patient had suffered a fall at home prior to her admission to Prince Court Medical Centre. [118] However, in a subsequent letter to the family dated 09-01-2019, they now expressed their regret to note that the hospital or the doctors were not informed by family members that the Patient has had fall or falls at home just prior to her admission to Prince Court Medical Centre for dengue. They also stated in that letter that Prince Court Medical Centre cannot be blamed for the fall because they were not informed of the fall at home. “However, we regret to note that the hospital or the doctors were not informed by family members that the patient has had fall or falls at home just prior to her admission to Prince Court Medical Centre for dengue. This fact was only informed after the incident. If it was made known to the Hospital or the Doctor that she had a fall or falls at home just prior to admission, her admission would have been different.” [Emphasis added] [See: Enclosure 47 Ikatan Dokumen Tambahan Bersama (Bah. B) Bundle B11 page 61] [119] Even in Court proceedings Prince Court Medical Centre did not come clean but continued to pervert the course of justice. Witness for Prince Court Medical Centre DW8, Mr Mahenthiran Thanapal continued to deny there was a contradiction in his two letters. S/N E7pOeoFfekWk1XakKVxaeg Aggravated damages quantum [120] The counsel for the plaintiff submits a sum of RM1 million for aggravated damages. He relies on Dr Hari Krishnan. [121] In Dr Hari Krishnan, the High Court in a judgment dated 01-09-2010 [unreported] had awarded a sum of RM1 million for aggravated damages which was affirmed by the Court of Appeal on 22-04-2014 [Dr Hari Krishnan & Dr Mohamed Namazie v Megat Noor Ishak Megat Ibrahim & The Tun Hussien Onn National Eye Hospital [2015] 1 LNS 1476 CA] and by the Federal Court on 14-12-2017. [122] The Federal Court when affirming the award of RM 1 million did not set out its analysis of the factors. The factors were considered by the Court of Appeal. The dishonesty by the defendant surgeon in question in his treatment of the patient was considered material by the High Court and Court of Appeal. Rohana Yusuf JCA said- [68] … The plaintiff was and with severe pain, continuous bleeding and finally a total loss of vision of his right eye after the Second Operation. The plaintiff was made to believe that his eye sight would return and was given false hope when he was made to stay in for 7 days in the hospital, to sit whenever possible in an upright position at all times, so that the blood in his right eye could subside, which gave him false hope that he would regain his eyesight. In evidence, the 1st defendant in fact had already decided at the operation table to prevent painful blind eye subsequently by removing the lens. [69] The plaintiff was not informed at the earlier instance that his right eye was beyond salvation and nothing could be done to rescue the situation. This had caused the plaintiff to suffer severe nervous shock, extreme anxiety and distress. The plaintiff was depressed and experienced a fear of future incapacity S/N E7pOeoFfekWk1XakKVxaeg in the event something were to happen to his remaining functioning eye (left eye). [70] The plaintiff also suffers embarrassment, humiliation and discomfort at the workplace and in public due to the lack of vision and movement in his right eye. The plaintiff wears a pair of sunglasses to shield his blind right eye. [71] The plaintiff had been deprived of the ordinary experience one would go through as he has lost the sight in one eye. He is only able to experience the joys of life through one eye and is no longer able to experience the full pleasures in activities that he enjoys such as reading and playing golf. [72] The plaintiff testified he had lost prospect of promotion in his job as the General Manager, Group Legal Division of UMW, that he was due to be promoted to the position of Corporate Director or Executive Director. The plaintiff was not promoted for the last 10 years due to his loss of sight in one eye, compared to his contemporaries. In our view the learned JC did take into account to the about facts in awarding aggravated damages. We have no reason to disturb the same. [Emphasis added] [123] Applying Dr Hari Krishnan to the facts of this case, I am of the view a sum of RM 1 million for aggravated damages is appropriate. The award of RM 1 million in Dr Hari Krishnan was awarded in 2010. It is now