Mohd Zalmi Bin Yop v Ho Kin Kuan (AB-21NCvC-1-01/2021)

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PENGARAH, PEJABAT KESIHATAN PERGIGIAN DAERAH

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DR. ONG ENG KEAT (71783) PENGARAH, HOSPITAL PARIT BUNTAR, PERAK;

KERAJAAN MALAYSIA ... DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT INTRODUCTION [1] The parties in this suit will be referred to as they were in the High Court. The Plaintiff, Mohd Zalmi bin Yop, brought the present claim for and on behalf of his late wife, Siti Hawa Binti Abdul Rashid (hereinafter referred to as “the deceased”). 23/04/2026 02:21:17 AB-21NCvC-1-01/2021 Kand. 171 [2] The Court found that the Plaintiff had failed to prove his case on the balance of probabilities and dismissed his pleaded claims as per the Amended Statement of Claim. [3] The Plaintiff then filed an appeal to the Court of Appeal against this Court’s decision delivered on 30.1.2026. This Court now gives its reasons for dismissing the Plaintiff’s claims. FACTS OF THE CASE [4] On 20.11.2017, the deceased sought treatment at the Klinik Pergigian Parit Buntar (“KPPB”) for discomfort of her lower right wisdom tooth. The deceased informed D1 that she did not have any medical condition or allergy to medicines or food allergy. The deceased was examined by the First Defendant (“D1”) and noted that the surrounding gums were inflamed i.e. pericoronitis. She was advised to undergo a minor oral surgery (MOS) for extraction of the partially erupted tooth M48 on 16.01.2018. [5] The deceased came to KPPB as scheduled on 16.01.2018 and the MOS was successfully carried out without any complications by D1. The deceased remained stable at all material times. She was prescribed with painkillers as usual, and the next appointment date was set on 23.01.2018 to remove the dental stitches. [6] On 18.01.2018, the deceased returned to the KPPB with complaints of facial swelling on the lower right side of her face. The deceased complained of difficulty in eating and drinking due to pain and restricted mouth opening following the MOS on 16.1.2018. [7] Upon examination, D1 diagnosed the deceased with an infection and further informed her that the facial swelling was a known complication that had been explained to the deceased prior to the MOS. The deceased was subsequently prescribed some antibiotics and advised to apply ice pack compression if needed, on the affected area. [8] On 19.01.2018, at around 10.21 a.m., the deceased was brought to the Unit Kecemasan dan Trauma Hospital Parit Buntar (“UKT”) after her condition had worsened, with complaints of facial swelling and difficulty in breathing. The deceased was examined by the Fourth Defendant (“D4”) and was advised to revisit the KPPB for further assessment and treatment. But no referral was made to the KPPB, and the deceased returned home thereafter. [9] At around 9.39 p.m. on the same day, the deceased returned to UKT, complaining of swelling on the right side of the neck and pain at the surgically treated area. Upon examination by the Fifth Defendant (“D5”), it was found that the deceased had “gum with surrounding soft tissue infection post tooth extraction and acute gastritis”. The deceased was prescribed C. Cloxacillin 500 mg, Tramadol 50 mg, T. Maxalon 10 mg, T. Ranitidine 150 mg, and T. Tranexamic acid 500 mg, and was thereafter allowed to go home. [10] The following day, on 20.01.2018, at around 6.35 a.m., the deceased returned to the UKT for the third time, in a critical condition, complaining of difficulty in breathing. The deceased was administered with “nebulized saline” and transferred to the Yellow Zone. The Plaintiff denied any prior medical history of the deceased. Examination by the Sixth Defendant (“D6”) revealed that the deceased was still tachypneic. [11] At around 8.05 a.m., after the deceased was transferred to the Red Zone, blood and urine samples were taken for laboratory analysis, and the deceased was administered “IVI Insulin” and “IVD NS/Gelafundin”. Further observation and cardiac monitoring revealed that the deceased was experiencing “sinus tachycardia”. [12] At around 8.25 a.m., examination by the Seventh Defendant (“D7”) revealed that the deceased had a full Glasgow Coma Scale (GCS) score and remained stable. The Plaintiff finally disclosed that the deceased had diabetes, but was not on any medication or receiving treatment for the condition. [13] However, at 9.15 a.m., the deceased was intubated due to “worsening respiratory distress”. At 9.25 a.m., the deceased collapsed shortly after intubation, and cardiopulmonary resuscitation (CPR) was initiated. Following the administration of CPR, the deceased suffered “Supraventricular tachycardia” (SVT). The deceased was subsequently administered adrenaline and referred to the medical and anaesthetic team. [14] At around 11.00 a.m., the deceased’s blood pressure dropped abruptly to 60/37, and “IVI Noradrenalin” was administered. At 12.20 p.m., the deceased developed “Bradycardia” and was treated with “IVI Noradrenalin”. The anaesthetic team subsequently recommended the administration of “IVI Dobutamine”. [15] Despite all their efforts, the deceased was pronounced dead at 2.50 p.m., with the cause of death classified as “severe anaphylactic shock with acute kidney injury”. A post-mortem examination was not conducted by the hospital because the Plaintiff did not give his consent. INTERLOCUTORY APPLICATIONS [16] There were a few interlocutory applications in this matter which had been dealt with before the trial as follows: i. Encl. 10 – by the Plaintiff for disclosure of documents; ii. Encl. 43 – by the Plaintiff to amend the Statement of Claim; iii. Encl. 92 – by the Plaintiff for subpoena of a few government doctors involved in the internal and external inquiries to attend court and produce documents. [17] Encl. 10 was partly allowed on 26.11.2021 by the previous learned Judicial Commissioner (as His Lordship then was). Encl. 43 which was heard by me was allowed on 5.12.2022 with an order that the Defendants to be compensated by costs. Encl. 92 was partly allowed by me on 12.6.2024 where only the heads of the 2 inquiry teams were allowed to be subpoenaed. THE TRIAL [18] The trial commenced before me on 9.7.2024 until 21.10.2024. A total of 7 witnesses testified for the Plaintiff’s case comprising of: i. PW1 - Dr. Che Sarifah Binti Sulieman, Pengarah Hospital Parit Buntar; ii. PW2 - Dr. Teo Aik Howe, Consultant Emergency Physician, Hospital Pulau Pinang; iii. PW3 - the Plaintiff; iv. PW4 - Norazila Binti Mat Disa, Plaintiff’s wife; v. PW5 - Nur Adam Bin Abdul Rashid, the deceased’s brother; vi. PW6 - Dr. Mohammad Farris Iman Leong Abdullah, Psychiatrist, Hospital Universiti Sultan Zainal Abidin; and vii. Dr. Mohd. Faizal Bin Abdullah, Oral and Maxillofacial Surgeon, Hospital Universiti Sains Malaysia. [19] The Defendants’ case commenced on 3.9.2025 until 17.9.2025 where they called 11 witnesses to testify in Court as follows: i. DW1 - Dr. Ho Kin Kuan (D1); ii. DW2 - Dr. Munirah Bt Sofi (D4); iii. DW3 - Dr. Adilah Bte Abu Zaimah (D5); iv. DW4 - Dr. Nurliana Binti Omran (D2); v. DW5 - Dr. Nur Hanisah Bt Habeeb Rahman (D6); vi. DW6 - Dr. Chi Chia Sein (D7) vii. DW7 - Hanafi Bin Ismail, Hospital Attendant; viii. DW8 - Dr. Ong Eng Keat (D9); ix. DW9 - Dr. Ch’ng Lay Ling, Head of Department, Oral and Maxillofacial Surgery, Hospital Seberang Jaya; x. DW10 - Dr. Kee Khang Wei (D8); and xi. DW11 - Dr. Mohd Lotfi B. Hamzah, Consultant Emergency & Trauma Department, Hospital Sultanah Nur Zahirah. ISSUES TO BE TRIED [20] The issues to be tried as per Encl. 35 were as follows: i. whether the Defendants owed a duty of care towards the deceased; ii. whether there was a breach of the duty of care and contributory negligence, medical malpractice/breach of professional acts by the Defendants in the treatment of the deceased; iii. whether the system of treatment and care employed in the clinic and hospital during the material time complied with the Standard Operating Procedure (SOP) and standard of care set by the Ministry of Health Malaysia; iv. whether the cause of death of “severe anaphylactic shock with acute kidney injury” was due to the breach of duty of care and negligence of the Defendants in the treatment of the deceased; v. whether D3 and D10 were vicariously liable for breach of the duty of care/medical malpractice/breach of professional acts by D1, D2, D4, D5, D6, D7, D8 and D9; and vi. whether the Plaintiff was entitled to all the damages, interests and costs due to breach of the duty of care/medical malpractice by the Defendants. ACTIONABLE NEGLIGENCE [21] The Plaintiff’s cause of action was premised on the tort of negligence by the Defendants. The requirements for there to be actionable negligence are:

(a) the existence of a duty of care;

(b) breach of that duty of care by the Defendants;

(c) causation, that is a casual link between the Defendants’ careless conduct(s) and the damage;

(d) that the particular kind of damage to the patient is not so unforeseeable as to be so remote. [22] In short, the Plaintiff must prove on a balance of probabilities his claims that the Defendants had been negligent in their treatment and care of the deceased while she was getting her third molar extracted and later when she was hospitalised for post-surgery complications that led to her death. [23] The Defendants denied any liability and contended that there was no negligence at all on their part because the deceased and/or the Plaintiff had never disclosed the fact that the deceased suffered from diabetes when she first came for treatment at KPPB on 20.11.2017. [24] It is trite law that the burden of proof in an action for negligence lies with the plaintiff: Ng Chul Sia v. Maimon Bt Ali [1983] 1 MLJ 110. The duty of the court is to determine which version is more inherently probable based on available evidence: Noorianti bte Zainol Abidin & Ors v Tang Lei Nge [1990] 2 MLJ 242. In Ng Chul Sia (supra), His Lordship Hashim Yeop A. Sani J. held: "In an action for negligence the onus of proving the allegation of negligence rests on the person who makes it unless there are disclosed facts which raise a presumption in favour of the plaintiff. The plaintiff must show affirmatively that there has been a breach of a specific or general duty by the defendant and this resulted in the damage to the plaintiff. If he fails to prove this the action must fail." (the emphasis is by this court)”. [25] Later, in Dr Chin Yoon Hiap v Ng Eu Khoon & Ors and other appeal [1998] 1 MLJ 57, the Court of Appeal had decided that “to succeed in an action based on negligence, whether against a doctor or against anyone else, it is necessary to establish a breach of that duty to take care which the law requires, and the degree of want of care which constitutes negligence must vary with the circumstances. Where the conduct of a doctor is concerned, the circumstances are not so precise and clear cut as in the normal case. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill acting with ordinary care would be guilty of. A doctor cannot be held negligent if he follows what is the general and approved practice in the situation with which he is faced.”. [26] Since this is a medical negligence claim, it is trite law that the test to be applied is the “Bolam test”. The Federal Court in Zulhasnimar bt Hasan Basri & Anor v Dr Kuppu Velumani P & Ors [2017] 5 MLJ 438 discussed the Bolam test (Bolam v. Friern Hospital Committee [1951] 2 All ER 118) as per the following: “[23] In the course of summing up to the jury, McNair J made the following remarks on the standard of proof in a medical negligence suit: But where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. [24] On the duty and standard of care of a doctor vis a vis a patient, McNair J made this pronouncement: A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art … Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view. … [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.”. [Emphasis added] [27] The Federal Court in Zulhasnimar’s Case (supra) continued: “…the test in Rogers v Whitaker and followed by this Court in Foo Fio Na in regard to start 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 and 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.” [28] The Australian case of Rogers v Whitaker [1993] 4 Med LR 79, [1992] 175 CLR 479 which was followed in Foo Fio Na v Dr Soo Fook Mun [2007] 1 MLJ 593, in regard to the standard of care in medical negligence, was restricted only to the duty to advise of risks associated with any proposed treatment; it does not extend to diagnosis and treatment. With regard to the standard of care for diagnosis and treatment, the Bolam test still applies subject to qualifications as stated in Bolitho (Bolitho (administratix of the estate of Bolitho (deceased) v City and Hackney Health Authority [1997] 4 All ER 771). The Bolam test is essentially a ‘doctor knows best’ test. As long as there are two conflicting views on the acceptable medical practice, and the defendant doctor acted based on one of the conflicting views, he would be exonerated from liability. In short, the standard of care is decided by the medical profession. The Bolitho test is the extension of the Bolam test, which calls upon the court to analyse the logic and reasonableness of the conflicting medical opinion advanced by the defence before accepting the same: Dr Hari Krishnan & Anor v Megat Noor Ishak bin Megat Ibrahim & Anor and another appeal [2018] 3 MLJ 281 (paragraphs 61 – 63). [29] In the Bolitho Case (supra), the court there held that: “These decisions demonstrate that in cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendant’s conduct, the defendant can properly be held liable for negligence (l am not here considering questions of disclosure of risk). In my judgment that is because, in some cases, it cannot be demonstrated to the judge’s satisfaction that the body of opinion relied on is reasonable or responsible. In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are questions of assessment of the relative risks and benefits of adopting a particular medical practice, a reasonable view necessarily presupposes that the relative risks and benefits have been weighed by the experts in forming their opinions. But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.”. [Emphasis added] [30] The parties each called their own independent expert witness to give their medical opinions on the condition of the deceased and treatment given. The Plaintiff’s expert was PW7, Dr. Mohd. Faizal Bin Abdullah (Affidavit in Encl. 136). The Defendants’ expert witnesses were Dr, Ch’ng Lay Ling (Affidavit in Encl. 134) and Dr. Mohd Lotfi B. Hamzah (Affidavit in Encl. 135). [31] Before I go further, I noted that there were efforts to settle the suit out of Court but they were unsuccessful. However, the Plaintiff tried to “capitalise” on this by bringing it into the trial which the Court viewed as inappropriate. EVALUATION AND FINDINGS OF THE COURT i. Whether the Defendants owed a duty of care towards the deceased [32] The starting point in this suit is to determine whether a duty of care existed towards the deceased. What is a duty of care? The very basic understanding is that it is a legal obligation to take reasonable steps not to cause reasonable harm to another person or their property. In this medical negligence suit, there were two (2) doctor-patient situations arising which needed to be determined by the Court. The first was the “dentist – patient” situation when the deceased sought treatment from KPPB and was treated by the resident dentist, D1. The second was the “doctor-patient” situation when she was treated at UTK for the post-MOS complication. [33] In R v Bateman [1925] 94 LJKB 791 at p. 794, Lord Hewart C.J. said: “If a person holds himself out as possessing special skill and knowledge and he is consulted, as possessing such skill and knowledge, by or on behalf of a patient, he owes a duty to the patient to use due caution in undertaking the treatment.” [34] The burden of proof is on the Plaintiff to prove that a duty of care exists between D1 and the deceased. When D1 carried out his task as a dentist at KPPB in giving treatment to the deceased, commencing on 20.11.2017, he had accepted the responsibility to treat her. A “dentist-patient” relationship was created between them, and therefore, he owed a duty of care to the deceased to act with knowledge, skill, caution and diligence in rendering the necessary treatment which would continue until its completion. It is clear that such a duty of care exists in the present case. ii. Whether the duty of care is breached [35] The next step is to determine, whether the duty of care is breached. A duty of care is breached when someone suffers injury from the act(s) or omission(s) of another person that is reasonably foreseeable such action(s) or omission(s) could cause injury where a reasonable person in the same position would not have acted in that way. The Plaintiff must prove on a balance of probabilities again, that D1’s conduct fell below the standard required in regard to such duty of care. Therefore, in the context of medical negligence, the true test for establishing negligence in diagnosis and treatment on the part of the doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of acting with ordinary care: Hunter v Hanley [1955] SLT 213. Lord President Clyde stated at page 217: “… In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill or knowledge than others would have shown”. [36] An issue to be tried was whether there was a breach of the duty of care and contributory negligence, medical malpractice/breach of professional acts by the Defendants in the treatment of the deceased. In order to determine whether the duty of care was breached, it was necessary for the Court to consider at the same time the issue posed i.e. whether the system of treatment and care employed in the clinic and hospital during the material time complied with the Standard Operating Procedure (SOP) and standard of care set by the Ministry of Health Malaysia (MOH). The following guidelines and SPs were referred to during the trial: a. Clinical Practice Guidelines, Management of Unerupted and Impacted Third Molar teeth, MOH/P/PAK/107.05 (GU), December 2005 (“CPG 2005” marked as P38); b. Clinical Practice Guidelines, Antibiotic Prophylaxis in Oral Surgery for Prevention of Surgical Site Infection (Second Edition), MOH/P/PAK/307.15 (GU), November 2015 (“CPG 2015); c. Clinical Practice Guidelines, Management of Type 2 Diabetes Mellitus, 5th Edition, MOH/P/PAK/303.15 (GU), December 2015; and d. Emergency Medicine and Trauma Services Policy. [37] Unlike other medical negligence cases that I have handled pertaining to liability, this case focused on the issue of non-disclosure by the deceased and/or the Plaintiff of her underlying condition i.e. diabetes mellitus. The Defendants denied that they were liable at all for the death of the deceased because when D1 first rendered her treatment on 20.11.2017 she never disclosed that she had this condition and she also informed that she was not on any medication. In a medical negligence case, the analysis of evidence would follow the usual pattern of i) whether there existed a duty of care and ii) whether that duty had been breached. Then the discussion flows into the causal link between the act or omission of the defendant and the breach and then on the remoteness of damage. But because of the distinctive feature of this case, it is imperative for the Court to analyse first the causal link between the Defendants’ alleged careless conducts and the death of the deceased. The conflicting views of the experts on both sides also required consideration by the Court, which in the end, I found that the Defendants’ expert opinions were more preferred than the Plaintiff’s: Zulhasnimar’s Case (supra). iii. Whether there is a casual link between the Defendants’ alleged careless conduct(s) and the injury/death [38] The Plaintiff posed an issue to be tried i.e. whether the cause of death of “severe anaphylactic shock with acute kidney injury” was due to the breach of duty of care and negligence of the Defendants in the treatment of the deceased at KPPB and later at the UTK. [39] The Court had perused the pleadings, testimonies (oral and witness statements) and documentary evidence adduced in this suit as well as the written submissions of the parties and had arrived at its decision that the Defendants were not liable for the death of the deceased and alleged damages suffered by the Plaintiff as a result of her death. Therefore, the Court held that there was no vicarious liability on the part of D3 (which did not exist), D10 and D11 in regard to D1, D2, D4, D5, D6, D7, D8 and D9. In fact, the Court found that D8 and D9 did not render any treatment at all to the deceased but was dragged into the suit because they were present as D7’s witness when after the deceased passed away, the Plaintiff refused to give his consent for D7 to conduct a post-mortem I order to find out the cause of death. The relevant evidence in the Court [40] If the Court finds from the totality of the evidence adduced that there is no causal link between the Defendants’ alleged careless conduct(s) and the death of the deceased, the Plaintiff will fail in his claim in respect of her death and for the damages that he suffered pursuant thereto. [41] In the English case of Rogers v Whitaker (supra), which was followed in Foo Fio Na v Dr Soo Fook Mun [2007] 1 MLJ 593 (FC), the Federal Court held that in regard to the standard of care in medical negligence, the duty was restricted only to the duty to advise of risks associated with any proposed treatment; it does not extend to diagnosis and treatment. With regard to the standard of care for diagnosis and treatment, the Bolam test still applies subject to qualifications as stated in Bolitho test. The Bolitho test then requires the courts to analyse the logic and reasonableness of the conflicting medical opinion advanced by the defence before accepting the same: Dr Hari Krishnan (supra). This Court viewed that it was pertinent to analyse whether D1 was negligent in the first place. If the Plaintiff passed this hurdle, then the acts of the treating doctors at UTK would be relevant consideration. [42] Following the principle in Foo Fio Na (supra), D1 is bound by law to inform the deceased of the risks involved in the proposed treatment so as to enable her to make an election of whether to proceed with the proposed treatment with knowledge of the risks involved or decline to be subjected to such treatment. On the deceased’s diagnosis and treatment by D1, the standard of care is as stated in the Bolam test i.e. even if there are two conflicting views on the acceptable medical practice, and the defendant doctor acted based on one of the conflicting views, he would be exonerated from liability. But the Bolam test is subject to qualifications as stated in the Bolitho test. Lord Browne-Wilkinson in Bolitho (supra) held that a trier of fact will have to be satisfied that “...in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter.” His Lordship further held at page 779 that “if it can be demonstrated that the expert medical opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not responsible.” This meant that although the defendant’s conduct was exonerated, he or she may still be held liable for breach of duty if it cannot be demonstrated to the court’s satisfaction that the opinion relied on by the experts is reasonable or responsible. [43] In the present case, the expert witnesses from both sides were questioned about their views on Ludwig’s Angina, a rare complication that could arise from a MOS such as the one undergone by the deceased. I will discuss this further in this Grounds of Judgment. Suffice to say for now that the Court concluded despite the Plaintiff’s assertion, that Ludwig’s Angina was not attributed to D1’s treatment on the deceased on 16.1.2018. [44] I would start with the evidence of the first two Plaintiff’s witness. PW1 and PW2 were respectively the heads of the Internal Inquiry and External Inquiry committees that had conducted investigations into the events of 20.11.2017 from the time the deceased sought treatment from D1 at KPPB until her death on 20.1.2018 at Hospital Parit Buntar. As we all know, such inquiries are held to find out what were the issues in the case and what areas needed to be improved by the Government. It is not a fault-finding mission, contrary to what the Plaintiff’s counsels were trying to do in this suit i.e. by urging the Court to use the inquiry findings as the basis for the Defendants’ liability. In fact, by making PW1 and PW2 to be their witnesses, the Plaintiff had denied the Defendants the right to call these 2 doctors as their own witnesses. And ironically, by doing that, PW1 who was named as D10 in the suit had to testify for the Plaintiff’s case. It must be borne in mind that the burden of proof in this suit is on the Plaintiff to prove his claims and never on the Defendants. [45] Having heard their testimonies, I found that both these senior doctors’ evidence were similar and the findings by the respective inquiry committees exonerated the dentist and treating doctors at UTK from any liability in regard to the death of the deceased. The reports of the inquiries were marked as P1 for internal inquiry and P2 for the external inquiry. I would focus on the independent external inquiry report as it was upon more comprehensive and independent. Its purpose was to ensure independence of the fact- finding body. In page 285 of the Common Bundle of Documents (CBOD), the external inquiry commented on D5’s action where she discharged the deceased with medications after examining her at the UTK on 19.1.2018 during her second visit to the hospital. The committee stated: “The committee was of the opinion that Dr. Adilah should have taken a FBC test, and observed the patient providing IV fluids. That would have provided the opportunity for more vital signs to be taken and results of the FBC test may have indicated a need for admission, or otherwise. If the patient had been admitted, it is likely that he DKA status would have been discovered, and the infection better controlled by IV antibiotics.”. [46] In regard to the discrepancy between information provided by the husband of the deceased with documents, the committee stated at page 286 of CBOD that: “There was significant discrepancy between history provided by the husband and written clinical documents which can be corroborated. The patient’s husband denied knowing that the patient was a diabetic, although notes indicated otherwise. Doctors account that the patient informed them that she had a community testing for diabetes which was positive but she did not seek any treatment. Her high glucose level results suggest DKA although no specific tests (ABG, Serum ketones) were done. The patient’s husband insists that he wanted a post-mortem examination (apparently as evidenced by a police report he made 2 months after her death, after the internal inquiry) but it is documented in the clinical notes that he refused “anyone to touch his wife” after being explained by staff. This is corroborated by testimony of others present at the time. The progression of symptoms provided by the husband also did not correspond to the symptoms provided by the patient to doctors.”. [47] At page 312 of CBOD, it could be seen from the handwritten notes of D7 that “Pt’s husband not keen for postmortem”. D7 had also stated in her letter dated 20.5.2019 to the Malaysian Medical Council (MMC) that the Plaintiff strongly refused to have it done on the deceased. This was a hotly contested issue during the trial because the Plaintiff in his testimony denied ever refusing a postmortem to be done and even made a police report to that effect (refer to P4) and blamed D7, D8 and D9 instead. [48] I noted that D7 in her evidence before the Court had explained why the Plaintiff refused to have a postmortem done (refer to pages 892- 893 of the Notes of Evidence) as follows: Baik. Dan sebentar tadi peguam juga telah tanya, setuju kalau dia dicadangkan kepada Dr. Chi. Kalau sekiranya post mortem ini tidak dibuat, maka cause of death ini tidak boleh ditetapkan And then Doktor kata tak setuju. So apa position Doktor? Boleh jelaskan kepada mahkamah? Apa position Doktor di dalam kes ini, Post mortem tidak dipersetujui dan bagaimana, apa position Doktor untuk to come to that particular cause of death? Selepas Siti Hawa itu meninggal, kita memang ada contact dengan Forensik. dan suruh Forensik to take over to do a post mortem. Sebab kita nak tahu punca kematian Siti Hawa. But patient punya suami dia refuse. Until very, very refuse, dia tak nak bawa istri dia balik dah. Because it's too long of time in kecemasan. YA (Inaudible: 16:54:21) Terlalu lama. YA Di mana? Di kecemasan. So dia nak secepat mungkin bawa istri dia balik. YA (Inaudible) Siti Hawa. Suami Siti Hawa nak balik. Sebab sudah terlalu lama kecemasan. So, lepas itu kita ada beritahu jika post mortem tak buat, susah kita nak beri satu cause of death. Dia refuse juga. So, saya terpaksa keluarkan satu cause of death sebelum dia release. So, I have to go through the history dengan dia punya rawatan semua, dengan dia punya blood result, baru boleh keluar satu cause of death. So, dari history dia beritahu, selepas dia makan ubat tahan sakit itu, bengkak itu semakin bengkak dan susah nafas. Selepas itu dating ke ED. Dia cakap lepas ubat itu, dia lagi susah nafas. YA (Inaudible:16:55:27) Siti Hawa lagi susah nafas. So, from the history and also the blood report, saya keluarkan cause of death. Lepas itu, dia puas hati, dia bawa balik. At the sametime, the forensic MA is over there. He agreed and he signed the release mayat punya form. So, boleh doktor jelaskan, tanpa cause of death, mayat tidak akan di-release. [49] Based on the overwhelming evidence on this particular issue, I found on a balance of probabilities that the version of the Defendants was more probable than the denial of the Plaintiff that it was he who had refused to have the post-mortem on the deceased. At the time when the deceased died, it was highly likely that the Plaintiff was distraught, sad, shocked, confused and angry. He had been waiting since morning and it must have been like a “roller-coaster ride” with her condition deteriorating and being resuscitated 4 times until finally she succumbed. Hence, I have no doubt that all he wanted to do was to take the remains of his wife home and carry on with the funeral rites and burial. However, the Plaintiff was not being truthful with the Court about his motive for so doing. This situation is akin to the old saying that a person who comes to court expecting judgment in his favour, must come with clean hands. [50] The report at page 287 in paragraph 7 also stated that the committee found there was a “window of opportunity”. However, the Plaintiff’s counsel harped on the committee’s opinion, particularly on the “incompetence of Dr. Adilah” as the basis for his claims against the Defendants. The committee stated the following: “6.1 POLICY & PROCEDURES

6.1.1 The procedures on triage-away at the ED have been improved since the last inquiry with better documentation of vital signs and documented referral.

6.1.2 The ED registration mechanism is now being reviewed to incorporate ability to check for return visits; and ensures documentation by clinical staff

6.1.3 The policy for checking of BP and Glucose levels are being reviewed by the Dental fraternity; this is likely to be limited by budgetary constraints, however, limiting Glucose and BP checks to those more than 30 years old would likely miss out most Type 1 diabetics.

6.2 PATIENT FACTORS The patient likely has Type 1 Diabetes. It is likely that she knew about this situation from screening procedures done in the community, but did not address it. This uncontrolled DM is likely to have increased her risk of infection following minor surgery, worsened her ability to fight that infection and caused her to tip over into Diabetic Ketoacidosis, contributing to her death.”. …

6.4

6.4.1 Dr. Adilah seems to demonstrate poorer than expected ability to recognize situations which require urgent attention. Her inability to identify the serious situation the patient was in on the night of the 19th January was the most critical reversible factor in this situation.

6.4.2 Documentation remains relatively poor by some doctors.

CONCLUSION Panel is of the opinion that the patient passed away following an uncommon complication of tooth extraction, which is likely to have been worsened by her diabetic state. However, specifically on the 19th January, there was a window of opportunity for doctors to identify and intervene which could have resulted in a better outcome, this unfortunately was not done. [51] The Defendants submitted that the findings of the inquiry bodies were not binding on the Court. The documents produced as reports were internal documents not meant for use in Court because these were not the medical records of the deceased when she was being treated at the KPPB and UTK. Therefore, it was pre-mature for the Plaintiff to suggest to the Court to find them liable based on the inquiry reports. I would agree with the Defendants’ submissions because if the Court was to adopt the suggestions by the Plaintiff’s counsel, it was like taking a short-cut instead of analysing the evidence in the proper medical records and the testimonies of the witnesses for both sides in order to arrive at a fair and just decision on what were the generally approved medical practice. [52] In Hasan bin Datolah v Kerajaan Malaysia [2010] 2 MLJ 646 the Court of Appeal stated “…we agree with learned counsel that Foo Fio Na, had without doubt rejected the Bolam test in so far as it relates to the determination of the standard of care to be observed by a medical practitioner in a medical negligence suit. The right or responsibility to make such a determination now rests with the court upon evaluation of the evidence before it, including the opinion and practices of members of that profession.” [53] PW2 in his evidence told the Court that the deceased’s tooth extraction caused an underlying deep-seated infection which could not be treated initially with antibiotics. He said it probably worsened because of her diabetic state and led to a severe complication. He said there were probably a combination of a few deep-seated extension of infection and mukti-organ failure. Unfortunately, the reason why could not be determined because they did not have a lot of time to do investigations and could not perform a post-mortem. He stated further that it was a complication of severe acidosis, “…severe diabetes that leads the whole body to go into an acid level, an acidotic state. And because of the severe high degree of glucose in the body, the body becomes very acidic, and the person tries to get rid of this acid by breathing faster. So essentially what happens is that they always try to breathe faster to try to get rid of this acid as carbon dioxide. And when they try to breathe out as carbon dioxide, it always appears as if they have difficulty in breathing. Actually, what they are doing isthey are trying to breathe out.”. [54] PW2 continued: “So here it's felt that the committee was of the opinion that Dr Adila should have taken a full blood count test and observed the patient providing IV fluids. So this is a provider of opportunity for more vital signs to be taken and results of full blood count may have indicated a need for admission or otherwise. If the patient had been admitted, it was likely that her DKA status would have been discovered and infection would have been better controlled by IV antibiotics. And that's what was meant by an opportunity, for a missed opportunity, for a better outcome.”. [55] From his evidence, I gathered that the committee did not state that D5 was the cause of the deceased’s death. The committee also stated in their report that the measures or treatments rendered by D6 and D7 on 20.1.2018 were appropriate on that day (refer to page 285 of CBOD). More importantly, the point to note in his evidence was that if the deceased was admitted, it was likely that the hospital would have discovered her diabetic ketoacidosis (DKA) status and be better able to prescribe an IV-administered antibiotics instead. I will elaborate further on this issue later in this judgment. [56] PW2, being the head of the external inquiry committee, confirmed that based on their findings, the decision of D1 to suggest for a removal of the impacted tooth was appropriate at the time and D1 was a qualified person to perform the MOS on the deceased. In regard to D4, the committee found that her action to triage-away the deceased to KPPB for review during her visit on 18.1.2018 was appropriate. D4 upon a brief assessment of the deceased’s swollen neck condition and history, found that it was a dental case and since KPPB was just 70 metres away, directed the deceased to walk-in to the dental clinic for a review by the dentist then. D4 gave evidence that she had never saw the deceased again after that date. She also clarified that the referral letter was not given because she had examined the deceased and immediately told her to go to KPPB. The external inquiry committee also cleared D4’s actions therein. [57] When DW11, the expert from the Emergency and Trauma Department was cross-examined by the Plaintiff’s counsel, his evidence was he concluded based on the records that D4 had erred when she had triaged-away the deceased to KPPB despite finding “swelling right side of neck (submandibular) area measuring 3 x 4cm. Not inflamed or erythemathous. Slight tender on palpitation. Unable to fully open her mouth”. In effect, DW11 implied that D4 should have admitted the deceased for further investigation and treatment at the ward. He concurred with the external committee’s findings on D5’s treatment of the deceased. However, he disagreed to the following suggestions that D6 and D7 were negligent in their treatment of the deceased: Adakah Doktor juga bersetuju dengan cadangan saya sekiranya pada masa tersebut Doktor Hanisah mendapatkan bantuan pakar ENT atau gigi daripada pakar hospital Taiping sama ada secara VC, video, konferens memulakan dengan ID incision ataupun drainage dapat memberi satu rawatan segera kepada si mati? Tak setuju. Adakah Doktor bersetuju dengan cadangan saya sekiranya pegawai perubatan yang merawat Siti Hawa memulakan I&D incision and drainage to release puss an effective fluid from the deep facial space of the neck to relieve the pressure from the facial spaces of the mouth and neck dapat menyelamatkan Siti Hawa? Tak setuju. Adakah Doktor bersetuju, kemungkinan paling tinggi untuk diagnosis Siti Hawa si mati adalah “severe sepsis secondary to deep neck space abscess”? Setuju. Doktor setuju apa yang dilakukan oleh Dr. Chi ChiaSein adalah sesuatu yang kita panggil blind intubation? Tak setuju. [58] DW11 explained to the Court about “intubation” in re-examination, and he agreed with D7’s actions on 20.1.2018: …mana-mana pesakit yang ada upper airway obstruction dan distorted, it is contraindicated. Kita tak boleh nak intubate sebab ia mungkin menyebabkan laryngeal spasm. ...Tetapi, untuk pesakit ini pesakit ini telah berjaya dimasukkan tube ataupun diintubasikan. Jadi, tidak ada isu oxygenation lagi. Oksigen dia selepas pun 100% juga. Kalau tidak boleh masuk tube itu baru pergi yang option-option yang disebutkan oleh peguam tadi iaitu LMA tracheostomy. Jadi, yang ini is a gold standard. Tube itu adalah gold standard. Walaupun, saiz dia kecil. Jadi, pada saya masalah oksigen itu tak ada isu di sini. Tapi, penyakit dia itu, kuman dalam darah itu dah merebak. Itu yang menyebabkan keterukan pesakit. … Okay, kalau kita tengok, Doktor Hanisah letakkan DKA, iaitu diabetic ketoacidosis ni, wajar pada pendapat saya kerana pada masa itu yang da maklumat adalah tahap glukosan tinggi dengan pernafasan yang laju memang DKA itu wajar sebagai diagnosis nombor 1. Tetapi sebagai seorang pengamal perubatan, sepatutnya dia juga mempunyai diagnosis-diagnosis lain untuk pesakit ini. Itu yang saya maksudkan. Contoh? Contoh kalau untuk kes ni, pesakit baru lepas buat pembedahan minor, dental, patutnya jangkitan pada leher punya ruang dalam itu patut difikirkan sebagai alternative diagnosis. … Betul. Maknanya, priority dia, keutamanya adalah airwaylah, memastikan oksigen masuk dalam pesakit dengan cara intubasi yang menjadi berjaya lah. Dan selepas itu, boleh dibuat rujukan kepada disiplin-disiplin yang terbabit lah. So, saya just nak tahu satu keadaan. At that material time, is that necessary untuk Puan Siti Hawa dirujuk kepada pihak dental at that material time? Perawatan intubasi itu perlu dilakukan dahulu. [59] The Court also asked DW11’s opinion in regard to whether a diabetic patient could undergo a MOS given the underlying condition could cause complications after the surgery. He explained (page 1131 onwards) that: Kalau orang yang ada kencing manis ini, dia macam contoh kalau dia luka, dia lambat nak baik kan? Okey. So, when you do surgery, tak kira lah bahagian mana pun, there is some, the risk is higher compared to orang yang normal kan? Betul. So, macam mana? Should you proceed or not? That is the question. It's one of the issues that they raised. Kalau dia patut, dia kena control dulu glucose level dia itu. Dalam tahap yang yang sepatutnya lah. Baru dia proceed pada procedure. So, surgery itu masih boleh dibuat? Tapi, setelah dioptimisekan dia punya tahap glucose dia itu. … Buang nanah itu apa kesan dia? Kalau you buang kan dia akan jadi lagikah tak? Kalau tak dikawal, dia boleh jadi lagi lah. Kencing manis itu tidak dikawal ataupun risiko masih ada lagi. So maknanya still you have to treat the source lah? Yes, yes. And then, maknanya gigi ini dia perlu kan untuk kita makan supaya kita dapat zat yang sepatutnya untuk badan lahkan. Betul. You have to treat it macam mana pun. But you have to manage whatever condition first. That's what I understand. Ha, betul. Cuma kita kena faham adakah ini kes emergency or kes yang boleh tunggu. Kalau emergency, kena rawat dan procedure dia buat serentak lah. Mana risiko lagi tinggi lah. Macam mana itu? Contohnya tiba-tiba datang dengan gigi yang berinfection kan. Memang dah abscess? Abscess dan kena buat operation juga dan glucose tinggi. Jadi kita kena rawat glucose dan bagi antibiotik dan buat I&D serentak lah. Ini kalau kes emergency lah. Emergency. Maknanya bukan tunggu macam datang 2, 3 kali check dulu. Kalau case emergency tak. Kalau kes yang macam ini boleh tunggu kalau kita tengok kan. Dia elektif. Dia panggil elektif. Okey, sekejap ya. Sebelum saya lepaskan. Okey penyebab lain yang juga mungkin, this is page 14 yang kata jantung. Jantung. Based on what yang Doktor tengok lah dokumen dalam kes ini. Confirm kah dia ini ada masalah? Dia ini tak ada echo ataupun tak ada scan. Jadi confirm tak boleh lah. Cuma possibility aja lah. Sebab kalau tengok tadi first yang detect darah tinggi ini 2014 tadi. 2014 sampai 2017, 2018 ini 3,4 tahun. So dia akan menyebabkan jantung makin lama boleh bengkak, bengkak, bengkak dan boleh menyebabkan… Cardiomyopathy adalah condition jantung yang macam mana? Dia panggil lemah jantung lah. Yang itu bengkak dan lemah. So dia punya beat itu jadi slow? Irregular Dia bila keadaan yang critical macam ini ada jangkitan apa semua tekanan terhadap jantung itu tak boleh nak berfungsi dengan baik lah. Sebab dia tidak 100%. Jadi itu kalau kita nak explain dia punya tahap cepat dia deteriorate itu. Makin teruk, makin teruk. Biasanya kalau jangkitan, kita bagi antibiotik apa semua itu dia akan bertahan dan ya lah kalau tengok tadi pun berapa persen yang mortality kematian tak tinggi sebenarnya. I see. Kalau kita tengok kat rawatan dia lah continuation sheet dia semua tu dia punya tekanan darah a bit high kan? Yes. Yelah for that age kan? 140 something tapi dia punya pulse rate tu macam mana? It’s got something to do with the heart? Ya. Kalau tengok yang 2014 pun tinggi. 100 lebih. [60] This was the evidence given by D7 in re-examination for comparison with DW11’s evidence above: Ok, saya tak setuju sebab jika saya refer untuk dental, dental hanya boleh check untuk dia punya gigi dan gusi dia. Yang untuk tekanan darah dia, oksigen dia tak stable dengan darah dia, organ dia semua failure itu, dental tak boleh buat. Jadi jika saya hanya refer untuk dental, hanya akan memanjangkan masa untuk selamatkan patient. Sebab patient ini dalam kritikal, kita kena fokus pada nyawa dia. Jadi kita kena fokus sebab apa yang menyebabkan nyawa dia semakin, dia punya keadaan semakin teruk instead gigi itu. Sebab doktor gigi hanya check untuk gigi. Jika tekanan rendah ataupun oksigen tak stable atau pressure tak stable, doktor yang akan lakukan treatment itu. … Untuk tracheostomy, kita biasanya akan dibuat oleh doktor pakar ENT. So, untuk kat hospital Parit Buntar, kita tak ada doktor pakar ENT. So, if kita boleh secure dengan intubation, dengan oksigen yang bagus, tracheostomy itu tidak sepatutnya dilakukan sebab dia akan membawa banyak komplikasi. So, jika kita gagal masukkan, dia akan pendarahan, itu satu. Lagi yang kedua, kita akan menyebabkan obstruction kat dia punya pernafasan lagi teruk, dia tidak boleh bernafas. … If the patient is healthy, tak ada kencing manis, dia cabut gigi tak ada komplikasi. But, untuk macam yang Siti Hawa, dia ada diabetes dia tak pesan, dia cabut dan dia tak followup balik. So, masa dia ada cellulitis sakit kah, pendarahan pun dia tak follow up balik. Which, ada doktor suruh pergi but dia tak follow up balik. So, itu akan menyebabkan semakin teruk. Masa semakin teruk itu menyebabkan masalah lain. … Jika mereka kena tahu adakah ada macam diabetes ke atau hypertension ke mereka kena tahu sebelum mereka cabut gigi sebab jika ada complication macam ada comorbid macam ini, ada kencing manis ke apa semasa mereka cabut mereka akan observe sebab kencing manis itu dia akan menyebabkan luka susah sembuh. So mereka akan be aware about Ini. Mereka akan sedarkan dia ada kencing manis itu, ada special care lagi. Because dia masih muda. Whether the deceased suffered from Diabetes Mellitus [61] This was one of the contentious issues between the litigants in this suit. It was the Defendants’ stance that no liability can be imputed upon them because the deceased never declared that she had diabetes when she first came to see D1 for treatment of her painful impacted third molar, until this information was finally admitted by the deceased and the Plaintiff just hours before her death. Essentially this was the crux of the Defendants’ case whereas the Plaintiff tried to downplay the point by stressing on the issue of Ludwig’s Angina. It was undisputed that the deceased had complications arising from the tooth extraction. However, it was never confirmed that the complications were in fact caused by Ludwig’s Angina because the Plaintiff refused to have a postmortem done on the deceased. This issue of Ludwig’s Angina only arose after the Statement of Claim was amended prior to the trial. [62] The evidence of SD1 in his witness statement marked as PSD1 was: S16: Adakah sebarang pemeriksaan telah dilakukan ke atas Puan Siti Hawa Binti Abdul Rashid pada tarikh tersebut? J16: Pada jam lebih kurang 8.20 pagi, saya telah memeriksa gigi Puan Siti Hawa Binti Abdul Rashid. Saya juga telah menerangkan risiko dan komplikasi pembedahan gigi bongsu kepada Puan Siti Hawa Binti Abdul Rashid. Puan Siti Hawa Binti Abdul Rashid telah memberikan persetujuan untuk menjalani pembedahan bagi mengelakkan komplikasi di masa akan datang. Suatu imbasan x-ray telah dilakukan dan gigi bongsu Puan Siti Hawa Binti Abdul Rashid didapati ‘impacted mesioangular position A’. Tiada sebarang pemeriksaan gula telah dilakukan ke atas Puan Siti Hawa Binti Abdul Rashid kerana mengikut sejarah perubatan yang diberikan beliau tidak mempunyai sebarang masalah kesihatan. Tambahan pula, merujuk kepada Clinical Practice Guidelines: Management of Type 2 Diabetes Mellitus, 5th Edition, [Rujuk muka surat 37 Ikatan Dokumen Defendan-Defendan] menyatakan bahawa pemeriksaan gula adalah tidak diwajibkan bagi pesakit yang berumur kurang daripada 30 tahun dimana dalam kes ini Pesakit pada masa material hanyalah berumur 27 tahun. Oleh yang sedemikian, saya telah memulakan pembedahan ‘minor oral surgery’ ke atas Puan Siti Hawa Binti Abdul Rashid dan pembedahan tersebut berjaya dijalankan dalam tempoh kurang daripada 30 minit tanpa sebarang komplikasi dan tanpa prosedur ‘bone removal’. Puan Siti Hawa Binti Abdul Rashid telah diperiksa semula dan pada setiap masa yang material Puan Siti Hawa Binti Abdul Rashid berada dalam keadaan stabil. Puan Siti Hawa Binti Abdul Rashid telah diberikan ubat tahan sakit dan telah diberikan temujanji pada 23.1.2018 untuk membuka jahitan. Tiada sebarang antibiotik diberikan kepada Puan Siti Hawa Binti Abdul Rashid dan Puan Siti Hawa Binti Abdul Rashid telah didiscaj dalam keadaan sihat. [Rujuk muka surat 10, Ikatan Dokumen Bersama] … S18: Adakah Dr. telah memeriksa Puan Siti Hawa Binti Abdul Rashid dan apakah hasil pemeriksaan ke atas aduan beliau? J18: Saya telah memeriksa Puan Siti Hawa Binti Abdul Rashid dan mendapati beliau mengalami “swelling on the lower right face, slight hot and tender to palpation, Dimension 3 cm x 2cm same colour as her skin”. Puan Siti Hawa Binti Abdul Rashid tidak mengalami ‘shortness of breath’, tiada demam dan tiada ‘submandibular swelling’. Saya juga telah memeriksa ‘surgical site’ Puan Siti Hawa Binti Abdul Rashid dan mendapati bahawa Puan Siti Hawa Binti Abdul Rashid tidak mengalami jangkitan kuman pada bahagian gigi bongsu yang telah dibedah. Pemeriksaan Intraoral mendapati “limited mouth opening, no active bleeding, no pus discharge, slight tenderness to palpation and no raise floor of the tongue, no raised buccal sulcus. Saya telah menerangkan kepada Puan Siti Hawa Binti Abdul Rashid bahawa ‘facial swelling’ yang dialami oleh Puan Siti Hawa Binti Abdul Rashid adalah antara komplikasi yang telah diterangkan sebelum pembedahan. Saya juga telah memberikan ubat antibiotik “Cap. Amoxycillin 500mg x tds x 5days”, serta ubat ubatan seperti “Tab. Declefenac Sodium x 50mg x tds/Prn x5 days, Tab. Paracetamol 1g x qid x days, 0.2 % Chlorhexidine Mouthwash x bd x 1 week” dan telah menasihati beliau untuk melakukan “mouth opening exercise” dan ‘icepack compression’ di rumah sekiranya perlu. Saya juga telah mengarahkan Puan Siti Hawa Binti Abdul Rashid untuk kembali untuk pemeriksaan sekiranya masih mengalami kesakitan dan kebengkakan yang makin teruk. [63] The Plaintiff relied on the evidence of PW7, an Oral and Maxillofacial Surgeon from HUSM, Kelantan, that Ludwig’s Angina was the complication that arose from the MOS. The witness testified in person before the Court on 6.2.2025 and the Court had the benefit of hearing his evidence and asked questions pertaining to the deceased’s condition prior to her death. He testified that he obtained his qualification as an expert in 2021 and had conducted more than 1,000 cases of third molar surgery. He has only testified in court for simple trauma cases such as accidents and assaults. PW7’s Affidavit under O.40 was marked as P37. I have reproduced excerpts from his testimony in Court (from page 450 of the Notes of Evidence) as follows for ease of reference: “The dental officer suggested a removal of the impactedtooth 48 which is the standard protocol. However the clinical findings and patient's complaint is contradict each other. The patient complained of pain but clinical examination did not suggested for any dental disease such as caries, periodontitis or pericoronitis” Baik setakat tu. Saya nak minta penjelasan daripada doktor, berkenaan dengan apa yang doktor bagi tahu dalam opinion tu. Kalau kita ikut kronologi kes ni. Pesakit telah datang pada 20 November

Hanya complained sakit di belah kiri dan kanan kalau kita tengok. Pada masa tu pesakit telah denied any medical illness. Tak ada alergi kepada ubatan ataupun makanan. Tapi tak ada tanda vital di rekod pada first visit. Extra oral, pemeriksaan luar muka, hanya di tulis terdapat multiple abrasion wound on the face. Tetapi pemeriksaan di dalam mulut, specific kepada gigi 48, ataupun gigi third molar yang belah kanan. Ataupun gigi geraham bongsu sebelah kanan, menunjukkan ada impaction, maksudnya gigi tu tidak dapat tumbuh disebabkan ketiadaan ruang. Tapi dia boleh tumbuh separuh sebab limited ruang. Sebab gigi geraham bongsu adalah gigi yang paling akhir tumbuh. Tapi masa tu tiada pembengkakan. Gigi tersebut sendiri tidak berlubang. Tak ada sakit bila dipalpit atau disentuh oleh pegawai pergigian semasa melakukan pemeriksaan. Cuma dinyatakan di sini, gusi di kawasan gigi itu adalah keradangan, inflamed. Jadi diagnosis yang dibuat oleh pegawai pergigian semasa visit pertama adalah impacted 48. Jadi di sini tiada pemeriksaan radiograf yang dilakukan pada visit pertama. Dengan dia melakukan rancangan merawatan seterusnya adalah untuk mengambil periapical x-ray. Di mana periapical x-ray ini adalah sejenis intraoral x-ray yang kecil. Diambil spesifik untuk satu gigi sahaja. Plan dia selepas itu adalah surgical removal of impacted 48. Maksudnya nak buat pembedahan minor kecil untuk membuang gigi yang terimpak lah. Gigi terimpak yang gigi 48. [64] I had asked for some clarification of his explanation and PW7 told the Court: Maksudnya untuk bagi gigi tu keluar bukan untuk buang? Untuk buang. Untuk buang, sebab untuk buang tu indikasi dia adalah pericoronitis atau keradangan yang menyebabkan sakit yang melampau pada gusi. Sebab bila dia tumbuh separuh, gusi masih ada cover. Bila ada cover, makanan senang masuk. Jadi bakteria, jangkitan kuman selalu akan ada di situ. Lagi satu, gigi tu sendiri, Ini adalah indikasi dia. Gigi tu sendiri adalah sudah berlubang. Dan lagi satu, gigi tu menyebabkan lubang pada gigi sebelah, gigi secondmolar yang tumbuh. Dalam kes pesakit inilah? Dalam kes pesakit ni, tiada indikasi yang kuat untuk menyatakan pesakit perlu membuang gigi tersebut. Dia punya indikasi adalah pericoronitis, caries gigi sebelah. Pericoronitis tu adalah radang? Pericoronitis radang yang menyebabkan kesakitan melampau. Kalau radang simple, kita panggil gingivitis. Lubang menyebabkan makanan, sepatutnya gigi dia macam ni Yang Arif. Gigi yang second molar dia tumbuh straight. Gigi yang third molar dia akan tumbuh macam ni. Jadi dia macam ada ruang untuk makanan lekat. Jadi bila ada, walaupun gigi ni tidak caries, tidak berlubang, dia melepaskan lubang gigi ni untuk mengelakkan dua-dua tercabut, kita kena buang yang third molar tu. Kita buang dia punya sourcelah. Jadi satu lagi, gigi tu bila dia ada recurrent infection, dia punya, kita panggil yang supporting structure, ligament yang pegang gigi tu pun mungkin affected juga. So, akan longgar. Jadi, itulah tiga strong indikasi untuk clinician berdasarkan kita punya clinical practice guideline, even kita ada Malaysian, kita ada first edition dan kita ada second edition. First edition adalah 2005. And second edition in

Tapi, perbezaan, tiada perbezaan ketara antara CPG 2005 dengan 2021. [65] PW7 gave his opinion that the dental officer should have conducted a thorough examination and documented his findings properly. A thorough examination of the oral cavity would enable the dental officer to give the patient some options on the treatment. He stated: Sepatutnya kita perlu melakukan pemeriksaan secara menyeluruh sebenarnya. Kita boleh, sebenarnya untuk dalam mulut, apa ini, finding dalam mulut adalah, adalah usually first sign untuk disease yang lain. Contohnya kalau pesakit yang ada HIV biasanya kita akan jumpa yang ini dalam immunocompromised patient. Kita akan jumpa jangkitan kulat. Kita panggil candidiasis. Ataupun kita akan jumpa kalau HIV, kita akan jumpa pembengkakan kelenjar dan pembengkakan nodus lympha. Dan Kaposi sarcoma adalah satu-satu keadaan di mana, satu tempat seperti lelangit atau lidah menjadi hitam. Jadi sebenarnya dalam mulut itu kita sudah dapat tengok. Immunocompromised, contohnya HIV, pesakit dengan long term steroid, pesakit dengan uncontrolled Diabetic. That one is a telling sign. Usually dia akan ada Candidiasis, kulat which is not common we see in healthy patient lah Yang Arif. Jadi kita kena melakukan peperiksaan menyeluruh dan cuba untuk, bila kita ada jumpa satu-satu2 finding, kita akan bagi treatment option. … first episode of pain it's not, not an indication untuk removal of the Impacted third molar. Ataupun kita boleh monitor kalau first pain. And then subsequent pain, then we can offer, we can offer surgical removal or if the16 tooth, when we assess the tooth root. Is very close to the nerve inside the bone, we can offer coronetomy. We just cut the crown part, so that the gum will cover the root, provided the the tooth is not caries. If caries even though it's close to the nerve you have to remove. But you have to tell the patient there is high chance of nerve injury … [66] From the above PW7 was telling the Court that the dental officer, D1, should have made a thorough examination of the deceased’s oral cavity but he never stated that she ought to have declared her diabetes condition to him when the first history taking process was done. In this regard, I found that the evidence of all the other experts and treating doctors on this issue of declaring the patient’s underlying medical condition were consistent with each other i.e. the patient should have made the declaration in the history taking process in the first place. The importance of such declaration is because then the treatment and plan of treatment of the patient would have been managed differently in accordance with the relevant SOP or CPG. But D1’s notes stated that there was “no known medical illness (NKMI), no known drug allergy (NKDA), no known food allergy (NKFA)”. This notation was pursuant to information supplied to him by the deceased. PW7 continued with his evidence further at page 461: …from the timeline, from the duration, from 20th November to the 16th January 2008, patient didn't mention any pain. There's no more pain around that. So based on this medical report, I assume patient have never experienced pain after the first episode. It can come the second episode on 16th. There is no complaint. What's stated here complaint of nil. No other complaint from patient, whether it's pain, mouth opening difficulty. That's all. Patient come for appointment straight away for MOS. [67] The Plaintiff contended that D1 should not have proceeded with the MOS on 16.1.2018 because the deceased was not suffering from any more pain. But PW7 only assumed that she never experienced pain after the episode. His assumption contradicted with the evidence of DW1, DW2, DW9 and DW11 whom all had told the Court that based on the deceased’s glucose reading of 36.5, the deceased must have been suffering from diabetes, particularly Diabetes Mellitus Type 1. It would have been impossible that she would not have pain in her gums on the surgery day given her very severe diabetic condition. [68] For completeness, I have reproduced PW7’s evidence on his opinion (on the MOS of the third molar) as follows: So berdasarkan kepada pendapat doktor, sebagai doktor pakar gigi, adakah dikira sebagai perlunya dicabut gigi third molar? Pada masa ni, sebab pesakit tidak menunjukkan apa-apa tanda-tanda sakit. Tak ada apa-apa active complain. Bagi saya adalah fair untuk kita, untuk kita bagitahu dia monitoring is the best instead of cabut terus. We have to give option to the patient. … Daripada perenggan pertama, ‘The removal of third molars is not indicated if they are asymptomatic and free of any pathology, like the pathology lah, and as long as a good oral hygiene is maintained” and kalau tengok recommendations for conservative management, asymptomatic and pathology free impacted third molars need not be removed but would advice periodic review, provided patient can maintain good oral hygiene. We have to reinforce oral hygiene to the patient not only brushing, gurgle and flossing around the area. So, kat situlah saya tengok pada guideline. … Elemen, di sini kita ada 5 elemen. 5 general element. Elemen yang pertama adalah jangkitan. Kalau tuan Syukran tengok, removal of any symptomatic wisdom tooth should be considered. Especially where there have been one or more episode of infection. Such as pericoronitis, Cellulitis, excess formation, untreated palpal or pericarpal pathology. A first episode of pericoronitis, like I said before, a first episode is not indication. Unless particularly severe pain, should not be considered as indication of surgery. Yang saya mention tadi from NICE. National Institute of Clinical Excellence UK in 2004. Yang ni memang clear cut, infection with severe pericoronitis. And then caries. Caries is indication. Because why? Because once there is a caries there, because of infection, very difficult for the GP to restore. Because of the usually, gigi terimpak ni. Gigi third molar ni, dia akan, dia tidak akan sama level dengan gigi yang biasa. Jadi untuk kita, buat tampalan tu adalah sangat-sangat susah. Sangat-sangat susah. Sebab lagi satu masalah, untuk dari segi tampalan tu lekat ke tak? Sebab kita susah nak isolate gigi tu…. … So base kepada si mati ni, Siti Hawa ni, adakah ianya wajar dicabut? Tidak wajar bagi saya. Adalah kerana dia adalah satu episod sahaja. Itu pun episod pertama. Tidak menunjukkan dia ada pericoronitis. Cuma ada. Minor pain dengan inflamed sahaja gum. Tak ada sign of, tak ada Clinical sign of pericoronitis. Sebab dia buka mulut normal. Dan tidak di mention pasal pain score. … Baik teruskan Doktor. Kalau dilihat di sini ya diagnosis yang diberi oleh Doktor Ho adalah bertepatan tetapi Doktor Ho sepatutnya, disebabkan bengkak ini telah merebak ke sebelah yang normal, sebelah kiri, ini adalah diagnosis clinical symptoms bagi Ludwig Angina. Bila Ludwig Angina ni in celulitis state kita biasanya kena, he need to refer to superior straightway. Kena refer ke oralmaxila surgeon and pesakit ni perlu di-admit untuk bagi intravenous antibiotic sebab in celulitis stage kalau kita bagi, kalau kita bagi yang tab. Sebab lambat lah. Dia bukan lambat. Dia tak berkesan, sebab vesel dekat situ dikompres. Jadi dia tak boleh nak masuk and then dia punya, kita tak tahu jenis bakteria yang ini. Yang dia bagi dia adalah broad spectrum. Dia macam, dia gas. So usually kalau management Ludwig Angina, kita akan admit the patient bagi intravenous. Kita akan buat incision untuk release the pressure. And the fluid from the, from the one we hantar to makmal untuk kita panggil culture and sensitivity. Kita akan cuba identify organism. Micro organisma apa yang terlibat dan kita akan bagi antibiotik yang berkaitan yang boleh membunuh bacteria itu Yang Arif … Ok ya. Okey, Ludwig Angina ni adalah rare complication in young and healthy adult. Jadinya, this one because of rapidly increased size of swelling already crossed the midline. So, patient might have some underlying immunocompromise. Always bear in mind if patient very rapid spread because swelling after MOS is only confined to the space only. It's never crossed the midline. Ini satu kalau kita tengok gambar, yang diberi Yang Arif, memang diagnosis clinical adalah Ludwig Angina. Ludwig Angina, jadi, management macam saya beritahu tadi, kita perlu consult superior and maybe, kita memang perlukan inpatient. Kita kena admit patient. We have to give intravenous antibiotic and we have to decompress the cellulitis because if we late, lambat untuk bertindak, particularly inpatient, if we suspected they have immunocompromise, they can spread to more dangerous space. We have a lot of dangerous space at the back. Kita ada monizid…. … Baik. Doktor, berdasarkan kepada pengalaman dan kepakaran doktor, doktor ada bagi tahu bahawa kes kaitan Cellulitis dengan Ludwig Angina ini adalah rare complication. Baik, berdasarkan kepada pengalaman doktor dah berapa banyak kes yang doktor handle berkaitan dengan kes seperti kes simati ini. Kes yang Ludwig Angina di sepanjang tempoh saya berkhidmat di Universiti Sains Malaysia, dari saya permanent officer ke specialist ini adalah kurang sebenarnya, rare. Kebanyakannya adalah pesakit yang datang dengan kita panggil immunocompromise state. Kalau healthy patient biasanya tak tak ada, unless patient tak jaga oral hygiene, patient tak take antibiotic that we provided, so ada infection. Biasanya immunocompromise state kita ada kaitan Ludwig Angina but with the immediate decompression yang kita buat dan remove all the (inaudible:12:48:37) and we intubate the patient, we admit the patient with antibiotics, usually patient will survive even immunocompromised state. Because in immunocompromised state, like HIV or diabetic we have to make sure that there is no progressive of the swelling make sure that there is no progressive of the swelling because usually if there is progression the swelling will be very fast. So it will affect a lot of dangerous space. Dangerous space at the back of the throat. Dangerous? Is it dangerous space? Dangerous space. At the back of the throat, danger, bahaya. We call it dangerous space in medical term, the swelling from here, from here also carries a risk of edema. If let's say infection already cross, we call it at the throat, retropharyngeal space at the back. It can spread there where it can compress the spinal cord. It can compress all the blood vessel here. So that's why patient come with very severe cyanotic because of difficulty to breathing Yang Arif. [69] The Plaintiff alleged a lot of failures on the part of the Defendants (refer to Pernyataan Tuntutan Terpinda at pages 38 – 45 of the Ikatan Pliding Terpinda Encl. 67). In regard to the main defendant, D1 who treated the deceased for her dental issue, it was his contention that D1 should not have performed the MOS on 16.1.2018 when the deceased came for follow-up appointment because she was no longer suffering from any oral pain at that time. SD1 was cross-examined extensively on a range of issues i.e. allegedly mistakes that he made, in the management and care of the deceased, amongst others: Ya. Apa saranan Doktor Ho? Pada masa itu kita check semua pada waktu itu dia tidak mengatakan mempunyai sebarang sejarah perubatan, tiada alahan ubatan dan makanan. Setelah periksa saya mendapati gigi bongsu bawah kanan tumbuh separuh dan ada gusi bengkak sekeliling gigi bongsu. Saya telah menasihati patient untuk melakukan pembedahan untuk mengelakkan jangkitan kuman pada bahagian gigi bongsu tersebut. Saya juga telah menerangkan risiko pembedahan gigi bongsu and patient juga sudah bersetuju. Dan saya telah memberikan temu janji untuk buat pembedahan pada bulan 1 16, 2018. Dan juga saya suruh dia saya menasihati sebelum datang buat pembedahan untuk mengambil sarapan pagi. … Muka surat 10, 10. Ada ya. Baik Doktor tengok kepada guideline itu muka surat 10 indication for removal are based on SIGN 1999 Level 9. Yang ini adalah guideline yang Doktor cakap tadi Doktor rujuk kepada guideline tadi untuk cabut gigi. So saya cadangkan lah kepada Doktor ya bahawasanya Doktor tidak mengikuti guideline tersebut berdasarkan kepada hanya 2 indikasi sahaja Doktor cabut gigi Siti Hawa. Saya cadangkan kepada Doktor Ho, Doktor Ho tidak mematuhi guideline tersebut memandangkan hanya 2 indikasi sahaja yang Doktor Ho beritahu Mahkamah untuk Doktor cabut gigi Siti Hawa. Setuju atau tidak? Tidak setuju. Ya. Saya tanya ikut skala ini. Requirement seorang Doktor gigi kalau nak cabut gigi dia ada 5 perkara. Infection, caries, Orthodontic consideration, Prosthetic consideration dan other pathlogy. Tapi you cakap ada 2 sahaja, bengkak dengan sakit which is not in the requirement. Bengkak itu adalah requirement juga. Saya bagitahu Doktor saya cadangkan bengkak, sakit dan Doktor tambah satu lagi infection itu tidak melayakkan Doktor untuk cabut gigi lagi. Pada masa itu? Betul okey. Baik soalan saya seterusnya setuju atau tidak saya cadangkan kepada Doktor bahawa penemuan klinikal yang Doktor bagitahu tadi itu indikasi tadi itu adalah tidak bertepatan dengan guideline yang diberikan. Tidak setuju. … Kalau ikutkan muka surat 9 management guideline ini hanyalah sebenarnya recommendation for conservative management iaitu asymptomatic and pathology re impacted 3rd molars need not be removed but would advise periodic review. Setuju atau tidak? Setuju Jadi saya cadangkan kepada Doktor betul lah apa yang Doktor tulis dalam rekod ini Doktor telah diagnose bahawasanya akibat cabut gigi ini dah ada jangkitan kuman cellulitis. Yang wajib dirawat dengan segera. Setuju? Setuju. Setuju. Pada masa yang sama setuju atau tak saya cadangkan Doktor Ho telah melakukan cabutan MOS terhadap 3rd molar gigi milik Siti Hawa tidak complete 100%. Maksud saya ada kepatahan sisa gigi dalam gusi Siti Hawa. Tidak setuju. Tidak setuju. Dan saya cadangkan kepada Doktor Ho sebagai seorang pegawai pergigian yang bertanggungjawab Doktor kena rekodkan cabut gigi bongsu itu completely in one-piece Setuju? Sebagai Doktor gigi berpengalaman Doktor bertanggungjawab untuk merekodkan cabut gigi bongsu completely dalam satu piece. Completely. Setuju. [70] When shown the alleged tooth of the deceased which he had extracted, the dentist said he could not remember. The learned Federal Counsel objected the attempt to introduce the said tooth because there was no guarantee that it was indeed the deceased’s tooth. Photographs taken by the Plaintiff of the said tooth were also shown. The Court found that in the clinical notes of D1, he stated that the “Impacted 48 elevated out completely in one piece”. Even the Court could not know for sure whether the tooth produced by the Plaintiff was indeed the deceased’s that was extracted by D1. Nevertheless, I noted that PW7 told the Court that if the fracture resulted in about 3-4 mm of the root being left behind, the dentist would just leave it there as the risk of nerve damage is greater. The Defendants’ expert, DW9 had also given the same opinion on this. Moreover, PW7 had said there was a risk of contracting alveolar osteitis, an inflammation of the tooth socket. But he himself stated that alveolar osteitis is usually associated with a long operation, which was unlike in this case where the MOS performed by D1 was a very short surgery. PW7’s evidence was: Kepatahan akar secara umumnya, jika kepatahan akar kurang daripada 3, 4 atau 3 mm, kebanyakan kita akan tinggalkan di situ. Sebab risiko untuk membuang akar itu adalah tinggi. Sebab di bawah akar itu ada saraf dan tulang. Jika kita cuba untuk membuang, kita akan ada risiko menyebabkan kecederaan saraf dan tulang. Tetapi jika akar ini panjang lebih daripada 5 mm, kita sepatutnya membuang akar tersebut untuk mengelakkan jangkitan. Disebabkan kepatahan itu, terdapat saraf gigi yang masuk melalui akar itu terekspos kepada soket. Makanan mungkin melekat di situ dan akan ada jangkitan kuman ataupun bila ada kepatahan, kadar keradangan di dalam soket itu akan lebih tinggi. Jadi pesakit akan terdedah kepada, kita panggil dry socket ataupun dalam medical term dia alveolar osteitis, di mana akar tulang yang menyokong gigi, kita panggil alveolar part of the mandible, dia terkena keradangan. Lebih terdedah kepada kena keradangan kerana masih terdapat akar gigi yang boleh berkemungkinan menjadi sumber jangkitan kuman, selain daripada makanan lekat di dalamsoket, selain daripada alveolar osteitis. Tapi alveolar osteitis usually associated with long operation Yang Arif. Kalau kita having difficulty of removal, lagi high chance untuk pesakit dapat, macam ada, macam tertinggal bone. Bila kita elevated up without split, kita give a force to the septum. Actually between the root ni ada septum. So when that septum is mobile and the root is there, so there is a chance of infection and alveolar osteitis. That's this one. [71] Faced with the divergence of opinions, the Court has to make a finding of fact one way or another. Therefore, I preferred the professional opinion of DW9 on this issue because it was more consistent with the fact that the MOS conducted on 16.1.2018 was not associated with a long operation. The Federal Court in Zulhasnimar’s Case (supra) had explained: “[70] Faced with the divergence of opinion, the trial judge preferred Dr Raman’s view which she noted was supported by medical text presented. On the other hand, she found Dr Ong’s testimony on this point to be confusing and that he prevaricated. The Court of Appeal in dealing with the issue of whether the first appellant was in labour concluded as follows: [47] Having scrutinised the evidence and the reasoning by the learned judge we are of the view that her conclusion on the issue does not warrant our intervention. … We see nothing wrong in the learned judge’s preference of one expert over the other if she can reasonably explain the preference (which in this instant we think the learned judge had done). [71] We are of the same view. The trial judge was entitled to make such findings of fact. And we found that her findings of fact on this issue were reasonably explained and supported by evidence. It is our judgment that whether the first appellant was in labour or not and whether the CS had been done and whether the appellant’s collapse could have been avoided, are clearly matters relating to diagnosis and treatment. The applicable test would be the Bolam test. It simply means that the medical practitioners had the final say as to whether there was negligence on the part of the first respondent. In this regard, there was a divergence of views among the medical practitioners who gave evidence in this case. Thus, based on the evidence and even by applying the Bolam test, the appellants had failed to prove that the first or for that matter the second respondents were negligent in diagnosing and treating the appellants.”. [Emphasis added] [72] In re-examination, SD1 explained his answers, amongst others that: i. from the 5 indicators for a third molar surgery, if only one was present, it would qualify for surgery / extraction of the molar; ii. he did not agree that he should only review and monitor the unerupted molar as otherwise, it would recur and cause further inflammation and infection; iii. there was no SOP for taking of X-ray after MOS done; iv. when he had extracted out the M48 tooth, there was no fracture and no fragment of tooth lefy behind; v. after the MOS, he had examined the said tooth himself; vi. he did not prescribe any antibiotic on 20.11.2017 when she first came to KPPB because the gum was inflamed and it would resolve on its own with gargling; vii. he did not prescribe any antibiotic on 16.1.2018 because the surgery was in a very short period of time and conducted in a sterile environment, and there was no complications with the extraction of the unerupted third molar; viii. the cause of death was not Ludwig’s Angina because when the deceased came to see him on 18.1.2026 there were no symptoms of Ludwig’s Angina; ix. if an individual is healthy during a MOS surgery with no complications, there would be no problem with the recovery. [73] According to D1, the indicators that he had used in opting for surgery were pain, infection and caries. The pain was associated with both lower jaws during the examination on 20.11.2017. D1 stated there was an infection which was why he noted “surrounding gums inflamed”. It was in evidence and the records that the second molar (M38) next to the unerupted third molar (M48) also needed to be taken out (extracted) later because it was affected by caries (refer to page 9 of CBOD). The deceased was supposed to come again on 23.1.2018 to remove the suture and also for consultation in regard to the tooth M38. D1 was just following the Recommendation 1 of the CPG 2005 that “Removal of third molars may be considered to reduce the risk of dental caries in the adjacent second molars”. PW7 disputed that at most the infection was just a minor one i.e. gingivitis and not a more serious one such as pericoronitis and therefore, it could have been conservatively managed first instead of opting for removal of the third molar. His view was not shared by DW9 and D1. According to them, once a tooth has caries, it could no longer be saved (distal caries on the second molar). [74] I also refer to the sub-topic of “Asymptomatic Third Molar” that was raised by the Plaintiff. It stated: “The prophylactic removal of asymptomatic third molars is defined as removal of third molars in the absence of local diseases. Based on a Cochrane systematic review, there was insufficient evidence to determine removal of asymptomatic impacted third molars. However, consideration needs to be given to the risk to the adjacent second molar or there may be other possible risks to retention of third molar due to patient’s medical or surgical condition. The clinician needs to balance the risks and benefits with patient’s involvement.”. [75] I will come back to this issue further below as I need to deal with the evidence of DW9 first. Since I have reproduced parts of PW7’s evidence above, it is necessary also to look at the evidence of DW9 who was the Oral and Maxillofacial Surgeon that testified for the Defendants. She has been a specialist in this field since 2013. DW9 had explained to the Court that based on the SOP, all patients above 30 years old, should have their blood pressure reading taken for monitoring before the patients go into the surgery room. But in this case, as the patient/deceased was lesser than 30 years old, it was not mandatory to follow the SOP. The more pertinent excerpts have been reproduced as follows (page 970 onwards): Doctor, now I'm moving on to second issue. In your second issue, whether the antibiotic should be prescribed to the Plaintiff after the minor oral surgery. Okay Doctor, have mentioned here, antibiotic prophylaxis may be indicated for minor surgery with a high degree of difficulty and if duration of the surgery is predicted to be long. And Doctor was referring to one CPG. Right? Yes. Okay. Can you please show to the Court which Appendix exactly you are referring to? If I may assist, page number 131. First is the recommendations number 130. Antibiotic prophylaxis is not indicated for lower third molar surgery. So 131 shows that antibiotic prophylaxis, recommendations antibiotic prophylaxis may be indicated for minor oral surgery with the high degree of difficulty in which the duration of the surgery is predicted to be long. So Doctor so can you explain what is the position in this case based on this referring to the CPG? One is because from the Doctor's notes, it's stated that the tooth was removed with just a buccal flap raised without any bone removal. And it can be elevated out as one wholepiece. And that means the duration is very short only. No need cutting of the tooth. … Doctor, now I'm referring you to the third issue where you have discussed about the Ludwig's Angina. Okay so based on your expertise and experience, can Doctor briefly explain what actually Ludwig's Angina means and what is your finding on this case? Briefly. Ludwig's Angina is actually a life-threatening diffuse cellulitis involving all the soft tissue of the floor of the mouth and also the neck. So in this case, we will say that there is no Ludwig's Angina because the patient when come to the doctor, when the dentist examine it, there is no risk of floor of the mouth and also there is no sub-mandibular swelling. The Ludwig's Angina usually occurs when the infections that spread into the neck spaces. … So it's not swollen? It's not swollen. Based on the documentation, when the doctors, dentist examine the patient on the 18th of January, it stated that there is no raised of floor of the mouth and no sub-mandibular swelling noted. It's only left facial swelling. Left lower. … Okay now I'm moving on to issue. I'm referring you to the second last sentence. However, patients with medical conditions such as diabetes mellitus, immunosuppression may be prone to get infection. Doctor, can you explain on this? Actually, patients who is diabetes or immunosuppression means those that who are on chemotherapeutic agents, or on radiotherapy patients, they are more prone to infection. So we have to tackle the infection very early and in view of their immune system is not as good as the normal lay persons, we will start the prophylaxis antibiotic to prevent the infection. So what about the diabetes mellitus condition? Okay. Diabetes mellitus condition will make persons more prone to the infection because of their blood sugar is higher. So this will make the oral bacteria that proliferate very fast which is and sometimes it is difficult to control the infection and infection can spread very fast compared to normal people. Doctor so my question is, if let's say the condition of the diabetic mellitus was disclosed earlier, whether the way of treatment for the dental procedure would be different? What is your comment on this? If patients inform the Doctor earlier about the medical condition like diabetic, first we will check the blood sugar. If the blood sugar is beyond the normal lay person, like fasting blood glucose is supposed to be 7 or if the patient is post-renal is supposed to be 11, if it is above that we may defer the surgery. Or another thing is we may also refer the patients to the medical Doctors to control the diabetic first. In view of it is very easy for them to prone to infection. So normally we will stop the procedure, means we will not proceed for the surgery. … So this was a comment by the Plaintiff expert. And just now when I asked Doctor, Doctor have mentioned about 4 pericoronitis. Right? Yes. And Doctor was saying that there was a kind of inflammation surrounding the gum, gingiva. Doctor, can you explain based on your explanation just now and based on this comment? Actually, I think this is contradict because the patient, referring to the report, the page 6, the Doctor himself also typed that surrounding gingiva inflame. Page 6 on the same PBOD 7. Page 6? Yeah. It stated that tooth impacted with partially erupted, no swelling, no caries, no tenderness to percussion surrounding gingiva inflame. Surrounding gingiva inflame actually is part of the pericoronitis. The meaning is the same. Means the soft tissue surrounding the tooth is inflammation. … Okay, Doctor. Now I'm referring you to page number 9. Page number 9. 1, 2, 3, 4, 5, 6, 7 and line number 7 from the top. Okay. It was not mentioned in the report whether the surgery was performed under aseptic technique. Doctor, can you explain what is this aseptic technique? And the, I mean the normal SOP for the aseptic technique. Okay. Aseptic technique means the instruments or the condition is free of bacteria. So in government setting all our 30 instruments is using autoclave to stir out the instruments. … Autoclave. So? So all the instruments that prepare is in the set and is a pouch. So we are following the SOP. It is not like maybe some rural area they may use the chemical only. That is in the like Myanmar or something because they cannot afford the autoclave. So aseptic condition in the mouth is impossible because our oral cavity, you just eat, turn something. And it always is, there is a bacterial load. It is just up to whether your bacterial load is high or low. If let's say you are diabetic, meaning your bacterial load may be higher compared to layperson because of your oral cavity, your saliva also is more manis compared to others. So it may help the bacteria to proliferate faster compared to others. Okay, Doctor. My last question. Can you explain briefly to the Court the overall conclusion on your report? Overall, I think the dentist have practiced according to standard of procedure. [76] DW9 was cross-examined extensively by the Plaintiff’s counsel. I have reproduced the more relevant excerpts of her evidence as follows (page 997 onwards) for ease of reference: Setuju atau tidak saya cadangkan kepada Dr. Ch'ng, Dr. Ho menjalankan prosedur MOS 48 bagi mengelak ataupun avoid jangkitan kuman tidak termasuk dalam indikasi MOS 48. Tidak setuju. …

Yang guideline ni. Ikatan Plaintif tambahan. So, saya buka muka surat So, ada indication for removal based onsign 1999. Ini adalah guideline daripada KKM. Dr. Ch'ng, bersetuju tak sebelum pesakit dibenarkan untuk cabut gigi, ada beberapa indikasi yang harus dipatuhi berdasarkan KKM punya guideline, setuju? Okey, setuju. So, ada beberapa indikasi 1, 2, 3, 4, 5 iaitu infection, caries, orthodontic consideration, prosthetic consideration dan juga other pathology, setuju? Setuju. … Sekiranya kelima-lima indikasi ini tidak ada, so pegawai perubatan gigi tidak perlulah nak cabut gigi sebab there is no indication. Tidak setuju sebab dia tak payah memenuhi lima-lima kriteria. One of the criteria boleh. … Tidak ada jangkitan kuman pun pada 16 haribulan 1. Ya, setuju. Dr. Ho cakap nil. Ya, setuju. Setuju, baik. Jadi pada masa tersebut, saya cadangkan Dr. Ch'ng tidak perlu cabut gigilah pada 16 haribulan 1 itu. Sebab18 dia tidak ada pun jangkitan. Tidak setuju. … Dr. Ch'ng bersetuju dengan satu surat yang ditulis oleh Dr. Ho, tujuan to reduce pain and swelling to the forehead, setuju? Saya cadangkan bahawasanya ini adalah tidak termasuk dalam indikasi yang kena cabut gigi. Setuju atau tidak? Tidak. Sebab ini adalah indikasi, is a sign and symptom of the infection. … Jadi saya mencadangkan kepada Dr. Ch'ng bahawa Dr. Ho tidak mematuhi indikasi ataupun guideline yang dibekalkan daripada pihak KKM. Setuju atau tidak? Tidak setuju. … Setuju atau tidak saya cadangkan kepada Dr. Ch'ng berdasarkan kepada kad rawatan yang disediakan oleh Dr. Ho pada muka surat 10, Dr. Ho sepatutnya mengesyorkan pemeriksaan berkala atau periodik follow-up sahaja kepada Siti Hawa bukannya mencabut gigi. Tidak setuju. … Setuju atau tidak saya cadangkan bahawa cellulitis adalah disebabkan oleh infeksi bakteria dari kelompok stereotococcus ataupun stapylococcus. Setuju atau tidak? Tidak setuju. Tidak setuju. Setuju atau tidak dengan cadangan saya Dr. Ch'ng bahawa komplikasi yang kesakitan yang dialami oleh Siti Hawa telah menyebabkan kepada Ludwig Angina. Tidak setuju. … Ya. Baik, sepanjang karier doktor, sebelum dan juga selepas menjadi pakar, berapa kali doktor berpeluang merawat pesakit Ludwig Angina di peringkat awal ataupun di peringkat 10 akhir komplikasi? Lebih kurang 100 kes. … Dr. Ch'ng setuju tak berdasarkan kepada pemerhatian bacaan Dr. Ch'ng kepada Dr. Ho punya kad rawatan. Dr. Ho tidak mengambil kira ataupun dia pun tidak sedar bahawasanya terdapat ramai yang tanpa gejala antara 18 ke 30an. Setuju. … Dr. Ch'ng bersetuju tak berdasarkan kepada pemerhatian Dr. Ch'ng kepada medical report yang diberikan kepada Dr. Ch'ng satu ikatan.

Bolitho had been approved in Zulhasnimar, at [97]; and

(a) in the affirmative, the doctor cannot be liable for professional medical negligence; and

(b) negative, the doctor has committed professional medical negligence." [Emphasis Added]; The nature and extent of a Doctor's Duty of Care (1st Question) may depend on, among others, the patient's pre-existing medical problem and/or vulnerability (Patient's Pre-Existing Medical Problem/ Vulnerability). When the court decides the question of whether the Doctor's Duty of Care has been breached [Breach (Doctor's Duty of Care)] (2nd Question), the Patient's Pre-Existing Medical Problem/Vulnerability may be taken into account by the court (2nd Question). Understandably, the 1st and 2nd Questions (collectively referred to in this judgment as the "2 Questions") are factual. Needless to say, a patient has the Legal/Evidential Burden to satisfy the court on a balance of probabilities regarding the occurrence of the Breach (Doctor's Duty of Care);

(a) the court should consider whether the Pre-Existing Patient's Medical Problem has become worse due to the Breach (Doctor's Duty of Care) [Exacerbation (Pre-Existing Patient's Medical Problem)];

(b) if there is an Exacerbation (Pre-Existing Patient's Medical Problem), the Egg-Shell Skull rule can apply and the doctor shall therefore be liable for the Exacerbation (Pre-Existing Patient's Medical Problem) — please refer to Azizi Amran and Thirukumaran. However, if the Exacerbation (Pre-Existing Patient's Medical Problem) is part of the Patient's Death/ Injury/Damage/Loss, the patient is already entitled to claim for the Patient's Death/Injury/Damage/Loss. Hence, there cannot be a double recovery by the patient for Exacerbation (Pre-Existing Patient's Medical Problem) and the Patient's Death/Injury/Damage/Loss; and

(c) if the Pre-Existing Patient's Medical Problem is not worsened by the Breach (Doctor's Duty of Care), there is no room to invoke the Egg-Shell Skull rule. [Emphasis added] [85] This Court concurred that the Egg-Shell Skull rule applies in Malaysia. The rule simply states that “A tortfeasor must take his victim as he finds him”. Having perused the facts of Dr. Jerilee’s Case (supra) and the decision of the Court of Appeal, this Court opined that it has no application in the present case because it could be distinguished on the facts. In the case above, it was found that the 2nd defendant therein had actual knowledge of the plaintiff’s pre-existing medical condition: “[26] Premised on Ng Hoo Kui, I am satisfied that there was no plain factual error regarding the Trial Court's Factual Finding (Negligence of 2nd, 3rd, and 7th to 12th Defendants). The following evidence and reasons support the Trial Court's Factual Finding (Negligence of 2nd, 3rd, and 7th to 12th Defendants): It is clear from the Expert Evidence (PW6 and PW7) that the Plaintiff's Pre-Existing Health Problem did not cause or contribute to the Breach (2nd, 3rd and 7th to 12th Defendants);

(a) of the Plaintiff's Collapse in the OT and the fact that CPR was immediately administered to resuscitate her; and

(b) the Plaintiff bled heavily in the OT and was given a blood transfusion; …”. [Emphasis added] [86] In the present case, how can it be said that the tortfeasor must take his victim as he finds him? D1 did not “find” (i.e. know) the deceased to have a medical condition of Diabetes Mellitus because for one, she did not declare to him about the community testing done and which could be a basis for him to order a blood test and taking her blood pressure reading before recommending any plan of action in regard to her impacted third molar problem. Secondly, he was not required to order her to undergo such examination because of her young age at that time (below 30). Therefore, in my view, since the deceased and Plaintiff knew of her medical condition, it was incumbent upon her and the Plaintiff to make that important disclosure to D1 as early as 20.11.2017. D1 was never made aware by the deceased or the Plaintiff that she had a pre-existing medical condition. Therefore, how could D1 know that she was a patient who required to be specially managed under a different SOP or CPG? In fact, the Plaintiff until the end of his testimony in Court never admitted that he had refused to have the postmortem done on the deceased. This raised some doubt in my mind whether there was something that he tried to cover up in regard to the death of the deceased. I could only conclude that he knew (when he lodged the police report about the alleged negligence of D1 and the hospital) that the situation had become more “serious” because he did not want to have the post-mortem done on 20.1.2018 despite knowing it would resolve a lot of issues if the actual cause of death was known. I would just note here that the Plaintiff was not a very convincing witness (from his demeanour that I observed in Court) and will elaborate more on this later in Quantum. [87] I also noted DW11’s evidence that he suspected she also had a heart condition because of the untreated severe diabetes suffered. However, again as there was no post-mortem done, this remained just as a suspicion; which did not bode well for the Plaintiff because he bore the legal burden to prove his allegations against the Defendants on a balance of probabilities. I found that the Defendants’ version of events more probable because they were supported by documentary evidence. [88] Additionally, at the risk of repeating myself, I found that the deceased and the Plaintiff were not forthcoming with D1 and the treating doctors at UTK (until just hours before her death) that she actually had a pre-existing medical condition which was serious enough to cause the complications to her health post-surgery on 16.1.2018. It may be true that she died due to a rare complication that arose after her MOS done on 16.1.2018. However, it would be an injustice to D1 and the other defendants to be made liable for her death when in fact they did not know that she had a serious medical condition until it was just too late. We will never know of the actual cause of death because the Plaintiff refused to have the post- mortem done as was told to the Court by D7 and corroborated by the clinical notes and the testimonies of D8 and D9. Unfortunately the 2 male doctors who happened to be present at the ward were dragged into becoming defendants in this case. The Court could not find any link at all between D8 and D9 with the death of the deceased. [89] If there was a breach of duty, and the Plaintiff could prove the causation between that breach and the dentist as well as the 4 doctors at UTK, this Court would not hesitate to find them at least partly liable in this case. However, I have approached this case by analysing first whether D1 had breached any duty of care against the deceased on his advice, diagnosis and treatment of her impacted third molar problem. Having found that there was no breach of duty by D1, it followed that the Court also did not find any one of the treating doctors i.e. D4, D5, D6 and D7, liable in respect of the death of the deceased. In regard to D3, this defendant did not exist and the Plaintiff did not challenge this fact. [90] Further, it was clear from the documentary evidence and evidence of D6 and D7, that after she was admitted they had done all that were possible to give the deceased the best medical care and treatment within the very limited confines of the district hospital. In the circumstances, and given the findings and professional opinions of DW9 and DW11, I found that the Bolam test and Bolitho test had exonerated D1 and the other Defendants from any wrong doing as against the deceased and the Plaintiff. I found that the view of the Defendants’ doctors and expert witnesses could withstand logical analysis that the dentist’s and doctors’ diagnosis, treatment and surgery (in the case of D1) were done in accordance with the view of the general body of dentists and doctors in respect of the deceased's diagnosis, treatment and surgery (MOS). In the cross-examination of PW1, the head of the internal inquiry committee, she stated: Setuju dengan saya kematian Puan Siti Hawa bukan akibat daripada proses prosidur cabut gigi, tetapi ianya disebabkan oleh komplikasi yang dialami oleh beliau selepas daripada minor oral surgery akibat daripada keadaan diabetes, setuju? Setuju. … Doktor setuju dengan saya, sekiranya maklumat yang betul dan sah mengenai sejarah penyakit yang dialami diberikan kepada defendan-defendan pada masa material, pada masa tersebut, maka diagnosis yang betul dan tepat dapat dibuat dari segi rawatan Puan Siti Hawa, setuju? Setuju. [91] In Whitehouse v Jordan & Anor (1980) 1 ALL ER 650, the court held that “allegation of negligence against medical practitioners shall be considered serious, and the standard of proof is therefore a high degree probability.” The Plaintiff had failed to prove his claims on a balance of probabilities, and not even on a high degree of probability as stated in Whitehouse v Jordan (supra). I found that the MOS performed by D1 did not cause the deceased’s death. The Plaintiff has failed to prove it because he refused to consent for the postmortem to be done, which could have given an accurate finding on her cause of death. I further found that the deceased’s death could not be attributed to the actions of D4, D5, D6 and D7 for the same reasons abovesaid. Finally, I found that there was no vicarious liability to be attributed to D3 (a position which did not exist), D10 and D11. [92] I also refer to the often cited case of Payremalu a/l Veerapan v Dr Amarjeet Kaur & Anor [2001] 3 MLJ 725 where the court held that: “…Doctor cannot be held negligent simply because something goes wrong. Doctor can be found guilty if he falls short of standard of reasonable skilful medical practice. The true test therefore to hold a medical practitioner guilty of negligent is to have a positive finding of such failure on his part as no doctor of ordinary skill would be guilty of acting with reasonable and ordinary care.”. [Emphasis added] [93] The “but for” test calls for consideration of whether the damage would not have occurred “but for” the defendant’s negligence? If yes, the defendant will be liable. If the damage would not have happened but for a particular fault, then that fault is the cause of the damage. Even if the defendant had acted carefully, but the damage would have occurred anyway, then the negligence is not the legal cause of the damage. In Arnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428. The defendants were held not liable for the death of the deceased from arsenic poisoning. When he sought treatment at the Casualty Department of the defendant hospital, he was advised to go home and consult his GP if he still felt unwell in the morning. The defendants owed the deceased a duty of care which they had breached by failing to examine him. However, that breach did not cause his death. The court found there was evidence that even if he had been examined, it was too late for any treatment to save him. Thus, it could not be said that but for the defendants’ negligence, he would not have died. The same principle could be applied to the facts of the present case if there was a finding of negligence on the part of the Defendants in this case. I did not find any negligence on the part of the Defendants here. [94] Closer to home, I refer to the case of Loo Chooi Gaik v Dr Loh Lay Soon [2019] 4 CLJ 281 in regard to the issue of causation. The plaintiff had undergone a cosmetic procedure at the defendant’s clinic. After the surgery, she suffered some swelling which did not improve even after taking the antibiotics prescribed to her. She was later diagnosed as having suffered from ‘nosomical infection of the skin which was complicated after the procedure’. Her condition had healed after taking new prescribed medication but was left with a scar. The court held that there was a causal link between the injuriy suffered by the plaintiff and an infection which she had caught at the defendant’s clinic due to unsterile premises. [95] If the Court makes a decision in the Plaintiff’s favour purely on the basis of compassion, contrary to the whole of the evidence before it, I fear that an injustice will be caused to the Defendants in this case; although there was no fault on their part. Some of them had left service, it may be because of the trauma of being accused of responsibility for the death of the deceased when they should not have been dragged into this suit in the first place. Therefore, I have answered the issues (iii) and (iv) on the causation and remoteness of damage in the negative. Pursuant thereto, the Plaintiff’s claims for damages, interests and costs against the Defendants must therefore fail. The deceased was at fault for not disclosing to D1 about her underlying medical condition. Hence, the Plaintiff was found to be 100% liable in this suit. QUANTUM [96] However, in the event that I am wrong, the issue of quantum still has to be addressed. In considering the assessment of quantum of damages I had referred to the Plaintiff’s and Defendants’ submissions, and current trends. I refer to the case of Donnelly v Joyce [1973] 3 AER 475 where it was held: “[19] The principle for assessing damages for victims of negligence is based on the following. That the loss of the victim is his needs resulting from the negligence. And that the amount of that loss is ascertained by reference to the proper and reasonable cost of supplying that need. The aim of damages in negligence is to compensate the victim for his loss. That loss is the existence of a need that would not have existed but for the tort. The computation of that loss in monetary terms for an award of damages is done by reference to the proper and reasonable cost of supplying that need…”. [Emphasis added] [97] In the case of Yang Salbiah & Anor v. Jamil Harun [1981] 1 MLJ 292, the Federal Court held that the purpose of damages was to try so far as humanly possible to put the victim back to the position he would have been in but for the incident. A reasoned judgment must be given in support of the awards following legal principles and precedents. The damages must be fair, adequate and not excessive. [98] In the case of Inas Faiqah Mohd Helmi (A Child Suing Through Her Father and Next Friend; Mohd. Helmi Abdul Aziz) v. Kerajaan Malaysia & Ors [2016] 2 CLJ 885 the Federal Court held: “[20] It is trite that damages serve as compensation, not a reward, less still a punishment. In assessing damages, the court should not be motivated by sympathy and award fair compensation based on cogent evidence. The court should not descend into a domain of speculation. The evaluation of those evidence, which form the basis of any risk of future damage, must therefore still be undertaken. And the trial judge can only evaluate such evidence based on the recognized balance of probabilities standard.”. [Emphasis added] Dependency claim [99] The Civil Law Act 1956 in s. 7 provides for dependency claims comprising of loss of financial support and a fixed sum for bereavement of RM10,000.00 at that time. The claim for RM30,000.00 for bereavement is not allowed. [100] Plaintiff claimed for the loss of the deceased’s contribution to the family. However, he did not provide any document at all to justify this claim such as payslips and income tax returns. In P10, she did not give any employment detail to D1. The Court presumed that she was a housewife. Therefore, I found that there was no basis to claim for this by the Plaintiff as the Court could not determine how much she had contributed to the family, if any. Aggravated Damages [101] There was no incidence that would justify the Court to award any aggravated damages from the facts of this case. The claim of RM1,000,000.00 for aggravated damages on each defendant is not allowed. Exemplary Damages [102] There was no malicious acts of the Defendants that would give rise to an award of exemplary damages. The claim of RM2,000,000.00 for exemplary damages is not allowed. Special Damages [103] It is trite law that special damages must be pleaded and particularized, and such damages must be proved by either oral or documentary evidence: ABDA Airfreight Sdn Bhd v. Sistem Penerbangan Malaysia Bhd [2001] 8 CLJ 1; [2001] 3 MLJ 64. In this case, I would allow only the travel expenses of approximately RM1,000.00. For funeral expenses, there was no invoices submitted and the Plaintiff prayed for an amount of RM10,000.00 – 15,000.00. They live in the rural area and the costs of living prior to COVID19 was much lesser then, I allowed only a sum of RM5,000.00 for funeral expenses. He prayed for RM50,000.00 but I allowed only RM30,000.00 for legal fees. Other than that, I would allow claims under the head of special damages up to a total of RM2,650.00 as can be seen in the breakdown of figures below: 1 Funeral expenses RM5,000.00 2 Legal fees RM30,000.00 3 Bereavement RM10,000.00 4 Police report Expert’s report Medical report Witness allowance (attendance in court) Hospital expenses Psychiatric treatment at HUSM @ RM200.00 per visit x 3 visits) Total RM10.00 RM500.00 RM40.00 RM1000.00 RM500.00 RM600.00 RM2.650.00 5 Travelling expenses RM1,000 6 Aggravated / Exemplary Damages RM0 7 Transcription costs (Notes of Evidence) RM3,750.00 [104] The parties had agreed for the transcription costs of RM7,500.00 to be shared between them equally. In light of the Court’s decision in favour of the Defendants, the Federal Counsel requested that the Plaintiff to pay the amount of RM3,750.00 to his counsel directly. General Damages [105] The Plaintiff prayed for a sum of RM5,000,000.00 to be paid by EACH Defendant to him as general damages for the negligence to his late wife and nervous shock and major depression suffered by the Plaintiff as a result of their negligence and breach of duty. The learned Federal Counsel submitted that this claim must not be allowed by the Court because “nervous shock” was not covered by s.7 of the 1956 Act. Moreover, it was not a mental disease suffered by the Plaintiff but an emotion of sadness due to his wife’s death. His own psychiatrist (PW6) confirmed this where in the report dated 22.12.2020, the diagnosis was “There were no hypomaniac, manic, anxiety and psychotic symptoms. Major Depressive Disorder, first episode, severe without psychotic feature”. [106] The Plaintiff claimed that he was severely affected by the death of the deceased and could not move on with his life. However, he did re-marry in 2019 and his new wife gave evidence before the Court on his claims about the severe depression. At page 431, PW6 testified: Sebenarnya beliau ada default treatment lah. Default treatment maksudnya beliau tidak datang untuk followup untuk satu tempoh sejak 2021 ke sehingga 2024 kalau tak silap saya sebab saya tak ada file kat sini, jadi saya tak berapa nak ingat sangat sebab ramai patient. Jadi, dalam tempoh tu beliau sebenarnya ada default treatment lah, yang beliau tidak datang untuk rawatan. Okey tapi kali terakhir saya jumpa beliau adalah pada pada bulan Mei 2024. Beliau datang semula untuk rawatan. … No, this seems to be like a point of contention for the Defendants lah, sebab dia kata, doktor kata dia tak boleh move on kan, tapi the fact that he got married tu…Is that a sign that he has moved on? Err…Tapi itulah kalau melalui cara interview lah kan, melalui interview dan juga pemerhatian mental state dia lah semasa di klinik memang nampak masih lagi ada depression lah. Tak seperti dia dah move on pun. Tapi cuma beliau tidak ceritalah berkenaan dia perkawinan yang baru tu. [107] The appointment card (P34) confirmed that he only attended the clinic from 5.2.2019 to 5.5.2021. No other documentary evidence about this was tendered to support his claim of nervous shock and mental stress. Then in May 2024 he attended the clinic again (this was before the trial commenced in July 2024). I agreed with the Defendants’ submissions that this raised some questions about his motive for not attending the clinic between 2021 to 2024 and only re-appeared 3 years later as the trial was about to start. This was because PW6 stated that at the end of 2020, the Plaintiff’s the mental stress appeared to have decreased. There was no evidence adduced of his mental state after he attended the clinic in May 2024. There was simply no justification for this claim because they did not disclose about the deceased’s condition to D1 and the Court did not allow the Plaintiff’s claim under the head of general damages for the alleged “nervous shock”. [108] Before I conclude, I would just mention here that I have considered the long-winded and repetitive written submissions of the Plaintiff but I could not agree with his contentions. On the other hand, I agreed totally with the Defendants written submission. However, it is unnecessary to regurgitate everything here. The more important points have been highlighted for consideration. INTERESTS [109] Interest on the damages, if the Plaintiff’s claims are allowed are as follows:

(a) interest on general damages at the rate of 5% per annum from the date of filing of the Writ until the date of judgment;

(b) interest on special damages at the rate of 2.5% per annum from the date of the incident until the date of judgment; and

(c) interest on the judgment sum at the rate of 5% per annum from date of judgment until full settlement. CONCLUSION [110] The burden of proof in a medical negligence suit is on the Plaintiff to prove his case, and never on the Defendants. The Court made the above orders and dismissed his case with costs subject to allocateur after finding that the Plaintiff had not proved his claims on a balance of probabilities. Order accordingly. Dated on 22 April 2026 Sgd. NOOR RUWENA BINTI MD. NURDIN Judge High Court of Malaya, Taiping Perak Darul Ridzwan Representatives: For the Plaintiff: Mr. Mohd Syukran Bin Mohd Noordin with Mr Roslan Fadzil Messrs. Syukran Nordin, Kota Bharu. For the Defendants: Federal Counsel Barath A/L Manian Attorney General’s Chambers, Putrajaya