Ng Lay Heong v Loh Guan Lye & Sons Sdn Bhd (PA-23NCvC-28-11/2021)

1.

(0015761M)

DR. TEOH MEI SHI …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT (After Full Trial) INTRODUCTION [1] The Plaintiff, as beneficiary of Lee Ah Eng, the deceased (Deceased), commenced this civil action which arose from the medical treatment rendered to the Deceased patient at the 1st Defendant’s (D1) hospital, in which the 2nd Defendant (D2) was the medical practitioner and/or treating specialist. The Plaintiff alleges that the Defendants had breached their respective duties of care in relation to the management, 11/03/2026 12:03:22 PA-23NCvC-28-11/2021 Kand. 120 S/N pY8uk6FckKx0J010ibMqw Page 2 of 28 communication, and disclosure of the Deceased’s radiological findings, which allegedly resulted in delayed diagnosis, loss of treatment opportunity, and finally led to the death of the Deceased. [2] The trial took place on 10.9.2025 and 11.9.2025, for a total of two

days. [3] The list of witnesses is as follows-Plaintiffs’ witnesses: i. Ng Lay Heong (PW1); and ii. Ng Poh Soon (PW2) D1s’ witnesses: i. Dr. Gokula Kumar Appalanaido (DW1); and ii. Tan Li Hwa (DW2) D2’s witness: i. Teoh Mei Shi (DW3) [4] At the end of the trial, this Court found that on a balance of probabilities, the Plaintiff has failed to establish liability, particularly against D2. The Plaintiff failed to prove that there was a breach of the applicable standard of care or omission caused or materially contributed to the Deceased’s deterioration or death. Thus, this Court dismissed the Plaintiff’s claim against D1 and D2 with costs. S/N pY8uk6FckKx0J010ibMqw Page 3 of 28 BRIEF FACTS [5] The Deceased patient sought medical consultation and treatment at D1 hospital between March and April 2019. At all material times, D2 was the Deceased’s treating doctor and a breast specialist practising at D1 hospital. It was not disputed that the Deceased consulted D2 for a second opinion following an earlier visit to another medical facility, and that D2 thereafter managed the Deceased’s care within the premises of D1 hospital. [6] On 8.4.2019, a chest x-ray examination was performed on the Deceased at D1 hospital. A radiology report was subsequently generated with respect to the said examination. It is common that once the radiology report was completed, it was uploaded into D1 hospital’s Electronic Medical Record (EMR) system and was accessible to healthcare providers within the hospital system, including the treating doctor. [7] Plaintiff’s case is that, notwithstanding the availability of the radiology report within the EMR system, the results from the report were not communicated to the Deceased or her family, nor were they brought to the attention of D2 in a manner that resulted in timely review and follow-up. The Plaintiff contended that there was no contemporaneous record indicating that the Deceased was informed of the findings of the chest x-ray, and that no appropriate steps were taken following the radiological findings at the material time. [8] Following the events in April 2019, the Deceased continued with her medical treatment. At a later stage, the Deceased was diagnosed with lung cancer. The Deceased subsequently underwent further treatment, including medication, and experienced a deterioration in her condition S/N pY8uk6FckKx0J010ibMqw Page 4 of 28 before eventually passing away. The Plaintiff alleges that the failure to communicate and act upon the earlier radiology findings resulted in a delay in diagnosis and treatment, thereby causing loss of opportunity for timely intervention, avoidable suffering, and contributing to the Deceased’s death. [9] The Plaintiff also filed a complaint against D2 with the Malaysian Medical Council (MMC), and disciplinary proceeding was initiated. On 1.8.2023, MMC found D2 “guilty of infamous conduct in a professional respect under Section 29(2)(b)/29(2)(a) of the Medical Act 1971 (Amended 2012)”. During the trial of the present action, the existence of this disciplinary proceeding was also raised and relied upon by the Plaintiff in support of her claim. PARTIES’ CONTENTION Plaintiff’s Contention [10] The Plaintiff contended that D2 owed a duty of care to the Deceased and had failed to act in accordance with the required standard of care based on a responsible body of medical opinion. The Plaintiff submitted that D2 failed to review, act upon, and inform the Deceased or the family members of the chest x-ray findings and the anaesthetist report, and that such omissions fell below the acceptable standard of care expected of a medical practitioner. [11] The Plaintiff further contended that D2’s failure to inform the Deceased of the radiology findings affected the treatment given, resulted in the Deceased missing a full year of potential lung treatment, worsened S/N pY8uk6FckKx0J010ibMqw Page 5 of 28 the lung disease, and consequently caused or contributed to the death of the Deceased. [12] In respect of D1, the Plaintiff contended that the hospital owed the Deceased a direct duty of care to provide a comprehensive and effective communication system. The Plaintiff submitted that D1 failed to have a systematic system or procedure to ensure that radiology findings were communicated to patients and failed to ensure effective communication between the patients and treating doctors. These failures are pleaded as direct negligence and systemic failure on the part of D1. [13] The Plaintiff further contended that D1 is liable for the acts and omissions of D2 based on vicarious liability and/or non-delegable duty. The Plaintiff also contended that the contractual arrangement or the independent status of D2 is legally irrelevant, as the hospital is responsible for the care it provides to a patient, in this case, the Deceased. The Plaintiff maintains that merely uploading the radiology report into the EMR system does not amount to satisfactory discharge of the hospital’s duty. [14] The Plaintiff further contended that the findings of the MMC are admissible and form part of the factual matrix, as it relates to the same conduct complained of in this action and were admitted by D2 in Court. The Plaintiff submitted that these findings corroborate the Plaintiff’s case on breach of duty. [15] On damages, the Plaintiff contended that the Deceased had suffered pain, suffering, and loss of enjoyment of life, and that the Plaintiff and family had endured prolonged distress. Thus, the Plaintiff seeks S/N pY8uk6FckKx0J010ibMqw Page 6 of 28 general damages and aggravated damages, contending that the omissions and conduct of the Defendants caused suffering to the Deceased and grief to her family members. Defendant’s Contention D1’s Contention [16] D1 contended that the Plaintiff’s claim against the hospital is misconceived and should be dismissed. D1 submits that it had provided services and management in accordance with accepted standards at all material times and that there was no failure in its communication system or EMR system. [17] Further, D1 submitted that it is an undisputed fact that the radiology report dated 8.4.2019 was uploaded into the EMR system promptly and was accessible to all relevant healthcare providers. The treating doctor was in charge and in full control of the Deceased's care and treatment, and the hospital’s role was limited to providing facilities and support services only. [18] D1 further contended that there is no evidence to support allegations of ineffective communication or substandard management. No expert evidence was called by the Plaintiff to establish that the hospital’s system was deficient. D1 submitted that its witnesses’ evidence on this issue, remains unchallenged and unrebutted. [19] On vicarious liability, D1 contended that such liability was not properly pleaded and, in any event, does not arise as D2 was an independent contractor operating her own recognisable independent S/N pY8uk6FckKx0J010ibMqw Page 7 of 28 practice. D1 submitted that it should not be held liable for D2's alleged negligence. [20] On non-delegable duty, D1 contended that there is no basis for the application of such a duty based on the facts of this case. The Deceased consulted D2 because of her personal reputation as a breast specialist, not because of the hospital itself. Accordingly, it is the contention of D1 that liability cannot be imputed to it. [21] D1 further submitted that the Plaintiff has failed to prove causation and damage. The contention that earlier disclosure could have postponed death is speculative and unsupported by evidence. [22] It is also the submission of D1 that the Plaintiff had failed to plead and prove special damages and thus is not entitled to aggravated damages, as there was no exceptional or contumelious conduct by D1. D2’s Contention [23] D2 contended that her conduct did not fall below the standard of care expected of a medical practitioner. D2 submitted that the test in medical negligence is whether her clinical judgment and management accorded with a practice accepted as proper by a responsible body of medical practitioners skilled in the relevant field, and not whether documentation was perfect or whether matters are assessed with hindsight. [24] D2 denied that any omission on her part caused or contributed to the Deceased’s death. It is the submission of D2 that the Plaintiff has failed to establish that the alleged failure to inform or act upon the radiology S/N pY8uk6FckKx0J010ibMqw Page 8 of 28 findings affected the treatment outcome or worsened the Deceased’s condition. [25] D2 further contended that issues relating to indemnity or contribution do not arise and that any attempt to shift institutional responsibility onto her is legally unsustainable. [26] On damages, D2 submitted that the Plaintiff has failed to prove liability, causation and damage in a single and complete trial and is therefore not entitled to any relief sought. ISSUES [27] Generally, this Court is of the view that the issues in this case revolve around whether the Defendants had breached their duty of care/standard of care, including breach of non-delegable duty of care, and whether such breach had caused damage and injuries as alleged by the Plaintiff. [28] Therefore, the issues are mainly-

Whether D2 has failed to act in accordance with the required standard based on a “responsible body of medical opinion” that D2’s failure to inform both the Chest X-Ray and the anaesthetist report would affect the treatment given to the Deceased and worsen the lung disease, thereby causing the death of the Deceased?

Whether D1 can be held vicariously liable for the negligence of D2, and whether D1 owes a non-delegable duty to provide S/N pY8uk6FckKx0J010ibMqw Page 9 of 28 a comprehensive and effective communication system for the Deceased?

Whether there ought to be a direct duty of care imposed upon D1 as a private hospital to the Deceased that effective communication systems are to be maintained? ANALYSIS AND FINDINGS Burden of proof [29] It is trite that the onus lies on the Plaintiff to prove the elements of negligence in order to succeed in her claim against the Defendants pursuant to sections 101 and 102 of the Evidence Act 1950. (See Datuk Mohd Ali bin Hj Abdul Majid & Anor v. Public Bank Berhad [2014] 4 MLRA 397; [2014] 4 MLJ 465; [2014] 6 CLJ 269; [2014] 4 AMR 301 and Tenaga Nasional Berhad (Formerly Lembaga Letrik Negara Tanah Melayu) v. Perwaja Steel Sdn Bhd (Formerly Perwaja Terengganu Sdn Bhd) [1995] 3 MLRH 196; [1995] 4 MLJ 673; [1995] 4 CLJ 670). [30] In a claim for tort of negligence, the Plaintiff must prove that the Defendants owe a duty of care, that duty was breached and caused damage to the Plaintiff. The Court of Appeal case of Shalini Kanagaratnam v. Pusat Perubatan Universiti Malaya & Anor [2016] 5 MLRA 67; [2016] 3 MLJ 742; [2016] 6 CLJ 225; [2016] 3 AMR 625, enunciated the four (4) elements that a Plaintiff has to prove in cases of medical negligence-S/N pY8uk6FckKx0J010ibMqw Page 10 of 28 "[9] In cases of professional negligence and/or medical negligence, the plaintiff has to prove four elements. They are: (i) duty of care; (ii) breach of standard of care; (iii) breach of duty of care; (iv) caused damages. In consequence, the plaintiff has to lead evidence to show the standard of care has been breached. The doctrine of res ipsa loquitur will not ordinarily apply as the plaintiff will have to discharge the legal burden and only after the legal burden has been discharged, the defendant has to satisfy that legal duty was not breached." [31] Further, in the case of Muthu A/L Subramaniam v. Dr Wan Hazmy Che Hon [2018] MLJU 1567; [2018] MLRHU 1291; [2018] CLJU 1629; [2018] AMEJ 1297 Justice Abu Bakar Jais (now FCJ) held that the burden to prove negligence lies on the plaintiff and it is not the obligation of the Defendant to disprove the allegations of negligence and held- "[34] It is trite that the burden of proof in cases of medical negligence such as this is on the Plaintiff. It is the Plaintiff's burden to prove negligence against the FD on the basis that what was done was what a reasonably competent practitioner skilled in that particular act would or would not have done. The FD has no obligation to disprove the allegations of negligence in the statement of claim. (See the cases Wu Siew Wong v. Pulau Pinang Clinic Sdn Bhd & Anor [2010] 1 MLRH 956; [2011] 3 MLJ 506; [2011] 1 CLJ 229 Mathew Scott Oakley & 2 Ors v. Dr. George Varughese & Anor [2009] 5 MLRH 93; [2020] 10 CLJ 322 and Payremalu Veerappan v. Dr Amarjeet Kaur & Ors [2001] 2 MLRH 101; [2001] 3 MLJ 725; [2001] 4 CLJ 380).” [32] Thus, the burden lies on the Plaintiff to prove on a balance of probabilities that the Defendants or any of the Defendants had committed the act of negligence. It must also be proven by the Plaintiff the causation link between the act of negligence and the injuries suffered by the Plaintiff. [33] It is also settled law that it is not for the Defendants to disprove the allegations as contained under the particulars of negligence in the statement of claim, as the legal burden of proof still rests on the Plaintiff. S/N pY8uk6FckKx0J010ibMqw Page 11 of 28 Is D2 Liable? [34] In the case of Payremalu a/l Veerappan v Dr Amarjeet Kaur & Ors [2001] 2 MLRH 101; [2001] 3 MLJ 725; [2001] 4 CLJ 380, the Court held- “(2) There was a lack of evidence showing the causative link between the plaintiff’s injury and the act of the first and second defendants. Although the court could draw an inference as to the causal link provided there was sufficient evidence or positive proved facts, in the instant case, there were no objective facts from which it could have been deduced, as a matter of reasonable deduction, that the loss of the plaintiff’s right eye, on face value, had shown some negligence on the part of the first and second defendants. Taking into consideration the relevant principles of common law, the facts of the instant appeal and the evidence adduced on behalf of the plaintiff, the plaintiff had failed to prove on the balance of probabilities the causative link between the act of the first and second defendants and the injury to his right eye, which had been hit by a foreign body or object.

It was important for the plaintiff to have adduced medical or expert evidence to support the allegations contained in the statement of claim against the defendants.

It is settled law that it is not for the defendants to disprove the allegations as contained under the particulars of negligence in the statement of claim, as the legal burden of proof still rests on the plaintiff. … In this case, the plaintiff had not satisfied the onus of proof placed upon him and that he had failed to establish that the first and second defendants had departed from the standard of care to be expected and required of a reasonably competent eye specialist. In a civil case, it is on a balance of probabilities. But the proof is that the balance must be tilted by the plaintiff before the defendant makes his case. In this case, since the plaintiff had failed to establish any negligence against the defendants as pleaded in the statement of claim, this court is of the view that the defendants have rightfully exercised their option by submitting no case to answer. It is settled law that it is not for the defendants to disprove the S/N pY8uk6FckKx0J010ibMqw Page 12 of 28 allegations as contained under the particulars of negligence in the statement of claim as the legal burden of proof still rests on the plaintiff. This court is of the view that the plaintiff has not satisfied the onus of proof placed upon him and that he has failed to establish that the first and second defendants had departed from the standard of care to be expected and required of a reasonably competent eye specialist.” (Emphasis Added) [35] It is not disputed that a doctor-patient relationship existed between D2 and the Deceased at the time of the said radiographic examination. In this regard, the case of Foo Fio Na v Dr Soo Fook Mun & Anor [2006] 2 MLRA 410; [2007] 1 MLJ 593; [2007] 1 CLJ 229; [2007] 1 AMR 621 elaborated on the duty of care for a medical practitioner, where the Federal Court held- “[24] At common law, the duty of care owed by a doctor arises out of his relationship with his patient. Without the doctor and patient relationship, there is no duty on the part of the doctor to diagnose, advice and treat his patient. [25] That duty of care has been aptly described by Lord Hewart CJ in R Bateman [1925] 94 LBKB 79 to be as follows: 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 and the patient submits to his direction and treatment accordingly, he owes a duty to the patient to use diligence, care, knowledge, skill and caution in administering the treatment. No contractual relation is necessary, nor is it necessary that the service be rendered for reward.” [36] As such, did D2 breach her duty of care towards the Deceased? In Dr Hari Krishan & Anor v Megat Noor Ishak bin Megat Ibrahim & Anor S/N pY8uk6FckKx0J010ibMqw Page 13 of 28 and another appeal [2017] AMEJ 1565; [2018] 3 MLJ 281; [2018] 3 CLJ 427; [2018] 1 AMR 209, the Court held-The case of Rogers v Whitaker, which was followed in Foo Fio Na, 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. 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 (see paras 61-63). [37] Additionally, in Bolam v Friern Hospital Management Committee [1957] 1 WLR 583; [1957] 2 All ER 118, the House of Lords formulated the Bolam test as- “a medical professional 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 man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.” (Emphasis Added) [38] Therefore, D2 is expected to act in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art. S/N pY8uk6FckKx0J010ibMqw Page 14 of 28 [39] The crux of the Plaintiff’s case is that D2 was negligent and has failed to take reasonable steps in relation to the finding/outcome of the radiology report after the radiology report was issued, and has failed to advise the Deceased and/or the Deceased’s family of the radiology report issued. [40] Nevertheless, the Plaintiff must still prove that D2 fell below the standard of a reasonably competent breast surgeon assessing the CXR. However, the Plaintiff did not call any expert to establish the required standard of radiological interpretation or to show that D2 fell below the standard of a reasonably competent breast surgeon assessing the CXR. [41] Thus, this Court agrees with the submission of D2 that, without adducing and calling any expert witness, the Plaintiff has failed to discharge her burden of proof, for it cannot be proven that D2 had fallen below the standard of care expected, as highlighted in the case of Payremalu Veerappan (supra), which held as follows- “It is important for the plaintiff to have adduced medical or expert evidence to support his/her allegations against the defendants to assist the Court in arriving at its decision. Unfortunately, no such evidence was given’. … “The evidence to establish a causative link between the injury that was sustained by the plaintiff prior to seeking medical treatment and the acts of the 1st and 2nd Defendants was lacking. Further, there were no positive proved facts from which the Court could draw an inference of causation. The plaintiff failed to prove causation on the balance of probabilities.”. [42] Notwithstanding the above, even if the Plaintiff succeeded in proving a breach of duty, the Plaintiff must still establish that the alleged breach caused or materially contributed to the Deceased’s death. S/N pY8uk6FckKx0J010ibMqw Page 15 of 28 [43] The legal position on causation is settled. In Mathew Scott Oakley v Dr George Varughese & Ors [2009] 5 MLRH 93; [2010] 10 CLJ 322; [2009] MLJU 1429; [2010] 2 AMR 326, the Court held that the Plaintiff bears the burden of proving, on a balance of probabilities, not only breach but that the breach and not some other factor caused the harm. It was held- “In relation to the plaintiff’s claim, the burden is on them to prove negligence on the part of the defendants on a balance of probabilities. In the instant case, there is no question that the defendants owed a duty and standard of care to the deceased. So the plaintiffs will have to prove that the defendants had breached this duty. The plaintiffs will also have to prove that it was this breach that caused the death of the deceased. This means that the plaintiffs must prove that it was the negligence of the defendants rather than some other factor which caused her death. In a nutshell, the burden was on the plaintiffs to prove the breach of the duty and causation on a balance of probabilities.” (Emphasis Added) [44] This requirement has been consistently reaffirmed. In Dr Hari Krishnan (supra), the Court of Appeal held that failure to establish a causal link is fatal to the claim. Similarly, in Nurul Iman binti Abu Mansor v Gleneagles Hospital Kuala Lumpur Sdn Bhd & Anor [2025] 9 MLJ 22; [2025] 2 CLJ 824; [2024] MLRHU 1689, the High Court made it clear that causation must be affirmatively proven and cannot be presumed. [45] In the present action, the Plaintiff alleges that the Deceased suffered damages as a consequence of D2’s alleged negligence-S/N pY8uk6FckKx0J010ibMqw Page 16 of 28 a) that the Deceased purportedly lost her “window of opportunity” to cure her lung cancer, on the assumption that the disease was at Stage 3 in 2020; and b) that breast radiotherapy was administered without knowledge of lung cancer, resulting in deterioration of the disease. [46] This Court observed that these allegations are wholly unsupported by medical evidence. Thus, this Court is inclined to the submission of D2 that allegations of D2’s omission neither caused harm nor contributed in any manner to the Deceased’s passing. [47] This was also confirmed by the unrebutted expert evidence of DW2 who opines that-a) The CXR dated 08.04.2019 already demonstrated features consistent with Stage 4 EGFR exon-19 deletion metastatic lung cancer, contradicting the Plaintiff’s assertion that the disease was treatable or at Stage 3 in 2020. b) Even if Tagrisso had been commenced earlier, the outcome would not have changed due to lead-time bias and inevitable development of drug resistance; earlier treatment would only have caused earlier toxicities and reduced quality of life. c) The 30 cycles of breast radiotherapy involved only minimal incidental exposure to the right lung, making the Plaintiff’s assertion of radiotherapy-induced harm medically untenable. S/N pY8uk6FckKx0J010ibMqw Page 17 of 28 [48] Most importantly, the Plaintiff has failed to adduce expert evidence to support her contention and to rebut DW2’s testimony or to establish causation. Clearly, the law requires expert testimony to prove breach and causation in medical negligence cases, as emphasised by the Court of Appeal in Shalini a/p Kanagaratnam v Pusat Perubatan Universiti Malaya & Anor [2016] 5 MLRA 67; [2016] 3 MLJ 742; [2016] 6 CLJ 225; [2016] 3 AMR 625. In that case, the Plaintiff’s claim failed because she had not produced expert evidence to support the pleaded allegations. Likewise, as in this present Suit, the Plaintiff failed to produce expert evidence. [49] Obviously, allegations are not evidence. The allegations must be proved to be true and convincing; otherwise, they will become mere assertions. Further, causation cannot be made out on speculation or assumption. It requires credible medical evidence linking the alleged omission to the outcome. [50] According to DW2, whose evidence stands unchallenged, the Deceased would have suffered the same fatal outcome from Stage 4 EGFR-mutated metastatic lung cancer regardless of whether the CXR findings were acted on earlier. [51] DW2 identifies two independent, viable causes of death unrelated to the alleged breach. There are-

severe Tagrisso-related lung toxicity; or

(ii) disease progression following development of drug resistance. S/N pY8uk6FckKx0J010ibMqw Page 18 of 28 [52] Thus, without a post-mortem, the Plaintiff cannot simply prove which mechanism was the cause of death, let alone that D2’s conduct materially contributed to it. [53] In this regard, D2 submitted that the principle underlying pathology, is not the alleged negligence, may be the true cause of harm and this was also affirmed in Hasan Datolah v Kerajaan Malaysia [2010] 5 CLJ 764; [2010] 2 MLJ 646; [2010] 3 AMR 299, where both the Court of Appeal and the High Court held that paralysis resulted from the natural progression of a serious spinal condition rather than surgical negligence. The same reasoning applies here, that the Deceased’s death inevitably resulted from terminal cancer, and not from any alleged omission. [54] Accordingly, this Court agrees with D2’s submission that, on a balance of probabilities, the Plaintiff has failed to establish causation. The defence’s expert evidence remains wholly unchallenged. No post-mortem was conducted. No expert was called by the Plaintiff. No alternative cause was excluded. The Plaintiff has not proved-

D2 breached the applicable standard of care; or

any alleged omission caused or materially contributed to the Deceased’s deterioration or death. [55] The unchallenged expert evidence of DW2 demonstrates that the Deceased was already suffering from Stage 4 EGFR exon-19 deletion metastatic lung cancer as early as April 2019; that earlier treatment would not have changed the outcome; and that the breast radiotherapy did not S/N pY8uk6FckKx0J010ibMqw Page 19 of 28 cause any deterioration of the lung condition. These findings wholly negate the Plaintiff’s theory of causation and confirm that the Deceased’s passing was the inevitable result of a terminal underlying disease. [56] It was also not proven that the act of D2, in failing to read the X-ray report, was negligible conduct commonly recognised and acknowledged in the medical field, as no evidence or call for an expert was made to confirm this. Further, no post-mortem was conducted, no alternative causes were excluded, and no medical testimony was adduced to rebut the Defence’s expert. As such, the Plaintiff has failed to discharge the necessary burden of proof on causation. [57] Accordingly, in Dr Chin Yoon Hiap v Ng Eu Khoon & Ors [1997] 2 MLRA 183; [1998] 1 MLJ 57; [1998] 1 CLJ 533, the Court of Appeal held that a medical practitioner is not negligent if the person acts in accordance with a general and approved practice prevailing at the material time. It was held- “(2) ….The court was bound by the case authorities in dealing with the question of the availability of the preventive and curative treatment of RLF as the situation was in late 1975 and early 1976 and not when the trial concluded on 26 January 1994 and the decision made on 27 January 1995, or when the court decided on this appeal on 1 April 1997. At that point of time, the medical literature referred and the evidence of the medical witnesses who testified clearly indicate that no such treatment was available and the court found that even if the second defendant had alerted the plaintiff's parents at the time of the plaintiff's discharge, which the court held he did as stated in his report, it would have come to nothing (see pp 69G-I and 74E-G). 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 S/N pY8uk6FckKx0J010ibMqw Page 20 of 28 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. The standard of care expected of a medical practitioner is that he is not required to exercise the highest or very high standard but only a fair and reasonable standard of care and skill in the treatment of his patients…” [58] As such, in the absence of any competing expert testimony from a radiologist, oncologist, or pulmonologist, the Plaintiff has failed to establish that no responsible body of medical practitioners would have acted as D2 did. [59] It is trite that negligence is not established by breach alone. The Plaintiff must prove that the alleged breach caused or materially contributed to the harm complained of. This requirement was reaffirmed by the Court of Appeal in Dr Chin Yoon Hiap (supra). [60] This Court agrees with the Defendants that even adopting the Plaintiff’s formulation of “material contribution”, the case still fails. The Defence expert evidence establishes that the Deceased’s lung cancer was of the EGFR exon-19 deletion subtype, a form which typically presents at Stage IV, often with bilateral pulmonary involvement. [61] If the 8 April 2019 chest X-ray opacities were attributable to lung cancer at all, the disease would already have been Stage IV at that time. The Plaintiff’s assertion of Stage III disease is unsupported by radiological or oncological criteria. S/N pY8uk6FckKx0J010ibMqw Page 21 of 28 [62] The Defence expert, DW2, also explained the concept of lead-time bias, whereby earlier diagnosis may give the illusion of prolonged survival without changing the time of death. There is no medical evidence that earlier initiation of Tagrisso improves overall survival or quality of life in EGFR exon-19 lung cancer. Clearly, the Plaintiff has failed to produce any expert evidence to rebut this. Unchallenged expert evidence is entitled to be accepted by the Court. [63] In any event, the absence of a post-mortem and contemporaneous imaging near death means that the precise cause of death cannot be ascertained with certainty. This uncertainty further undermines the Plaintiff’s causation case. The Malaysian Medical Council Decision [64] The Plaintiff relies heavily on the findings arising from the complaint before MMC. However, such reliance is misplaced. The findings of MMC are not binding on this Court in determining civil liability for medical negligence. [65] The MMC is a statutory disciplinary body established under the Medical Act 1971 (now Medical Act 2012). Its mandate concerns professional conduct, registration and fitness to practise. In contrast, this Honourable Court’s function is adjudicative, applying civil standards of proof to determine liability and damages. The tests, evidentiary thresholds, and objectives in both forums differ materially. [66] Accordingly, even if the MMC had found fault, this Court is not bound by its decision. In Foo Fio Na (supra), the Federal Court held that while S/N pY8uk6FckKx0J010ibMqw Page 22 of 28 professional opinion is relevant, the ultimate arbiter of the legal standard of care is the Court, not the medical profession. Similarly, in Zulhasnimar Hasan Basri & Anor v Dr Kuppu Velumani P & Ors [2017] 5 MLRA 399; [2017] 5 MLJ 438; [2017] 8 CLJ 605, the Court emphasised that medical opinions must withstand logical scrutiny under the Bolitho principles. [67] Further, the Federal Court in Dr Lourdes Dava Raj Curuz Durai Raj v Dr Milton Lum & Ors [2020] 5 MLRA 333; [2020] 5 MLJ 185; [2020] 9 CLJ 192; [2020] 6 AMR 429 clarified the distinction between the court process and the MMC’s disciplinary role. The Court recognised that judicial findings determine legal rights, whereas MMC proceedings serve a separate regulatory function. This underscores the separation of roles and the need for courts to exercise independent judgment. [68] As such, the MMC’s internal findings are not binding but may be referred to if necessary; however, in this case, they are not. The determination of breach, causation, and liability must be made solely during the trial before this Court. [69] D2 also testified that the MMC panel in her proceeding did not comprise specialists in the relevant disciplines. None of the five panel members was a breast surgeon, oncologist, or chest physician. This significantly limits the probative value of their views when compared against the specialist evidence adduced at trial. [70] By contrast, DW2, the Defendant’s expert, Dr Gokula Kumar Appalanaido, is a practising Consultant Oncologist who manages lung cancer patients on a weekly basis. While not a pulmonologist, his regular S/N pY8uk6FckKx0J010ibMqw Page 23 of 28 clinical management of lung cancer provides direct, relevant, and specialised expertise far exceeding that of the MMC panel's generalist composition. [71] Therefore, this Court, even though has perused the MMC findings, however, does not find it as an evidence that suffice the evidence of an expert to support the Plaintiff’s claim. Is D1 Liable? [72] The Plaintiff sued D1 Hospital for allegedly flawed policies. D1 submitted that the management accorded to the Deceased Patient by D1 Hospital was in accordance with accepted standards, and there is no breach of duty of care on the part of D1 Hospital, with regard to the Particulars of Negligence alleged by the Plaintiff. Furthermore, there is no cogent evidence put before this Court to suggest otherwise. [73] The Plaintiff pleaded direct liability against D1. The Plaintiff did not plead vicarious liability or a non-delegable duty. It is trite law that vicarious liability and non-delegable duty have to be specifically pleaded. In Projek Lebuh Raya Utara-Selatan Sdn Bhd v. Kim Seng Enterprise (Kedah) Sdn Bhd [2013] 4 MLRA 68; [2013] 5 MLJ 360; [2013] 6 CLJ 958, the Court of Appeal held- “(2) The trial court had decided the case contrary to the pleadings as the issues of negligence and vicarious liability were never pleaded by the respondent. The court was not entitled to, and should not have decided the suit on an issue that was not pleaded. Where a case had been decided on an issue that was not raised in the pleadings, the judgment could be set aside forthwith. [18] That the court is not entitled and should no decide on an issue which is not pleaded. In short, the trial of the suit must be confined to the pleadings S/N pY8uk6FckKx0J010ibMqw Page 24 of 28 and the pleadings operate to effectively define and delimit with absolute clarity and precision the real matters in controversy between the parties. In this way, the parties could prepare their respective cases and the court too will adjudicate on those issues and no more. [19] It is a correct statement of the law to state that where the case has been decided on an issue that is not raised in the pleadings, the judgment can be set aside forthwith.” [74] In such a situation, this Court does not need to make a finding on vicarious liability or a non-delegable duty. Parties cannot rely on the points of vicarious liability or non-delegable duty when such were not pleaded by the Plaintiff when they instituted their claim in 2021, and subsequently in their Amended Statement of Claim of March 2023, and eventually, again in their Re-Amended Statement of Claim of August 2023. [75] Further, the Plaintiff's evidence is uncorroborated. No expert witness was called to support the contention that the conduct of D2 fell below the standard of a responsible body of medical opinion. The expert is also important to support the MMC findings. But none. The MMC panel comprises specialists in various disciplines, but none in breast surgery, oncology, or chest medicine. This significantly limits the probative value of their views when compared against the specialist evidence adduced during the trial. [76] The Plaintiff has failed to adduce any evidence to prove that D1 had breached its duty of care. No expert was called by the Plaintiff to support her case or to rebut DW2 and D2’s testimony. Also, no causation was proved that the alleged ineffective communication had caused injury/death to the deceased. S/N pY8uk6FckKx0J010ibMqw Page 25 of 28 [77] This Court is of the view that since the Court has decided that D2 is not liable, therefore, there is no breach on the part of D1 Hospital, and it is also not liable for the Plaintiff’s loss and damages. Thus, the Plaintiff’s claim for direct liability against D1 and not vicarious liability or non-delegable duty fails. Accordingly, it is not necessary to deal with D1's indemnity claim against D2. [78] Finally, based on DW2’s unrebutted evidence, it could be concluded that-

The Deceased Patient’s lung cancer was already at stage 4 on 8.4.2019, based on the radiology report of bilateral lung opacities.

(ii) The lung cancer in the Deceased Patient is ‘exon-19 deletion in the EGFR gene type’ and this particular type of lung cancer is known to have miliary spread to lung and also at times to brain. Patients usually present as stage 4 cancer at diagnosis rendering them into the group who are not eligible for radical curative treatment.

(iii) Treatment with Tagrisso is the standard of care in exon-19 deletion in the EGFR gene type of lung cancer. The earlier initiation of Tagrisso would not have altered the survival outcome of the Deceased Patient due to “lead time bias”.

(iv) The Deceased Patient suffered from severe treatment (Tagrisso) related toxicity (skin, nail bed abscess, liver impairment etc) that has impacted her quality of life. If the S/N pY8uk6FckKx0J010ibMqw Page 26 of 28 Tagrisso treatment was started earlier in April 2019 and the deceased Patient had the severe toxicity as reported in the case notes, where the treating oncologist had to reduce the dose due to toxicity, then the Deceased would have lost the good quality of life that she had until November 2019 when Tagrisso was started / lung cancer progressed to a symptomatic stage. The Deceased Patient had poor tolerance and significant toxicity to the treatment.

The cause of death is either due to severe treatment-related lung toxicity or disease progression after developing drug resistance to Tagrisso, which cannot be ascertained without a post-mortem.

(vi) If the Deceased Patient had been diagnosed with lung cancer in April 2019 and initiated Tagrisso treatment then, she would have lost the good quality of life that she had until November 2019 otherwise. [79] For the aforesaid reasons, this Court finds on a balance of probabilities that the Plaintiff has failed to establish that D2 has breached the applicable standard of care, or that any alleged omission caused or materially contributed to the Deceased’s death. Thus, no loss or claim for damages is allowed. CONCLUSION [80] Accordingly, as this Court finds that the death of the Deceased Patient or the deterioration of the Deceased's health was not caused by D2, consequently, there is no breach on the part of D1, Hospital, and it is S/N pY8uk6FckKx0J010ibMqw Page 27 of 28 also not liable for the Plaintiff’s loss and damages. Thus, the Plaintiff’s claim for direct liability against D1 and not vicarious liability or non-delegable duty fails. [81] In view of the totality of the evidence and the applicable legal principles, the Plaintiff has failed to establish liability against D2. The Plaintiff has neither proven, on a balance of probabilities, that D2 breached the applicable standard of care, nor that any alleged omission caused or materially contributed to the Deceased’s deterioration or death. [82] The Plaintiff’s case is further undermined by the complete absence of expert evidence to support the pleaded allegations, which is vital in a medical negligence claim. On a balance of probabilities, the Plaintiff has failed to prove the claim against the Defendants; thus, the Plaintiff’s claim is dismissed with costs. Dated: 6th MARCH 2026 -SGD- (SUZANA BINTI MUHAMAD SAID) Judicial Commissioner of the High Court High Court 3 Pulau Pinang S/N pY8uk6FckKx0J010ibMqw Page 28 of 28 For the Plaintiff : Chan Szu Fu and Farhana Tetuan Chan, De Vries & Co. For the 1st Defendant: Ho Sze Yee Tetuan Chan Ban Eng & Co. For the 2nd Defendant: Mureli Navaratnam, Amier Fitri and Loh Jia Chun Tetuan Mureli Navaratnam S/N pY8uk6FckKx0J010ibMqw