Noor Juliana Binti Zainun v Universiti Putra Malaysia (BA-22NCvC-39-02/2024)

Universiti Putra Malaysia 2. Pengarah Hospital Sultan Abdul Aziz Shah 3. Dr. Loke Xi-Mun 4. Dr. Mohd Islahuddin Mohd Tamrin 5. Prof. Dr. Mohd Faisal Bin Jabar 6. Dr. Abd Al Rahman Hikmet Shaker Al Azawi 7. Dr. Ahmad Firdaus Hanapai 8. Dr. Mardhiana 9. Dr. Hizami Amin 10. Dr. Noramalina Jaafar 11. Dr. Hizami Amin-Tai 12. Dr. Norsuhana Mohamad Sapian 13.

Dr. Farah Nabila Binti Ishak 15. Dr. Nik Qisti Fathi Nik Hisyamuddin Fathi 16. Dr. Mohd. Hady Shurki Bin Abdul Satar 17. Dr. Nur Adila Zulkifli 18. Dr. Zafirah Hani Ramli 19. Dr. Charmaine Leong Sook Yee 20. Dr. Mohd Naim Ramlan 21. Dr. John Does 22. Dr. Jane Does … DEFENDANTS GROUNDS OF JUDGMENT

My judgment concerns, the Plaintiff, Noor Juliana Binti Zainun, who has filed a medical negligence claim against Universiti Putra Malaysia, Director of Hospital Sultan Abdul Aziz Shah and several doctors who treated her during her hospital admission and surgery. She alleges that she suffered serious and permanent complications after undergoing an appendix removal on 4th February 2021. According to her, the surgery was performed without proper medical justification, was unnecessary and carried out using poor surgical techniques.

She argues that the Defendants, being responsible for her treatment and surgery, owed her a duty of care but failed to meet the required medical standards. The Court must therefore decide whether the Defendants’ actions fell below the standard of care expected of medical professionals and institutions and whether their conduct directly caused the injuries and losses suffered by the Plaintiff.

I will first address Part A, namely the Defendants’ appeal on the issue of liability, followed thereafter by Part B, the Plaintiff’s appeal on the Court’s award of damages.

(A) THE DEFENDANTS APPEAL AGAINST THE FINDINGS ON LIABILITY BRIEF BACKGROUND

The Plaintiff, Noor Juliana Binti Zainun was admitted at Hospital Sultan Abdul Aziz Shah on 2nd of February 2021 with abdominal pain. Her admission was secured by a Guarantee Letter from Universiti Putra Malaysia, as her husband was a staff member and her treatment costs were partially covered. The initial management of her condition was done with antibiotics and intravenous paracetamol which improved her condition, reducing her pain and stabilizing her vital signs.

Subsequently on 4 February 2021, a laparoscopic appendectomy (the removal of the appendix) was performed by a medical officer (DW3) under the supervision of a general surgeon (DW4). Although clinical medical examinations conducted by the Defendants suggested early acute appendicitis, her expert report, contends the presence of diagnostic uncertainty, that should have been resolved with imaging such as a CT scan or ultrasound before surgery.

The Plaintiff was eventually discharged on 5 February, but returned by ambulance on 6 February with severe abdominal pain and shortness of breath. On 8 February 2021, an exploratory laparotomy was carried out, revealing a 1 cm perforation in the ascending colon, which had caused fecal leakage into the abdominal cavity and a serious infection resulting in a temporary stoma and prolonged ICU care. During which, she suffered a pulmonary embolism (a life-threatening blood clot), required a ventilator to breathe and had to have tubes inserted under her armpit to drain fluid from her lungs. To summarize, I refer to the table below for easy reference. DATE

1.

02.02.2021 Admitted for abdominal Pain 2.

04.02.2021 Appendix was removed via Laparoscopic surgery 3.

06.02.2021 Re-admitted for severe pain 4.

08.02.2021 Laparotomy was done and Stoma inserted 5.

04.03.2021 Discharged after 12 days in ICU

Based on the Plaintiff submission, she endured significant physical, financial and psychological consequences following the negligent medical treatment. She was required to live with a stoma bag for eight months, which frequently leaked, bled and caused severe skin chafing, before undergoing a third surgery to reverse it. She continues to suffer from a large incisional hernia measuring approximately 8cm by 10cm at the surgical site and recurrent adhesion colic, conditions that place her at lifelong risk of complete intestinal obstruction necessitating emergency surgery.

Prior to the incident, the Plaintiff was employed as a storekeeper earning around minimum wage, but she was dismissed in August 2021 due to her prolonged recovery and inability to work while using the stoma bag. Although she later secured employment, she now claims that she was retrenched and faces a substantial loss of earning capacity, being unable to lift heavy objects or perform strenuous labor.

Beyond these physical and financial hardships, the Plaintiff has suffered severe psychological and personal impacts, including loss of self-esteem, diminished physical and sexual intimacy with her husband due to extensive scarring, altered appearance and ongoing mental distress together with anxiety stemming from the trauma of her life-threatening injuries. These consequences form part of her claim for damages, aggravated damages and compensation for the Defendants’ alleged breach of duty of care. S/N SotMtmSvzUKcxfiDg4gLng

The central issues for this Court’s determination are:

Whether the Defendants were negligent in performing the removal of the Appendix through a Laparoscopic surgery on 4 February 2021 as a result of no proper diagnosis of appendicitis;

(ii) Whether the Defendants breached the standard of care in performing the appendicectomy;

(iii) Whether the Defendants breached their duty of care in the post-operative management and the subsequent rescue operation. Positions on liability

In the present case, both the Plaintiff and the Defendants have advanced contrasting positions on liability, each relying on established case law to support their arguments.

On the Plaintiff’s side, reliance is placed on the principle of hospital owners’ non-delegable duty of care (Siow Ching Yee v Columbia Asia), making both the institution and its director liable for staff negligence and systemic failures. The Plaintiff invokes the Rogers v Whitaker test for advice and information, stressing patient autonomy and the duty to S/N SotMtmSvzUKcxfiDg4gLng disclose material risks and alternatives and the Bolam-Bolitho test for diagnosis and treatment, requiring logical and responsible medical opinion.

Causation is argued on the balance of probabilities, with liability established if negligence materially contributed to harm, even if not the sole cause (Bonnington Castings v Wardlaw). The Plaintiff further contends that suppression of evidence and failure to challenge testimony should weigh against the Defendants and points to the Defendants’ own expert conceding that complications could have been avoided.

By contrast, the Defendants’ case emphasizes the burden of proof under Section 101 Evidence Act, arguing that the Plaintiff must precisely establish negligent acts with expert evidence, as injury alone does not prove negligence and res ipsa loquitur does not apply (Shallini v Pusat Perubatan Universiti Malaya). They stress that doctors are only required to exercise a fair and reasonable standard of care, not guarantee cures or avoid all known complications (Swamy v Matthews).

Known risks inherent in procedures, they argue, do not amount to negligence. They rely on Zulhasnimar v Dr Kuppu Velumani, distinguishing between diagnosis or treatment in the Bolam test, S/N SotMtmSvzUKcxfiDg4gLng deferring to responsible medical opinion and advice on risks, Roger’s test, assessed by the Court. On the evidence, they submit both tests are satisfied, with no breach or causal link proven and therefore the claim must fail.

As a summary and based on the facts, the Plaintiff states that the Defendants failed in their duty of care because they advised surgery without proper tests, treated the operation as elective even though her condition was improving, used poor surgical technique and delayed the rescue operation. The Plaintiff also points to dishonest conduct in medical records and trial proceedings.

The Defendants, on the other hand, argue that the surgery was justified, that the complication was a recognized thermal injury which can happen without negligence and that doctors should be judged by the Bolam standard, meaning they are not liable if their actions were in line with accepted medical practice. The decision therefore depends on whether the Plaintiff has provided enough evidence to prove that the Defendants’ actions fell below a reasonable standard of care and whether that failure directly contributed to her injuries. S/N SotMtmSvzUKcxfiDg4gLng COURT FINDINGS 1st Issue

(I) Whether the Defendants were negligent in performing the removal of the Appendix via a Laparoscopic surgery on 4 February 2021 as a result of no proper diagnosis of appendicitis

This Court is tasked with determining whether, at the time the Plaintiff was showing signs of improvement under conservative antibiotic treatment for abdominal pain, the Defendants’ decision to proceed with an appendicectomy constituted a departure from the standard of care. The central issue is whether performing an invasive surgical procedure in the absence of a definitive diagnosis of appendicitis and without first utilizing available non-invasive diagnostic tools such as a CT scan or ultrasound, amounted to a clear deviation from the conduct expected of a reasonably skilled surgeon.

Accordingly, the Court must determine whether the Defendants exercised sound clinical judgment in proceeding with surgical intervention and whether their failure to utilize non-invasive diagnostic methods constitutes a deviation from the accepted standards of medical practice.

This Court acknowledges the general medical principle that when the appendix shows signs of inflammation, surgical intervention is crucial and must be undertaken promptly. While mild inflammation may sometimes be managed conservatively with antibiotics, the risk of rupture still remains significant. A ruptured appendix can disseminate toxic bacteria into the abdominal cavity, leading to serious complications such as: a) Peritonitis: severe inflammation of the abdominal lining; and b) Sepsis: a life-threatening systemic immune response to infection.

In light of the clinical realities surrounding appendicitis, this Court accepts that while conservative management with antibiotics may be appropriate in certain cases, the risk of rupture remains significant and potentially life-threatening. A ruptured appendix can lead to peritonitis and sepsis, both of which carry grave consequences.

In the Federal Court’s case of Zulhasnimar bt Hasan Basri & Anor v Dr Kuppu Velumani P & Ors, a distinction was made between the duty to advise of risks and the standard of care for diagnosis and treatment. For diagnosis and treatment, the Bolam test remains the applicable standard, where a doctor is not negligent if they act in accordance with S/N SotMtmSvzUKcxfiDg4gLng a practice accepted as proper by a responsible body of medical men skilled in that particular field.

In this case, the Defendants’ experts, DW5 and even the Plaintiff’s treating surgeon, PW4 who testified that clinical examination remains the primary and accepted method for diagnosing appendicitis. Since the medical team prompted classic signs such as abdominal tenderness, their diagnosis fell within the accepted standard of care, regardless of whether other doctors might have preferred imaging. Clinical Examination vs. Non-Invasive Imaging

In my opinion, the omission of a CT scan or ultrasound does not necessarily constitute negligence when clinical suspicion is high. This is supported by Dr Wong Chuen Yeen v Thivagar a/l Bala Ratnam, where the High Court held that a diagnosis of appendicitis based on clinical feedback and physical examination was proper and "in keeping with best medical practice," even without a CT scan.

Furthermore, in Foong Yeen Keng v. Assunta Hospital (M) Sdn Bhd & Anor establishes that a "difference of opinion" between experts such as PW1’s preference for imaging verses DW5’s reliance on clinical findings, does not render a doctor negligent. The law only requires that S/N SotMtmSvzUKcxfiDg4gLng a doctor act with the ordinary care and skill of a competent practitioner, not that they utilize every possible diagnostic tool available.

The Defendants justify the decision to operate despite the Plaintiff’s clinical improvement by arguing that there was an imminent risk of perforation. It was therefore possible that in the absence of a prompt surgical intervention, perforation becomes anticipated and the immediate outcome, could relate to the eruption of fecal, bacterial and purulent material into the sterile peritoneal cavity. This, in turn, poses an acute risk of widespread peritonitis, systemic sepsis and severe morbidity.

From a judicial perspective, an assessment of imminent perforation serves as a clinical justification for urgent surgical management to prevent life-threatening intra-abdominal contamination and sudden deterioration. The Defendants had relied on the Australian case of Walton-Taylor v Wilson, which recognizes that once acute appendicitis is diagnosed, surgical intervention is appropriate to prevent progression towards a rupture. They further contend that once a clinical diagnosis is established, delaying surgery for imaging can increase the risk of a fatal perforation.

However, the Plaintiff challenged the surgery on the basis that her appendix appeared “white” and therefore normal. The Defendants S/N SotMtmSvzUKcxfiDg4gLng countered, that this observation was irrelevant because the Histopathological Examination (HPE), the microscopic test proved the appendix showed neutrophilic margination, a clear sign of inflammation. Medical experts explained that the appendix can look normal on the outside in early disease, so visual appearance alone is unreliable.

The Defendants also clarified that the “white appendix” note was a clerical error, not a true medical finding. During the trial, surgeons testified that clinical signs such as abdominal tenderness, together with mild inflammation observed during surgery, justified removal. Experts emphasized that appendicitis is primarily a clinical diagnosis and once suspicion is high, surgery is necessary to prevent dangerous complications like perforation.

Finally, both the Defendants’ expert and even the Plaintiff’s own witness agreed that the surgery was medically warranted. The HPE confirmed not only inflammation but also the presence of a faecolith, namely a hardened stool mass inside the appendix, which further validated the decision. In short, the “white appendix” entry had no bearing on the case because the microscopic evidence and expert consensus showed the surgery was appropriate.

Finally, the Australian Supreme Court in Nigam (T/As S C Nigam & Co) V Harm (No 2) clarified that when a patient has consented to surgery, the real issue is not whether the surgery was "medically essential" in hindsight, but whether the doctor exercised reasonable care in diagnosing and advising the patient. The judgment notes that a wrong diagnosis is not necessarily negligent, as a surgeon is expected to be reasonably skilled but "is not required to be omniscient". Since the Defendants followed an approved clinical practice to address a suspected emergency, their actions met the "fair and reasonable" standard required by law.

Ultimately, under the Bolam test as reaffirmed in Zulhasnimar bt Hasan Basri, a medical practitioner is not negligent simply because they did not employ every possible diagnostic tool, provided they acted in accordance with a practice accepted as proper by a responsible body of medical professionals. In this instance, the Defendants’ reliance on clinical examination, which both the Defendants’ expert DW5 and the Plaintiff’s own treating surgeon PW4 emphasized as the primary diagnostic method for appendicitis, falls squarely within the acceptable standard of care.

Consistent with the principles in Dr Wong Chuen Yeen v Thivagar, a diagnosis based on physical findings and clinical history is proper and "in keeping with best medical practice," even in the absence of a CT scan. Consequently, as the Defendants exercised the fair and S/N SotMtmSvzUKcxfiDg4gLng reasonable skill expected of an ordinary competent practitioner, their decision to proceed with surgery was legally and professionally sound.

Accordingly, this Court finds that the Defendants’ decision to proceed with an appendicectomy, despite the Plaintiff’s initial improvement under conservative treatment and notwithstanding the omission to utilize non-invasive diagnostic tools such as CT scan or ultrasound, does not amount to negligence. The decision to operate was consistent with the standard of care, expected of a reasonably skilled surgeon faced with the imminent risk of appendiceal rupture and its complications. 2nd Issue

Whether the Defendants breached the standard of care while performing the appendicectomy, the surgical error

In determining whether the Defendants breached the standard of care during the performance of the laparoscopic appendicectomy, the Court’s reasoning is reflected in the trial records and legal submissions that centers on the distinction between an unavoidable medical complication and a preventable surgical error. The Plaintiff contends that the laparoscopic appendectomy performed by, DW-3 and DW-4, was carried out using an improper surgical technique, which allegedly S/N SotMtmSvzUKcxfiDg4gLng caused a thermal injury to the ascending colon, an injury described as the very type general surgeons are trained to avoid.

However, the Defendants, argued that thermal injury is a known and recognized complication of laparoscopic surgery, one that can occur even when proper technique is employed. They emphasized that such injuries are often hidden in nature and may not manifest until 24 to 48 hours after the surgery procedure, which explains why the Plaintiff appeared stable immediately following the operation. After considering the Defendants’ standing that thermal injury is a recognized complication of laparoscopic surgery, one that may occur even with proper technique, I remain unpersuaded.

While it is accepted that certain complications may arise despite adherence to proper technique, the evidence before this Court demonstrated that a thermal perforation of the ascending colon is not an accepted complication of a laparoscopic appendectomy. The testimony of PW-1, the Plaintiff’s expert witness, was clear that such an injury is precisely the type surgeons are trained to avoid. A 1 cm perforation in the ascending colon, a site distant from the appendix, pointed to misuse of diathermy instruments at the immediate surgical target. In my view, the injury was not an unavoidable complication but the result of incorrect technique, reinforcing the Plaintiff’s claim that the Defendants failed to meet the required standard of care.

In the circumstances of this case where the operation was performed by a trainee surgeon in a complex setting complicated by morbid obesity and prior abdominal surgery, the Court finds that the injury was avoidable and resulted from a departure from the standard of care expected of a reasonably skilled surgeon. Accordingly, this Court holds the Defendants are liable for negligence in the performance of the laparoscopic appendectomy.

I find a direct causal chain between the Defendants’ negligent surgical execution and the severe injuries subsequently endured by the Plaintiff. The thermal injury inflicted during the initial operation led to a delayed breakdown of the intestinal wall, culminating in full-thickness bowel perforation, fecal contamination of the peritoneal cavity and severe intra-abdominal infection.

This directly necessitated the emergency "rescue" laparotomy on 8 February 2021, the creation of a temporary stoma, prolonged intensive care and the subsequent reversal surgery eight months later. The ongoing morbidity suffered by the Plaintiff, including incisional hernia and adhesion colic which was to a certain extent, a consequence of the Defendants' primary negligence during surgery.

I accept the Plaintiffs arguments on the “thin skull rule” that her pre-existing physical condition could not be used as an excuse for the S/N SotMtmSvzUKcxfiDg4gLng surgical injuries she sustained. In the case of Mohd Sabri bin Mohamad Zin v Dr M Nachiappan & Anor, it was established that a defendant must “take the Plaintiff as he finds him.” This means that even if a patient is more vulnerable due to prior health issues, the negligent party remains liable for the full extent of the harm.

It is a known fact that the Plaintiff was morbidly obese and had undergone prior abdominal surgery, factors the Defendants claimed made the laparoscopic procedure more complex. However, her expert PW1, emphasized that general surgeons are trained to avoid injuring non-target organs such as the ascending colon regardless of patient size or surgical history. I find that the Defendants were bound by the thin skull rule and could not shift responsibility onto her physical state.

In simple terms, the Plaintiff’s position was that her obesity and surgical history did not lower the standard of care owed to her, nor did they provide the Defendants with a defence for the unacceptable injury to her colon. Instead, in my view, the surgeons remained fully accountable for the harm caused by their incorrect technique during the surgical procedure in performing the appendicectomy. S/N SotMtmSvzUKcxfiDg4gLng 3rd Issue

Whether the Defendants breached their duty of care in the post-operative management and the subsequent rescue operation

The question of whether the Defendants breached their duty of care regarding post-operative management and the rescue operation depends on whether their response to the Plaintiff's deteriorating condition met the fair and reasonable standard of care expected of ordinary competent practitioners in that particular field.

This dispute centers on whether the two-day interval between the Plaintiff’s re-admission and the subsequent rescue surgery constituted a breach of the standard of care. The Plaintiff states that the delay as an indefensible failure to act in the face of an emergency, while the Defendants, maintain that, the interval was a prudent and necessary period for diagnostic investigation and compliance with hospital protocols, particularly in the context of the COVID-19 pandemic.

The Plaintiff’s in their argument highlights two critical aspects of post-operative care and surgical timing.

Based on the facts, the Plaintiff was discharged on 5 February 2021 with stable vital signs, but returned by ambulance the next day suffering severe abdominal pain and shortness of breath. The Defendants argue that their initial impression of an intra-abdominal collection was reasonable, as this is a recognized post-operative occurrence and that the time taken was necessary for investigations, planning and compliance with COVID-19 SOPs. The Plaintiff, however, contends that there was an unreasonable delay in suspecting a surgical injury. Given her recent complex procedure, she argues the doctors should have immediately suspected internal damage rather than waiting until her condition became critical. The Rescue Operation by a further second surgery.

The second surgery was performed in the early hours of 8 February, about 33 hours after her readmission. The Defendants argued that the CT scan that was completed on 7 February, only showed an intra-abdominal collection, not a perforation and the maintain this justified further consultation before proceeding to invasive surgery. The Plaintiff counters that the CT scan was a “red herring” used to justify delay, pointing out that even after the scan results were available, surgery was postponed until her blood parameters became deranged and her life was in imminent danger. The eventual operation revealed a 1 cm perforation in the ascending colon, with fecal matter and fluids S/N SotMtmSvzUKcxfiDg4gLng leaking into the peritoneum. This caused severe infection and led to a life-threatening pulmonary embolism during her 12-day ICU stay.

The Court examined whether the Defendants acted as reasonably competent medical professionals during the two days between the Plaintiff’s return to the hospital and the surgery. PW-1, the Plaintiff’s expert witness, testified that the delay in treating these complications constituted a breach of standards, given the seriousness and potential lethality of her condition.

Having weighed the evidence I agree with the Plaintiff that the delay was unreasonable and negligent. Even if the Defendants’ explanation that the interval was necessary for diagnostic investigation and compliance with hospital protocols during the COVID-19 pandemic, it does not justify the failure to act promptly in the face of a clear surgical emergency. The Court therefore finds that the two-day delay in performing the rescue operation amounted to a breach of the standard of care expected of a reasonably skilled and competent medical team.

In my opinion, the Plaintiff has suffered mental distress and anxiety arising from the life-threatening injuries sustained. It is evident that these injuries were the result of a chain of events set in motion by the S/N SotMtmSvzUKcxfiDg4gLng initial operation. This conclusion is supported by common sense that the complications, subsequent surgeries and prolonged hospitalization inevitably caused significant psychological suffering of the Plaintiff.

The Court accepts that due to the nature of her injuries and the Plaintiff’s and mental anguish is therefore a foreseeable consequence of the negligent delay and improper technique and forms part of the damages to which she is entitled. Therefore, I allow the Plaintiff’s claim on the following award of damages.

The Plaintiff has endured a harrowing sequence of medical events, including multiple surgeries, the indignity of living with a stoma for eight months, a life-threatening pulmonary embolism, ventilator support and the insertion of a drainage tube into her armpit to evacuate fluid from her lungs. She continues to suffer permanent complications, including an incisional hernia and recurrent adhesion colic. These injuries have profoundly diminished her quality of life, impaired her ability to work and disrupted her personal relationships. In recognition of the pain, suffering and loss of amenities of life, this Court awards the Plaintiff a global sum of RM450,000.00 as general damages.

Beyond compensatory damages, the Court considered the Plaintiff’s claim for aggravated damages. The Plaintiff has suffered significant distress and anxiety directly attributable to the Defendants’ negligence, particularly arising from the life-threatening complications and the prolonged uncertainty surrounding her condition. The Court accepts that these circumstances warrant aggravated damages, both to acknowledge the heightened suffering endured and to mark the seriousness of the Defendants’ conduct. Accordingly, the Court awards the Plaintiff RM200,000.00 in aggravated damages.

Special damages must be specifically pleaded and strictly proven. In Nur Arissa Naura bt Noor Affrizal & Anor v Dr Abirami Kunaseelan & Ors [2023] 5 CLJ 793, the High Court recognized that while receipts may not always be in perfect order, credible evidence of expenses incurred for the Plaintiff’s care suffices. Applying this principle, the Court accepts the following claims: No. Item allowed / Perihal dibenarkan

The hospital and medical expenses; 2,000-00 2. Travel and incidental expenses; 1,500-00

Ambulance fees 200-00 4. Stoma supplies 6,560-00 5. Medication 1,325-00 6. Dressing sets 2,400-00 7. Vitamins 1,120-00 8. Equipment 200-00 Sub-total 15,305-00

The Court rejected the claim for: -

Loss of income, bonus and EPF contributions 14,100-00 2. Family care and services (RM800 per month for 8 months) 6,400-00 3. Childcare costs 4,800-00 Sub-total 25,300-00

The Plaintiff failed to produce contemporaneous documents such as EA statements, pay slips or records of incentives to substantiate her alleged last drawn salary. For other claim as childcare cost and family care services, there was no documents as well. Given the requirement that special damages must be proven with credible evidence to a S/N SotMtmSvzUKcxfiDg4gLng certain extent, this claim, in my opinion was not well established. Therefore, the Court awards the Plaintiff RM15,305.00 in proven special damages as well as cost of in the sum of RM100,000.00 to the Plaintiff. Now I will continue with the second part of my judgment, the Plaintiffs appeal on the Quantum of Damages.

(B) THE PLAINTIFF’S APPEAL SEEKING HIGHER SUMS FOR DAMAGES

Upon consideration of the evidence and submissions, the Plaintiff has succeeded in establishing liability against the Defendants. However, in respect of damages, the Plaintiff appealed on certain parts of the courts award, specifically seeking higher sums for aggravated damages, costs and various items of special and general damages that were either not awarded or awarded at a lower rate than requested.

I am guided by the principle that aggravated damages are compensatory, not punitive and must be proportionate to the misconduct proven. The Plaintiff contends that the Defendants’ conduct, namely the fabrication of records, suppression of evidence S/N SotMtmSvzUKcxfiDg4gLng and abusive trial tactics, warrants a higher award of RM 700,000.00 However, this carefully distinguished between misconduct amounting to indignity and oppression and conduct of the parties. While the Defendants’ actions merited censure, they did not rise to the level of malice or oppression seen in cases where higher aggravated damages were awarded, such as those involving catastrophic injury or obvious dishonesty.

Subsequently the Defendants continued to provide medical care to the Plaintiff, that objections raised during trial were within the bounds of adversarial practice and that no contemporaneous external complaints were lodged regarding alleged falsification of records. These factors support the award of RM 200,000, as it was a fair and proportionate award, consistent with precedent and reflective of the compensatory purpose of aggravated damages.

In reviewing the Plaintiff’s appeal for a higher quantum of aggravated damages, this Court is mindful of the principles articulated in Bukit Tinggi Hospital Sdn Bhd v Navin Sharma [2025] MLJU 3236 and Inas Faiqah bt Mohd Helmi v Kerajaan Malaysia [2016] 2 MLJ 1, both of which underscore the need for judicial restraint in awarding aggravated damages. These authorities reaffirm that aggravated damages must be tied to proven, contemporaneous mental distress and cannot be inflated merely on account of litigation conduct or procedural disputes.

While the Defendants pressed for a lower range, the Court finds that the Plaintiff’s proposed global sum of RM 450,000 is reasonable and proportionate to her lifelong complications. This figure balances the compensatory purpose of aggravated damages with the need to avoid double recovery, excessive penalisation or distortion of medical negligence principles. It reflects the indignity and distress caused by the Defendants’ conduct, yet remains consistent with precedent and public policy considerations.

In medical negligence cases, courts must exercise restraint in awarding aggravated damages in some way but not completely. The strict English rule in Kralj v McGrath holds that negligence, being unintentional, should not ordinarily attract aggravated damages and any increased pain or distress, is to be reflected in general damages. The court further went on to state that claims are further constrained by strict evidentiary and pleading requirements and aggravated damages must arise contemporaneously with the negligent act, not from litigation conduct and cannot be claimed for deceased patients who could not perceive indignity. Courts also guard against double recovery, ensuring emotional distress is not compensated twice under general and aggravated heads.

On public policy grounds, excessive aggravated awards, may risk encouraging defensive medicine and inflating indemnity premiums, thereby burdening healthcare costs. Finally, aggravated damages are S/N SotMtmSvzUKcxfiDg4gLng reserved for exceptional misconduct, such as deceit or fabrication of records, whereas mere clinical error or poor judgment remains negligence. Thus, in my opinion, this court must limit aggravated damages to ensure proportionality, prevent overlap and protect the integrity of the healthcare system. Accordingly, the Court affirms that aggravated damages are properly awarded at RM 200,000, being a fair and proportionate sum in the circumstances.

As mentioned in para 57 above, the Court holds that the Plaintiff has not proven her claim for certain items in special damages. The Plaintiff’s claim for special damages was rejected because she did not provide proper proof. She failed to show documents like EA statements, pay slips or incentive records to prove her salary and she also did not produce evidence for childcare or family care costs. Since the law requires special damages to be clearly pleaded and supported by credible evidence, the Court ruled that she did not meet this burden. Therefore, those claims were dismissed.

Below is a table of the items that were not allowed by the court based on the future damages.

Future treatment and consultations 76,480-00 2. Future pain and suffering and loss of amenities 50,000-00 3. Future travel expenses 3,822-00 4. Future medication and vitamins 61,152-00 5. Loss of earning capacity 100,000-00 6. Future care 8,100-00 Sub-total 299,554-00

In respect of the Plaintiff’s claim for future damages, this Court must exercise caution. Firstly, courts are wary of the speculative nature of such claims as they must be grounded in credible medical evidence and not mere estimation. Secondly, the strict proof requirement applies to future damages which must be specifically pleaded and supported by expert testimony or documentation.

Thirdly, the Court must avoid double recovery, ensuring that future pain and suffering is not compensated twice under both general and future damages. Fourthly, the inherent contingency and uncertainty of medical needs and earning capacity requires restraint, limiting awards to what is reasonably foreseeable. Finally, on public policy grounds, S/N SotMtmSvzUKcxfiDg4gLng excessive awards risk inflating healthcare costs and encouraging defensive medicine, undermining the broader system.

In assessing the Plaintiff’s claim for future damages, I am guided by Malaysian precedents, that emphasise caution and proportionality. In Bukit Tinggi Hospital v Navin Sharma [2025] MLJU 3236, the Court of Appeal recalibrated awards by insisting on strict evidential thresholds, reducing speculative claims and requiring contemporaneous medical proof. Similarly, in Inas Faiqah bt Mohd Helmi v Kerajaan Malaysia [2016] 2 MLJ 1, the Federal Court held that future damages must be assessed on the balance of probabilities, allowing reasonable compensation for foreseeable medical needs but rejecting conjectural or unsupported heads

In determining the appropriate quantum, this Court has drawn guidance from Bukit Tinggi and Inas Faiqah where both decisions underscore that while future damages may be claimed, they must be strictly proven and not overlap with general damages. In the present case, the Plaintiff’s lifelong complications and diminished quality of life have already been comprehensively compensated through the global award of RM 450,000 in general damages. To grant additional sums under separate heads of future damages would risk double recovery, as the same elements of pain, suffering and ongoing inconvenience are already subsumed within the general award.

Moreover, the Plaintiff’s claims for future treatment, medication, travel and care were not supported by contemporaneous medical or actuarial evidence, rendering them speculative. Consistent with the restraint shown in Bukit Tinggi and the evidential threshold articulated in Inas Faiqah, the Court finds that the general damages award of RM 450,000 is both fair and proportionate, reflecting the Plaintiff’s lifelong impact while avoiding conjectural or overlapping compensation.

This Court affirms the award of RM 100,000 for costs and getting-up fee as correct, rather than granting costs on the indemnity basis at a higher sum.

In medical negligence cases, courts generally award costs on a party-and-party basis to reimburse reasonable trial expenses, rather than granting indemnity costs which are reserved for exceptional misconduct. Case law such as Zuasnita Baharudin v Government of Malaysia (2025) and Bukit Tinggi Hospital v Navin Sharma (2025) demonstrates that inflated or speculative claims for costs are reduced, with courts emphasising proportionality and reasonableness. Indemnity costs, being punitive, are rarely granted unless there is clear evidence of bad faith or abuse of process. Thus, the award of RM 100,000.00 for costs and getting-up fee is justified as fair compensation for preparation and trial conduct, consistent with S/N SotMtmSvzUKcxfiDg4gLng precedent and the compensatory purpose of costs, while avoiding the excessive or punitive effect of indemnity awards.

Furthermore, under Order 59 rule 6(1) of the Rules of Court 2012, the guiding principle is that costs must be assessed on what is fair and reasonable in the circumstances of each case. While the award of costs is always a matter of judicial discretion, the rule ensures that a successful party is not penalised for expenses reasonably incurred in pursuing a meritorious claim. In practice, this means the Court will look at the nature and complexity of the case, the amount of work reasonably required and the proportionality of the costs to the issues litigated.

Taking all heads of damages together, the Court’s approach reflects a balance between fairness, evidence and judicial restraint. General damages of RM 450,000 were awarded as a global sum to comprehensively compensate the Plaintiff for lifelong pain, suffering and loss of amenities, thereby avoiding duplication with speculative future claims. Special damages were allowed where strictly proven, covering actual expenses incurred. Future damages under separate heads were declined because they were either speculative, unsupported by contemporaneous medical or actuarial evidence or already incorporated within the general damages award. Costs and S/N SotMtmSvzUKcxfiDg4gLng getting-up fee of RM 100,000.00 were fixed under Order 59 rule 6(1) of the Rules of Court 2012, ensuring reimbursement for reasonable trial preparation without resorting to punitive indemnity costs.

In sum, the Court’s award is justified as fair, proportionate and evidence-based, compensating the Plaintiff adequately for proven losses while maintaining consistency with Malaysian precedent and the compensatory and not punitive for the purpose of damages in medical negligence litigation. Date: 27 July 2026 SGD SHOBA DORAI RAJAH JUDICAL COMMISSIONER SHAH ALAM HIGH COURT S/N SotMtmSvzUKcxfiDg4gLng Solicitor for the Plaintiff: Kabir Dhillon with Navpreet Kaur [MESSRS SIMRENJEET, TAY & CO. (PETALING JAYA)] Solicitor for the Defendants 1,2: V C Thubasheni a/p Casinathan [MESSRS JAILANI & SHENI]