Nornahaniah Binti Mohd Embong v Kerajaan Malaysia (BA-21NCvC-23-06/2023)

Kerajaan Malaysia

Dr. Sou Jing Kim

Dr. Tee Sze Chee

Dr. Mohammad Shukri Jahit

Dr. Nurlaty binti Che Lat

Dr. Lee See Pheng

Dato' Seri Dr. Hj. Mohamed Yusof bin Hj. Abdul Wahab

Dr. Sharmathy a/p Nithanam

Dr. Au Yan Qian

Dr. Lee Ee Leen 13/07/2026 16:49:19 BA-21NCvC-23-06/2023 Kand. 103

Dr. Zharif bin Baharuddin

Dr. Azuddin bin Mohd Khairy

Dr. Nur Ezzah binti Mohd Sabri

Dr. Lee Hui Mei

Dr. Satish a/l Balakrishnan ... Defendants GROUNDS OF JUDGMENT

My judgment concerns a claim in medical negligence arising from the death of Syed Mohd Gawi bin Syed Agil (“the deceased”) on 15 July 2020, 63 days after he underwent a total gastrectomy with distal oesophagectomy at Hospital Shah Alam on 13 May 2020 for a suspected malignancy at the cardio-oesophageal junction (“COJ”).

The Plaintiff, the deceased’s widow, sues in her capacity as administratrix of his estate and on behalf of his dependents under the Civil Law Act 1956. The 1st Defendant is the Government of Malaysia, sued vicariously in respect of the acts and omissions of its servants and agents. The 2nd to 15th Defendants are the medical officers and specialists who were, in varying degrees, involved in the deceased’s diagnosis, treatment and post-operative care.

It is common ground that the specimen removed at the operation on 13 May 2020 was subsequently examined and re-examined by no fewer than four consultant pathologists across three institutions, each reporting that no residual malignancy was found. The Plaintiff’s case, in essence is that the deceased underwent an extensive, high-risk, unnecessary radical surgery and that he was never advised of a less invasive endoscopic resection option that was clinically available to him. Furthermore, it was alleged that the surgery itself was marred by an intra-operative injury to the oesophagus and that his post-operative deterioration, anastomotic complication, persistent anaemia and eventual bowel perforation leading to sepsis, was negligently managed, cumulatively causing his death.

The Defendants deny negligence and their position is that the surgical option chosen was a reasonable and responsible exercise of clinical judgment supported by a body of medical opinion. The risks and the change in the surgical plan were properly explained to the deceased, who gave informed consent and the intra-operative complication, subsequent anastomotic and haemorrhagic complications were known to be disclosed risks of any major upper gastrointestinal surgery. This was not the product of substandard technique or care and that in any event, no case in negligence was ever properly particularised or made out against the Defendants.

The clinical chronology from the medical records is summarised in the table below for easy reference. The dates and medical records were mostly accepted as correct. However, the dispute is about how these events should be legally described and who should be held responsible for them. Date Event 11.2.2020 The deceased underwent an oesophago-gastro-duodenoscopy (“OGDS”) at Hospital Kajang to obtain a biopsy from the stomach (“the first OGDS”).

18.2.2020 The biopsy results reported “Intramucosal adenocarcinoma” at the cardio-oesophageal junction, with the qualification that “underlying invasion into submucosa cannot be excluded. Suggest clinical correlation.”

24.2.2020 The deceased was referred to Hospital Sungai Buloh and seen by the 4th Defendant, who performed a repeat OGDS (“the second OGDS”) and the sample was sent to UiTM Medical Specialist Centre. A tumour of 1.5cm–2cm was noted.

2.3.2020 The 4th Defendant was verbally informed of a finding of “moderately differentiated adenocarcinoma, till muscularis mucosae M3” and diagnosed “Siewert III moderately differentiated adenocarcinoma of COJ”. The deceased was advised to undergo a distal oesophagectomy and proximal gastrectomy via a left thoraco-abdominal approach.

3.3.2020 The formal histopathology report from UiTM confirmed “Adenocarcinoma, moderately differentiated” with “no lymphovascular invasion identified”. 23 - 26.3.2020 The deceased was admitted for surgery planned as a left thoraco-abdominal proximal gastrectomy with distal oesophagectomy, seen by the 2nd Defendant, then discharged when the operation was postponed on account of the COVID-19 pandemic.

21.4.2020 The 4th Defendant reviewed the deceased and proposed either

(i) proximal gastrectomy with distal oesophagectomy and left thoracotomy, or (ii) the same without thoracotomy, subject to ICU/anaesthesia clearance.

3.5.2020 The deceased was admitted to Hospital Shah Alam. The plan was revised to a total gastrectomy with D2 lymphadenectomy for “Siewert III moderately differentiated gastric adenocarcinoma involving EGJ (cT1N0M0)”, with surgery scheduled for 6.5.2020 (later deferred to 13.5.2020). 10–11.5.2020 On the Defendants’ case, the 3rd Defendant discussed the revised plan for a D2 total gastrectomy with the deceased on 10.5.2020 and again on 11.5.2020 before consent was taken.

11.5.2020 The 3rd Defendant obtained the deceased’s consent for a “D2 total gastrectomy” “to remove gastric cancer”.

12.5.2020 The 2nd Defendant obtained a further consent from the deceased for a “total gastrectomy”, after (based on the Defendants’ case) further explanation was given by the 2nd Defendant.

13.5.2020 The operation was performed by the 2nd, 3rd and 4th Defendants, with the 5th Defendant as the attending anaesthetist. During insertion of the circular stapler anvil into the oesophageal lumen, the distal oesophagus was torn and retracted, necessitating extension of the abdominal incision into the left chest, division of chest wall muscle and rib and collapse of the left lung to obtain surgical access. The remaining oesophagus was anastomosed to the small bowel by a Roux-en-Y reconstruction. The resected stomach was sent for histopathological examination. 18–21.5.2020 The deceased developed escalating abdominal and wound-site pain and a falling haemoglobin (to approximately 7g/dL on 20.5.2020), managed with analgesia and blood transfusion.

19.5.2020 A CT scan of the abdomen showed no anastomotic leak.

24.5.2020 The deceased became pale, tachypneic and hypotensive with active bleeding at the wound. The 2nd Defendant performed bedside wound exploration and ligation of a bleeding vessel under local anaesthesia. The deceased subsequently developed hypovolaemic shock, was transfused and later developed respiratory depression requiring ICU admission and intubation.

25.5.2020 A repeat OGDS reported the anastomosis intact with no leak, although fluid collections were noted in the chest, abdomen and pelvis.

28.5.2020 &

2.6.2020 Consultant pathologist Dr Arati Devi Chhetri reported, after extensive sectioning and a repeat examination, that no residual tumour was found in the resected stomach specimen. 5–6.6.2020 Brownish wound discharge was observed and the dressing found fully soaked; a stoma bag was applied.

8.6.2020 Re-laparotomy revealed bowel perforation and wound dehiscence.

16.6.2020 A tracheostomy was performed by the 5th Defendant to support the deceased’s breathing. A further review of the specimen (with two additional consultant pathologists) again confirmed no residual tumour.

12.7.2020 The deceased was transferred to Hospital Tengku Ampuan Rahimah, Klang, in a deteriorating condition. 13–14.7.2020 The deceased developed bradycardia requiring inotropic support and worsening multi-organ failure.

15.7.2020 The deceased passed away at 8.45pm, 63 days after the operation of 13.5.2020.

28.7.2020 An internal inquiry at Hospital Shah Alam was unable to ascertain any shortfall in management and recommended an external inquiry.

13.8.2020 Consultant histopathologist Dr Nik Raihan binti Nik Mustapha, examining a further specimen sent to Hospital Sultanah Bahiyah, likewise reported no cancer found.

9.3.2021 An external inquiry committee concluded that the family’s complaints were valid and that there were identifiable issues which may have led to substandard care and which may have been preventable with timely and prompt action.

The Plaintiff's pleaded position, identifies five specific grounds of negligence:

(a) failure to advise the deceased of the option of endoscopic resection of the tumour;

(b) failure to advise the deceased of and obtain proper informed consent to, the change in the surgical plan from a proximal gastrectomy with distal oesophagectomy to a total gastrectomy;

(c) negligent performance of the operation on 13 May 2020 resulting in an intra-operative tear of the distal oesophagus;

(d) failure, post-operatively, to detect and address an anastomotic complication promptly; and

(e) failure, post-operatively, to investigate and treat the deceased's persistent anaemia.

The Plaintiff challenges the Defendants’ tumour staging evidence. They argue that the first biopsy showed intramucosal adenocarcinoma and the final UiTM pathology report of 3 March 2020 confirmed a moderately differentiated tumour (T1a) without lymphovascular invasion. The 4th Defendant admitted under cross-examination that the tumour did not invade the submucosal layer, contrary to his earlier evidence and that he had overstated its size, which was actually less than 2 cm. Both the 4th Defendant and his expert (DW5) conceded that, under NCCN Guidelines, a tumour of this size and stage requires only endoscopic resection, not gastrectomy. The Plaintiff submits that the tumour, whether classified as Siewert II or III, was amenable to two recognised treatment options, one an endoscopic resection or the other a surgical resection. It is said that the deceased was never advised of the less invasive option and that his son’s unchallenged testimony was that the deceased would have chosen endoscopic resection had it been offered.

The Plaintiff argues that all witnesses, including the Defendants’ own experts, accepted that endoscopic resection was a viable treatment option and should have been offered. Failure to do so, they say, is unacceptable and sufficient for the claim to succeed, relying on authorities such as Zulhasnimar binti Hasan Basri v Dr Kuppu Velumani [2017], Dr Chandran a/l Gnanappah v Gan See Joe [2025], Muhammad Fikrey bin Bakhtiar v Dr Fatin Ahya Zulkeflee [2019] and Evelyn Sharmini a/p Mariasoosay Nathan v Dr Yogaraj Ramanathan [2025].

The Plaintiff also challenges the independence and reliability of DW5 (Dr Ooi Wei Keat), that he wrongly classified the tumour as T2 despite 137 medical record entries confirming T1 staging. Under cross-examination, DW5 admitted he had not reviewed the 4th Defendant’s post-operative notes confirming T1 staging and that his rebuttal opinion rested entirely on the mistaken T2 finding. The Plaintiff characterises this as a deliberate attempt to justify unnecessary surgery, citing Dr Chandran v Gan See Joe [2025], where false expert evidence was treated as a ground for aggravated damages. Finally, the Plaintiff submits that the Defendants’ attempt to shift responsibility onto the deceased’s son PW3, a junior medical officer without Upper GI expertise, for failing to raise the endoscopic option, is unacceptable.

As to the remaining grounds, the Plaintiff relies upon the pathology findings which on repeated independent review, confirmed that there was no residual tumours being present in the resected part of the specimen. On that basis, the Plaintiff contends that the radical surgery undertaken was totally unnecessary. It is further asserted that the subsequent chain of complications, namely, the intra-operative tear, the extension of the incision into the chest resulting in collapse of the left lung, the wound bleed of 24 May, the persistent anaemia notwithstanding 18 transfusions over a span of 46 days and the eventual bowel perforation discovered on 8 June, all flowed directly from and the unreasonableness of the surgical course adopted.

Subsequently, the Plaintiff further seeks aggravated damages, contending that the surgical team’s conduct said to include inconsistent testimony, medically unsound explanations, an attempt to shift blame onto the deceased and his family, in all, aggravated the Plaintiff’s loss. The Plaintiff relied on cases such Dr Hari Krishnan v Megat Noor Ishak [2018] 3 MLJ 281, Sambaga Valli a/p KR Ponnusamy v Datuk Bandar Kuala Lumpur [2018] 1 MLJ 784. As for the observations on the surgeon’s duty the case of Naylor v Preston Area Health Authority [1987] 2 All ER 353.

The Defendants deny liability in its entirety and on the standard of proof, reliance was initially placed upon Whitehouse v Jordan [1980] as suggesting a higher threshold. The Plaintiff in reply correctly observed and the Court accepts, that the governing Malaysian standard is the balance of probabilities, as affirmed in Hariesh Kumar v Government of Malaysia [2011]. The Defendants further raised at a late stage, a challenge to the Plaintiff’s locus standi, alleging the absence of Letters of Administration. The Court notes that the Plaintiff referred to Letters of Administration already contained in Bundle I, to which the Defendants’ own counsel raised no objection at trial. This preliminary objection is accordingly rejected as lacking merit and as having been raised too late in the proceedings.

The Defendants rely on Selvaduray v Chinniah [1939] MLJ 253 and Dr Chin Yoon Hiap v Ng Eu Khoon [1958] 1 MLJ 1, that the burden lies squarely on the Plaintiff to prove negligence to the requisite standard and that given the seriousness of an allegation of medical negligence against a professional, the evidence relied upon must be convincing and not speculative. On the substantive standard of care, the Defendants invoke Zulhasnimar and the Bolam principle (Bolam v Friern Hospital Management Committee [1957] 1 WLR 582), as refined by Bolitho v City and Hackney Health Authority [1998] AC 232, submitting that so long as the treatment given accorded with a responsible and logically defensible body of medical opinion, no negligence can be found merely because another body of opinion would have proceeded differently.

On the issue of endoscopic resection, the Defendants’ witnesses, including the 4th Defendant, acknowledged that such resection is a recognised modality for early COJ tumours. Nevertheless, their expert (SDW6) and the treating team explained that endoscopic therapy addresses only the primary lesion and does not secure nodal clearance. In view of the pathology findings indicating invasion to the muscularis mucosae (M3) and the classification of the tumour as Siewert III, it is submitted that surgical resection with lymphadenectomy was the clinically appropriate and responsible course and that the decision to adopt this approach properly fell within the surgeon’s reasonable clinical judgment.

On informed consent generally, the Defendants rely on the evidence of the 3rd Defendant (DW4) that the revised plan for a D2 total gastrectomy was discussed with the deceased on 10 May 2020 and again on 11 May 2020 before he signed the consent form. The 2nd Defendant separately explained the procedure again before a further consent was taken on 12 May 2020. The Defendants further rely on the Plaintiff’s own evidence (PW2) confirming that the consent forms recorded the risks (including the risk of death), that the deceased signed them, that he was of sufficient education and standing to understand their content. As summary it was the deceased himself and not any of the Defendants, who made the final decision to proceed with surgery.

As to the intra-operative tear and the post-operative course, the Defendants point to the CT scan of 19 May 2020 and the OGDS of 25 May 2020, both of which showed the anastomosis to be intact with no leak and submitted that the eventual bowel perforation found at re-laparotomy on 8 June 2020 was identified and treated within a reasonable time of the onset of clinical signs (5–6 June 2020). It is submitted these were known, disclosed operative risks materialising, rather than negligence in execution or monitoring.

On vicarious liability, the Defendants submit that liability of the 1st Defendant under sections 5 and 6 of the Government Proceedings Act 1956, is dependent upon proof of personal liability of the relevant public officer and that the Plaintiff has pleaded the roles of the 2nd to 15th Defendants only in the most general terms. In particular, the Defendants stress that Plaintiff’s counsel expressly conceded during cross-examination of the 5th Defendant (the anaesthetist) and of the defence expert (SDW6) that there was no allegation of negligence against the anaesthetic or ICU team, the complaint being confined to the “Upper GI team’s management”. Accordingly, it was submitted that the claim against the 5th to 15th Defendants is unsustainable and was pursued without proper basis.

In the alternative and without prejudice to the denial of liability, the Defendants make submissions on quantum, relying on Lim Poh Choo v Camden and Islington Area Health Authority [1980] AC 174 for the proposition that damages are assessed once and for all and Inas Faiqah bt Mohd Helmi v Kerajaan Malaysia [2016] 2 CLJ 885 for the proposition that damages compensate rather than punish and must be based on cogent evidence rather than sympathy.

The following issues arise for determination:

(i) Whether the Defendants were under and breached, a duty to advise the deceased of the option of endoscopic resection.

(v) The operation of the causation principles and against which Defendants, vicarious liability of the 1st Defendant arises. THE APPLICABLE LAW

The burden of proving negligence rests on the Plaintiff throughout, on the balance of probabilities. (Selvaduray v Chinniah [1939] MLJ 253; Dr Chin Yoon Hiap v Ng Eu Khoon [1958] 1 MLJ 1). Given the professional standing of the Defendants and the seriousness of the allegation, the Court must scrutinise the evidence with care and not draw an inference of negligence lightly or from mere adverse outcome. An elevated degree of cogency is expected. The governing authority on the standard of care of a healthcare provider is the Federal Court's decision in Zulhasnimar binti Hasan Basri v Dr Kuppu Velumani P & 2 Ors [2017] 5 MLJ 438. The Federal Court drew a critical distinction between two categories of medical negligence:

(a) The provision of advice and information to the patient (and next-of-kin), in respect of which the applicable standard is the "patient" or Montgomery standard namely, whether the information withheld was information that a reasonable patient in the position of the claimant would have regarded as material to the decision whether to undergo the proposed treatment; and

(b) The diagnosis and treatment given, in respect of which the applicable standard remains the "doctor" or Bolam standard, tempered by Bolitho v City and Hackney Health Authority [1998] AC 232, namely, whether the conduct accorded with a practice accepted as proper by a responsible body of medical opinion that is capable of withstanding logical analysis.

This distinction is of central significance in the present case. as a failure to advise a patient of a viable and recognised alternative treatment option is assessed by reference to what a reasonable patient would consider material, not merely by reference to whether a responsible body of surgeons would have proceeded as the treating team in fact did. This principle has been consistently applied in Dr Chandran a/l Gnanappah v Gan See Joe [2025] 5 MLJ 216, Muhammad Fikrey bin Bakhtiar v Dr Fatin Ahya Zulkeflee [2019] MLJU 1889, Evelyn Sharmini a/p Mariasoosay Nathan v Dr Yogaraj Ramanathan [2025] MLJU 4103 and Ahmad Faizal v Jay Shree LC Doshi [2026].

As to vicarious liability, sections 5 and 6 of the Government Proceedings Act 1956 [Act 359] provide that the Government shall be liable for the wrongful act, neglect, or default of a public officer in the same manner as a private principal is liable for the acts of his agent, provided that proceedings would lie against the officer personally. The liability of the 1st Defendant, the Government, is therefore not independent but contingent upon a finding of personal liability against the relevant treating Defendant(s). This dependency and co-extensiveness of liability were affirmed by the Federal Court in Kerajaan Malaysia v Lay Kee Tee [2009].

As to damages, the law is settled that damages are assessed once and for all as at the date of trial. This principle, affirmed in Lim Poh Choo v Camden and Islington Area Health Authority [1980] AC 174, reflects the compensatory rather than punitive function of damages. Such assessment must be grounded upon cogent evidence, as emphasised in Inas Faiqah bt Mohd Helmi v Kerajaan Malaysia [2016] 2 CLJ 885. Aggravated damages constitute a distinct species of compensatory damages. They are awarded to redress intangible injury suffered by the claimant, where such injury is caused or exacerbated by exceptional conduct on the part of the defendant. The authorities of Sambaga Valli a/p KR Ponnusamy v Datuk Bandar Kuala Lumpur [2018] 1 MLJ 784 and Dr Hari Krishnan v Megat Noor Ishak [2018] 3 MLJ 281* illustrate this principle. However, aggravated damages may only be founded upon conduct occurring while the deceased was alive and sentient, as clarified by the Court of Appeal in Bukit Tinggi Hospital Sdn Bhd v Navin Sharma a/l Karam Chand. FINDINGS ON LIABILITY The Duty to Advise on Endoscopic Resection

It was established during the course of trial and not disputed that endoscopic resection was, in principle, a recognised treatment modality for a superficial tumour of this size at or near the COJ. The 4th Defendant himself accepted that, depending on Siewert classification, both endoscopic and surgical options required consideration. The Plaintiff’s established that several critical concessions were made by the Defendants’ own witnesses under cross-examination, stated below: a) Failure to offer endoscopic option Both DW5 and DW1 admitted that the patient should have been offered endoscopic resection and that failing to do so was unacceptable. b) Tumour invasion admission The 4th Defendant admitted the tumour did not invade the submucosal layer, contradicting his evidence-in-chief and further conceded he had overstated the tumour size, which was less than 2 cm. c) NCCN Guidelines concession Both DW5 and the DW1 admitted that, under NCCN Guidelines, a tumour of less than 2 cm at T1a staging requires endoscopic resection not gastrectomy. d) Medical records consistency The deceased’s tumour was classified as T1a in 137 entries across the medical records. e) Expert misclassification DW5 incorrectly classified the tumour as T2 in his rebuttal report, admitted he had not reviewed the 4th Defendant’s post-operative notes confirming T1 staging and accepted that his entire rebuttal opinion was premised on the mistaken T2 finding.

These concessions are damaging and in the Court's assessment, fatal to the Defendants' position on this ground. Applying Zulhasnimar, the relevant question is not whether a responsible body of surgeons might reasonably have preferred radical surgery on clinical grounds but whether a reasonable patient in the deceased's position would have regarded the existence of a less invasive alternative, with its own attendant risks and limitations, as material information relevant to his decision whether to proceed with an operation of the magnitude ultimately performed.

The Court is satisfied that a reasonable patient, facing a choice between an endoscopic procedure and the removal of his entire stomach and part of his oesophagus with the associated morbidity and mortality risk, would regard the existence of that less invasive option and the comparative risks and oncological trade-offs of each, as plainly material to his decision. This is consistent with Montgomery v Lanarkshire Health Board (General Medical Council intervening) [2015] AC 1430 [PBOA (as applied in the Malaysian context by Foo Fio Na v Dr Soo Fook Mun & Anor [2007] 1 MLJ 593.

The clinical notes and consent documentation before the Court are consistent only with the surgical options (first the proximal gastrectomy/distal oesophagectomy, later the total gastrectomy) having been placed before the deceased. There is no entry in the contemporaneous records and no evidence from any Defendant, that the endoscopic alternative was ever raised with the deceased as a genuine option for him to weigh, together with its comparative risks, against the surgery that was in fact performed.

The Defendants’ submission that endoscopic resection was clinically less suitable given the suspected depth of invasion, goes only to whether the surgical team was entitled to recommend surgery. It does not address the distinct and fundamental question of whether the deceased was entitled to be told that an alternative existed, so that the choice lay with him and not the surgical team alone. The contention that the family had every opportunity to decline the recommended surgery but did not do so cannot be sustained and a patient cannot meaningfully decline a treatment option of which he was never informed.

The Plaintiff’s evidence, which the Court accepts as unchallenged, is that PW3, the deceased’s son, testified that his father would have chosen endoscopic resection had it been offered. On the totality of the material before the Court, it is found that the Defendants, who bore the responsibility of advising the deceased and obtaining his consent, failed to discharge their duty to provide him with information which a reasonable patient would regard as material to his decision. In particular, they did not advise him of the availability of endoscopic resection as a treatment option. This omission is sufficient, standing alone, to establish liability in negligence.

As to causation, the Court is satisfied that had the deceased been advised of and elected endoscopic resection, he would not have undergone the total gastrectomy and distal oesophagectomy of 13 May 2020 and would not thereby have been exposed to the intra-operative complication, the extensive post-operative course and the fatal deterioration that in fact ensued. The causal link between the failure to advise and the deceased's death is established on the balance of probabilities. The Change from Proximal Gastrectomy to Total Gastrectomy

The evidence cited shows clearly that Dr Mahadeva had referred to “cancers which is invasive, beyond and also with lymph node involvement” and for “widely advanced cancers” for which total gastrectomy was a suitable option. However, on the facts, contemporaneous medical records show that the deceased tumour did not have “lymph node involvement” and only had an “early cancer.”

More importantly, the senior pathologist Dr Nik Raihan from Alor Setar had clearly and unequivocally reported cancer invasion only to the “lamina propria”. She specifically excluded cancer invasion into the “muscularis” layer and the “submucosal” layer. Dr Nik Raihan had reported the same at the request of the 4th Defendant. According to the 4th Defendant, Dr Nik Raihan was a pathologist well versed with Upper GI cancers. Dr Nik Raihan’s finding was in clear contradiction to the 4th Defendant’s evidence that the cancer had invaded past the “muscularis mucosa (M3)” and into the “submucosal” layer. In my opinion, the patient died following complications of a highly risky surgery to remove the lower part of his oesophagus and his entire stomach. The said surgery was done to remove cancer, which the surgical team was convinced had spread deep into the tissues of the organs.

On another note, the Defendants had also failed to advise the deceased and obtain proper informed consent in respect of the change in surgical plan from a proximal gastrectomy with distal oesophagectomy to a total gastrectomy. First, the Defendants did not explain the change or its implications. The original plan, advised by the 4th Defendant on 2 March and again on 21 April 2020, was for a proximal gastrectomy and distal oesophagectomy, involving removal of only the upper stomach and lower oesophagus. Upon admission to Shah Alam Hospital in May 2020, this plan was unilaterally altered to a total gastrectomy. The 3rd Defendant admitted under cross-examination that there was no record of any explanation for this change and that she had only explained the risks of the total gastrectomy itself. The 4th Defendant was found to have arbitrarily decided upon this more invasive approach without adequate consultation.

Secondly, the Defendants failed to advise the deceased of the material risks associated with the change. The evidence of their own expert, DW5, confirmed that a total gastrectomy carries a higher risk of morbidity and mortality than a proximal gastrectomy and entails substantial differences in postoperative feeding and quality of life. These consequences were never disclosed, depriving the patient of the opportunity to make a balanced choice.

Thirdly, the Defendants failed to advise on viable alternatives. Both parties’ experts agreed that for a tumour of less than 2 cm at T1a staging, endoscopic resection was a viable and preferred option under NCCN Guidelines. The 4th Defendant himself admitted that gastrectomy is a “be-all end-all” decision, whereas endoscopic resection could have been attempted first as both diagnostic and therapeutic, with gastrectomy remaining available if required. The patient was never given this choice.

Finally, the Court holds that the Defendants breached their duty of care both legally and ethically. The governing law, as set out in Montgomery v Lanarkshire Health Board and applied in Malaysia in Foo Fio Na v Dr Soo Fook Mun, requires that patients be informed of material risks and reasonable alternatives so as to respect patient autonomy. By presenting surgery as the sole option and omitting others, the Defendants engaged in authoritarian practice which modern law has rejected. The 4th Defendant’s justification that the anaesthetic team was “not comfortable” with one-lung ventilation is contradicted by the 5th Defendant, who testified that her team was confident and capable of performing the procedure from the outset.

In summary, the Defendants failed to respect the deceased’s autonomy, omitted disclosure of a safer alternative in endoscopic resection and failed to explain the increased risks and reasons for shifting to a radical total gastrectomy. This failure constitutes a breach of duty sufficient to establish liability in negligence. The Intra-Operative Tear of the Distal Oesophagus

The Court finds that the intra-operative tear to the distal oesophagus was caused by a want of reasonable skill and care. The evidence establishes that the injury resulted from a failure to exercise the necessary surgical acumen and clinical judgment during a delicate procedure. The consequences of this breach were grave, leading to an unplanned major extension of the surgery and a sequence of life-threatening complications.

The sources confirm that the tear occurred during the insertion of the Anvil (a surgical stapler) into the oesophageal lumen. This failure is attributable to a lack of reasonable skill and care. A surgeon is required to “feel” resistance during insertion to ensure the instrument is suitable and to avoid overstretching the tissue. If resistance is encountered, the surgeon must stop and consider alternatives rather than force the instrument through, which inevitably causes a tear. The 4th Defendant admitted that if stapler insertion was not working, other options such as hand-suturing should have been considered. The decision to persist until the tissue tore demonstrated a failure to adjust the surgical approach. Further, this delicate step was delegated to the 2nd Defendant, a junior specialist, despite the acknowledged risk of dire consequences if a tear occurred. The 2nd Defendant himself agreed that such a critical step should have been undertaken by the most experienced surgeon.

The consequences of this breach were severe. The tear caused the distal oesophagus to retract into the chest cavity, necessitating conversion to an unplanned thoracotomy. This required extension of the incision into the left chest, cutting through muscles and ribs and collapsing the patient’s left lung. The unplanned thoracotomy significantly increased the risks of morbidity and mortality beyond those already inherent in a total gastrectomy. Eleven days later, the thoracotomy wound developed a reactionary haemorrhage (“spurter”) in the chest wall, leading to hypovolemic shock, respiratory depression and urgent resuscitation and intubation in the ICU.

The patient endured 63 days of prolonged suffering, undergoing repeated invasive procedures, before succumbing to his injuries on 15 July 2020. The Court therefore holds that the intra-operative tear, caused by want of reasonable skill and care, initiated a chain of trauma and decline culminating in the patient’s death and constitutes a breach of duty sufficient to establish liability in negligence. Post-Operative Management, the Anastomotic and Haemorrhagic Complications and persistent anaemia

The Court finds that the post-operative management of the deceased fell below the expected standard of reasonable care in three critical respects, the handling of the anastomotic leak, the management of haemorrhagic complications and the treatment of persistent anaemia.

First, the management of the anastomotic leak was substandard due to delays in detection and intervention. On 5 and 6 June 2020, a brownish discharge was observed soaking the wound dressing. Although the patient’s family, themselves medical practitioners and the 5th Defendant (the anaesthesiologist) identified this as feculent matter, the surgical team dismissed it as “muscle necrosis.” The external inquiry committee concluded that this refusal to recognise the discharge as fecal matter led directly to delay in necessary intervention. A re-laparotomy was not performed until 8 June 2020, when a bowel perforation was discovered. The 3rd Defendant admitted that the scopes performed on 25 and 26 May could only assess the first anastomosis site, leaving the second site unchecked. More sensitive investigations, such as a contrast CT scan, were not utilised despite clear signs of infection. During the eventual surgery, the leaked bowel contents were found to be “cocooned,” which the 4th Defendant admitted indicated that the leak had been ongoing for some time and was the cause of the patient’s deterioration.

Secondly, the management of haemorrhagic complications was inadequate. On 24 May 2020, eleven days post-operation, the patient developed a reactionary haemorrhage (“spurter”) in the thoracotomy wound at the site where muscles had been cut. This led to hypovolemic shock, dangerously low blood pressure and respiratory depression, necessitating emergency resuscitation, multiple transfusions and intubation in the ICU. The Plaintiff contends and in my opinion, this complication was avoidable, being a direct consequence of the intra-operative tear which had forced conversion to a high-risk thoracotomy.

Thirdly, the management of the patient’s persistent anaemia was medically unsound. Over 46 days, the patient received 18 blood transfusions, yet his haemoglobin levels failed to rise as expected. Expert testimony established that each pint of blood should typically increase haemoglobin by 1 g/dL. The failure of this to occur should have signalled an ongoing internal bleed. The external inquiry found that the surgical team failed to investigate the underlying pathology despite this clear alert. Compounding matters, the team continued to administer Fondaparinux, an anticoagulant, even after blood loss was suspected. Experts described this as a “confounding factor” that likely exacerbated bleeding. The medication was not discontinued until 24 May, after the patient had suffered the major spurter bleed.

On the totality of the evidence, the Court concludes that these failures collectively constituted substandard care. Timely recognition and intervention could have prevented or mitigated the complications. The omissions in post-operative management therefore amount to breaches of duty sufficient to establish liability in negligence. Vicarious Liability, causation principle and the Position of the Defendants.

On the evidence, in my view, that delays in draining the infection and controlling its source contributed to the spread of sepsis. The drainage done on 29 May and the washouts on 8 June were useful steps, but they came too late given the patient’s worsening condition in late May. The mistaken belief that the problem was a transfusion reaction did not directly cause death, but it distracted the team and delayed proper focus on infection control and antibiotics at a critical time. I do not find that any single act by the Defendants alone caused death. Instead, it was their collective failures, slow investigation and drainage, poor clinical reasoning, weak documentation that delayed escalation, which taken together made a material contribution to the fatal outcome, alongside the patient’s underlying illness and the risks of major surgery.

On responsibility, the Court recognises that major surgery for an elderly patient with upper GI adenocarcinoma carries inherent risks. However, the proven departures from the standard of care accelerated the patient’s decline. It is therefore appropriate to conclude that the Defendants’ breaches materially contributed to the death.

The Court further holds that the Defendants are vicariously liable. The 1st Defendant, the Government of Malaysia, employed the 2nd to 15th Defendants, who were the healthcare practitioners involved in the deceased’s treatment. Under Malaysian law, the owner and manager of a healthcare facility is vicariously liable for the acts and omissions of its employees. It is not disputed that the doctors were Government employees at the material time and the Federal Court has affirmed that such liability extends to healthcare professionals acting within the scope of their employment.

The 2nd to 15th Defendants are named in their capacity as public officers and as the actual tortfeasors. In Kerajaan Malaysia & Ors v Lay Kee Tee & Ors, the Federal Court held that individual public officers must be named as defendants before the Government can be held liable in tort for their specific actions. The Plaintiff has accordingly named these officers to ensure that the Government may be held responsible for the collective failures in the deceased’s care, including the lack of informed consent, the intra-operative injury and the substandard post-operative management.

Beyond vicarious liability, the Court finds that the 1st Defendant may also be held directly liable for breach of a non-delegable duty of care owed to patients. This duty encompasses systems and organisational responsibilities within the hospital, such as ensuring proper procedures for obtaining informed consent and managing surgical emergencies. The Plaintiff has demonstrated that the use of standard-form, fact-heavy and one-sided documentation for consent deprived patients of meaningful choice, amounting to an organisational failure attributable to the 1st Defendant.

In summary, the 1st Defendant is vicariously liable in its capacity as employer for the negligence of the 2nd to 15th Defendants, who are themselves liable in their capacities as individual tortfeasors. The 1st Defendant is further directly liable for systemic failures in the hospital’s practices. Together, these grounds establish liability for the injuries and death suffered by the deceased. QUANTUM General Damages: Pain, Suffering and Loss of Amenities of Life

The deceased survived for a period of 63 days following the operation. That period was marked by repeated surgical and invasive interventions, prolonged admission to the intensive care unit, tracheostomy, active wound bleeding necessitating further ligation, progressive anaemia notwithstanding 18 blood transfusions administered over 46 days, bowel perforation, wound dehiscence, and ultimately multi-organ failure. The Plaintiff relies upon comparable authorities, including Dato’ Stanley Isaacs and Dr Neville Anak Michael Gomis v Mahkota Medical Centre Sdn Bhd, to underscore the gravity of the suffering endured. The Defendants’ reliance on Thavani is distinguished, for in that case the patient did not undergo surgery, whereas here the deceased endured two extensive operations and a prolonged course of complications over 63 days.

The Plaintiff claims, general damages, for the pain and suffering endured by the deceased, together with loss of services and financial contribution to his dependents and dependency claims for the surviving spouse and five children. In assessing general damages, the Court considered the deceased’s pre-death pain and suffering. The evidence establishes that he endured a prolonged period of severe illness in ICU, requiring dialysis, ventilatory dependence and repeated invasive procedures. The Court finds that the deceased suffered significant pain, loss of autonomy and indignity in his final weeks of life. Having regard to these circumstances, the Court considers that a fair and reasonable award for the deceased’s own pain and suffering is RM250,000. This sum reflects the gravity of the suffering endured and the principle that damages must provide just compensation to the estate and dependents. Aggravated Damages

The Plaintiff sought aggravated damages, alleging obstructive behaviour by the hospital in refusing voluntary disclosure and producing internal reports that lacked candour. The Defendants admitted that disclosure of medical records to patients often required court orders and defended the lawfulness of that procedure. Nevertheless, the Court accepts that the Plaintiff experienced difficulties and delays in obtaining records and that internal inquiry reports contained passages inconsistent with subsequent independent review.

Such behaviours do not enlarge the Defendants’ liability for the clinical harm itself. However, they warrant consideration in the context of aggravated damages where conduct is shown to be malicious, deliberately misleading, or aimed at shielding clear wrongdoing. On the evidence, while there was a lack of sincerity and administrative obstruction which caused distress to the family and hindered early independent scrutiny, the Court is reasonable satisfied that the Defendants engaged in some concealment of material facts with the intention of evading accountability. Court considers that a fair and reasonable award for aggravated damages of RM 150,000.00. Special Damages

The Plaintiff has proved special damages in the sum of RM31,360, comprising medical and hospital expenses, travelling expenses, the purchase of pre-operative nutrition, equipment costs such as TED stockings and an incentive spirometer, adult diapers, funeral and memorial expenses and the costs of obtaining pre-action discovery and the grant of letters of administration. These heads of claim are supported by bills and invoices or by proper particularisation in the pleadings. Accordingly, the Court awards special damages in the sum of RM30,936.15 in full. Summary of Damages Head of Damages Amount (RM) General damages 250,000.00 Aggravated damages 150,000.00 Special damages 30,936.15 TOTAL 430,936.15 Interest and Cost.

The Plaintiff’s claim is allowed. The Court awards general damages for pain and suffering, aggravated damages and special damages are awarded. Interest is awarded at 4% on special damages from interest on special damages from the date of the incident on 13 May 2020 until the date of judgment on 23 April 2026. Interest of 5% on general damages and aggravated damages from the date of service of the Writ of Summons on 26 June 2023 until the date of judgment on 23 April 2026. A further interest of 5% from the date of judgement until full settlement together with cost are awarded to the Plaintiff. Date: 13 July 2026 SGD SHOBA DORAI RAJAH JUDICAL COMMISSIONER SHAH ALAM HIGH COURT Solicitor for the Plaintiff: Karthi Kanthabalan [MESSRS P S RANJAN & CO.] Solicitor for the Defendants 2,3,4,5,6,7,8,9,10,11,12,13, 14,15: SFC Zetty Zurina bt Kamaruddin with FC Siti Asmath binti Che Man With FC Muhammad Nur Syafi b Md Sai'aan [MESSRS Jabatan Peguam Negara (AGC)]