Prince Court Medical Centre Sdn Bhd v Abhishek A/L Devi Das (WA-22NCvC-675-10/2020)

ABHISHEK A/L DEVI DAS

DEEPIKA A/P DEVI DAS (NO. K/P: 880124-07-5046) …DEFENDAN-DEFENDAN (Dalam Tindakan Asal) Dan Antara ABHISHEK A/L DEVI DAS 16/04/2024 15:33:22 WA-22NCvC-675-10/2020 Kand. 216 S/N R57lEwxca0ad4Jj1ybgLaQ (MENYAMAN KEDUA-DUA BAGI PIHAK DIRINYA DAN SEBAGAI PENTADBIR ESTET SANDHYIA BANSAL, SI MATI) DAN 1. PRINCE COURT MEDICAL CENTRE SDN BHD

DATUK DR MOHAMMED SAFFARI BIN MOHAMMED HASPANI

4.

5.

6.

DR SHAMIM RAMASAMY …DEFENDAN-DEFENDAN (Melalui Tuntutan Balas) Introduction 1. The Plaintiff’s claim against the Defendants by the name of Abishek a/l Devi Das (“the 1st Defendant”) and his sister Deepika S/N R57lEwxca0ad4Jj1ybgLaQ a/p Devidas (“the 2nd Defendant”) is for nonpayment of hospital bills for the treatment of their mother (“the deceased”) at the Plaintiff’s hospital.

The Defendants defense for the non-payment of the hospital bill is the negligence of the doctors in the Plaintiff’s hospital in treating the deceased. As a result the 1st Defendant counter claimed for damages for the negligence against the doctors treating the deceased in the Plaintiff’s hospital.

The 1st Defendant had initially counter claimed for negligence against all the doctors, named as the 2nd to 6th Defendants in the Statement of Claim. However the 1st Defendant then withdrew the claim against the 3rd to 6th Defendants but maintained the claim for negligence against the 2nd Defendant Mohammed Safari bin Mohammed Haspani (“Dr Safari”).

The trial of both the Plaintiff’s claim and the 1st Defendant’s counter claim proceeded jointly. Both sides called oral testimony of witnesses which included experts called by either side. The parties also fully relied upon the agreed facts, issues to be tried and the Bundle of Documents filed during pre-trial management. Brief facts 5. The deceased was admitted to the Plaintiff’s hospital on 31/10/2018 with a number ailments and was treated by a number of medical doctors practicing at the Plaintiff’s hospital.

The claim against Dr. Safari stemmed from the time Dr. Safari informed the family members of the deceased which included both the Defendants that the deceased was suffering from a large sided parietal hematoma measuring 3,3 cm and a smaller left posterior hematoma measuring 0.7 cm. Dr. Safari advised the 1st Defendant that the deceased required an emergency craniotomy to arrest the bleeding and reduce the swelling.

The craniotomy was done on the evening of 3/11/2018 which was the same day when the hematoma was discovered in a CT scan done by Dr. Safari. The surgery was done after getting the written consent from the 1st Defendant.

On 5/11/2018 Dr. Safari saw upon a CT scan done, that there was a re bleeding on the head of the deceased. Dr. Safari advised the 1st Defendant that a re-craniotomy for evacuation of the clot would need to be performed. Dr. Safari also advised the 1st Defendant of the insertion of an external ventricular drain (“EVD”) catheter, intracranial pressure (“ICP”) catheter and cranioplasty. All this procedures were duly performed with the consent of the 1st Defendant.

On 6/11/2018 on a CT scan being done showed no clots and Dr. Safari ordered the cerebral protection to continue. On 13/11/ 2018 the EVD and ICP catheters were removed. On 18/11/2018 the deceased was diagnosed with hydrocephalus and was treated accordingly resulting in an improvement.

On being stable and on the request of the 1st Defendant the deceased was transferred to Hospital Queen Elizabeth II on 18/11/2018. On 26/11/2018 the deceased suffered acute hydrocephalus and also bleeding at the Hospital Queen Elizabeth II. The deceased then underwent several other procedures. However the deceased was pronounced dead on 28/12/2018. The Plaintiff’s claim 11. The Plaintiff’s claim is straight forward for the payment of hospital charges incurred as a result of treating the deceased at the Plaintiff’s hospital. In this case the Defendants did not dispute either the fact that the deceased did receive treatment at the Plaintiff’s hospital nor the amount of hospital charges.

The only defense by the Defendants is that the Plaintiff are not entitled to the hospital charges as the doctors practicing at the Plaintiff’s hospital were negligent.

In the Court’s view both the Plaintiff’s claim and the 1st Defendant’s counter claim are separate matters that must be considered separately. In addition to that it is only the 1st Defendant who has counter claimed and not the 2nd Defendant.

As the Plaintiff’s claim against the Defendants is independent of the 1st Defendant’s counter claim the Court cannot detect any discernable defense by the Defendants against the Plaintiff’s claim. The Plaintiff’s claim against the Defendants is supported by a S/N R57lEwxca0ad4Jj1ybgLaQ detailed hospital bill and other documents including the letter of guarantee signed by the Defendants.

The Court therefore finds that the Plaintiff has proven its claim against both the Defendants and the Defendants are liable to pay the hospital charges regardless of the 1st Defendant’s counter claim. Claim of negligence against Dr.Safari Burden of proof 16. As the claim against Dr. Safari is for negligence the elements of negligence must first be proven. The burden of proof clearly lie upon the 1st Defendant to prove negligence and this is clear from the provisions of the Evidence Act. Section 101 states as follows:

Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. S/N R57lEwxca0ad4Jj1ybgLaQ ILLUSTRATIONS

A desires a court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime.

A desires a court to give judgment that he is entitled to certain land in the possession of B by reason of facts which he asserts and which B denies to be true. A must prove the existence of those facts. Elements of negligence 17. The elements of negligence are well defined and can be summarised as the existence of a duty of care and a breach of duty causing the injury suffered.

The existence of duty of care is clear as Dr. Safari being the attendant doctor of the deceased he had a duty of care towards the deceased.

The question that is to be answered in this case is that having a duty of care what is the standard of care required of Dr. Safari in treating the deceased? Dr. Safari will only be liable for negligence if he has breached this standard of care required from him and it is this breach which had caused the death of the deceased. S/N R57lEwxca0ad4Jj1ybgLaQ Standard of duty of care 20. The test of standard of care as laid down in the case of Bolam V Friern Hospital Management Committee [1957] 2 All ER 118 is well settled and also followed by our Courts as stated in the case of Zulhasnimar V Dr Kuppu Velumani [2017] 5 MLJJ 428.

The conclusion the Federal Court arrived in Zulhasnimar’s case is as follows: Conclusion [94] Thus, it is our judgment that in respect of the standard of care in medical negligence cases, a distinction must be made between diagnosis and treatment on the one hand and the duty to advise of risks on the other. This is because diagnosis and treatment are purely in the realm of medicine and that in the field of medicine, there are genuine differences of professional opinion in respect of diagnosis and treatment. Although as a discipline, medicine involves specific knowledge, its practice, however, often does not admit to scientific precision. It is not always the case that there is a definite answer one way or the other. In fact, medical experts do genuinely and frequently differ in opinion on diagnosis and treatment. [95] Given the fact that there are genuine differences in opinion in diagnosis and treatment, it is therefore not a matter S/N R57lEwxca0ad4Jj1ybgLaQ that the court can, or is, equipped to resolve. It is in this context that the Bolam test makes good sense. It requires the court to accept, not just the views of medical experts simpliciter, but the views of a responsible body of men skilled in that particular discipline. It removes from the courts the responsibility of resolving a dispute that is not equipped to resolve. [96] On the other hand, different consideration ought to apply to the duty to advise of risks as opposed to diagnosis and treatment. That duty is said to be noted in the right of self-determination. As decided by the Australian High Court in Rogers v. Whitaker and followed by this court in Foo Fio Na, it is now the courts' (rather than a body of respected medical practitioners) which will decide whether a patient has been properly advised of the risks associated with a proposed treatment. The courts would no longer look to what a body of respectable members of the medical profession would do as the yardstick to govern the standard of care expected in respect of the duty to advise. [97] Based on the foregoing, we will answer question 1 in the following manner. The test propounded by the Australian case in Rogers v. Whitaker and followed by this court in Foo Fio Na in regard to standard of care in medical negligence is restricted only to the duty to advise of risks associated with any proposed treatment and does not extend to diagnosis or treatment. With regard to the standard of care for diagnosis or S/N R57lEwxca0ad4Jj1ybgLaQ treatment, the Bolam test still applies, subject to qualifications as decided by the House of Lords in Bolitho.

The conclusion of the Federal Court clearly encapsulate the manner the standard of care is to be determined and makes a differentiation between the standard of care in diagnosis and treatment and the giving of advise. Whilst for diagnosis and treatment the Court has to rely on opinion of experts for the giving of advise the Court can decide based on the facts and circumstances of the case. Was there a breach of standard of care?

The allegation of the breaches by the 1st Defendant against Dr. Safari can be summarized to the failure of Dr. Safari giving adequate information and advise as to surgery undertaken especially as to the risks involved, whether the surgery was necessary to be undertaken immediately and whether the surgery was done in accordance to normal medical practice. i) Inadequate information and advise 24. In determining whether adequate information and advice was given an important factor which the Court took into account is that the 1st Defendant was not a layman but a medical doctor himself. As a medical officer in the Court’s view he could verify the information himself and make further inquiries where necessary. The 1st Defendant’s contention that he did not give an informed consent is therefore prima facie unfounded.

The Court is also satisfied that all necessary explanation of the surgery was given to the 1st Defendant. The Court cannot accept the contention of the 1st Defendant that whatever explained must be reduced in writing. If such a duty to put in writing is imposed upon the doctor it will lead to unnecessary time and effort being wasted. In this case even without evidence in writing the Court accepts the oral testimony of Dr. Safari that what needed to be explained was explained to the 1st Defendant.

In short the Court finds that the 1st Defendant in consenting to the surgeries was fully informed and voluntarily consented to the surgery. The Court is also satisfied that Dr. Safari was in constant communication with the 1st Defendant during and after the surgery. ii) Was the surgery on 3/11/2018 safe and necessary?

As pointed out in Zulhasminar’s case and acknowledged in the medical field that amongst medical professionals there can be a differing of opinion in carrying out a particular treatment However this difference in opinion cannot be a yardstick in deciding which opinion is better or correct. What is most important is whether the treatment given is an acceptable medical practice which a majority of experts in that particular field are agreeable to.

In this case 2 experts were called to testify i.e. Dr. Zurin Adnan bin Abdul Rahman and Dr. Johari. In the Court’s view both qualified to be experts and were therefore permitted to give their opinion which S/N R57lEwxca0ad4Jj1ybgLaQ the Court has to consider. This is clear from section 45 of the

When the court has to form an opinion upon a point of foreign law or of science or art, or as to identity or genuineness of handwriting or finger impressions, the opinions upon that point of persons specially skilled in that foreign law, science or art, or in questions as to identity or genuineness of handwriting or finger impressions, are relevant facts.

Such persons are called experts.

Both the experts were of the opinion that they would not have carried out immediate surgery and would have waited a day or two. However the reason forwarded not to carry out immediate surgery were different. Dr Johari’s reason was that he would have monitored the condition of the patient and treated the deceased with steroids before proceeding with the surgery. Dr Zurin’s main concern was whether consideration had been given to the fact that the deceased was still on Ticagrelor before carrying out the surgery as such a medication could cause an added risk of bleeding during surgery.

On the other hand Dr. Safari was of the opinion that an emergency surgery was necessary. Dr. Safari was fully aware of the deceased medical history from the time the deceased was 1st admitted to the Plaintiff’s hospital on 31/10/2018.

At that time the deceased had complaints of coughing, difficulty in sleeping, loss of appetite and severe shortness of breath and was diagnosed with right basal pneumonia, acute chronic renal impairment and pulmonary congestion. The deceased also had a history of Type 2 diabetes mellitus, percutaneous coronary intervention, chronic kidney disease, hypertension and suspected asthma (“the comorbidities”).

On 1/11/2018 the deceased commenced urgent dialysis with heparin and it was noticed that the deceased was not moving her left arm and weakness in her grip which developed into left sided weakness to the upper and lower limb.

This was when the deceased was referred to Dr. Safari for the CT scan and the hematoma was discovered. The loss of motor function is a reason for immediate surgery as stated by Dr. Johari and Dr. Safari was of the same view, to prevent further deterioration.

Between this differing opinions the Court accepted the testimony of Dr. Safari that urgent surgery was necessary as the deceased was losing her motor functions which could worsen rapidly if not contained. Dr. Johari had agreed that a loss of motor function and neurological conditions is a reason for immediate surgery.

Another reason for accepting Dr. Safari’s action on immediate surgery was because he was present and observed the condition of the deceased himself. Dr. Zarin and Dr. Johari on the other S/N R57lEwxca0ad4Jj1ybgLaQ hand had the benefit of the hindsight and were merely giving opinion base on medical records showed to them.

Both the experts also did not expressly testify that the immediate surgery done by Dr. Safari was against accepted medical practice. In fact Dr. Johari stated that it was not wrong for Dr. Safari to carry out immediate surgery.

The 1st Defendant’s expert’s witness’ main concern with the manner in which the surgery was done was whether Dr. Safari had made attempts to reverse or reduce the effect of the antiplatelet medication , Ticagrelor to lower the risk of intra-operative and /or post-operative bleeding.

In this case as led by evidence showed that re bleeding occurred after the 1st surgery leading to a 2nd surgery 2 days later. The expert Dr. Zurin’s evidence indicated that if Dr. Safari had taken measures to first reverse the effect of Ticagrelor the deceased would not have suffered the intra-operative bleeding or the post-operative bleeding.

In determining this issue the Court considered that even if it was necessary to reverse the effect of the antiplatelet medication before the surgery this reversal would take time as the experts themselves have pointed it could take 1 or 2 days to reverse the effect. In this case the Court after looking at the contemporaneous medical notes agreed that this was an emergency surgery. The deceased was already losing her motor functions and had other serious complications.

Under this circumstances both the experts who testified in this case agreed that the final call to carry out the surgery rested on the attending doctor. In this case Dr. Safari had taken the call for an immediate surgery.

The experts although had differing opinions whether waiting for the reversal was necessary agreed that Dr. Safari was not medically wrong in carrying out the surgery even without the reversal. As pointed out earlier differing of opinion cannot be a basis to determine negligence.

Further in the Court’s view Dr. Safari’s was vindicated in his action in carrying out the urgent surgery as the evidence showed the deceased not only recovered from the surgery but was even declared fit to travel to another Hospital. iii) Whether the cranioplasty performed on 5/11//2018 justified?

The main contention of the 1st Defendant on the second surgery was that the bone flap removed from the 1st surgery should not have been placed back as this would put added pressure on the brain.

In considering this issue the Court noted that the 1st surgery was necessary as there was swelling in the brain and cutting up the flap eased the pressure. However after the 1st surgery the swelling had subsided and the 2nd surgery was undertaken to just contain further bleeding.

The Court accepts the evidence of Dr. Johari under the circumstance the swelling had subsided it was not wrong to place back the flap although he himself would have waited longer. Again there is a differing of opinion on this but again what Dr. Safari did was not medically wrong so as to amount to negligence.

Another factor which might have sub consciously influenced Dr. Safari in placing the flap back was the urging of the 1st Defendant himself who wanted to transfer the deceased as soon as possible to a Hospital of his choice. The 1st Defendant did not challenge this evidence that he had hounded Dr. Safari to have the deceased transferred as soon as possible.

It is unethical for the 1st Defendant now to turn around and place the full burden on Dr. Safari. Dr. Safari is again vindicated in his action based on the fact that the deceased was declared fit to travel and thus fulfilling the wishes of the 1st Defendant. Causation 48. It is the 1st Defendant’s contention that the deceased had died due to complications caused by the surgery done by Dr. Safari. It is to be noted that the deceased died because of acute hydrocephalus and bleeding.

More important to note is that the deceased had swelling in her brain even before she was referred to Dr. Safari after a CT scan was done. Whatever done by Dr. Safari was to alleviate this S/N R57lEwxca0ad4Jj1ybgLaQ condition and stop the bleeding. It therefore is clear that the swelling in the brain was caused by the comorbidities suffered by the deceased and that was the very reason she was admitted to the Plaintiff’s hospital.

For the 1st Defendant to link the condition of the deceased with the negligence of Dr. Safari is grossly unfounded and a mere attempt to distract from the actual cause of death which is the ill health of the deceased herself.

In short the Court finds that the cause of the deceased death was inevitable and not due to the surgery carried out by Dr. Safari either on 3/11/2018 or 5/11/2018.

This finding is further assuaged by the fact that after the surgery the deceased was declared fit not only to be discharged from the Plaintiff’s hospital but was fit enough to travel long distance. Further it is the evidence in this case that on arrival to the Queen Elizabeth Hospital her vitals were stable a fact which was admitted by the 1st Defendant himself. Conclusion 53. Based on the factors above the Court allowed the Plaintiffs claim against the Defendants for the unpaid bill of the treatment of the deceased at the Plaintiff’s hospital.

The 1st Defendant’s counter claim is dismissed. The Court also did not think it fit to assess the losses suffered by the 1st Defendant as S/N R57lEwxca0ad4Jj1ybgLaQ the 1st Defendant suffered no losses and in fact the 1st Defendant gained by the surgery by Dr. Safari as the life of the deceased was prolonged by at least a short period of time.

It was Dr. Safari and the Plaintiff who had suffered a loss of reputation because of this suit. The 1st Defendant is fortunate that nether Dr. Safari or the Plaintiff retaliated against him for this loss of reputation. The Court also observed that the 1st Defendant was taking his chances when at first he brought an action against all the doctors treating the deceased at the Plaintiff’s hospital and then withdrawing the claim against them and just targeting Dr. Safari. This conduct of the 1st Defendant further shows his real intention of filing this counter claim is to avoid paying the hospital charges.

Looking at the case in its entirety the Court castigates the 1st Defendant for filing this counter claim purely as a ploy to escape paying the hospital bill. It was totally unprofessional of the 1st Defendant who himself is a doctor to nitpick fault with Dr. Safari for his own personal gain.

The Court therefore found it necessary to penalize the 1st Defendant with a hefty cost. The Court directed a cost of RM 50,000 for the Plaintiff on the claim and counter claim and a cost of RM100,000 for Dr. Safari on the counter claim. S/N R57lEwxca0ad4Jj1ybgLaQ Dated: 16.4.2024 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur S/N R57lEwxca0ad4Jj1ybgLaQ PARTIES For the Plaintiff: Nama Peguamcara: Ahmad Aizek Busu Tetuan Felix Raj Chambers No. 8, Jalan 7/18 Seksyen 7 46050 Petaling Jaya Selangor. For the Defendant: Nama Peguamcara: Desmond Mun Ching Yong Tetuan P S Ranjan * Co. Tingkat 17, Wisma Lee Rubber No. 1, Jalan Melaka 50100 Kuala Lumpur. Nama Peguamcara: Aina Shobri Tetuan Gan Ho & Razlan Hadri Suite K-3-10 2, Jalan Solaris Solaris Mont Kiara 50480 Kuala Lumpur S/N R57lEwxca0ad4Jj1ybgLaQ Case Cited 1. Bolam V Friern Hospital Management Committee [1957] 2 All ER 118;

Zulhasnimar V Dr Kuppu Velumani [2017] 5 MLJJ 428;

Maynards V West Midlands Regional Health Authority [1985] 1