Siti Arbaiyah Binti Umar v 1. ) UKM Kesihatan Sdn Bhd (WA-22NCvC-489-08/2020)

1.

DR. AHMAD ZAILANI HATTA BIN MOHD DALI … DEFENDANTS GROUNDS OF JUDGMENT (After Full Trial)

Primum non nocere—which is Latin translated to ‘first, do no harm’—is the original verse of a traditional oath taken by medical physicians called the Hippocratic Oath. The entire bedrock of the medical fraternity is vested on this doctrine and is a great sin to depart from. Although we have long departed from oath-breaking to be considered a crime, the law has 14/08/2025 13:25:50 WA-22NCvC-489-08/2020 Kand. 88 evolved for the oath to be an arguable equivalent to medical malpractice.

This is the decision of this Court on the Plaintiff’s claims for the case of medical malpractice against the Second Defendant and my judgment in dismissing the Plaintiff’s claims.

As to the First Defendant’s liability: on 10.1.2024, prior to the commencement of the trial, the Plaintiff and the First Defendant entered into a settlement agreement and recorded a consent judgment. The Trial therefore proceeded only with the Second Defendant.

The Plaintiff was a 31-year-old married woman who was admitted to the hospital for treatment of saccroccygeal teratoma. The Plaintiff informed the Second Defendant that she had intermittent abdominal discomfort for the past year and suffered pain and discomfort during her menses. The Plaintiff informed the Second Defendant that she had a history of abdominal distension, suffered from constipation and difficulty in passing urine.

The Second Defendant noted that a CT scan of the Plaintiff’s abdomen was conducted on 14.8.2014 at Pusat Rawatan Islam Az-Zahrah. The results of the CT scan suggested of the illness she later received treatment in the hospital.

It was not disputed that the Second Defendant conducted an ultrasound of the Plaintiff’s abdomen and found that there was a mass in her pelvis. The findings were explained to the Plaintiff, and she was advised to undergo an exploratory laparotomy with excision of the tumour from an abdominal incision, or anterior approach, as it is otherwise called (“the Surgery”).

The Second Defendant also ordered a tumour marker test to be conducted on the Plaintiff. She was then referred by the Second Defendant to Datuk Dr. Ismail Sagap (“Dr. Ismail”), a Consultant General and Colorectal Surgeon with a practice at the hospital. The Plaintiff’s condition was further evaluated with a colonoscopy, where it was done with a view for the Plaintiff to undergo exploratory laparotomy.

On 3.9.2014, a sigmodoiscopy was conducted Dr. Ismail on the Plaintiff at the hospital. The findings were explained to the Plaintiff and thereafter, she was referred to the Second Defendant.

The Second Defendant advised the Plaintiff to undergo the Surgery. It is the Plaintiff’s contention that the Second Defendant did not advise the Plaintiff thoroughly at this juncture, where the option for posterior approach was not sufficiently briefed. The Defendant argued that this not necessary as Dr. Ismail had already done so, moreover, the Plaintiff agreed to the Surgery as proposed by the Second Defendant.

The Surgery was planned to take place on 24.10.2014 but was rescheduled to 31.10.2014 to accommodate Dr. Ismail’s availability should his assistance becomes necessary intra-operatively.

On 31.10.2014, the Second Defendant performed the Surgery with Dr. Lee Choon Yee, a Consultant Anaesthesiologist as the attending anaesthesiologist.

Intra-operatively, the Second Defendant found that the Plaintiff’s uterus and bladder pushed superiorly by the tumour. It was also found dense adhesion in the pelvis, necessitating adhesiolysis to access the tumour. A cystectomy was performed to remove a cyst discovered in the right ovary. Dr. Ismail was called in by the Second Defendant for further review of the Plaintiff. Following a discussion with Dr. Ismail, it was agreed that any attempt to remove the tumour would be difficult and it would be safer to stop the procedure at that juncture. It is undisputed that a joint decision was made to conclude the Surgery.

On 26.12.2014, the Plaintiff consulted Dr. Ismail where she was advised to have the tumour removed through the posterior approach and was advised on the risks associated with the procedure. The Plaintiff agreed to undergo the procedure. On

21.5.2015, the tumour was removed through posterior approach by Dr. Ismail.

The following are the Plaintiff’s claims:

(i). The Plaintiff alleges that the Second Defendant did not render proper advice, and thus breached his duty to render proper advice, as he did not disclose and advise on an alternative approach to the Surgery;

(ii). The Plaintiff alleges that the Second Defendant breached patient autonomy as a result of non-disclosure or omission to disclose on the alternative approach to the Surgery; and

(iii). As a result of the pain and suffering from the Surgery, having attempted twice, the Plaintiff alleges to have suffered a loss of employment due to prolonged medical leave required to recuperate in between medical operations.

The Plaintiff submitted that greater weight should be given to contemporaneous documents, and in the absence of any records to support the Second Defendant’s arguments, disentitles the Second Defendant from claiming the contrary. Hence, by virtue of the lack of contemporaneous documents to corroborate, the Second Defendant committed a breach of his duty to render proper advice to the Plaintiff. The Plaintiff relies on decision of Mohd Hishamudin Yunus JCA in the Court of Appeal case of Norazleen Mohammed Mustaffa v. Dr Omar Md Isa & Anor [2015] 4 CLJ 474 at paragraph 66: “[66] With respect, we are unable to agree with the approach taken by the learned trial judge. Such an approach downplays the importance and purpose of the consent form, as well as the importance of the duty to warn patients of the inherent risks of the proposed treatment. Moreover, such a liberal approach by the court is open to abuse by medical practitioners. [67] On the facts in the present case, we find that the plaintiff had successfully proven that the defendants had failed to inform her and her parents of the risk of paralysis. This is based on the fact that nowhere in either the consent forms (exhs. D23 and D25), or the clinical notes of the plaintiff (exh. D21) was the risks of paralysis, or for that matter, any risks mentioned at all. We do not accept the testimony of the defendants' witnesses, namely, DW5 and DW7 that, as the consent forms were standard forms, the risks are not mentioned specifically. On the contrary, we find that due to the plaintiff's history as an athlete, there was all the more reason that the risk of paralysis should have been mentioned clearly either in the consent forms or in the clinical notes.”.

The Plaintiff further submitted that evidence has been shown that the Second Defendant opted for the Plaintiff’s treatment option without further consultation or with consideration of the Plaintiff's ability to choose, but instead insisted on the Plaintiff on the Second Defendant’s preferred approach.

Not only that, but the Plaintiff also submitted that the Second Defendant had endangered the Plaintiff by not taking necessary measures to locate the tumour with precision and the manner of treatment through:

(i). A consultation and discussion with a radiologist;

(ii). A consultation with Dr. Ismail on the benefits and risks of each approach; and

(iii). A case conference between the Second Defendant, Dr. Ismail, and the Plaintiff on the benefits and risks of each approach before coming to the decision on the method of treatment.

All the above are the Plaintiff’s submissions to lay a claim for medical negligence against the Second Defendant.

The Second Defendant’s defence is as follows:

(i). The Surgery was appropriate and medically indicated. There was no evidence to the contrary, and it was necessary to examine the abdomen, pelvic cavity and organs to determine the appropriate plan for the Plaintiff. Furthermore, the Surgery is a medically acceptable treatment option for the Plaintiff’s condition;

(ii). The Plaintiff was aware of the anterior and posterior approach options through Dr. Ismail’s advice who was in a better position to advice the Plaintiff given his specialty and training; and

(iii). The Second Defendant had advised the Plaintiff of all material risks of the Surgery and the advice were well-documented in his clinical notes.

(iv). No causation has been established as the Surgery did not cause the Plaintiff and damage or injury. Findings and Decision of the Court

After perusing all the evidence, I have decided in favour of the Second Defendant and dismissed the Plaintiff’s claim. Herein are my reason. I. The standard for duty of care to diagnose and treat, and to advise of material risks

For prudence, I will set out the standard for duty of care and the manner it is established before proceeding with my analysis of the evidence. This standard is now well established in the apex courts. In respect of a doctor’s duty to diagnose and treat, this was laid out through the decision of Md Raus Sharif PCA in the Federal Court case of Zulhasnimar Hasan Basri & Anor v. Dr Kuppu Velumani P & Ors [2017] 5 MLJ 438; [2017] 8 CLJ 605: “[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 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.”. [Emphasis added]

In short, the court may rely on the opinion of medical experts in determining whether the standard of care is breached. However, such opinion is qualified by Bolitho (administratrix of the estate of Bolitho (deceased) v. City and Hackney Health Authority [1997] 4 All ER 771 where it was decided that it must be able to withstand logical analysis and the Court may hold it not reasonable or responsible and depart from it.

The duty to advise patients lies in the principles of patient autonomy as decided in the Australian High Court case of Roger v. Whitaker [1993] 4 Med LR 79; (1991) 23 NSWLR 600 quoted and elaborated in Zulhasnimar (supra): “[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.”.

The test as expounded in the case of Roger v. Whitaker (supra) is as follows: “[50] The law should recognize that a doctor has a duty to warn a patient of material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the patient, if warned of the risk, would likely attach significance to it. This duty is subject to the therapeutic privilege.”.

This duty to advise of material risks also extends to advising alternative or variant treatments as decided in the case of Montgomery v. Lanarkshire Health Board [2015] UKSC 11: “[87] …The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.”.

With that set out, I will now move to the submissions of parties and the evidence presented before me. II. Whether material risks inherent in the treatment sought were disclosed to the patient

In the case before me, the Plaintiff’s argument is the Second Defendant had failed to provide to the Plaintiff all available options and to explain all risks and dangers related to the treatment i.e. the Surgery. The Plaintiff relies on the case of Montgomery (supra) and Rogers v. Whitaker (supra) to espouse and support this argument. The Plaintiff in her re-examination stated the following: Puan, tadi rakan bijaksana saya, Cik Charlaine, ada tanya Puan berkenaan option pembedahan. Dia beritahu Puan, kalau Dr Hatta, dia akan operate dari perut, kalau Dr Ismail dari belakang. So soalan saya, adakah Puan dinasihat bahawa Puan ada pilihan untuk menjalankan pembedahan samada dari belakang atau dari depan, tahu tak Puan? Sebenar sebenarnya saya memang tidak tahu dan tidak faham sebab saya sakit di bahagian perut, so saya memang akan jangkakan bila buat pembedahan itu daripada depan dia tak ada masalah lah. Ada tak Dr Hatta menasihati Puan samada Puan boleh membuat pembedahan dari belakang? Tak ada. [Refer Notes of Proceedings (Encl. 65), p. 50, lines 10 – 18]

The Plaintiff’s submitted that this was consistent with contemporaneous medical records where there is no mention of such an advice being rendered in the Second Defendant’s medical records. It was submitted that both the Plaintiff’s expert (PW3) and the Second Defendant’s expert (DW2) testified that no record of any advice and information were found. I observe that this, at face value, as true. Doctor, based on the medical records, where in the medical records did Dr Hatta note down the different approaches that was offered or discussed with the patient? I could not identify in the documentation that the different approaches was discussed but it does mention that what Dr Hatta would be approaching the tumor, it is through midline incision through the anterior abdominal wall, which is the anterior approach. But it did not document any other approaches which was discussed there. I was not able to identify this documentation. [Refer Notes of Proceedings (Encl. 65), p. 99, lines22–24,and p. 100, lines 1 – 5] Doctor, there are multiple approaches to this surgery and you had agreed earlier on, the patient should be advised about the different approaches, correct? Agreed. And based on the medical records here, you had said that there are no such discussion about the different approaches, correct? Agreed. And my question is simply this, if there was no discussion about the approaches, the patient did not make an informed consent on the surgery? I agree. [Refer Notes of Proceedings (Encl. 65), p. 186, lines 5 – 19]

The Second Defendant explained that this was because the Plaintiff was already aware of the various treatment options and the material risks associated with the Surgery after she was advised by Dr. Ismail who is much more adept on the procedure and to avoid any misinformation: DW1 The reason being that I am not versed at all regarding posterior approach and I did not comment on it because I am afraid that if I comment on it, the patient may have a different or wrong information. At the same time I knew that the patient has been counselled with … that means Datuk Ismail and I believe Datuk Ismail would have given enough information to her to decide. [Refer Notes of Proceedings, page 158 lines 1 - 5]

The Plaintiff agreed that she was advised of the options and risks related to the Surgery by Dr. Ismail: Adakah Puan bersetuju bahawa sebelum pembedahan pertama yang dijalankan oleh Dr Hatta, Puan telah sedia maklum akan option untuk menjalani pembedahan dari bahagian belakang kerana telah dinasihatkan oleh Dr Ismail, setuju atau tidak? Setuju. [Refer Notes of Proceedings (Encl. 65), p. 49, lines 1 – 6]

This was corroborated by Dr. Ismail himself: So let’s talk about 03.09.2014 first, Datuk. During this consultation, you informed the patient that you were going to carry out a sigmoidoscopy, correct? Correct. And you also explained to her that an option is to carry out a surgery to remove the tumor from the posterior or from the back, correct? No, I explained to the patient that I was taught to remove this from the posterior but I have never done it before. And you briefly explained to her how that posterior approach or the back approach will be carried out? I briefly explained to her and further explained that but this will require the cut of your tail bone. That’s right. You also advised the patient of the risks which were involved in such a procedure from the back, correct? Correct. [Refer Notes of Proceedings (Encl. 65), p. 72, lines 10 – 23, and p. 73, lines 1 – 7]

In this respect, counsels for the Second Defendant submitted that the law requires that the Second Defendant to advise the Plaintiff only of material risks and not all risks; the treatment options and its variants; and to ensure the Plaintiff is aware of it. It was further submitted that the Second Defendant had performed this duty and disclosed to the Plaintiff all material risks inherent to the treatment. It was unnecessary for the Second Defendant to expand upon what Dr. Ismail has advised to the Plaintiff when it is a subject beyond his training and expertise. It was sufficient that the Plaintiff has been made aware of treatment option through her consultation with Dr. Ismail.

In support, the counsel for the Second Defendant refers to the decision of Md Raus Sharif PCA in Zulhasnimar (supra) and the case of Rogers v. Whitaker (supra) at paragraph 50: The law should recognize that a doctor has a duty to warn a patient of material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should be reasonably be aware that the patient, if warned of the risk, would likely attach significance to it. This duty is subject to the therapeutic privilege. [Emphasis added]

In my reading of Zulhasnimar (supra) and Rogers v. Whitaker (supra), it is clear that the element of awareness is a key factor to be considered when a court has to evaluate whether the patient was reasonably advised. As to the evidence presented before me, I am satisfied that the Plaintiff was aware of the material risks inherently associated with the treatment, and any variant or alternative treatments available. I find that it is disingenuous for the Plaintiff to claim that the Second Defendant failed to advise her of the posterior approach when she had already been advised by Dr. Ismail and it was her own choice to continue with the anterior approach.

It is my finding that the explanation for the absence of the Second Defendant’s advice on the posterior approach in his treatment notes is not only wholly plausible but also reasonable. This is in the face of corroboration and admission by Dr. Ismail that he had seen the Plaintiff and advised her on the posterior approach.

For clarity, let us return to the timeline of events prior to the

(i). On 18.8.2014, the first pre-op consultation with the Second Defendant was done. The Plaintiff was informed of the Second Defendant’s findings and was advised to undergo the Surgery. Thereafter, the Plaintiff was referred to Dr. Ismail for further evaluation.

(ii). On 3.9.2014, the Plaintiff met with Dr. Ismail and was advised that one of the available treatment options was the posterior approach.

(iii). On 4.9.2014, a sigmoidoscopy was conducted by Dr. Ismail. The findings and the Plaintiff were referred to the Second Defendant.

(iv). On 8.9.2014, the Plaintiff consulted with the Second Defendant and for a review. It was found that the tumor marker had elevated since it was first reported on 18.8.2014.

(v). On 18.10.2014, the Plaintiff consulted with the Second Defendant and for further review. This is when the Plaintiff was advised by the Plaintiff of the nature and risks associated with the Surgery including bowel resection and stoma. [Notes of Proceedings, page 25, lines 5 – 22]

(vi). On 31.10.2014, the Plaintiff underwent the Surgery.

It was undisputed that the Plaintiff had met with Dr. Ismail. From the timeline laid out above, it is abundantly clear that the Plaintiff had been advised by Dr. Ismail and then the Second Defendant on the material risks associated with the Surgery.

Following her meeting with Dr. Ismail and prior to the Surgery, the Second Defendant had met with the Plaintiff and advised her further on the broad nature of the Surgery. This can be seen in medical notes written by the Second Defendant in Encl. 25, page 32.

Accordingly, the Plaintiff consented to the Surgery. This consent has been reduced into writing on the consent form signed by the Plaintiff (Encl. 25, page 136) and admitted by the Plaintiff: Dr Hatta juga telah menerangkan atau menjelaskan bahawa beliau perlu Puan memberi keizinan untuk sebarang langkah pembedahan selanjutnya yang beliau fikirkan perlu, setuju atau tidak? Setuju. Dan setelah Puan berpuas hati, Puan dengan sukarela telah menandatangan borang keizinan ini, betul? Betul. [Refer Notes of Proceedings (Encl. 65), p. 25, lines 21 – 23, and p. 26, lines 2 – 5]

The Plaintiff has demonstrated that she possessed the requisite knowledge from the Second Defendant and Dr. Ismail to make an informed decision before consenting to the Surgery. Thus, I find no reason to disbelieve that the Second Defendant had not advised the Plaintiff.

It is my finding that the Second Defendant has discharged his duty to render advice to the Plaintiff and to ensure that the Plaintiff is aware of all material risks, its options and variants of treatments related to the Surgery. The Second Defendant further upped the ante by referring the Plaintiff to Dr. Ismail for advice and counselling on the posterior approach for the Surgery; someone who is much more familiar with and trained for the procedure instead of advising by himself. III. Whether the treatment was planned and conducted safely

The other major submissions from the Plaintiff were that the Second Defendant resorted to the anterior approach because it was ‘comfortable’ for him. According to the Plaintiff, the Second Defendant has unilaterally decided the anterior approach by using his authority as the lead physician.

The Plaintiff relied on the following evidence:

(i). The Second Defendant’s testimony on deciding which approach to take. And as the primary physician, you would have decided on the approach, you would have the final decision-making. Do you agree, Doctor? DW1 From anterior approach, yes. Datuk Ismail agree to this. [Refer Notes of Proceedings, page 143, lines 20 – 23]

(ii). The Second Defendant’s testimony on his comfort with the anterior approach. DW1 …So I can approach it from anteriorly without any difficulty in terms of knowing the actual size. So, in terms of my surgery, it is easy for me because I’m trained to do a surgery from the front, to determine all these things are in place and I would approach it by releasing the ureter sideways and releasing the bowel sideways and I can get access to the area of concern. [Refer Notes of Proceedings, page 121, lines 9 – 13] Doctor, you mentioned just now that for the posterior approach, it would be difficult because you have to cut through the bone and so on. Is that right? DW1 I wouldn’t say it’s difficult because I’m not trained to do it [Refer Notes of Proceedings, page 123, lines 5– 8] My next question is this, you were asked this question and the question is that when she came back to you from Dr Ismail, you didn’t tell her that she had the posterior approach option and your answer was, ‘I didn’t’. Can you please explain why you didn’t? DW1 The reason being that I am not versed at all regarding posterior approach and I did not comment on it because I am afraid that if I comment on it, the patient may have a different or wrong information. At the same time I knew that the patient has been counselled with … that means Datuk Ismail and I believe Datuk Ismail would have given enough information to her to decide. [Refer Notes of Proceedings, page 157, lines 21 – 25, page 158 lines 1 - 5]

I find the counsel for the Plaintiff’s comprehension on the evidence baffling and quite nearly, a misdirection. Nothing in the evidence shows that the Second Defendant had proceeded with the anterior approach due to his comfort with the manoeuvre. the Second Defendant had maintained that he was trained in the anterior approach and therefore could perform the procedure. In the instance the posterior approach was involved, he deferred the task to advise to Dr. Ismail, again, citing that he was not trained for it. It is my opinion that this is more than reasonable. It would be unjust and plainly absurd for this court to expect a medical practitioner to advise and to perform a surgical operation that is beyond his or her knowledge or capability.

To this end, I find authority in Bolam (supra) because the expert opinions from PW3 and DW2 mentioned that the anterior approach was indeed the safer option compared to the posterior approach. PW3 also agreed that there was also benefit gained from the Surgery where surgeons are able to view the tumour’s location directly. Yes but what kind of relevance would this information be when you decide on the approach of the surgery? Usually when the tumor is inside the intraabdominal cavity or in the pelvis per se, generally the approach I would advocate is still abdominal approach, which is the anterior approach. And what I would also do is to assess the location of the tumor intraoperatively to give me a clear idea of the mass and its relation to its adjacent structure. Even though it was mentioned here there is a clear plane between the mass and the anterior bladder, uterus and rectum but intraoperatively from what we can gather, it is adherent in that particular description intraoperatively and it was abandoned in regards to the procedure. So, that is my comment on this. [Emphasis added] [Refer Notes of Proceedings, page 98, lines 13 – 24] And do you also agree with me that in the entire circumstances of this case and based on the documents that you have sighted, you would still advocate the anterior approach for the patient, do you agree? Yes, I agree. [Refer Notes of Proceedings, page 114, lines 8 – 12] Thank you. Now, do you also agree with me that the findings of the anterior approach, which was carried out by Dr Hatta, was beneficial and assisted the second surgery, which was the posterior approach carried out by Dr Ismail, yes or no? Yes. [Refer Notes of Proceedings, page 113, lines 17 – 22] And just to be clear, for this case, in this patient, what was the commonest and safest route for her? The safest is still the anterior approach. Can you explain to the Court why, Dato’? The reason is because when you open from the top, you can see what is surrounding the mass, you have the bowel, the bladder, ureter, vessels, that is advantage. Before any surgeon proceed, he wants to have an idea how the environment of the abdominal cavity and he can make decision how to approach, whether the mass can be removed or cannot be removed. The other method is quite difficult because for example if you were to do posterior alone, you cannot see from the top, you might hurt other organs. That is the disadvantage of posterior. But a person who is very familiar posterior approach, they might find it easy. [Refer Notes of Proceedings, page 189, lines 1 – 17]

An excerpt from DW2’s expert report (Encl. 47), at page 19 as below: A surgeon has to choose the most familiar and comfortable incisional method. I agreed with their decision to proceed with anterior abdominal incision which enable surgeon to examine the abdominal and pelvic region and establish the extent of a disease before proceed further…Only upon such thorough complete intraoperative assessment a surgeon will able to decision as to proceed or abandon the surgery.

Not only that, PW3 agreed that the Second Defendant has already done what was necessary to maximise the success rate of the Surgery: Doctor, what should have been done before the first surgery to minimize or to maximize the success rate of the first surgery? What could have been done is generally what Dr Hatta has actually mentioned… [Refer Notes of Proceedings, page 103, lines 2 – 6]

It is also common ground for both experts, PW3 and DW2 that the decision to abandon the surgery was in the Plaintiff’s best interest: Thank you. Do you also agree that the joint decision to abandon the first surgery, which was made by Dr Hatta together with Dr Ismail, was a safer option for the patient given the facts that she is a young female and did not have any children at that time, yes or no? Yes, agreed. [Refer Notes of Proceedings, page 114, lines 1 – 6]

An excerpt from DW2’s expert report (Encl. 47), at page 19 below: In Plaintiff case, upon their exploratory findings, I absolutely concurred with both surgeons decision to abandon the surgery…

Further, from the submissions, both oral and written, it is my understanding that the Plaintiff lays blame on the Second Defendant for having put her through a second surgery which she believed to be a form of corrective surgery from the earlier abandoned procedure. According to the Plaintiff, the incision from the procedure is the injury that she had suffered, leading to her claim of pain and suffering for the next 10 years. It is the Plaintiff's contention that the Second Defendant ought to have taken precautions as to how to treat the Plaintiff, including to weigh all available options i.e. posterior and anterior approaches, before commencing with the Surgery.

This is the foundation of the Plaintiff’s submissions. To my mind, the Plaintiff had failed to lay the groundwork for explaining the breach in duty of care, and the nexus between the breach and injury suffered—the latter I will explain in the second part of this judgment.

The Plaintiff had attempted to canvass the Plaintiff’s consent under the reliance of her memory from 10 years ago. This was evidently against her favour as the Second Defendant was able to not only show documentation of giving sound advice as to the risks of the treatment, but also show to this court that the Second Defendant had taken necessary measures to ensure the best possible outcome for the Plaintiff’s treatment through expert witnesses of both parties.

There is more than sufficient evidence to show that the Second Defendant had taken necessary actions for the benefit of the Plaintiff—including the abandonment of the excision. There is consensus between both experts that the Second Defendant had not committed any actions outside the realms of acceptable medical standards. In fact, it was established that the Second Defendant’s difficult decision to abandon the procedure as the better approach in order to minimise the risk of further complications that is specific to the Plaintiff’s condition.

Hence, I am unable to agree with the Plaintiff’s submissions that the Second Defendant has provided substandard treatment for the Plaintiff. To the contrary, the Second Defendant had performed to the best of his ability to provide the best possible treatment and outcome. Thus, there is no breach of duty established. IV. Whether there is a causation between the injury suffered and the effect of abandoning the excision during the

It is trite law to establish causation, the ‘but-for test’ will need to be satisfied. In short, the harm suffered by the victim must be caused by the tortfeasor’s act or omission. If the harm would have occurred even without the tortfeasor’s alleged negligence, there is no cause in fact.

I take note that the Plaintiff’s submissions on the issue of causation. However, I must make mention that, with only one paragraph, it is not clear how does the Plaintiff intends to make their case. Reading the pleadings and submissions as a whole, it is my understanding that the Plaintiff claims that she had suffered continuous pain and suffering as a result of having to go under the blade twice.

It is the Plaintiff’s contention that she would have not suffered this injury in pain and suffering had the Second Defendant successfully conducted the Surgery with the posterior approach. The submission from the Plaintiff paints a narrative that the Plaintiff was dismissed from her employment due to her injuries from the Surgery—which is not clearly defined—and thus the Second Defendant is at fault, partly or wholly, for her extended medical leave and prolonged pain.

It is to be noted that, during oral submissions, according to the counsel for the Plaintiff, the injury suffered was the surgical procedure itself, where an incision was performed on her. This was vehemently objected by the counsel for the Second Defendant where it was stated that injuries are complications as a result of negligence or malpractice, where it has already been determined that none occurred.

The Plaintiff relied on several English decisions to support the stance:

(i). In the decision of the case Athey v Leonati [1999] Lloyd’s Law Reports Med 458: “As long as a defendant is part of the cause of an injury, the defendant is liable, even though his act alone was not enough to create the injury. There is no basis for a reduction of liability because of the existence of other preconditions: defendants remain liable for all injuries caused or contributed to by their negligence.”.

(ii). In the decision of the case Williams v. Bermuda Hospital Board (NHS Litigation Authority intervening) [2016] AC 888: “…on the balance of probabilities an injury had been caused by two or more factors operating cumulatively, one or more of which was a breach of duty, it was immaterial whether the cumulative factors operated concurrently or successively; that, although the sequence of events had made a material contribution to the outcome, or conversely whether an earlier even had been so overtaken by later events as not to have made such a contribution, those were evidential considerations and, as a matter of principle, successive events were capable of each making a material contribution to the subsequent outcome…”.

While I note that the above principles have been introduced to our jurisprudence via the cases of Wu Siew Ying t/a Fuh Lin Bud-Grafting Centre v. Gunung Tunggal Quarry & Construction Sdn Bhd & Anor [2011] 2 MLJ 1 and Guan Soon Tin Mining Co. v. Wong Fook Kum [1969] 1 MLJ 99, those are cases related to principles applicable to tort action in general. I will focus on the above English decisions as the actions relate to medical malpractice.

Through my reading of these cases, I find that they are distinguishable from the instant case. In both of the cases cited, it was established that a breach of duty had occurred whereas in the case befalling the Plaintiff, there is no breach of duty established. There was also no chain of events to demonstrate that the Second Defendant was partially or wholly liable to the pain and suffering of the Plaintiff.

It is also intriguing that the Plaintiff did not commence any action against Dr. Ismail for malpractice when her pain and suffering continued even after the conclusion of the excision via posterior approach. To lay the blame solely on the Second Defendant for not conducting the procedure at the first attempt seems counterproductive as her pain and suffering did not subside even after the second procedure.

As submitted by counsels for the Second Defendant, this court cannot discount the probability that the injuries allegedly suffered by the Plaintiff are a consequence of the second procedure by Dr. Ismail. This was already advised by Dr. Ismail to the Plaintiff: Dr Ismail juga menasihatkan Puan akan risiko pembedahan daripada belakang, betul? Betul. Dan antara risiko yang dinasihati oleh Dr Ismail termasuk risiko kesakitan yang berpanjangan dan sakit apabila duduk, betul? Betul. [Refer Notes of Proceedings, page 29, lines 12 – 20]

With the Plaintiff’s admission that she had been advised that the procedure also carried the risk of prolonged pain, I find that the Plaintiff’s case has not satisfied the ‘but-for test’ as the chain of causation to the injuries claimed by the Plaintiff is now—for the lack of a better word—broken.

Accordingly, it is my judgment that the Plaintiff has failed to establish the nexus between the pain and suffering claimed with the Second Defendant’s actions.

The Plaintiff’s claim against the Second Defendant had failed due the following reasons:

(i). The Plaintiff failed to establish that a breach of duty to advise of material risks had occurred. There was sufficient evidence to show that the Second Defendant had ensured that the Plaintiff has awareness of the material risks, and further corroborating evidence that the Plaintiff indeed has awareness of the material risks involved with the Surgery.

(ii). The Plaintiff failed to establish that a breach of duty to diagnose and treat had occurred. The Second Defendant had treated the Plaintiff within the realm of accepted medical practice. Not only that, but experts of both parties also agreed that the Second Defendant had taken the best approach in the interest of the Plaintiff.

(iii). The Plaintiff had failed to show there was causation between the injuries suffered with the actions of the Second Defendant.

(iv). On the above reasons, the Plaintiff’s claim is wholly dismissed with costs of RM38,000 payable to the Second Defendant. Dated: 13th August, 2025 ---------------------------------------------------------- DR. JOHN LEE KIEN HOW @ MOHD JOHAN LEE JUDGE HIGH COURT MALAYA KUALA LUMPUR For The Plaintiff : Desmond Mun & Alaika Zulaika Messrs. P.S. Ranjan & Co Advocates & Solicitors For The Second : Charlaine Chin & Cheong Chi Yan Defendant Messrs. Raja, Darryl & Loh Advocates & Solicitors Table of Authorities Cases Athey v Leonati [1999] Lloyd’s Law Reports Med 458 Bolitho (administratrix of the estate of Bolitho (deceased) v. City and Hackney Health Authority [1997] 4 All ER 771 Guan Soon Tin Mining Co. v. Wong Fook Kum [1969] 1 MLJ 99 Montgomery v. Lanarkshire Health Board [2015] UKSC 11 Norazleen Mohammed Mustaffa v. Dr Omar Md Isa & Anor [2015] 4 CLJ 474 Roger v. Whitaker [1993] 4 Med LR 79; (1991) 23 NSWLR 600 Williams v. Bermuda Hospital Board (NHS Litigation Authority intervening) [2016] AC 888 Wu Siew Ying t/a Fuh Lin Bud-Grafting Centre v. Gunung Tunggal Quarry & Construction Sdn Bhd & Anor [2011] 2 MLJ 1 Zulhasnimar Hasan Basri & Anor v. Dr Kuppu Velumani P & Ors [2017] 5 MLJ 438; [2017] 8 CLJ 605