XXXX v Dr Anna Padmavathy A/P Soosai (WA-23NCvC-30-04/2022)

PRINCE COURT MEDICAL CENTRE SDN BHD …DEFENDANTS (Company No.: 599835-A) 23/01/2026 16:13:10 WA-23NCvC-30-04/2022 Kand. 462 Judgment [medical negligence trial] Observations on the ethics of cross-examination

Sandra Day O’Connor, the first woman to serve as a U.S. Supreme Court justice, in her book The Majesty of the Law Reflections of a Supreme Court Justice [2003] said at page 226– “Lawyers must do more than know the law and the art of practising it. A great lawyer is always mindful of the moral … aspects of [his] position as an officer of the court. The Constitution requires lawyers to represent their clients zealously… but nothing in the Constitution justifies advocacy so zealously that it exceeds the bounds of the law.”

In a trial counsel should not engage in prolix, repetitive and unnecessary cross-examination. While counsel has a duty to advance his client’s case zealously, counsel equally owes a duty to the Court to do a structured cross-examination in the interest of the timely administration of justice. Unnecessary days taken for one trial will necessarily means that other trials cannot proceed.

This is a medical negligence trial heard over 33 days from 08-05- 2023 to 02-10-2025 centred on allegations of medical negligence involving the plaintiff, a premature baby, who had unfortunately contracted septic arthritis and was treated for it.

Septic arthritis is a painful infection in a joint. The infection can quickly and severely damage the cartilage and bone within the joint, so prompt treatment is crucial.

Oral submissions by counsel were held on 26-11-2025. Thereafter, I ordered further written submissions to be filed to address certain issues that arose from the previous set of written submissions. I deliver my judgment on 19-01-2026. These are my Grounds of Judgment.

The plaintiff, Dante Jordan Gautaman, is one of two twins born prematurely on 02-04-2016 at the Prince Court Medical Centre [“Prince Court Medical Centre” or “Hospital”]. His twin sister is Daniqa Jaya Gautaman. Unlike the plaintiff, she did not develop septic arthritis and is not involved in this or any litigation with the defendants here.

The plaintiff brought his suit against the three defendants through his mother and litigation representative, Christine Ann Gautaman.

The 1st defendant, Dr Anna Padmavathy Soosai, is a Consultant Neonatologist and Paediatrician at Prince Court Medical Centre [“Dr Anna”).

The 2nd defendant, Dr Mohd Azli Bin Abdul Hamid, is a Consultant Paediatric Orthopaedic Surgeon at Prince Court Medical Centre [“Dr Azli”].

The 3rd defendant owns and operates Prince Court Medical Centre. Background facts

The plaintiff and his twin sister were born on 02-04-2016 at 32 weeks gestation and in light of the ‘prematurity’ of birth, both were placed in the Neonatal Intensive Care Unit [“NICU”]. Placed in a closed incubator from 02-04-2016 to 15-04-2016

As the plaintiff was a premature baby, he was placed in a closed incubator from 02-04-2016 to 15-04-2016 to minimise his exposure to infection. [See Dr Anna’s Witness Statement Enclosure 63 Q and A 7].

Dr Anna further testified at trial- [See NOP Enclosure 364 at page 2020 lines 27 - 36 and page 2021 lines 1 - 2] TCC … Dr Anna, answer to Question 7 of Enclosure No.63, it says “The patient was placed in a closed incubator to maintain his body temperature and to prevent humidity losses. It was also to minimise his exposure to infection.” Correct? ANNA Yes. … TCC Could you amplify the statement that says “It was also to minimise his exposure to infection”? ANNA Yes, because as we all know that pre-term baby are very subjected to infections. They have a weak immune system. So, the basic idea of putting them in an incubator is to keep them isolated. It is a form of isolation. 15-04-2016

On 15-04-2016, given that the plaintiff’s condition was well and stable, the plaintiff was moved from the closed incubator to the open incubator so that he was able to adapt to the environmental temperature. [See Dr Anna’s Witness Statement Enclosure 63 Q and A 10]. 16-04-2016

On 16-04-2016, Dr Anna examined the plaintiff and found him stable and active. He was also feeding well. She planned for the plaintiff’s discharge from the Hospital, if he continued to be well and stable. [See Dr Anna’s Witness Statement Enclosure 63 Q and A 11]. 17-04-2016 - diagnosis of septic arthritis

On 17-04-2016 at around 12:00 pm, the nurses noted the plaintiff crying with a high pitch during handling and his left hand was not moving [See nursing notes at page 73, Enclosure 53] and reported the same to Dr Anna.

Dr Anna examined the plaintiff and found him unable to move his left upper limb. She also noted that his left shoulder was mildly swollen. In view of the said findings, she formed the impression that he had septic arthritis. [See Dr Anna’s Witness Statement Enclosure 63 Q and A 12].

Dr Anna carried out a septic screen for the plaintiff, which included a full blood count, C-reactive protein and a blood culture test. IV antibiotics were ordered to be given pending the results. She also ordered an x-ray of the left upper limb and ultrasound of the left shoulder. The tests were done to confirm her initial impression of infection and septic arthritis, as well as to assess the severity of the condition so that the appropriate treatment could be administered. [See Dr Anna’s Witness Statement Enclosure 63 Q and A 13].

Upon reviewing the test results and coupled with the plaintiff’s signs and symptoms, she diagnosed the plaintiff with left shoulder septic arthritis. [See Dr Anna’s Witness Statement Enclosure 63 Q and A 14]. Treatment plan-Referral to Dr Azli

Dr Anna ordered that the plaintiff be administered with IV antibiotics. She also ordered for the plaintiff to undergo a blood transfusion to optimise his ability to cope with the infection. She also referred the plaintiff to a pediatric orthopedic [sic, this is American spelling. The English spelling is paediatric orthopaedic] surgeon, Dr Azli, for any surgical drainage procedure, if necessary. Dr Anna also informed the treatment plan to the plaintiff’s mother. [See Dr Anna’s Witness Statement Enclosure 63 Q and A 15].

Dr Azli and the radiologist agreed with Dr Anna’s diagnosis of left shoulder septic arthritis. [See Enclosure 371 D2’s Written Submissions paragraph 17].

It is also the pleaded case of the plaintiff that the diagnosis of left shoulder septic arthritis is correct. [See Amended Statement of Claim in A3 Enclosure 204 page 18 at paragraph 13].

Dr. Azli proceeded to carry out aspiration and washout of the pus to drain the fluid from the affected left joint (“Procedure”). Based on the plaintiff’s medical records, this Procedure was carried out on five occasions. [See Dr Anna’s Witness Statement Enclosure 63 Q and A 16]. [See also Enclosure 371 D2’s Written Submissions paragraph 19].

Dr Anna was not involved in the Procedure conducted by Dr Azli on the plaintiff. [See Dr Anna’s Witness Statement Enclosure 63 Q and A 17].

The plaintiff was discharged on 01-05-2016. He was noted to be stable and was able to move his left upper limb. [See Dr Anna’s Witness Statement Enclosure 63 Q and A 19]. Suit filed

On 01-04-2022, the plaintiff filed this medical negligence suit. Pleadings – suit and indemnity suit

The Amended Statement of Claim is in A3 Enclosure 204 pages 1 to 26.

The Amended Defence of Dr Anna is in A1 pages 39 - 46.

The Amended Defence of Dr Azli is in A3 pages 27 - 40.

The Amended Defence of the Hospital is in A1 pages 67 - 74.

The Reply is in A1 pages 75 - 103.

The Hospital also filed an indemnity claim against Dr Anna and Dr Azli. [See A2 Enclosure 49].

The witnesses who gave evidence are as follows (in the order that they were called): Plaintiff’s witnesses i. Christine Ann Gautaman (“PW1”); ii. The plaintiff’s expert witness, Dr Mohamed Faizal bin Hj Sikkandar (orthopaedic surgeon) (“PW2”) expert report Enclosure 75 marked [I] 2; iii. The plaintiff’s expert witness, Professor Madya Dr Choo Yao Mun (paediatrician and neonatologist) (“PW3”), expert report Enclosure 74 marked [I]1; iv. The plaintiff’s subpoena witness, Dr Abdul Razak Mohammed (paediatric surgeon) (“PW4”); v. The plaintiff’s factual witness, Dr Norhayati Mokhty (clinical radiologist) (“PW5”); D2’s witnesses vi. Dr Azli the 2nd defendant (“DW1”); vii. The 2nd defendant’s expert witness, Assoc Professor Dr Abdul Halim Abd Rashid (Consultant paediatric orthopaedic surgeon) (“DW2”), two expert reports Enclosure 69 marked [I] 4 A and Enclosure 82 marked [I] 4 B, and witness statement dated 22- 01-2024 Enclosure 162 and supplementary witness statement dated 22-01-2024 Enclosure 206; D1’s witnesses viii. Dr Anna the first defendant (“DW3”); ix. The first defendant’s expert witness, Professor Madya Dr Neoh Siew Hong (paediatrician and neonatologist) (“DW4”), expert report Enclosure 223 marked [I] 6; D3’s witnesses x. The 3rd defendant’s factual witness, Ms Widyadhara Samatha Dewi (general manager) (“DW5”); and xi. The 3rd defendant’s factual witness, Ms Masrah Hartini Binti Ismail (senior nurse manager) (“DW6”). Plaintiff’s pleaded case against Dr Anna

The pleaded case of negligence and breach of contract against Dr Anna is convoluted and prolix with allegations rephrased in different permutations and forms. [See Amended Statement of Claim A 3 page 20 paragraphs 22.1 - to 22.16].

In summary, there is firstly, an alleged delay in the diagnosis of septic arthritis. [See Amended Statement of Claim A 3 page 20 paragraphs 22.2, 22.3, 22.7, 22.8, 22.9 and 22.11]

Secondly, an alleged failure to take care to avoid the infections which led to septic arthritis. [See Amended Statement of Claim A 3 page 20 paragraphs 22.1, 22.4, 22.12, 22.14, 22.15 and 22.16].

Thirdly, it is also alleged that Dr Anna delayed in the treatment of the plaintiff’s condition and/or failed to treat properly. [See

Amended Statement of Claim A 3 page 20 paragraphs 22.5, 22.6, 10 and 22.13]. Court’s analysis Firstly, an alleged delay in the diagnosis of septic arthritis

In my view, the plaintiff has failed to prove this allegation. The plaintiff’s own expert Professor Madya Dr Choo testified “no delay” in the diagnosis

Initially, the plaintiff’s expert Professor Madya Dr Choo PW3 had stated in his report that the documentation was not sufficient for him to say whether the septic arthritis could have been detected earlier than 17-04-2016. [See [I]1 Enclosure 74 at page 6 paragraph 10]. But upon been shown the documents, he was able to comment during cross-examination there was “no delay” in the diagnosis.

Under cross-examination, PW3 agreed that it was reasonable for Dr Anna to diagnose the plaintiff with septic arthritis only on 17- 04-2016. The NOP shows Professor Choo testifying that based on the notes of 16-04-2016 he did not find any signs that the plaintiff was suffering from lethargy, persistent fever, feeding intolerance and vomiting – all of which would have indicated the presence of an infection. PW3 found the signs were normal and stable – See: Enclosure 364, pages 516 – 519 lines 13 – 24, 1 – 23 and 9 – 11 There are records by the nurses of the child’s vital signs on 16th April 2016 at 9pm now. Yes. … At 9pm at 16th April 2016, the child’s respirate was 56. Do you see that? Yes. This is normal? Normal. His heart rate was 158 per minute. This is also normal? Yes, normal. The records show Professor that the child’s vital signs continued to be monitored and recorded beyond 3pm on 15th April 2016, correct? Yes. Yes. And on the same day, 15th April 2016 itself, those vital signs had already reduced and returned to normalcy, correct? Yes. In fact, the next day, as I showed you the vital signs on 16th April 2016, the readings continued to remain normal and stable. Yes. Yes. Now, your view and you did qualify it was that an investigation of an infection would only be warranted if those vital signs remained high throughout the day. That’s how you put it, correct? Yes, agreed. Yes. So, based on the medical records that I have shown you, those vital signs did not remain high, correct? Yes, correct. See: Enclosure 364, page 523 lines 6 – 22 If a new-born had an infection or sepsis, he may show signs of lethargy, correct? Yes, correct. Vomiting? Yes. Feeding intolerance? Yes. Persistent fever, correct? Yes. Now, you have looked through the notes of 15th April 2016, we know that because its mentioned in your report and you did not pick up any of these signs, correct? Yes, correct.

After going through the documents during cross-examination, Professor Choo agreed that it was reasonable for Dr Anna to diagnose the plaintiff with septic arthritis only on 17-04-2016- NOP Enclosure 364, page 520 lines 1 – 4 … Professor that now I have supplied to you, I have located for you, there would not have been a need to start further investigations for infections on 15th April 2016 at 3pm, correct? Yes, correct. NOP Enclosure 364, pages 528 - 529 lines 22 - 25 So, based on the records that you have considered, Professor, would you agree that it was reasonable for Dr Anna in this case to diagnose septic arthritis only on 17th April 2016? Yes, correct The plaintiff’s 2nd expert a Consultant Orthopaedic Surgeon, Dr Mohamed Faizal bin Hj. Sikkandar (PW2) [“Dr Faizal”]

Dr Faizal, PW2, initially in his report opined that sepsis should have been suspected and investigated earlier as there were, according to him, at that stage suggestive signs present. [See Enclosure 75 [I] 2 at page 7 paragraph 1, Expert Report by Dr Faizal].

However, in his report Dr Faizal PW2 had also commented that signs of septic arthritis could have been present earlier but he cannot comment due to missing reports. [See Enclosure 75 [I] 2, page 7 paragraph 4, Expert Report by Dr Faizal].

However, under cross-examination, Dr Faizal PW2 conceded the issue was beyond his real expertise. He is only an orthopaedic surgeon. The area lies with a Neonatologist who specialises in new-born babies. The plaintiff’s own expert Neonatologist, Professor Madya Dr Choo PW3 in fact had already taken a contrary view when he testified during trial. Dr Faizal PW2 conceded the issue was beyond his real expertise as can be seen in the Notes Of Proceedings (‘NOP”) below– NOP See: Enclosure 364, page 446 lines 9 – 13 Given that it is not your area of expertise, it would not have been appropriate for you to opine on whether or not sepsis in this new-born should have been suspected earlier or not. Would you agree with that? Yes, agree.

In Ahmad Zubir bin Zahid v Datuk Dr Zainal Abidin Abdul Hamid & Others unreported [Kuala Lumpur High Court Civil Suit No: 22NCVC-357-07/2014], HC at paragraph [43], John Louis O’Hara J in his grounds of judgment stated that “… the Court has to be circumspect in regard to the expert evidence presented to it as the experts were not professed experts in the field of cardiology”.

In my view, the Court should reject testimony by an expert who is testifying outside his area of expertise. How should a judge use expert evidence?

The following principles can be distilled from decided cases on how a judge should use expert evidence– i. The principal object of expert evidence is to assist the court to form its own opinion. An expert should give his reasons. The court is the final arbiter, not the experts or witnesses. [See Dr Shanmuganathan v Periasamy s/o Sithambaran Pillai [1997] 3 MLJ 61, FC at page 85B]; and ii. Where there are conflicting expert opinions, the judge considering the evidence is entitled to bring to bear his own judicial appreciation of the matter, and choose one over the other. [See Majuikan Sdn Bhd v Barclays Bank Plc [2015] 1 MLJ 171, CA at [35]].

The Federal Court in Dr Shanmuganathan v Periasamy s/o Sithambaran Pillai [1997] 3 MLJ 61, FC (at page 85B) speaking through Anuar CJ Malaya said-It is trite law that the principal object of expert evidence is to assist the court to form its own opinion. An expert should give his reasons. The court is the final arbiter, not the experts or witnesses ... [at page 89B] The learned judge should have considered the reasoning given by the expert and with that assistance arrive at the conclusion. In failing to do so the learned judge had abdicated his function. The learned judge is entitled to reject the evidence but not before considering such evidence ... [Emphasis added]

In Majuikan Sdn Bhd v Barclays Bank Plc [2015] 1 MLJ 171, CA, Mohamad Ariff JCA said- [35] … in our view, a judge who is not an expert himself, should defer to expert opinion unless that evidence is obviously indefensible and is not supported by the basic facts of the case. Where there are conflicting expert opinions, the judge is of course entitled to bring to bear his own judicial appreciation of the matter, and choose one over the other, but where there is only one expert opinion, he should not as a rule reject that opinion outright without judiciously considering whether it is obviously indefensible and unsupported by the basic facts of the case. Such a principle is in accord with the principle that the court is the final arbiter, as stated in Dr Shanmuganathan v Periasamy s/o Sithambaram Pillai [1997] 3 MLJ 61: ... the principal object of expert evidence is to assist the court to form its own opinion. An expert should give his reasons. The court is the final arbiter, not the experts or witnesses ... [Emphasis added] Testimony of Dr Anna’s expert Professor Madya Dr Neoh DW4

Further, Dr Anna’s expert Professor Madya Dr Neoh DW4 had opined that there was no delay on the part of Dr Anna in diagnosing the plaintiff with septic arthritis. She said so in her expert report in Enclosure 223 [I] 6 page 24 at paragraph 42.

Having heard her testimony, I find Professor Madya Dr Neoh DW4 a credible witness. She has impressive qualifications practising as a paediatrician since 1993 and a neonatologist since 2003, a Consultant Paediatrician and Neonatologist in Hospital Taiping from 2003 - 2007 and in Hospital Kuala Lumpur and subsequently Hospital Tunku Azizah Kuala Lumpur from 2007 - 2023. She also served as the Head of Neonatal Unit, Hospital Tunku Azizah Kuala Lumpur and Head of Neonatal Subspecialty for the Ministry of Health Malaysia from January 2019 to 14-03-2023.

In conclusion, it is my view that the plaintiff has failed to prove the allegation there was a delay by Dr Anna in her diagnosis of septic arthritis.

I now move to the second allegation that there was an alleged failure by Dr Anna to take care to avoid the infections which led to septic arthritis. [See Enclosure 204 Amended Statement of Claim A 3 at page 20 paragraph 22.1, 22.4, 22.12, 22.14, 22.15 and 22.16]. Second allegation - an alleged failure by Dr Anna to take care to avoid the infections which led to septic arthritis

Dr Anna’s expert Professor Madya Dr Neoh DW4 had opined that there was no such failure. She said so in her expert report Enclosure 223 [I] 6 page 24 - 29 at paragraphs 44, 47, 48, 51, 59, 61 - 63.

The plaintiff’s two experts Professor Madya Dr Choo PW3 and Dr Faizal PW2 in their reports [[I] 1 and [I] 2] did not say there was a failure by Dr Anna, Dr Azli and the Hospital to take care to avoid the infections which led to septic arthritis.

In Shalini a/p Kanagaratnam v Pusat Perubatan Universiti Malaya (formerly known as University Hospital) & Anor [2016] 3 MLJ 742, CA, the Court of Appeal said- [10] It is also well established in medical negligence cases that the plaintiff must establish the appropriate standard of care and demonstrate that the standard of care has been breached, with expert evidence. [Emphasis added]

In conclusion, it is my view that the plaintiff has failed to prove his allegation there was a failure by Dr Anna to take care to avoid the infections which led to septic arthritis.

I now move to the third allegation that Dr Anna delayed in the treatment of the plaintiff’s condition and/or failed to treat properly. [See Enclosure 204 Amended Statement of Claim A 3 at page 20 paragraphs 22.5, 22.6, 22.10 and 22.13]. Third allegation - Dr Anna delayed in the treatment of the plaintiff’s condition and/or failed to treat properly

Dr Anna’s expert Professor Madya Dr Neoh DW4 had opined that there was no such failure. She said so in her expert report Enclosure 223 [I] 6 page 24 at paragraphs 52, 53, 57 and 60.

The plaintiff’s two experts also testified there was no such failure. The plaintiff’s expert Dr Faizal PW2 confirmed that, “In all fairness however, antibiotics were commenced as the signs became more evident, and the referral to the orthopaedic surgeon was done appropriately”. [See Enclosure 75 [I] 2, page 7 paragraph 4, Expert Report by Dr Faizal].

The plaintiff’s expert Neonatologist, Professor Madya Dr Choo PW3 in fact had testified there was “no delay”. Initially, PW3 had stated in his report that “As there were no records available, I am unable to comment on the delay”. [See Enclosure 74 [I] 1 page 7 paragraph 12]. But he was able to comment during cross-examination there was “no delay” in the treatment. This is evident from the following notes of proceedings including his answer to a question which I had posed-See: Enclosure 364, page 530 lines 9 – 11 Would you agree Professor that there was no time gap between the time when the septic arthritis was diagnosed and the antibiotics was started? Yes, agreed. See: Enclosure 364, page 542 lines 6 – 11 YA Doctor, before I let the other counsel cross examine you, I just want to get clarification from you on your report [I] 1, para 12 where there was a question pose to you there was a delay in treating the patient for sepsis. Now that you have gone through the cross examination, would you be able to answer whether there was a delay or no delay. No delay.

In conclusion, it is my view that the plaintiff has failed to prove the allegation that Dr Anna delayed in the treatment of the plaintiff’s condition and/or failed to treat properly. Unpleaded allegations against Dr Anna

In plaintiff WS Enclosure 353 at paragraph 49, the plaintiff alleged Dr Anna failed to document care for 10 days. At paragraph 50, the plaintiff also alleged Dr Anna failed to monitor medication administration by the nurses. Lead counsel for Dr Anna Raja Eileen Soraya objected that these allegations are not part of the plaintiff’s pleaded case and should not be entertained at this stage. I agree.

None of the experts testified on these unpleaded issues in their reports. Parties are bound by pleadings

It is trite law that parties are strictly bound by their pleadings and the court is barred from deciding a civil claim based on issues or facts not pleaded and thus not testified on during trial by the litigating parties or their witnesses. This is particularly so in a medical negligence case where the court needs the inputs of the parties’ medical experts.

In a medical negligence trial, the Court of Appeal said in Kuala Terengganu Specialist Hospital Sdn Bhd & Anor v Ahmad Thaqif Amzar bin Ahmad Huzairi (claiming through mother and her litigation representative, Majdah bt Mohd Yusof) and other appeals [2023] 1 MLJ 281 CA - [32] It is trite law that parties are strictly bound by their pleadings and the court is barred from deciding a civil claim based on issues or facts not raised by the litigating parties.

For completeness, I shall consider these two unpleaded causes of actions to see if the plaintiff has a valid case based on the facts. Incomplete or inaccurate notes do not automatically impute negligence

It is trite law that a medical practitioner who keeps incomplete or inaccurate notes is not ipso facto negligent. The plaintiff must still prove the prescribed medicine or treatment was not given to the plaintiff and thus caused the damage complained of. [See Lai Ping Alias Lai Wai Ping v Dr Lim Tye Ling & Ors [2014] MLJU 94, HC at [25], Foong Yeen Keng v Assunta Hospital (M) Sdn Bhd & Anor [2006] 5 MLJ 94, HC at [49] and Zulhasnimar bt Hassan Basri & Anor v Dr Kuppu Velumani P & Ors [2014] 7 MLJ 899, HC at [100]].

In Lai Ping Alias Lai Wai Ping v Dr Lim Tye Ling & Ors [2014] MLJU 94, HC, the High Court said- [25) The second point has to do with the incomplete records kept by the 2nd Defendant. It was suggested that this was indication that he was negligent. In my view, a medical practitioner who keeps incomplete or inaccurate notes, is not ipso facto negligent, if the notes or lack of them are not a cause of the plaintiff’s damage. Incomplete or inaccurate notes is not the sine qua non in a negligence action. I therefore do not consider that the absence of any reference to the eye injections in the Operation Record and the referral letter demolishes the credibility of the 2nd Defendant on his assertion that the intravitreal eye injections were administered to the Plaintiff on 19.7.2006. [Emphasis added].

In Foong Yeen Keng v Assunta Hospital (M) Sdn Bhd & Anor [2006] 5 MLJ 94 HC, the High Court held that the omission to record the medicine dispensed to the patient was indicative of the carelessness of the nurses, but it was not per se negligence. Raus Sharif J said- “[49] The appellant has attempted to show that there was insufficient flagyl administered on the appellant by virtue of the fact that in the medical sheet (P8) flagyl was recorded as '100 mg' and that certain entries in the medicine sheet were not initialed for other medication like netromycin, penbritin and ceforid. But as submitted by the hospital that failure to complete notes does not indicate negligence. More importantly is that there is ample evidence supporting the hospital's contention that the medicine prescribed had been dispensed. There is the evidence of DW4 which is not challenged that flagyl only comes in 100 ml bottles. Therefore, it is not possible for only 100 gm of flagyl, as recorded in the medical sheet (P8) to be given as opposed to 100 ml. I am also of the view that the non-initial of the medicine sheet by the nurses for the antibiotics, netromycin, penbritin and cefoid, does not in any way indicate that those antibiotics have not been dispensed to the appellant. If anything, it indicates a recording carelessness of the nurses. Surely it is not negligence. To me the colour chart supported the evidence that the medicine was dispensed at all times to the appellant. Hence, the applicant contention that the hospital failed to properly administer adequate and correct antibiotic must fail”. [Emphasis added]

In Zulhasnimar bt Hassan Basri & Anor v Dr Kuppu Velumani P & Ors [2014] 7 MLJ 899 HC, the High Court held that the Court should look at the patient’s overall outcome and progress of the treatment given, rather than relying solely on the completeness of the medical records- “[100] Quite apart from record keeping, in my view, the more important thing to be looked at is whether a proper management of the patient had indeed taken place. This is shown on the result and impact on the patient. Hence, the failure to note or record certain event need not necessarily conclude that such treatments are not administered on the patient. The outcome or the result of certain administration or management on the patient would have to be placed importance, rather than purely relying on the records and account made by nurses or doctors. …”. [Emphasis added]. Application to facts

Having gone through the evidence, my view is that the alleged failures to document care for 10 days and the alleged failure to monitor medication administration by the nurses [even if true, which are not proven] did not affect the treatment to the plaintiff.

The evidence shows the treatment administered to the plaintiff was effective. The plaintiff’s condition improved and he was discharged on 01-05-2016 when he was no longer suffering from sepsis.

The plaintiff’s own expert Professor Madya Dr Choo PW3 opined that “the joint aspiration was done in a timely manner once the ultrasound showed presence of fluid”. See: Enclosure 74 [I] 1, page 7 paragraph 13, Expert Report by Professor Choo.

Professor Madya Dr Neoh DW4 opined that “Dr Anna’s overall care of the plaintiff’s conditions was appropriate, reasonable and adequate at all material times”. She also found that the “plaintiff was managed in accordance with the standard neonatal protocol for premature infants”. [See: [I] 6, page 25 paragraph 46, Expert Report by Dr Neoh].

During cross-examination on 02-08-2023, the plaintiff’s own expert Dr Faizal PW2 testified that the report by Dr Peter Lee, the plaintiff’s orthopaedic surgeon in Singapore, indicated that the infection had resolved. This is evident from the following extract of the evidence-TT So, Dr Peter Lee, who is a consultant orthopaedic surgeon, most like, from Mount Alvernia Hospital, Singapore has stated in his report that following the treatment rendered by Dr. Azli, the infection in the shoulder have resolve. Have you got any reasons to disagree with him? No, based on the reports I have gone through, no I agree with him. [Emphasis added]. See: NOP Enclosure 364, page 459 lines 12 – 17

The view that the antibiotics had resolved the plaintiff’s infection was also expressed by the plaintiff’s own expert Professor Madya Dr Choo [PW3] during his testimony on 02-08-2023. This is evident from the following extract of the evidence. If the antibiotics were not effective, the ones that were given, you expect to still see some growth, correct? Yes. This would suggest Professor that this culture would suggest that the antibiotics that were given were effective in treating the infection, correct? Yes. In fact, based on the records, and I think you have seen it already, the child’s condition would, did not deteriorate after the administer was made, correct? Yes. See: NOP Enclosure 364, page 538 lines 6 – 15 [Emphasis added].

Professor Madya Dr Neoh [DW4] confirmed that the sample extracted from the joint aspiration indicated that there was no more infection. This is evident from the following extract of the evidence-FELIX … I take you to item 28 doctor of your opinion blood culture on the 30th April doctor right, can you see line but the joint aspiration sample sent on 30th April 2016 had no growth right, what is that indicative of doctor? So again shows that already been treated the infection is under control and the bacteria is no longer there. [Emphasis added].

In conclusion, I dismiss the plaintiff’s claim against Dr Anna.

I now move to the plaintiff’s pleaded case against Dr Azli. Plaintiff’s pleaded case against Dr Azli.

The pleaded case of negligence and breach of contract against Dr Azli is convoluted and prolix [See Amended Statement of Claim A 3 at page 20 paragraphs 22.17 - 22.25].

There is firstly, an alleged delay in the diagnosis of septic arthritis. [See Enclosure 204 Amended Statement of Claim A 3 at page 20 paragraph 22].

Secondly, an alleged failure to take care to avoid the infections which led to septic arthritis.

Thirdly, it is also alleged that Dr Azli delayed in the treatment of the plaintiff’s condition and/or failed to treat properly.

Fourthly, it is also alleged that Dr Azli failed to ensure the treatment at NICU is safe. Court’s analysis

The first and second allegations are devoid of merits. The plaintiff’s two experts did not opine Dr Azli was negligent. The plaintiff was not under the care of Dr Azli till after the diagnosis of septic arthritis was done by Dr Anna. She then referred the plaintiff to him to carry out a surgical drainage procedure, if necessary.

The third and fourth allegations are also devoid of merits. I had earlier set out above the evidence that shows the treatment by Dr Azli was timely and effective. The plaintiff had also failed to put forward any evidence the treatment at NICU was not safe. The burden of proving his case lies with the plaintiff. [See sections 101 - 103 Evidence Act, 1950].

The plaintiff’s own expert Professor Madya Dr Choo, PW3, opines that “the joint aspiration was done in a timely manner once the ultrasound showed presence of fluid”. [See: Enclosure 74 [I] 1, page 7 paragraph 13, Expert Report by Professor Choo].

Dr Mohamed Faizal bin Hj Sikkandar, who is the plaintiff’s expert (PW2) had at paragraph 5 of his expert opinion (Exhibit ‘I2’), confirmed as follows: “There was no delay in undertaking the joint aspiration procedure by the treating orthopaedic surgeon and repetitive aspirations were necessary as an infected joint cavity often requires multiple washout / aspiration procedures to ensure a thorough debridement”.

During cross-examination, the plaintiff’s own expert Dr Faizal, PW2, testified that the report by Dr Peter Lee, the plaintiff’s orthopaedic surgeon in Singapore, indicated that the infection had resolved-TT So, Dr Peter Lee, who is a consultant orthopaedic surgeon, most like, from Mount Alvernia Hospital, Singapore has stated in his report that following the treatment rendered by Dr. Azli, the infection in the shoulder have resolve. Have you got any reasons to disagree with him? No, based on the reports I have gone through, no I agree with him. See: NOP Enclosure 364, page 459 lines 12 – 17 [Emphasis added].

The plaintiff’s parents sent an undated letter of ‘feedback’ to the Hospital which was acknowledged as received on 10-09-2016. [(B1 Enclosure 53 page 280]. There is some uncertainty whether the date was stated correctly. In this letter it was stated “No procedure of Dr Azli was questioned.”

Dr Azli’s expert witness, Assoc Professor Dr Abdul Halim Abd Rashid (Consultant paediatric orthopaedic surgeon) (“DW2”) testified joint aspirations are accepted procedure for septic arthritis in neonate/young children. He concluded Dr Azli had given the correct treatment for the plaintiff. [See Enclosure 69 [I] 4 (A) Exhibit AH-1]. Allegation Dr Azli performed the Procedures in the ward and not in a sterile operating theatre

Lastly, I now consider the allegation that Dr Azli has erred and not acted in accordance to the usual and accepted practice when he performed the Procedures in the ward and not in a sterile operating theatre. This assertion was made by Dr Mohamed Faizal in his written opinion at paragraph 6.

During cross examination by lead counsel for Dr Azli Mr Tharumarajah, Dr Mohamed Faizal conceded that his statements were only his personal view and were not supported by any literature or article. (See: Notes of Evidence for 01-08-2023 at Enclosure: 364 – Page: 0454 Lines 1 - 12).

Dr Mohamed Faizal during cross examination also conceded and admitted that Dr Azli had acted in accordance with acceptable medical practice, when undertaking the 5 procedures, which resulted in a resolution of the infection. He also agreed and admitted that his statement is merely a bare statement and there are no statutory provisions and neither are there any medical literature, guidelines, or any authority from any recognized body attached to his opinion, in support of his view. (See: Notes of Evidence for 01-08-2023 at Enclosure: 364 – Page: 0455 Lines 13 - 20).

Dr Mohamed Faizal expressly admitted that the Procedures performed by Dr Azli can actually be done either in the ward, clinic or in the operating theatre (OT)- (See: Notes of Evidence for 01-08-2023 at Enclosure: 364 – Page: 0457 Lines 10 - 18) … So, basically, from what I gather from your opinion, the procedure ideally, you are of the view that ideally should be done in the OT. But it doesn’t mean that it cannot be done in the clinic or in the NICU, correct? PW2: Correct. Correct, so it can be done in the NICU, it can be done in the ward, it can be done in the clinic, it can be done in the OT, correct? Correct. (See: Notes of Evidence for 01-08-2023 at Enclosure: 364 – Page: 0465 Lines 1 - 17) And, if I take you to Enclosure 82 – I4[B], Professor Dr Abdul Halim Abdul Rashid on the last page of his report. … The last page of the report. Joint aspiration can be done as an office procedure, as long as it’s done under aseptic technique. You agree with him? I have to agree with my teacher. TT; And your teacher has also furnished 2 articles, in support of his view. I won’t trouble you with the articles, as you have said you agree with your teacher. Yes. So, Dr, based on what you have testified so far, it is not wrong nor unacceptable for Dr Azli to perform the procedure. I mean, wash out and joint aspiration in the NICU, correct? Yes.

In conclusion, I dismiss the plaintiff’s claim against Dr Azli.

I now move to the plaintiff’s pleaded case against Prince Court Hospital. Plaintiff’s pleaded case against the Hospital

The pleaded case of negligence and breach of contract against the Hospital is also convoluted and prolix [See Enclosure 204

Amended Statement of Claim A 3 at page 22 paragraphs 22.26 - 51].

Essentially, the plaintiff alleged the potential cause(s) of the septic arthritis are-i. Alleged contamination in the NICU with dirty pampers everywhere and dirt everywhere; ii. Alleged non-wearing of gloves by the nurses; iii. Monitoring and Documentation System Failures; iv. Systematic Concealment of Evidence; and v. Critical Omission on 15 April 2016: When Clinical Signs Manifested. [See Enclosure 353 PWS paragraphs 54 - 57]

In my view, the plaintiff had failed to prove his pleaded case against the Hospital. His two experts, PW2 and PW3, were not asked to opine on the allegations above. Alleged contamination in the NICU

The plaintiff’s mom, PW1, alleged there was contamination in the NICU with dirty pampers everywhere and dirt everywhere. This is denied by Dr Anna, Dr Azli and the Hospital.

I find the allegation not proven as there is no documentary evidence [photos or videos] whatsoever. The Hospital made the submission that there is no documentary evidence [photos or videos] whatsoever in its D3 WS Enclosure 374 at paragraph 33 to which the plaintiff’s submissions in reply to D3 WS [Enclosure 388] did not disagree with. The plaintiff merely referred to a letter whereby the Hospital had said “that “one of the nurses at the NICU had attempted to pick up a new-born child without using gloves”. This is what the plaintiff submitted-

D3 challenges the contamination evidence as uncorroborated [Enclosure 374, paras 32-37]. This argument ignores D3's own documentary admission. PCMC's letter dated 26 May 2016 states: "We acknowledged that one of the nurses at the NICU had attempted to pick up a newborn child without using gloves" [Enclosure 353, para 348]. This written admission from PCMC's CEO and Medical Director corroborates the mother's testimony about inadequate infection control practices. D3 cannot now claim the evidence is uncorroborated when their own correspondence confirms the fundamental breach.

The above submission of the plaintiff is inaccurate. The Hospital, in their letter dated 26-05-2016, had stated that a nurse attempted to pick up a new born child (not the plaintiff) without using gloves, and she was immediately reprimanded by the NICU nurse manager (B1 Enclosure 53 page 282,). [See Enclosure 374 D3 WS]. No mention of contamination in the NICU in letter of ‘feedback’ to the Hospital

The plaintiff’s parents sent an undated letter of ‘feedback’ to the Hospital which was acknowledged as received on 10-09-2016. [(B1 Enclosure 53 page 280]. There is some uncertainty whether the date was stated correctly. In this letter, there was no complaint by the plaintiff’s parents of contamination in the NICU with dirty pampers everywhere and dirt everywhere.

In any event the plaintiff’s two experts PW2 and PW3 were not asked to opine whether the Hospital was negligent based on this allegation. This supports the Hospital’s contention the allegation is not true. No evidence the plaintiff’s twin sister and other babies also developed septic arthritis

I also find the fact that there is no evidence the plaintiff’s twin sister and other babies also developed septic arthritis must mean that the allegation of contamination in the NICU with dirty pampers everywhere and dirt everywhere is not proven. Alleged non-wearing of gloves by the nurses

There is no evidence the nurses handled the plaintiff without gloves. I have addressed this allegation earlier and do not propose to set it out here again. In any event, the plaintiff’s two experts PW2 and PW3 were not asked to opine whether the Hospital was negligent based on this allegation. This supports the Hospital’s contention the allegation is factually not true. No evidence of other babies infected with septic arthritis

Likewise, I also find the fact that there is no evidence the plaintiff’s twin and other babies also developed septic arthritis must mean that the allegation of non-wearing of gloves by the nurses is not credible.

DW6 Ms Masrah Hartini Binti Ismail (senior nurse manager) in her witness statement Q and A 24 stated that there was no case of septic arthritis in the Hospital between 2015 and 2017 apart from the plaintiff’s case (page 8 Enclosure 66):

These allegations are not proven as the plaintiff had healed in a timely manner as I had narrated above. In my view, the fact that the plaintiff recovered with no issue must mean there was no failure by the nurses to give the medication as prescribed. Further the Hospital has shown the medicine was indeed administered. [See Enclosure 374 paragraph 83 and Appendix A Hospital WS].

This allegation concerns the [alleged] failure of Dr Anna to diagnose the septic arthritis earlier and has nothing to do with the liability of the Hospital.

In conclusion, I hold that the plaintiff has not proven his case against Prince Court Hospital. Plaintiff’s claim for damages

The plaintiff had requested the Court to decide on liability first and then refer the matter for assessment of damages. [See paragraph 1169 - 1283 @ page 270 - 307, Enclosure 353).

The defendants disagree on the ground there was no agreement to split the trial into two stages of liability first and thereafter assessment of damages.

In view of my finding on non-liability, there is no necessity for me to refer the matter for assessment of damages or to consider the quantum of damages claimed. Hospital’s indemnity claim against Dr Anna and Dr Azli

The Hospital has filed an indemnity claim against Dr Anna and Dr Azli. [See A2 Enclosure 49].

In view of my decision to dismiss the plaintiff’s suit against Dr Anna and Dr Azli, I likewise dismiss the Hospital’s indemnity claim against Dr Anna and Dr Azli. What was the possible cause for the septic arthritis?

This is an unfortunate case for the plaintiff and his parents. The court can only sympathise but I have to decide based on the testimonies of the medical experts and the other witnesses.

Dr Neoh [DW4] ’s explanation for the possible cause for the septic arthritis is as follows (page 25, Enclosure 223)- “47. Issue: What is/are the possible cause(s) of septic arthritis suffered by the Plaintiff? Comment: The organism causing septic arthritis in the Plaintiff was Staphylococcus aureus. Staphylococcus aureus is a common organism that colonizes the skin and mucous membrane of 30% to 50% of healthy adults and children. Healthcare workers and family members who are colonized may also serve as reservoir for transmission (Reference 2) The Plaintiff was likely to have been colonized by Staphylococcus aureus which subsequently invaded his bloodstream and caused septic arthritis. The Plaintiff was constantly being monitored for thrombophlebitis and since he did not have any thrombophlebitis or signs of infection at other superficial sites, it was unlikely the infection was related to a procedure e.g. placement of IV catheter. The Plaintiff, being a premature infant has a higher risk for infection due to his immature immune system.” [Emphasis added]

Dr Neoh [DW4] stated that she found no clinical evidence that the plaintiff’s septic arthritis was caused by the defendants. (pages 26 - 27, Enclosure 223): “Comment: There was no evidence that the Plaintiff’s infection was caused by the Defendants. When Dr Padma saw the Plaintiff on 16th April 2016, he was well and full enteral feeding. He was able to maintain his body temperature when he was nursed on the open hood without the warmer on. He was already 35 weeks corrected age. In clinical practice, most preterm babies born at 32+ or 33 weeks are ready to go home when they reach 35 weeks corrected age if they are well. Therefore, it was appropriate for Dr Padma to plan his discharge by first weaning him down to cot with a plan to discharge him on 18th April 2016 if condition permitted. However, the planned discharge on the 18th April 2016 did not take place as the Plaintiff was diagnosed with septic arthritis on the 17th April 2016. The Plaintiff was discharged on 1st May 2016 after he had completed his IV antibiotic and was well.” [Emphasis added]

Dr Neoh [DW4], under cross-examination by lead counsel for the plaintiff Dr. Teng Chee Chyun, opined that the staphylococcus aureus that invaded the plaintiff could have come from anyone, even the family members (page 2460, Enclosure 364): TENG Dr Neoh I put it to you, Staphylococcus was transmitted to baby Dante via transiently colonized hands of healthcare professional at the material time in April 2016, agree? Agree or disagree? I actually disagree because you have to read the next sentence, it’s the sentence after that says that it can be healthcare professionals, it can be family members, it can be anyone. TENG No, transmitted most often, most often? Most often, yes. TENG So I put it to you, Staphylococcus was transmitted to baby Dante most often, most likely, via transiently colonized hands of healthcare professional at the material time in April 2016, agree? Not necessary.

This is a 33-day trial. Three rounds of written submissions were filed by counsel. Counsel also attended Court for a day for oral submissions. After hearing submissions from counsel and taking into account this is a 33-day trial, the attendance of the two defendants specialist doctors throughout the trial, the involvement of four expert doctors on a difficult medical issue who were subjected to searching cross-examination, I think costs of RM 350,000 each to Dr Anna and Dr Azli and costs of RM 300,000 to Prince Court Hospital is fair and reasonable.

Finally, I wish to place on record my appreciation to all the expert medical witnesses for their candid and honest testimonies which have greatly assisted me. I also thank all counsel for their written submissions which are concise and to the point.

For the reasons above, the plaintiff’s suit against Dr Anna, Dr Azli and the Hospital is dismissed with costs of RM 350,000 to Dr Anna, costs of RM 350,000 to Dr Azli and costs of RM 300,000 to Prince Court Hospital subject to allocatur.

The Hospital’s indemnity claim against Dr Anna and Dr Azli is dismissed. Dr Anna’s counterclaim against the Hospital is dismissed. By consent each party to bear own costs. Dated: 22th January 2026 …………(signed)…………. Leong Wai Hong Judge High Court of Malaya Kuala Lumpur (NCC 6) Counsel for plaintiff: Sreedhara Naidu and Dr. Teng Chee Chyun. Naidu Chambers (Kuala Lumpur). Counsel for 1st defendant: Raja Eileen Soraya and Jeremy Robeiro. Raja, Darryl & Loh (Kuala Lumpur). Counsel for 2nd defendant: Tharumarajah, Ho Zie Yan and Nichole Yong (Pupil in Chamber). Azim, Tunku Farik & Wong (Kuala Lumpur). Counsel for 3rd defendant: Felix Raj and Ahmad Aizek. Felix Raj Chambers (Petaling Jaya). CASES REFERRED TO: 1) Ahmad Zubir bin Zahid v Datuk Dr Zainal Abidin Abdul Hamid & Others unreported [Kuala Lumpur High Court Civil Suit No: 22NCVC357-07/2014], HC. 2) Dr Shanmuganathan v Periasamy s/o Sithambaran Pillai [1997] 3 MLJ 61, FC. 3) Foong Yeen Keng v Assunta Hospital (M) Sdn Bhd & Anor [2006] 5 MLJ 94, HC. 4) Kuala Terengganu Specialist Hospital Sdn Bhd & Anor v Ahmad Thaqif Amzar bin Ahmad Huzairi (claiming through mother and her litigation representative, Majdah bt Mohd Yusof) and other appeals [2023] 1 MLJ 281, CA. 5) Lai Ping Alias Lai Wai Ping v Dr Lim Tye Ling & Ors [2014] MLJU 94, HC. 6) Majuikan Sdn Bhd v Barclays Bank Plc [2015] 1 MLJ 171, CA. 7) Shalini a/p Kanagaratnam v Pusat Perubatan Universiti Malaya (formerly known as University Hospital) & Anor [2016] 3 MLJ 742, CA. 8) Zulhasnimar bt Hassan Basri & Anor v Dr Kuppu Velumani P & Ors [2014] 7 MLJ 899, HC. LEGISLATION REFERRED TO: 1) Evidence Act, 1950 sections 101 – 103. LITERATURE REFERRED TO: 1) The Majesty of the Law Reflections of a Supreme Court Justice [2003] by Sandra Day O’Connor at page 226.