Dato’ Dr V Thuraisingam & Anor v Sanmarkan al Ganapathy & Anor [2016] 3 MLJ 227

Court of Appeal

Negligence — Medical negligence

1. The Respondents were administrators of the estate of Saradhamani a/p Doraisamy (“the Deceased”), who had been under the medical care of the Appellants, Dato’ Dr V Thuraisingam and another consultant physician, between 1980 and 2000. Over this 20-year period, the deceased sought treatment on eight occasions for recurring symptoms of food poisoning and gastroenteritis.
2. Each time, she was hospitalised briefly, treated, and discharged within 24 hours after recovery. However, on 15 December 2000, she complained of abdominal pain with new symptoms. Upon further investigation, she was diagnosed with colon cancer and underwent a partial colectomy on 20 December 2000. She later succumbed to the disease in 2005.
3. Her estate sued the doctors in the High Court for medical negligence, alleging that they had failed to diagnose the cancer earlier, causing the deceased unnecessary pain, suffering, and prolonged treatment. The High Court found the doctors negligent and awarded damages to the estate.
4. The doctors appealed to the Court of Appeal, arguing that they had acted reasonably and that the High Court had wrongly ignored expert medical evidence. The Respondents cross-appealed on the issue of quantum.

1. Whether the trial court erred in finding the Appellants negligent in failing to diagnose the deceased’s colon cancer earlier.
2. Whether the trial judge misdirected himself by disregarding the expert medical evidence and independently determining the applicable standard of care.

(1)  Whether the trial court erred in finding the Appellants negligent in failing to diagnose the deceased’s colon cancer earlier.

(a) The Court of Appeal held that the Appellants had acted reasonably, logically, and in accordance with accepted medical practice throughout the deceased’s treatment history.

(b) Applying the Bolam principle (Bolam v Friern Hospital Management Committee [1957] 1 WLR 582), a doctor is not negligent if he acts in accordance with a practice accepted as proper by a responsible body of medical practitioners skilled in that field. The Court found that the Appellants’ repeated diagnoses of food poisoning and gastroenteritis over a 20-year period were consistent with the symptoms presented and medical standards of the time.

(c)  Further, under the Bolitho qualification (Bolitho v City and Hackney Health Authority [1997] 3 WLR 1151), the medical opinion relied upon must withstand logical analysis. The Appellants’ conduct was logical because the deceased’s symptoms resolved within 24 hours after each treatment and did not warrant invasive testing such as colonoscopy or endoscopy.

(d) The Court also cited the Federal Court’s approach in Foo Fio Na v Dr Soo Fook Mun [2007] 1 MLJ 593, which held that courts must determine whether a doctor acted reasonably, logically, and on the basis of correct facts. The appellate judges concluded that the appellants satisfied these standards, and no breach of duty of care was proven.

(e)  Hence, failure to diagnose cancer earlier did not constitute negligence because there was no clinical indication requiring earlier investigation, and the doctors had acted according to accepted and reasonable medical judgment.

(2)  Whether the trial judge misdirected himself by disregarding the expert medical evidence and independently determining the applicable standard of care.

(a) The Court of Appeal ruled that the trial judge gravely misdirected himself by disregarding all expert medical opinions and independently determining the “standard of care.

(b) Three expert witnesses had testified, and all of them were found to be credible and competent. Nevertheless, the trial judge dismissed their opinions without proper justification, which amounted to a breach of sections 45 and 46 of the Evidence Act 1950 [Act 56] governing the admissibility and relevance of expert evidence in matters involving scientific or technical expertise.

(c)  The appellate court emphasised that in medical negligence cases, expert evidence plays a crucial role in determining the appropriate professional standard of care. The judge’s failure to properly evaluate the expert testimony was inconsistent with the established legal principles in Bolam (standard of competent practice), Bolitho (logical defensibility of medical opinion), and Foo Fio Na (judicial oversight guided by expert evidence).

(d) The Court further noted that under section 51 of the Evidence Act 1950, a fact relevant to expert opinion must be duly proved. By replacing expert testimony with his own assessment, the trial judge had acted beyond his judicial function.

(e)  Thus, the Court of Appeal held that the High Court’s finding of negligence was fundamentally flawed, as it was reached in breach of the Evidence Act 1950 and was inconsistent with established common law principles governing the assessment of medical negligence.

The Court of Appeal allowed the appeal and dismissed the cross-appeal, setting aside the High Court’s finding of negligence.

1. The Appellants’ conduct in diagnosing and treating the deceased over two decades was reasonable, logical, and professionally sound.
2. The High Court’s failure to consider expert medical evidence constituted a serious error in law and a breach of the Evidence Act 1950.

The High Court’s judgment was therefore quashed, and costs were awarded to the Appellants.

1. The court must rely on qualified expert testimony to determine the applicable standard of care. A judge cannot substitute personal opinion for expert medical assessment, in line with sections 45 and 46 of the Evidence Act 1950.
2. A medical practitioner is not negligent if his conduct accords with a responsible and logical body of medical opinion.