Ahmad Zubir bin Zahid (suing by himself and as the administrator of the estate of Fatimah bt Samat, deceased) v Datuk Dr Zainal Abidin Abdul Hamid & Ors [2019] 5 MLJ 95

Court of Appeal (Putrajaya)

Medical Negligence

1.    The Appellant is suing in his personal capacity and as the administrator for the Deceased who is his wife.  The Deceased died at Pantai Medical Centre (PMC) on 9.10.2012.  The causes of action are medical negligence and breach of contract.

2.    The Respondents are; D1 a consultant cardiologist of PMC, D2 a senior medical officer of Institut Jantung Negara (IJN), D3 a company that owned and managed PMC, and D4 a company that owned and managed IJN.

3.    The Deceased first saw D1 in 2002 at IJN.  She informed D1 that she had mitral valve replacement in 1998.  She was pregnant in 2011 but the pregnancy was terminated due to death of the fetus.  About 6 months before her death ie on 21.3.2012, the Deceased saw D1 for follow up appointment.

4.    The Deceased informed D1 she wanted to get pregnant again via frozen egg transfer.  The Deceased’s fertility doctor told her to switch from Warfarin blood thinner medication to Clexane.  Therefore, the Deceased wanted to take Clexane as advised.

5.    On the next day ie on 22.3.2012, D1 advised the Deceased to be prescribed for Clexane for 0.4 ml and Warfarin 3 mg to be taken daily if the Deceased got pregnant.

6.    About a month afterwards ie on 19.4.2012, the Deceased   informed D1 that she was pregnant.  D1 observed that the Deceased’s vital signs were normal.  D1 advised the Deceased to take Casprin blood thinner for second trimester of her pregnancy and an ECHO to be performed at her next appointment.

7.    On 31.5.2012, the Deceased was at 12 weeks gestation.  The Deceased informed D1 that she had bad morning sickness but it gradually becoming better.  The Deceased also had shortness of breath but not as bad as her first pregnancy.  The Deceased still took Clexane at that material time and her blood pressure and pulse were then within normal range.

8.    On 28.6.2012, the Deceased was at 16 weeks gestation.  The Deceased complained about her palpitations whenever the Deceased lied on her right side.  The Deceased had no shortness of breath on exertion.

9.    The Deceased continued taking Clexane and there was no significant findings.  On 26.7.2012, the Deceased had a loss of appetite.

10.  On 26.9.2012, the Deceased sent an SMS to D1 that she got swollen feet but no chest pain.

11.  Later, on 1.10.2012, the Deceased sent another SMS to D1 that she had shortness of breath, light headedness and numbness etc.  She said that she would like to have another appointment.

12.  D1 then called the Deceased and arranged an appointment with Dato’ Dr Sanjiv on 6.10.2012.   However, the Deceased did not show up but requested for a new appointment on 13.10.2012.

13.  Following that, on 8.10.2012 which is one day before her death, the Deceased sent an SMS to D1 for her to be admitted to PMC as she felt tired, shortness of breath and chest pain.

14.  D1 then called the Deceased to go to the emergency at IJN or PMC. Nevertheless, the Deceased did not want to be admitted and wanted to see D1’s colleague, Dr Azar, on 10.10.2012.

15.  On 9.10.2012, the day that the Deceased died, the Deceased went to IJN about 2.30 am as she was seen by D2.  The Deceased gave her medical history to D2 and she was still on Clexane.

16.  D2 examined the Deceased that she had normal functioning mitral valve with a fast heart beat consistent with pregnancy.  D2 advised the Deceased to continue with Clexane.

17.  On the same day at 7.40 pm, the Deceased went to PMC Emergency Department.  After triage assessment was performed by nurses at 7.45 pm, the Deceased was breathless and hyperventilating.

18.  SD3 who stationed at the Emergency Department then ordered ECG be made to the Deceased and haziness was detected in the lower part of both the Deceased’s lungs.

19.  D1 instructed SD3 to transfer the Deceased to Dr Azar at ICU.  Dr Azar saw the Deceased at 9.30 pm.

20.  Eventually, the Deceased passed away at 10.40 pm.  The cause of death was certified as ‘Acute Pulmonary Oedema Secondary to Prosthetic Valve Malfunction’.  The Appellant refused post mortem be done on the Deceased.

21.  The Appellant claimed that; the Defendants/DD were liable for medical negligence.

1.    Whether the learned trial Judge had failed to apply correctly and sufficiently the legal principles concerning medical negligence.

1.   Legal principles on medical negligence

(a)   Medical negligence law is linked to evolutionary jurisprudence.  The courts of common law jurisdiction have increased the liability of doctors in favour of patients through judicial pronouncements.

(b)   Such an approach may be appropriate in countries such as England and Australia, where courts are permitted to impose common law principles on occasion.

(c)   That privilege, however, does not exist in a country where the Constitution has delegated legislative powers to Parliament.

(d)   Subverting the legislative process and increasing doctors’ liability may not be a fair procedure in accordance with the rule of law as envisaged by the Federal Constitution.

(e)   It could also violate Articles 5 and 8 of the Federal Constitution.  As a result, Malaysian courts have been cautious in adopting any broad proposition that may have an impact on the medical profession, as in Dato’ Dr Thuraisingam & Anor v Sanmarkan a/l Ganapathy & Anor [2016] 3 MLJ 227.

(f)     The issues on standard of care are often related to diagnosis, treatment and advice.  The law on medical negligence and its application is often difficult, as facts and circumstances are not the same in each case and it varies from case to case.

(g)   The conservative position is that a doctor’s duty towards his patient is that he has to exercise a fair and reasonable standard of care and skill, ie the skill of an ordinarily competent medical practitioner which is reflected in the case of Bolam v Friern Hospital Management Committee [1957] 2 All ER 118.

(h)   The Bolam’s case placed a high threshold on the plaintiff to establish negligence when the defence could demonstrate differing medical opinion on the issue.

(i)     Moreover, the Supreme Court of England in Montgomery v Lanarkshire Health Board [2015] UKSC 11 extended the scope of responsibility of doctors to focus on what is said to be a ‘patient centred test’ or ‘prudent patient test’.

(j)     The law now requires a doctor 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.

(k)    The Bolam’s case as well as Rogers’ cases were considered by the Federal Court in the case of Foo Fio Na v Dr Soo Fook Mun & Anor [2007] 1 MLJ 593.   The Federal Court did not reject the Bolam principle or Whitaker’s principle in toto but added a rider, ie to say that the court ultimately must determine whether the doctor acted reasonably and logically and got his facts right.

(l)     In consequence, medical negligence cases in Malaysia could not be decided by medical judgment, but it has to be by way of judicial determination.

(m) Further, the Federal Court in Zulhasnimar bt Hasan Basri & Anor v Dr Kuppu Velumani P & Ors [2017] 5 MLJ 438 accepted the principle as decided in case of Rogers v Whitaker [1992] 175 CLR 479 and Foo Fio Na with regards to standard of care.

(n)   However, the Federal Court confirmed that such principle is extended only to advise of risks associated with any proposed treatment and not to the extend of diagnosis and treatment.

(o)   However, the standard of care for diagnosis and treatment as propounded in Bolam’s case is still applicable but subject to the qualification as found in the case of Bolitho v City and Hackney Health Authority [1998] AC 232.

(p)   Thus, it is important to appreciate that the Malaysian courts’ decision do not incorporate the broad test introduced in Montgomery’s case or the ‘Patient Autonomy’ concept.

(q)   Montgomery’s case opens the door to robust pleadings as well as harsh cross-examination tactics which will lengthen trial process as can be garnered in the instant case.

(r)     It is further emphasized by the Federal Court that any cross-examination tactics based on Montgomery Principle against the medical profession may not be within the Malaysian Court’s jurisprudence.

(s)    To conclude, the law on medical negligence in Malaysia called for appropriate legislative intervention to provide proper safeguards for patients as well as doctors.

Key Take Away

1.    In terms of the standard of care in medical negligence, the case of Rogers v Whitaker which was followed by the Malaysian Court in Foo Fio Na, affirmed that it is limited to the duty to advise of risks associated with any proposed treatment, implying that it does not extend to diagnosis and treatment.

2.    Furthermore, the Bolam’s test still applies to the standard of care for diagnosis and treatment, subject to the qualifications found in Bolitho’s case.

3.    The Bolam test is, in essence, a “doctor knows best” test.  As a result, as long as there are two opposing views on what constitutes acceptable medical practise, and the defendant doctor acted on one of those opposing views, he is immune from liability.

4.    In short, the medical profession determines the standard of care, as the Bolitho test is an extension of the Bolam test, which requires the court to examine the logic and reasonableness of the opposing medical opinion advanced by the defence before the same is accepted by the court.