Dato’ Stanley Isaacs (suing by himself and as the administrator of the estate of To’ Puan Suzanne Thomas, deceased) v The Government of Malaysia & Ors [2018] MLJU 1672

Dato’ Stanley Isaacs (suing by himself and as the administrator of the estate of To’ Puan Suzanne Thomas, deceased) v The Government of Malaysia & Ors [2018] MLJU 1672

High Court (Shah Alam)

Medical Negligence  

Facts

1.     The Plaintiff’s wife (the deceased) went to Tropicana Medical Centre (TMC) for treatment of swelling and severe pain in her right ankle.

2.     The deceased’s condition was diagnosed as septic arthritis of her right ankle by the consultant orthopaedic surgeon at TMC.

3.     The deceased then chose to have her condition treated at Kuala Lumpur Hospital (KLH) because she was a patient there and all of her medical records were there.

4.      The deceased was conscious and able to give her own history when she arrived at KLH. The deceased stated that she was allergic to certain medications, including Tramadol.

5.     Despite the history being recorded in the medical records, the deceased was given Tramadol on the same night, 20 December 2012.

6.     The doctors assigned to the deceased’s case, the second (Mr Sivalingam s/o Raja Gopal) and seventh Defendants (Dr Shukri bin Muhammad Safian), rejected the diagnosis of septic arthritis and instead made a diagnosis of osteoarthritis, a decision that proved fatal to the deceased.

7.     The fresh blood investigations that were performed had clotted and could not be used to investigate the deceased’s blood parameters.

8.     Unfortunately, there was no follow-up, so the need to rule out septic arthritis was overlooked. Furthermore, the seventh Defendant refused the Plaintiff’s request to administer antibiotics to the deceased.

9.     The deceased then went into a comatose state after experiencing persistent vomiting and severe headaches.

10.  A needle aspiration of the ankle joint was then performed, and pus was found in the ankle joint, confirming the diagnosis of septic arthritis.

11.  General anaesthesia was used for the arthrotomy and washout. After that, the deceased was admitted to the ICU, but her condition deteriorated, and she died on December 25, 2014, as a result of a massive stroke to her cerebellum.

12.  The Plaintiff’s claim against the Defendants and each of them, as well as their servants and agents, was for negligence and breach of contractual and other duties, as a result of which the deceased suffered injuries, pain and suffering, and loss of life’s amenities, and then died, causing or materially contributing to the deceased, her estate, and her dependants’ loss and damage.

Issue

1.     Whether there is medical negligence for the reason of misdiagnosis on part of the Defendants in accordance to Bolam principle.

2.     Whether the claim for general, special and aggravated damages were proven and substantiated with the relevant documents.

Ratios

1.     Whether there is medical negligence for the reason of misdiagnosis on part of the Defendants in accordance to Bolam principle.

(a) The Bolam test is encapsulated in the direction given by Justice McNair to the jury in Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 at page 121 in the following words:

“…But where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not is not the test of the man on top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. … Counsel for the Plaintiff put it in this way, that in the case of a medical man negligence means failure to act in accordance with the standards of reasonably competent medical men at that time. That is a perfectly accurate statement, as long as it is remembered that there may be one or more perfectly proper standards; and if a medical man conforms with one of those proper standards, then he is not negligent. …”.

(b)   Plaintiff requested for the Court to refer to two independent expert medical reports prepared by Professor Chan Yoo Kuen of the Department of Anaesthesiology, Faculty of Medicine, University of Malaya, and Dr. KS Dhillon of the KPJ Selangor.

(c)   Prof Chan stated in her report that all of Dr Suzanne’s care providers had failed her. The orthopaedic team overlooked the effects of sepsis in a diabetic patient.

(d)   They were extremely slow (a 24-hour delay) to recognise the importance of confirming the diagnosis and administering the appropriate antibiotics to manage the patient’s high-risk emergency situation.

(e)   They were making serious mistakes (with fluids and ventilation) that cost the patient her life. Dr. KS Dhillon reached a similar conclusion, stating that:

 “In his opinion, management of the patient on admission at Hospital Kuala Lumpur on 20/12/14 and the following day on 21/12/14 fails, to meet the minimum standard of care required in management of an elderly patient referred by an orthopaedic surgeon for suspected septic arthritis of the ankle.”

(f)     Aside from that, the Plaintiff claimed that the reports prepared by the Defendant’s two in-house experts were clearly biased in favour of the Defendant as their employer and colleagues. In accordance with the provisions of O. 40A r. 2 of the ROC, the Defendants should obtain opinions from truly independent experts who have a higher duty to assist the Court.

(g)   Furthermore, the Plaintiff contended that, in terms of diagnosis and treatment, the Courts have applied the Bolam test, subject to the Bolitho, which states that the Court must determine whether the expert opinion is reasonable, responsible, and respectable, and that it can withstand logical scrutiny.

(h)    The Plaintiff also contended that by convincing the two in-house experts that there was no negligence, the Defendants were attempting to persuade this Court that the Defendants had somehow passed the Bolam test.

(i)      The Plaintiff would then have to demonstrate that the Defendants’ experts’ opinions were not reasonable, responsible, or respectable, and could not withstand logical scrutiny.

(j)      In other words, the Defendants attempted to abuse the Bolam test. The judge saw merit in the Plaintiff’s arguments. The two reports submitted by the Defendants’ experts were noticeably silent on the deceased’s medical records’ late and inaccurate entries, and were skewed towards only one conclusion, which was to absolve the Defendants of any liability.

(k)    Thus, it appears that the Defendants’ experts were merely in-house experts who were loyal to the first Defendant but not to the other Defendants.

(l)      Reference is made to the Guideline of The Malaysian Medical Council 002/006: Medical Records and Medical Reports where under paragraph 3 on Second and Expert Opinion, it is stated that “A practitioner involved in the management of a patient or working in the same healthcare facility or Ministry as the doctor in the inquiry, should not appear as expert witness in such inquiry.”.

(m)  In accepting the assignment to prepare the reports, the Defendants’ experts had acted contrary to the said Guideline.

2.     Whether the claim for general, special and aggravated damages were proven and substantiated with the relevant documents.

(a)  Special Damages

                               (i)         According to the case of Nurul Husna Muhammad Hafiz & Anor v. Kerajaan Malaysia & Ors [2015] 1 CLJ 825), it is common law that special damages must be pleaded, specified, and proven by either oral or documentary evidence.

                              (ii)         Hospital and medical expenses

(aa)      This item is not awarded because it relates to the expenses incurred when the deceased sought treatment at TMC. The deceased chose to be treated in a public hospital rather than a private one.

(bb)      The expenses claimed were incurred prior to the deceased seeking treatment at and being admitted to KLH, so there is no valid reason for the Defendants to bear this amount.

                             (iii)         Travelling expenses

(aa)      Oral evidence given by PW1 and PW2 suffices as proof that they, along with PW1’s daughter, son, and sister-in-law, travelled from their respective residences to the hospital and back during the deceased’s hospitalisation from 20 December 2014 to 25 December 2014.

(bb)      The Court considered the distance from PW1 and PW2’s residences, Tropicana Golf & Country Resort (approximately 40 km for a two-way trip) and the Hartamas area (approximately 16 km for a two-way trip), respectively, to KLH, as well as mileage at 70 cents per km.

(cc)       The Court allowed for six trips to and from HKL by different family members each day during the deceased’s hospitalisation and concluded that RM1,000.00 is a reasonable sum to be awarded for travel expenses.

(dd)      Value of care given by family members while the deceased was in the hospital.

(ee)       The Court agreed with the Plaintiff that calculating the value of care with precision cannot be accomplished using a mathematical formula.

(ff)          As a result, the Court has a duty to consider and weigh all evidence in determining what is fair and adequate compensation in the circumstances of the case as a whole.

(gg)      According to the evidence presented before the Court, PW1, PW2, and PW1’s children and sister-in-law were at HKL to provide the deceased with much-needed care and support.

(hh)       However, by the evening of December 21, 2014, the deceased had been placed in the ICU, and thus the primary caregivers from that point on would be the doctors and nurses on duty to provide treatment to the deceased.

(ii)           As a result, the Court believed that RM1,000.00 is a fair and reasonable amount to award for this item.

                            (iv)         Funeral and prayer expenses

(aa)      The Court was in favour of the Defendants because, based on the evidence presented on the events that occurred at HKL during the deceased’s hospitalisation, PW1 could have predicted that a civil suit for negligence would be filed.

(bb)      Unlike the parents in Nurul Husna’s case, PW1 has extensive knowledge and experience, as well as an illustrious career that has led him to the top tier of the Attorney General’s Chambers.

(cc)       PW1 must be aware of the importance of retaining, collecting, and filing all necessary bills, invoices, receipts, and other documents to support his claim for special damages.

(dd)      Due to the failure to produce all relevant bills and receipts to substantiate the claim for RM18,657.37, the Court was only able to award RM4,068.17.

(ee)       Travelling and accommodation expenses of family members for the funeral on 28.12.2014 and the memorial services on 14.11.2015.

(ff)          Given the hazy oral testimony and lack of documentary evidence in this case, the award is limited to the costs incurred by family members travelling to the funeral and memorial services, at least in the vicinity of Kuala Lumpur.

(gg)      To that end, the Court awarded a sum of RM2,000.00, which it deems reasonable.

                             (v)         Loss of contribution by the deceased to her mother for her livelihood, medical care, nutritional supplements, and travel expenses and still continuing.

(aa)      In the Court’s view, the claim is based on PW1’s evidence that he paid Mrs. Kunjamma RM500.00 per month from January 2015 to April 2017 and RM1,000.00 per month from May 2017 to August 2018.

(bb)      With all due respect to Mrs. Kunjamma and her family members, it is impossible to estimate her life expectancy given her age and the lack of evidence presented before the Court regarding her health condition and the precise nature of the medical treatments she requires. Under the circumstances, a continuing award could not be made.

(cc)       As a result, the claim is valid from the month following December 2014, when the deceased died, until the month of August 2018, when the decision was issued.

                            (vi)         Cost of obtaining letters of administration

(aa)      Given that the RM5,000.00 claimed is a reasonable estimate of the solicitor-client costs to obtain the letters of administration, an award for that amount is made by the Court.

                           (vii)         Cost of obtaining medical records

(aa)      The invoice issued by the Plaintiff’s counsel showed RM7,950.00 as professional charges, but the same amount appears as one of the out-of-pocket expenses in the Bill of Costs prepared.

(bb)      RM300.00 for the costs of obtaining medical records, in the Court’s opinion, should be reflected in the Bill of Costs as an item under out-of-pocket expenses.

(cc)       Thus, the Court agreed with the learned SFC’s submission that the RM7,950.00 cannot be claimed as costs of obtaining medical records in this civil action when the actual cost was only RM300.00.

(b) General Damages

(i) Statutory bereavement

(aa)       Subsection 7(3A) and paragraph 7(3B)(a) Civil Law Act 1956 (Act 67) provide as follows:

“(3A) An action under this section may consist of or include a claim for damages for bereavement and, subject to subsection (3D), the sum to be awarded as damages under this subsection shall be ten thousand ringgit.

(3B) A claim for damages for bereavement shall only be for the benefit ─

(a) of the spouse of the person deceased;…”.

(bb)       The Defendants acknowledged that the Plaintiff is entitled to a statutory bereavement award of RM10,000.00 under the aforementioned statutory provisions.

(ii) Maintenance of mother

(aa)      Taking into account PW1’s testimony and the lack of evidence to prove Mrs. Kunjamma’s life expectancy as opined above, as well as the fact that 3 years and 7 months had passed since the deceased’s untimely death, the Court was of the opinion that an award of RM30,000.00 is reasonable and fair for the loss suffered by Mrs. Kunjamma as a direct result of the Defendants’ wrongful acts as pleaded in the claim.

(iii) Pain and suffering and loss of amenities of life

(aa)    Given the Defendants’ admission of liability, the deceased must have endured significant pain and suffering during her hospitalisation at HKL.

(bb)      The Plaintiff contended that there are no comparable precedents for damages for pain and suffering and loss of life’s amenities as what occurred in this case.

(cc)       Therefore, the Court opined that to award a nominal sum of RM50,000.00 for general damages, as proposed by the Defendants, would be an insult to both the Plaintiff and the deceased’s immediate family members, relatives, and close friends who had loved and cherished her.

(dd)      As a result, an award of RM100,000.00, as proposed by the Plaintiff, is appropriate.

(iv) Aggravated Damages

(aa)       The judge accepted evidence in the aggravating factors summarised by Plaintiff’s counsel that there is evidence to support the factors i.e., the failure to follow up on the blood investigations ordered by KLH, the prescribing of the contraindicated drug Tramadol against the patient’s own specific instruction, the late and false entry in the medical records stating that the deceased and her family had agreed to try Tramadol, and the failure to observe the deceased’s condition.

(bb)       The Plaintiff had presented enough evidence to show that the doctors at KLH had prescribed Tramadol to the deceased despite her explicit mention of her intolerance to the drug.

(cc)        This negligent act caused the deceased to be disoriented, nauseous, and have prolonged retching on the night of December 20, 2014, and the early hours of December 21, 2014.

(dd)       This Court found credible evidence in support of the Plaintiff’s contentions regarding the post-event embellishment of the deceased’s medical records. Such heinous behaviour strengthens the Plaintiff’s case for aggravated damages.

Decision 1.     The Court allowed some of the claim made by the Plaintiff and award damages.
Key Take Away  

1.     The Court applied the Bolam test, which was derived from the case of Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582. The professional standard of care requires a person performing a skilled act to exercise the skill of an ordinary competent human being in the same profession. The doctor is not liable as long as a “responsible body of medical opinion” approves of his or her actions.

2.     In this case, however, the Plaintiff argued that the reports prepared by the Defendant’s two in-house experts were clearly biased in favour of the first Defendant as their employer and colleagues.

3.     Aside from that, the Plaintiff cited Dr. Hari Krishnan’s and Zulhasnimar Hasan Basri’s cases, which stated that the Court must ensure that the expert opinion is reasonable, responsible, and respectable, and that it can withstand logical scrutiny. In this case, a modified Bolam test was also reintroduced.

4.     In the current case, the Court discovered that the reports submitted by the Defendants’ experts were silent on the late and inaccurate entries in the deceased’s medical records, with the emphasis instead on absolving the Defendants of any liability.

5.     The Plaintiff claimed Defendants were attempting to misapply the Bolam test. The judge agreed that the Plaintiff’s argument has merit.

6.     In conclusion, we can see how the Court applied the Bolam test in this case, where the Court did not strictly follow the Bolam test in considering Plaintiff’s contentions about the Defendants’ use of in-house experts in attempting to pass the Bolam test.

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