Elizabeth Chin Yew Kim & Anor v Dato’ Ong Gim Huat (Sued As Public Officer of Hospital Lam Wah Ee) And Other Appeals [2017] 1 MLJ 328

Court of Appeal (Putrajaya)

Medical Negligence

2.     The parties sued the First Defendant during the delivery process of the infant, Natahlie Nordberg which caused ‘shoulder dystocia’ to the baby.

3.     The infant encountered shoulder dystocia during delivery process; hence, the baby’s anterior shoulder could not pass the pubic symphysis.  Therefore, the baby suffered brachial plexus injury and mild intellectual impairment.

4.     Thus, the learned trial judge dismissed all allegations of negligence after analysing and hearing the evidence of ten factual and expert witnesses, except the allegation on the failure of the First Defendant to undertake the McRobert’s manoeuvre and apply supra-pubic pressure to overcome the shoulder dystocia and deliver the baby.

5.     Thus, the failure of the First Defendant to undertake McRobert’s manoeuvre was claimed to be negligent during the delivery of the baby.

6.     The learned trial judge then found the first defendant liable, and the claim against the hospital for vicarious liability was dismissed.

7.     The First Defendant then appeals against both liability and quantum.

8.     In the appeal, the baby represented by her mother against the inadequacy of quantum and non-award of damages and the dismissal of the claim against the hospital for vicarious liability.

9.     The trial court also allowed the second suit by the hospital against the parent of the infant for outstanding charges incurred during the delivery and after delivery charges or paediatric charges.  The trial judge allowed the sum of RM30,467.85 together with interest and costs.  In this appeal, both parents are also appealing this decision.

10.  The parties then filed the present appeals after being aggrieved by the decision of the trial court.

2.     Whether the element of causation was satisfied?

3.     Whether the learned judge right to find liability on the part of the First Defendant for the failure to apply McRobert’s manoeuvre and supra-pubic pressure to overcome the shoulder dystocia?

4.     Whether there was a vicarious liability by the hospital?

5.     Whether there was a quantum and damages?

6.     Whether there was any claim of outstanding charges by the hospital?

(a)  The medical practitioner must exercise the standard of care which he or she must profess to have special medical skills.

(b)  Therefore, the medical practitioner will breach their duty of care if they are negligent towards the patient.

(c)  Thus, the Bolam Test in Bolam v Friern Hospital Management Committee [197] 2 All ER 118 had set out the standard of care which a competent practitioner must have acted based on the practices accepted as proper by a responsible body of medical professionals with skills and expertise in the specialised area.

(d)  However, the Federal Court through the leading local case of Foo Fio Na v Dr Soo Fook Mun & Anor [2007] 1 MLJ 593 had adopted the test in the Australian case of Rogers v Whitaker (1992) 175 CLR 479.  Thus, the Federal Court elaborated that the standard of care applicable is not determined primarily based on the medical practice followed by a responsible body of opinion to the relevant profession.  Nevertheless, the court must decide on the appropriate standard of care applicable in the case, although the evidence of acceptable medical practice serves as a useful guide.

(e)  By applying such principle to the present case, the doctor must place the mother in the McRobert’s manoeuvre during the delivery process to prevent shoulder dystocia happened to the baby.  The McRobert’s position would bring an anatomical alignment or put the pelvis and the birth canal in the proper position to ease the baby to be expelled with ease.

(f)    Then, the midwife must apply supra-pubic pressure which would push the foetus downward and out of the birth canal.  Thus, the other methods will be used if McRobert’s manoeuvre fails to resolve shoulder dystocia.

(g)  McRobert’s manoeuvre is a medical practice used to release the baby’s anterior shoulder caught above the mother’s pubic bone during childbirth.  Shoulder dystocia occurs when the baby’s head is retracted back into the vagina during the delivery process.

(h)  Hence, if the baby’s anterior shoulder had not been released through McRobert’s manoeuvre method, the baby’s head will retract back into the vagina; thus, it may cause the complication towards the baby such as brachial plexus injury or clavicle fracture.

(i)     Brachial plexus injury happens when the nerve network that conducts signals from the spinal code to the shoulder, arm, and hand is injured due to shoulder trauma during childbirth.

(j)     It is a matter of fact whether the First Defendant had taken McRobert’s manoeuvre as a step to extract the baby from the birth canal to establish his liability as a medical practitioner towards his patient.

(k)   Nevertheless, although the First Defendant claimed that he applied McRobert’s manoeuvre and supra-pubic pressure towards the mother in his medical notes and reports, the court concluded that his claim was only an afterthought and ‘inherently incredible’.

(l)     The evidence supported shows that no midwife and other nurses were called to corroborate the First Defendant’s claim.  On the other hand, the medical reports and clinical notes did not state that the mother was placed in McRoberts’s position and that no supra-pubic pressure was applied towards the mother.  The mother and the baby’s father testified that the mother was never put in that position during childbirth.

(m)  The Court of Appeal agreed with the learned trial judge’s decision that the First Defendant had failed below the standards of care as a reasonably competent medical practitioner in his field.

2.     Principle of causation

(a)  The principle of causation is related to the relationship between the tortious act and the injury; hence there must be a linked connection between the breach of duty and the injury suffered.

(b)  Hence, the injured patient must show proof of causation to show that he or she is in a disadvantaged position.

(c)  In this case, the Plaintiff must prove on the balance that the First Defendant had breached his duty as a doctor that caused the injuries to the baby due to his failure to apply McRoberts manoeuvre and supra-pubic pressure on the mother.

(d)  Based on the legal test of causation, the Court of Appeal had referred to the judgement of the Supreme Court of Canada in Clements v Clements 2012 SCC 32.  The judgement in the case emphasised the exception to the basic rule of proving the balance of probabilities through a ‘but for’ test, in which the courts have accepted that the Plaintiff may be able to establish the basis of ‘material contribution to the risk of injury’ without showing factual ‘but for’ causation.

(e)  Hence, by applying this to the present case, the Court of Appeal decided that the causation can be established by referring to the testimony of the experts.

(f)    The learned trial judge had referred to the Royal College of Obstetricians and Gynaecologists Guideline No 42 on shoulder dystocia (RCOG Guideline) upon PW1, a retired obstetrician and gynaecologist and the Plaintiff’s expert witness.

(g)  The RCOG Guideline states that McRobert’s manoeuvree is the most effective practice with reported success rates as high as 90%.  It has a minimum complication rate and should be used first during childbirth.

(h)  The Court of Appeal found that the present case had established the causation element.  The learned trial judge’s decision was right to conclude that the First Defendant failed to apply McRobert’s position and supra-pubic pressure, leading to the Plaintiff’s injuries.

3.     Vicarious liability of the hospital

(a)  There is no other evidence to prove the hospital’s vicarious liability except the First Defendant worked as an obstetrician and gynaecologist at the hospital.

4.     Quantum of damages

(a)  The Court of Appeal dismissed the hospital claims against the parent on the outstanding charges incurred during and after delivery or paediatric charges.

(b)  The Court of Appeal found that the awards regarding the quantum of damages of RM 30, 467.85 decided by the trial court were reasonable.  In fact, the mother is the primary patient, and the husband is the guarantor who is the parent of the baby.

2.     The failure of a doctor to meet the standard of care requirement will result in a breach of duty and negligence to the patient.  In such a case, such patient might made a claim against the doctor and the health facility organisation such as the hospital.

3.     However, to succeed in that claim against the health facility organisation, one must prove that such organisation is vicariously liable.