Zulhasnimar bt Hassan Basri & Ors v Dr Kuppu Velumani & Ors [2016] 3 MLJ 625

Court of Appeal, Putrajaya

Evidence – Conflicting testimonies – Negligence – Medical Negligence – Born prematurely

1.    Zulhasnimar bt Hassan Basri (“the First Appellant”) was a patient of Dr Kuppu Velumani (“the Second Respondent”) at AP Specialist Hospital.  AP Hospital is the Third Respondent in this case.

2.    At the 36th week of pregnancy, the First Appellant felt abdominal pain and went to AP Specialist Hospital to be examined.

3.    Upon arrival at around 6 AM, the First Appellant conducted the first examination.  A second examination was then conducted around 9 AM, during which the First Respondent confirmed that there were mild and irregular contractions and that the First Appellant was not in labour.  Therefore, a caesarean section (CS) was not deemed necessary at that time.

4.    At approximately 10:55 AM, the First Appellant suddenly collapsed due to severe bleeding, and an emergency response code blue was initiated.

5.    She was immediately resuscitated and rushed to the operation theatre, where she underwent a CS and a hysterectomy (removal of the uterus).

6.    The Second Appellant, delivered at 11:25 AM, was born prematurely with severe birth asphyxia (lack of oxygen), leading to brain damage known as hypoxic ischemic encephalopathy (HIE).

7.    The cause of the First Appellant’s collapse was found to be placenta percreta, a rare condition where the placenta grows too deeply into the uterus, causing life-threatening bleeding.  This condition is difficult to detect before birth, even with advanced medical scans.

8.    The Appellants (mother and child) sued the doctors and the hospital for medical negligence, arguing that the doctor should have performed an early caesarean section and that there was a delay in medical response.  They also claimed that the hospital should be held vicariously liable for the doctors’ actions.

9.    The High Court dismissed the claim, ruling that the doctor had followed proper medical procedures, acted within the medically accepted 30-minute emergency response window, and that placenta percreta was not a condition that could have been detected or prevented.

1.    Whether the delay in the High Court’s judgment caused injustice?

2.    Whether the Third Respondent was vicariously liable for the alleged negligence of the doctors?

3.    Whether the First Respondent delayed in attending to the first appellant and performing a caesarean section?

4.    Whether the Respondents’ expert witnesses were reliable and whether their testimony should have been accepted?

1.    Whether the delay in the High Court’s judgment caused injustice?

(a)      The Court of Appeal (COA) judge ruled that the delay in delivering the judgment did not unfairly affect the Appellants’ case.  Since this was a complex medical negligence case with multiple expert witnesses, the trial lasted 52 days.

(b)      COA judge took time to carefully examine all the evidence and provided a detailed 94-page written judgment.  The Appellants also failed to prove that the delay caused any mistakes in how the judge evaluated the evidence or reached the final decision.  Thus, the delay in judgment did not cause injustice.

2.    Whether the Third Respondent, was vicariously liable for the alleged negligence of the doctors?

(c)      The Appellants argued that the trial judge misunderstood their claim against the hospital.  They claimed the hospital was not just vicariously liable for the doctors’ actions but also directly negligent in managing its staff and systems.

(d)      They alleged that the hospital hired incompetent staff and failed to provide proper care, specialists, and an effective medical system.

(e)      On the other hand, the Court of Appeal (COA) acknowledged that the trial judge did not specifically address the issue of direct negligence by the hospital.  The judges have thoroughly examined all the evidence regarding the actions of the doctors and nurses, ultimately concluding that they were not negligent.  Since the doctors were found not liable, the hospital could not be held vicariously liable either.

(f)        Despite not explicitly discussing direct negligence, the judges detailed review of the evidence led the COA to agree that the hospital was not negligent in this case.

(g)      Therefore, AP Specialist Hospital cannot be held liable for vicarious liable on Dr. Kuppu Velumani’s alleged negligence.

3.    Whether the First Respondent delayed in attending to the First Appellant and performing a caesarean section?

(h)      The Appellants claimed the doctors delayed performing a CS, causing the First Appellant to collapse from severe bleeding and leading to the Second Appellant’s birth complications.  They argued she was already in labour and that an earlier CS could have prevented the haemorrhage and the baby’s prenatal asphyxia and multi-organ failure.

(i)        However, the evidence showed otherwise.  When the First Appellant arrived at 6:30 AM on 3 May 2002, tests confirmed she was not in labour, and the baby was in good condition.  After experiencing abdominal pain, she was admitted and given medication, which stabilized her vitals.

(j)        At 10:55 AM, she collapsed due to severe bleeding.  A Code Blue emergency was called, and she was resuscitated before undergoing an emergency CS and hysterectomy.  The First Respondent performed the procedure, assisted by the Second Respondent.

(k)       The Appellants also alleged treatment delays, but medical records confirmed she received appropriate monitoring and care.  No signs of labour were detected, and her antenatal check-ups showed no abnormalities.  Thus, the COA found no negligence in her treatment.

4.    Whether the Respondents’ expert witnesses were reliable and whether their testimony should have been accepted?

(l)        COA judge carefully examined the evidence, relying on witness testimonies and supporting documents to reach a conclusion.  The Appellants argued that Dr Raman’s testimony should not be given much weight because he had a prior professional relationship with the First Respondent.

(m)     They claimed that since they were former colleagues and had co-authored publications, his opinion might be biased. However, the judge dismissed this argument, stating that professional connections do not automatically make a witness biased. What matters is the scientific value of the expert’s testimony when compared with all other evidence.

(n)      The Appellants also raised concerns about how expert testimonies were recorded.  They pointed out that Dr Ong’s testimony was recorded manually, while Dr Raman’s was transcribed electronically in real-time.  They argued that this gave Dr Raman an unfair advantage, as he could see his responses on-screen and correct them if needed.

(o)      However, COA disagreed, stating that the way evidence is recorded does not affect its credibility.  Instead, the key factor is the accuracy and reliability of the testimony itself.

(p)      After reviewing the evidence and the judge’s reasoning, COA found no reason to interfere with learned judge decision.  Expert opinions are matters of fact, and the judge has the discretion to prefer one expert’s testimony over another.

(q)     COA referred to Batu Kemas Industri Sdn Bhd v Kerajaan Malaysia Tenaga Nasional Bhd [2015] 5 MLJ 52, the Court emphasized that when expert opinions conflict, the judge must assess the evidence and accept the most reliable parts. If needed, the Court may also seek clarification from experts to ensure a well-informed decision, as seen in previous cases like Mohamed Ismail v Zain Azahari [2013] 2 MLJ 605 and Lim Teck Kong v Dr Abdul Hamid Abdul Rashid & Anor [2006] 3 MLJ 213.

(r)        Therefore, Appellants had the burden to prove negligence.  The appeal did not question the standard of care or whether the Respondents owed a duty of care to the First Appellant, as these were already addressed by the trial judge.

(s)        Instead, the appeal focused on factual and evidentiary issues and how the judge assessed them. The COA found no errors in the judge’s evaluation of the evidence and upheld trial court judge findings.

1.      To show burden of proof in medical negligence, Appellants must establish negligence on a balance of probabilities by showing breach of duty, causation, and harm.

2.    If a medical condition is rare and not reasonably detectable, failure to diagnose does not necessarily constitute negligence.

3.      Courts have discretion in choosing between conflicting expert opinions if properly justified.

4.       Courts recognize that doctors must act quickly in emergencies, and compliance with international standards is key in determining negligence.