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2012 MarsdenLR 1123
HIGH COURT MALAYA JOHOR BAHRU
KU JIA SHIUEN & ANOR – Appellant
Versus
KERAJAAN MALAYSIA & ORS – Respondent
[Suit No: 21-21-2009]
The court found the medical staff negligent for failing to timely address fetal distress during delivery, resulting in permanent injuries to the plaintiff due to hypoxic ischemic encephalopathy.
Headnote:(A) Medical Negligence - Claim for damages arising from complications during childbirth leading to cerebral palsy in the plaintiff due to alleged negligence of medical staff involved in delivery at a birthing center. Relevant legal principles include the standard of care required from medical professionals (Paras 33-34) and the burden of proof for establishing negligence (Paras 31-32).
(B) Expert testimonies played a crucial role, revealing inadequacies in the care provided. The court emphasized the importance of contemporaneous medical records in assessing credibility (Paras 41-66).
(C) Defendants failed to provide appropriate medical attention, leading to serious complications for the plaintiff (Paras 70-73).
Facts of the case:
The plaintiff was born with cerebral palsy following a difficult vacuum-assisted delivery. Medical staff allegedly failed to recognize fetal distress and respond appropriately (Paras 1-18).
Findings of Court:
The court ruled in favor of the plaintiff, confirming the defendants' liability for the condition due to negligence and inadequate post-delivery care, awarding damages (Paras 74-86).
Issues: The primary question was whether the medical staff breached their duty of care, leading to the plaintiff’s condition (Par 69).
Ratio Decidendi: The court determined that the failure to provide adequate care foreseeably contributed to the plaintiff’s permanent injuries, emphasizing a high standard of proof for medical negligence cases (Paras 69-73).
Result: Defendants liable; awarded damages totaling RM1,469,959.40.
| Table of Content |
|---|
| 1. introduction to case facts (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10) |
| 2. missing records and initial medical condition (Para 11 , 12 , 13 , 14 , 15) |
| 3. plaintiffs' argument on negligence (Para 16 , 17) |
| 4. defendants' denial of liability (Para 18) |
| 5. court's consideration of amendments (Para 19 , 20 , 21) |
| 6. rules governing amendments in legal proceedings (Para 22 , 23) |
| 7. evidence overview including witness testimonies (Para 24 , 25 , 26) |
| 8. expert testimony regarding negligence (Para 27 , 28) |
| 9. expert witness cross-examination findings (Para 29 , 30) |
| 10. legal principles and burden of proof in medical negligence (Para 31 , 32 , 33 , 34) |
| 11. expert evidence and its independence (Para 35 , 36 , 37 , 38) |
| 12. court's findings and assessment of evidence (Para 39 , 40 , 41 , 42 , 43) |
| 13. inconsistencies in evidence presented (Para 44 , 45 , 46) |
| 14. reevaluation of witness reliability over time (Para 47 , 48 , 49 , 50) |
| 15. expert’s failure to address key facts (Para 51 , 52 , 53) |
| 16. critical assessment of expert opinions (Para 54 , 55 , 56 , 57) |
| 17. medical reporting standards and their implications (Para 58 , 59 , 60) |
| 18. final court assessment of expert testimonies (Para 61 , 62 , 63 , 64 , 65 , 66 , 67) |
| 19. key findings in expert opinions on the case (Para 68) |
| 20. issues for determination outlined by the court (Para 69 , 70 , 71 , 72 , 73) |
| 21. quantification of damages awarded (Para 74 , 75 , 76 , 77 , 78 , 79 , 80 , 81 , 82 , 83 , 84 , 85) |
[1] The plaintiffs' claim is for damages for medical negligence on the part of the defendants. It is premised on the 2nd plaintiff of a baby who suffers from cerebral palsy arising from her delivery by her mother the 2nd plaintiff at the 2nd defendant hospital.
Brief Account Of The Salient Facts
[2] On 7 November 2003, Mdm Tan Pei Hoon the 2nd plaintiff gave birth to Ku Jia Shiuen the 1st plaintiff at the Pusat Bersalin (Birthing Centre) situated within the compound of the Hospital Sultanah Aminah (HSA). The 2nd defendant is the Pengarah (Director) of HSA and the 3rd and 4th defendants are the doctors who attended to the delivery.
[3] Mdm Tan is a small size woman. She was a Primigravida (her 1st pregnancy) when she was admitted to the Birthing Centre for the delivery of KJS. Subsequent to the birth of KJS who was small in size (SMA), she had given birth to 2 further but normal children also SMA.
[4] During her antenatal period, she was managed and seen by both the nurses at the Klinik Kesihatan Kerajaan who provided her with an antenatal book (15-22B1) and by a private O & G specialist one Dr Chu Ah Onn (PW2).
[5] Her regular antenatal attendance and examination including serial ultra sound scans showed both mother and baby (fetus) as normal at all times.
[6] On 6 November 2003 at about 10:18 a.m., when Mdm Tan was in full term she went to the maternity ward of HSA to give birth. She was examined and referred to the Birthing Centre for delivery.
[7] The Birthing Centre is managed by midwives. Doctors from the maternity ward are called to assist in the event of complications in the birth.
[8] On 7 November 2003 during the process of birth, the midwives called one Dr Almei bt Osman (Dr Almei) the 4th defendant, a Houseman to assist in the delivery of KJS. Dr Almei then called for Dr Mohammed Faizal Hashim (Dr Faizal) the 3rd defendant, a Registrar for assistance.
[9] Dr Faizal then performed a vacuum assisted delivery of KSJ. According to the Neonatal Record (5C), the delivery was difficult and the condition of KJS was noted as poor at birth. A diagnosis of KJS suffering from 'RDS' (Respiratory Distress Syndrome) was also noted.
[10] KJS received resuscitation and was sent in an incubator with ventilation of oxygen to the A3 NICU Ward of the Paediatric Unit. Here, she received medical treatment until her discharge on 17 November 2003.
Missing O & G Records
[11] All the O & G Records, viz., the doctors and the midwives notes, partogram, etc have not been located. A police report on the missing documents
