In medical negligence cases, the plaintiff bears the burden of proving negligence through established legal standards, including the elements of duty, breach, causation, and damages.

JUDGMENT

Anand Ponnudurai J:

Introduction

[1] Medical professionals are trained to provide the necessary medical care to patients and in so providing, are duty bound to uphold the highest ethical and professional standards as determined by the law. Patients constantly seek and receive medical advice, diagnosis and treatment from doctors. On occasions when the outcome of such advice, diagnosis or treatment is not as desired, legal proceedings may ensue against the doctor and the hospital where the aggrieved party would complain and seek damages for the alleged wrong committed/omitted by the doctor. This is one such case where the plaintiff is seeking damages in excess of RM128 million.

[2] When such a claim is commenced, it is then incumbent upon the Court to apply the applicable law to the facts of the case to determine if the doctor was negligent and the hospital be held vicariously liable. Such a determination can only be made upon a full investigation of the facts with the aid of a trial as occurred herein.

[3] In this judgment, I will set out the background facts, pleaded cases/rival contentions and then determine the issues that have arisen with the view of concluding/deciding if the plaintiff has succeeded in proving his claim that the defendants were negligent and thus liable.

Background Facts

[4] The background facts are as follows:

(a) the 1st defendant is a doctor in the 2nd defendant's hospital.The plaintiff first saw the 1st defendant as a patient sometime in August 2007 for second degree piles with a history of having been operated for chronic anal fissures in February 2004 by one Mr Goh Tiong Meng of Island Hospital Penang. Rubber ligation was advised and the plaintiff underwent treatment on 7 August 2007, 19 September 2007 and 15 July 2008 respectively. Further, on 18 June 2008 the plaintiff had consulted the 1st defendant with complaint of tenesmus and was diagnosed with prostatitis. The plaintiff had refused referral to see one Mr Sritharan, the Urologist and was treated medically. The plaintiff was then discharged from the 1st defendant's care;

(b) on 20 February 2014, the plaintiff was referred to the 1st defendant by one Dato' Dr Robert Ding ("DW1") for a right inguinal hernia. The plaintiff was then admitted for rectal bleeding and colonoscopy examination showed the existence of second-degree piles. The 1st defendant examined the plaintiff and noted that the plaintiff had bilateral direct inguinal hernias and the right inguinal hernia was more severe. An MRI was not ordered as hernia is diagnosed clinically and not through imaging;

(c) on the 20 February 2014 itself the plaintiff was recommended/ advised by the 1st defendant to undergo surgery for the said bilateral inguinal hernia repair by way of laparoscopic surgery/ operation. The consent form was signed by the plaintiff where the explanation of the nature and associated risks relating to the said procedures was stated therein;

(d) the laparoscopic procedure was then undertaken on 21 February 2014 and the following was conducted by the 1st defendant ie, the plaintiff underwent rubber banding procedure for his second- degree piles and bilateral totally extra-peritoneal repair (TEP) ("the surgery") in respect of his bilateral inguinal hernia. Two 10 x 15cm polypropylene mesh wires were also used during the said surgery/operation, one for each side, and the surgery/operation was uneventful;

(e) following the said surgery/operation, the plaintiff was discharged from the hospital (2nd defendant) on 23 February 2014 with the relevant follow-up directions;

(f) on 26 February 2014, the plaintiff returned to the 2nd defendant and consulted the 1st defendant for post-surgery review, On examination, the following were noted as stated in the 1st defendant's medical report dated 3 March 2015 (pp 5-6 of Bundle F which was marked as Exh P-4).;

(i) the wounds have all healed well;

(ii) the hernia orifices were intact; and

(iii) the plaintiff complained of an unpleasant sensation over