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2021 MarsdenLR 410
COURT OF APPEAL PUTRAJAYA
DR PREMITHA DAMODARAN – Appellant
Versus
GURISHA TARANJEET KAUR & ANOR AND ANOTHER APPEAL – Respondent
[Civil Appeal Nos: W-02(NCVC)(W)-2006-11-2019 & W-02(NCVC)(W)-2018-11-2019]
The judgment clarifies the duty of care in medical negligence, establishing that adherence to the Bolam test regarding treatment suffices unless proven otherwise by logical analysis, particularly concerning informed consent and managing complications like shoulder dystocia.
Headnote:(A) Medical Negligence – Duty of Care – Bolam Test – Rogers v. Whitaker – The Federal Court in Foo Fio Na v. Dr Soo Fook Mun clarified the standard of care owed by medical practitioners, determining that Bolam governs treatment and diagnosis, while Rogers dictates advising on risks. (Paras 13-24)
(B) Expert Testimony – Credibility – Medical Expert Reports – Dr Sivanathan's testimony regarding Gurisha's injuries established no permanent disability, while contrasting with Dr Kavitha's claims raised at trial. (Paras 9-10)
(C) Standard of Care – Management of Shoulder Dystocia – The 1st defendant's conduct during the delivery was evaluated against established medical standards, leading to the conclusion that appropriate protocols were followed. (Paras 80-94)
Facts of the case: Gurisha suffered a brachial plexus injury during delivery due to complications attributed to negligence by Dr Premitha, the obstetrician. The case considered previous medical history and decisions regarding delivery options. (Paras 1-6)
Findings of Court: The 1st defendant was found not to be negligent in her management of the delivery. The appeal resulted in the reversal of the findings against her, allowing her appeal. (Paras 104-104)
Issues: The critical issues addressed included the adequacy of medical advice given to the patient regarding delivery options, standard of care applied during shoulder dystocia management, and the credibility of expert testimonies regarding injury assessments. (Paras 27-70)
Ratio Decidendi: It was determined that a physician's duty extends to providing sufficient information for informed consent, however, reliance on patient-provided medical history is valid and crucial to appropriate care. (Paras 13-24)
Result: The judgment in favor of the 1st defendant was restored, dismissing the claims against her. (Para 104)
Introduction
[1] The two appeals before us emanate from a single judgment of the High Court where the 1st plaintiff ("Gurish"), an infant, and her mother the 2nd plaintiff ("Mdm Baljeet"), succeeded partially in their medical negligence claim against the 1st defendant ("Dr Premitha") a consultant obstetrician and gynaecologist, but failed in their claim against the 2nd defendant, the company that owns and manages the Pantai Hospital Kuala Lumpur ("Pantai Hospital").
[2] The first appeal, ie Civil Appeal No: W-02(NCVC)(W)-2006- 11/2019, by the 1st defendant (Dr Premitha) is against the entirety of the High Court's judgment, ie both in respect of liability and quantum. The second appeal, ie Civil Appeal No: W-02(NCVC)(W)-2018-11/2019, by the 1st and 2nd plaintiffs is against firstly, the dismissal of their respective claims against the 2nd defendant, and secondly in respect of the quantum of damages awarded against the 1st defendant.
Background Facts
[3] The 1st defendant, a consultant obstetrician and gynaecologist had a medical practice at Pantai Hospital. The 2nd plaintiff, Mdm Baljeet, who was then pregnant with her second child, conceived via invitro-fertilisation (IVF), consulted the 1st defendant as a patient. Mdm Baljeet had personally chosen the 1st defendant based on her fertility doctor's (Dr Prashant) advice.
[4] Mdm Baljeet testified that her second pregnancy was a precious pregnancy as the baby was conceived after two IVF treatments. During her first three months of pregnancy, Mdm Baljeet was under the professional care of Dr Prashant, who then referred her to the 1st defendant. Dr Premitha, as Mdm Baljeet's consultant obstetrician and gynaecologist, was responsible for Mdm Baljeet's care during her pregnancy, labour, delivery and post-natal care.
[5] At 39 weeks five days gestation, Mdm Baljeet following Dr Premitha's advice was admitted into Pantai Hospital for induction of labour. On 14 May 2015, Mdm Baljeet gave birth to Gurisha. As a result of complications during delivery, Gurisha suffered brachial plexus injury to her left shoulder and Mdm Baljeet suffered a tear to her perineum.
[6] The plaintiffs attribute the injuries suffered to the professional negligence of Dr Premitha. The plaintiffs' case of negligence against the 1st defendant is premised on lack of documentation, failure to give adequate advice, information and/or warning, failure to take proper informed consent, failure to perform a complete and accurate McRoberts manoeuvre during delivery, and using excessive force in handling the delivery.
[7] The plaintiffs claimed that both the 1st and 2nd defendants, and each of them, owed independent duties of care to the plaintiffs. They also claimed that the 2nd defendant, Pantai Hospital, owed them a nondelegable duty of care and that they were vicariously liable for the 1st defendant's wrongful acts and omissions.
[8] The salient facts of the case are well set out in the Judgment of the learned High Court Judge, and we reproduce them:
Material Facts
[18] Mdm. Baljeet's pregnancy, which is the subject-matter of these proceedings, was her second pregnancy. Her first pregnancy was in 2003. She had delivered her eldest son Soheil Taranjeet Singh ("Soheil") on 26 October 2013. The delivery was undertaken by Dr Gunasegaran at the Damansara Specialist Hospital at 42 weeks after an induction and subsequent vacuum delivery.
[19] Gurisha was conceived by in-vitro fertilisation ("IVF") from a frozen embryo transfer. Mdm. Baljeet testified that this second pregnancy was a precious pregnancy as the baby was conceived after two IVF attempts - the first being unsuccessful. During the first three months of her pregnancy, Mdm. Baljeet was under the professional care of Dr Prashant of the KL Fertility Centre. She was then referred by Dr Prashant to D1. Mdm. Baljeet said that her choice of D1 was because of Dr Prashant's recommendation.
[20] Mdm. Baljit first consulted D1 on 20 November 2013 and agai
