Medical negligence requires distinct evaluation, allowing for global awards for pain and suffering, with aggravated damages for gross negligence, while vindicatory damages are denied without evidence of malice.

JUDGMENT

Moses Susayan JC:

Introduction

[1] The case involves Thavani Kaliaperummal, the lawful mother and dependent of the deceased Komathi A/P Chellamuthu, who tragically passed away on 5 July 2018. Komathi sustained a right knee injury from a motorcycle accident on 4 May 2018. She received initial treatment at the 2nd defendant clinic, where she was diagnosed with a soft tissue injury and discharged with painkillers. Despite multiple subsequent visits to the clinic and the 6th defendant hospital, Komathi's condition was consistently misdiagnosed as a soft tissue injury without adequate investigation for potential Deep Vein Thrombosis (DVT).

[2] Her condition worsened over several weeks, leading to severe pain and swelling in her right lower limb. Despite repeated complaints and multiple hospital visits, proper diagnostic tests, such as ultrasound for DVT, were not performed. Only on her final visit, after persistent family requests, was she admitted for further investigation. Unfortunately, by then, the condition had worsened, and she was discharged without a correct diagnosis or appropriate treatment for DVT.

[3] Komathi's condition deteriorated rapidly after her discharge, leading to her sudden collapse and death at home. A post-mortem revealed the cause of death as pulmonary thromboembolism due to right deep femoral vein thrombosis, highlighting the failure of the medical professionals to diagnose and treat her condition appropriately.

[4] The plaintiff, Thavani, argues that the defendants, including the Government of Malaysia, the clinic, and the hospital, owed a duty of care to Komathi A/P Chellamuthu and were negligent in failing to provide adequate medical care, leading to her untimely and preventable death. The plaintiff alleges that repeated failures by medical personnel to properly diagnose and manage DVT, despite multiple visits by the deceased to the clinic and hospital, resulted in prolonged pain and suffering and, ultimately, a fatal pulmonary embolism. Liability was admitted by the defendants on 1 November 2022; however, the case highlights significant delays and inadequacies in medical diagnosis and treatment. The plaintiff seeks damages for pain and suffering, dependency losses, and aggravated damages under ss 7 and 8 of the Civil Law Act 1956 , emphasising the tragic and preventable loss caused by these breaches of duty.

The Plaintiff Claims Compensation For The Following:

(i) Special Damages:

a) Fee for Police Report

b) Fee for Medical Reports from Hospital Teluk Intan

c) Post Mortem Report from Hospital Teluk Intan

d) Payment at Hospital Teluk Intan

e) Payment at Hospital Anson Bay

f) Fee for Medical Report from Anson Bay Medical Centre

g) Funeral Expenses

h) Fee for Orthopaedic Specialist Opinion

i) Travelling Expenses of deceased and Plaintiff & Family

j) Loss of Dependency at RM600.00/-per month

k) Loss of E.P.F. (Employers Contribution) at RM130.00/-per month

(ii) General Damages for Pain and Suffering of the deceased

(iii) Aggravated Damages of the Deceased for failure to diagnose, treat, manage, and care and for failure to advise of risks to the Plaintiff

(iv) Vindicatory/Exemplary Damages for the outrageous conduct of the defendants

(v) Costs and interest

[5] The total sum claimed under various heads includes specific amounts for special damages, general damages, aggravated damages, and exemplary damages, highlighting the extensive impact and the gravity of the negligence that led to the tragic death of Komathi A/P Chellamuthu. I shall deal with them respectively.

Special Damages

Item (a), (b), (c), (d): Police Report And Medical Documents

[6] The claim includes fees for obtaining a police report and medical documents, guided by official circulars such as the "Surat Pekeliling Ketua Pengarah Kesihatan Bil 16/2010," establishing standard charges for these services. Despite the absence of receipts, the Court can take judicial notice of these established fees, with the police report fee being [Note] RM4.00. The defendants a