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2012 MarsdenLR 622
HIGH COURT MALAYA, KUALA LUMPUR
GURMIT KAUR JASWANT SINGH – Appellant
Versus
TUNG SHIN HOSPITAL & ANOR – Respondent
[Suit No: S6-22-705-2004]
Informed consent in medical practice is essential, and failure to obtain it may lead to liability for negligence and compensatory damages.
Headnote:(A) Medical Negligence - Duty of Care - The plaintiff claimed damages for medical negligence against the first and second defendants concerning the removal of her uterus without informed consent and a proper diagnosis. The Medical Act was acknowledged in establishing the duty of care owed. (Paras 1, 28, 80)
(B) Consent - The court found that consent was inadequately obtained as the plaintiff was not properly informed about the nature of her operation and the implications. Witness testimony of the husband was missing, raising doubts about consent validity. (Paras 62-78)
(C) Vicarious Liability - The court held that the first defendant is vicariously liable for the actions of the second defendant due to their special relationship and lack of evidence proving independent practice. (Paras 81-93)
Facts of the case:
The plaintiff underwent an operation expected to remove fibroids but had her uterus removed without informed consent. The plaintiff claimed damages for physical and psychological harm. (Paras 1-8, 107-108)
Findings of Court:
The defendants were found negligent and in breach of the standard of care expected, causing injuries to the plaintiff. (Paras 80, 100)
Issues: The court addressed whether the second defendant acted within the expected standard of care, properly informed the plaintiff, and whether the first defendant was vicariously liable. (Paras 26-27)
Ratio Decidendi: The court determined that consent must be informed and that the second defendant failed to provide adequate information, leading to surgical error and resulting harm. (Paras 39, 60)
Result: The plaintiff was awarded RM120,000.00 in damages, with additional interests and costs to be taxed.
| Table of Content |
|---|
| 1. medical negligence leading to unexpected surgery (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8) |
| 2. doctor's responsibility to inform (Para 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21) |
| 3. defendant's case overview (Para 22 , 23 , 24) |
| 4. key issues to be determined (Para 25 , 26 , 27) |
| 5. duty of care established (Para 28 , 29 , 30) |
| 6. breach of duty noted (Para 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39) |
| 7. inadequate medical evaluation (Para 40 , 41 , 42 , 43 , 44 , 45 , 46 , 47 , 48 , 49 , 50) |
| 8. failure to advise treatment options (Para 51 , 52 , 53 , 54 , 55 , 56) |
| 9. consent and medical advice considerations (Para 57 , 58 , 59 , 60) |
| 10. consent form inadequacies and requirements (Para 61 , 68 , 69 , 70 , 71 , 72 , 73 , 74 , 75 , 76 , 77 , 78 , 79) |
| 11. consent form issues (Para 62 , 63 , 64 , 65 , 66 , 67) |
| 12. vicarious liability of hospitals (Para 80 , 81 , 82 , 83 , 84) |
| 13. vicarious liability and hospital responsibility (Para 85 , 86 , 87 , 88 , 89 , 90 , 91 , 92 , 93) |
[1] The plaintiff s claims against the first and second defendants were based on medical negligence for damages suffered by the plaintiff as a result of the breach of duty of care by the first and second defendants towards the plaintiff.
Plaintiffs Case
[2] Dr Muthukumaran from the first defendant had referred the plaintiff to the second defendant also from the first defendant for the removal of a polyp.
[3] On 30 April 2002, the polyp was removed and a pre-vaginal test was conducted by the second defendant. The plaintiff was informed that her uterus was enlarged.
[4] An ultrasound was done and the plaintiff was informed by the second defendant that she had an enlarged uterus due to fibroid.
[5] The plaintiff informed the second defendant that she planned to conceive again. The fibroid would not cause her any problem unless she intended to conceive. The plaintiff wanted to go for an operation to remove the fibroid because she was planning to go for a baby choice.
[6] On 19 September 2002, the plaintiff was admitted to the first defendant to remove the fibroid. The plaintiff saw the second defendant on the same day before the operation to sign a consent form. She was asked to sign a consent form with only her name and her identity card no filled up. The plaintiff s husband was not called during the signing of the form. The plaintiff was not explained about the contents of the consent form. The plaintiff went through the operation and the operation was done by the second defendant. The plaintiff was discharged on 22 September 2002.
[7] On 30 September 2002, the plaintiff went for a follow up and she met the second defendant. She asked the second defendant as to when she could conceive. The second defendant had apologised to her because the second defendant had performed hysterectomy assuming that she did not want any more children.
[8] The plaintiff was shocked when she heard that her uterus was removed. The plaintiff met the second defendant again on 1 October 2002 and requested for her medical records and video recording of the operation. The second defendant refused to give the plaintiff her medical records and video recording. But upon the request by her solicitor, the plaintiff was given her medical records and faulty tape recordings of the operation.
Defendants Case
[9] It was agreed that the first defendant is a hospital registered under a Medical Act and has an address for service at No 102, Jalan Pudu, 55100 Kuala Lumpur. It was further agreed that the second defendant is a doctor who has a practice at the first defendant hospital.
[10] The plaintiff was first referred to the second defendant by Dr Muthukumaran from the first defendant for treatment of a cervical polyp. On 30 April 2002 the plaintiff consulted the second defendant and the polyp was removed from her.
[11] The plaintiff complained that she had been having heavy and painful menstrual periods for the past three years. The second defendant examined the plaintiff and conducted a
