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2022 MarsdenLR 1108
COURT OF APPEAL PUTRAJAYA
MOHAMAD RAFIQ FAUDZIL – Appellant
Versus
DR ADZLEEN MAHMOOD & ORS – Respondent
[Civil Appeal No: W-01(NCVC)(W)-574-10-2020]
Medical negligence requires credible evidence of diagnosis and informed consent; failure to call essential witnesses can result in adverse inferences against the Defendants.
Headnote:(A) Evidence Act 1950 – Section 114(g) – Medical Negligence – Plaintiff's claim for damages against Defendants dismissed by High Court – Court finds learned Judge erred by not recognizing evidence of corneal ulcer diagnosis and failing to invoke s 114(g) against Defendants for their witness' absence – Appeal allowed on liability; quantum assessed affirmed. (Paras 14-28)
(B) Consent and Standard of Care – The court held that the Plaintiff's informed consent was not adequately established, as the prescription of Maxidex was inappropriate given the corneal ulcer diagnosis. (Paras 17-21)
Facts of the case: The Plaintiff, a 29-year-old sports coordinator, suffered eye pain and underwent treatment leading to surgery for corneal transplant after misdiagnosis by doctors at HKL. The Plaintiff claimed damages for alleged medical negligence after his initial claim was dismissed.
Findings of Court: The Court found merit in the appeal based on negligence and appropriate diagnosis not adequately considered by the lower court.
Issues: The court addressed the accurate diagnosis of the Plaintiff's condition, informed consent regarding treatment, and the implications of s 114(g).
Ratio Decidendi: The court emphasized that a doctor's earlier diagnosis should have been crucial evidence, and the Defendants' failure to provide appropriate expert witness testimony warranted appeal intervention.
Result: Appeal allowed, damages affirmed and costs awarded to the Plaintiff.
JUDGMENT
Introduction
[1] This is a medical negligence claim. The Appellant/Plaintiff in this case had filed an appeal against the decision of the learned High Court Judge ("learned Judge") dated 30 September 2020 dismissing the Appellant's/Plaintiff's claim for damages against the Respondents/Defendants with costs of RM150,000.00.
[2] For ease of reference the Appellant will be referred to as the "Plaintiff" and the Respondents as "Defendants".
Brief Facts
[3] The Plaintiff was 29 years old and working as a sports coordinator at Sodexe Malaysia Sdn Bhd.
[4] On 13 February 2018, the Plaintiff felt pain in his left eye and he went to a clinic in Cheras. The doctor in the clinic recommended the Plaintiff to consult a specialist.
[5] On 15 February 2018, the Plaintiff went to Colombia Asia Hospital in Cheras and the doctor there recommended the Plaintiff to be referred to Hospital Kuala Lumpur ("HKL").
[6] On the same day (15 February 2018), the Plaintiff went to HKL and was referred to the Ophthalmologist Department where he was examined by 2 (two) female doctors; a Malay female doctor, Dr Adzleen binti Mahmood (1st Defendant) and a female Indian doctor, Dr Priscilla Malini a/p Subramaniam (5th Defendant).
[7] It is the Plaintiff's contention that Dr Adzleen binti Mahmood was the first doctor who saw him and she had diagnosed him as suffering from corneal ulcer.
[8] The Defendants' case was that the Plaintiff was diagnosed with a condition called corneal hydrops. On the basis of being diagnosed with corneal hydrops, the Plaintiff was prescribed Maxidex, a steroid-based eyedrop to treat his left eye.
[9] The Plaintiff was advised to apply Maxidex and the Plaintiff contended that he was not informed of the risks of applying Maxidex.
[10] The condition of the Plaintiffs left eye deteriorated and he had to go for surgery for his left eye. The Plaintiff underwent corneal transplant on 28 February 2018 and follow-up treatments in HKL.
[11] On 1 June 2018, the Plaintiff was assessed at his employer's panel clinic and found unfit for work due to his left eye condition. Due to this he was terminated from employment.
[12] The Plaintiff then brought this action for damages against the 9 (nine) Defendants for medical negligence.
[13] The High Court dismissed the Plaintiff's claim and dissatisfied with the decision of the High Court, the Plaintiff appealed. Hence this appeal.
Decision Of High Court
[14] The learned Judge in her judgment held that the Plaintiff had failed to prove his case on the balance of probabilities that there was negligence or failure to adhere to the standard of care by the Defendants. Therefore, the Plaintiff's claim was dismissed with costs.
[15] The learned Judge held as follows:
i) the Plaintiff was correctly diagnosed with 'Left Acute Corneal Hydrops' on 15 February 2018 and 'Keratoconus Eye Disease and Impending Perforations', on 16 February 2018;
ii) there was no failure on the Defendant's part in getting an informed consent from the Plaintiff for treatment purposes;
iii) the Plaintiff had consented to all the procedures and treatments provided to him at HKL;
iv) the risk of surgery and informed consent was provided by the Plaintiff at all material times;
v) the principle of res ipsa loquitur is not applicable;
vi) adverse inference under s 114 (g) of the Evidence Act 1950 is not applicable;
vii) the Plaintiff was not entitled to any of the reliefs pleaded; and
viii) aggravated damages were not allowed as there were no aggravating factors proved by the Plaintiff.
Our Decision
[16] We are of the view that the learned Judge is plainly wrong in arriving at her decision to dismiss the Plaintiff's claim for damages for medical negligence.
[17] Dr Adzleen binti Mahmood who is the 1st Defendant in the suit was the ophthalmologist who first saw the Plaintiff and she had written reports to state that the Plaintiff was suffering from corneal ulcer.
[18] She prepared the report to SOCSO and stated in the report that the Plaintiff s
