A medical practitioner must adhere to the standard of care, and failure to do so resulting in injury may constitute negligence.

Headnote:The judgment addresses two appeals concerning a medical negligence claim and a vicarious liability claim arising from a birth injury case. The Court considered the applicable standard of care in medical negligence as outlined in Bolam and later clarified in Foo Fio Na, emphasizing that it is for the courts to determine the appropriate standard. The Court affirmed findings of negligence against the 1st defendant for failing to apply necessary maneuvers during delivery leading to injury. The issue of causation was clearly articulated as a factual matter reliant on expert evidence which confirmed the defendant's negligence had a direct impact on the infant's injuries. Consequently, the appeals were dismissed, upholding the lower court's findings on both liability and damages.

Table of Content
1. overview of the appeals arising from a medical negligence suit. (Para 1 , 2 , 3)
2. details of the medical negligence claim and its findings. (Para 4 , 5 , 6)

[1] There are three appeals before us arising out of a decision by the High Court at Pulau Pinang given on 30 December 2014. These appeals were ordered to be heard together.

[2] There were two suits filed in the High Court. The first was a medical negligence claim against Dr Quah Thong Sai (the 1st defendant) and a claim in vicarious liability against Hospital Lam Wah Ee ("the Hospital").

[3] The second suit was a claim by the Hospital against the parents of the infant known as Natahlie Nordberg ("the infant") for outstanding charges incurred at the Hospital. Both suits were heard together in the High Court.

[4] The first suit or as we would term it "the medical negligence suit" was brought against the 1st defendant on various allegations of breach of duty giving rise to a claim in medical negligence. The 1st defendant was then practising as an obstetrician and gynaecologist at Law Wah Ee Hospital, Penang.

Salient Facts

[5] It transpired that during the process of delivery, the baby encountered shoulder dystocia whereby after the delivery of the head, the anterior shoulder of the baby could not pass the pubic symphysis. As a result of the shoulder dystocia, the baby suffered brachial plexus injury and mild intellectual impairment.

[6] After having heard the evidence of ten factual and expert witnesses, the learned trial judge dismissed all allegations of negligence except one. This was for the failure on the part of the 1st defendant to undertake the McRobert's manoeuvre and apply suprapubic pressure to overcome the shoulder dystocia and deliver the baby. On this sole ground, the 1st defendant was adjudged to be negligent in the delivery of the baby.

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2016 MarsdenLR 2785

COURT OF APPEAL PUTRAJAYAELIZABETH CHIN YEW KIM & ANOR – AppellantVersusDATO ONG GIM HUAT & OTHER APPEALS – Respondent[Civil Appeals No: P-02 (NCVC)(W)-672-04-2015 P-02 (NCVC)(W)-673-04-2015 & P-02 (NCVC)(W)-734-04-2015]

A medical practitioner must adhere to the standard of care, and failure to do so resulting in injury may constitute negligence.

COURT OF APPEAL PUTRAJAYA
ELIZABETH CHIN YEW KIM & ANOR – Appellant
Versus
DATO ONG GIM HUAT & OTHER APPEALS – Respondent
[Civil Appeals No: P-02 (NCVC)(W)-672-04-2015 P-02 (NCVC)(W)-673-04-2015 & P-02 (NCVC)(W)-734-04-2015]