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2024 MarsdenLR 3321
COURT OF APPEAL PUTRAJAYA
AZHAHARI KAMAL RAMLI, JCA
DR ESA KAMARUZAMAN – Appellant
Versus
DR NEVILLE MICHAEL GOMIS & ORS – Respondent
[Civil Appeal No: M-02-(NCvC)-1139-06/2022]
The Bolam test governs medical negligence, establishing that a doctor is not negligent if acting in accordance with accepted medical practice, while vicarious liability applies to healthcare institutions for their employees' actions.
Headnote:(A) Medical Negligence - Vicarious Liability and Non-Delegable Duty - The appeal concerns a medical negligence claim where the 3rd defendant was found liable for the death of the deceased due to a failed Central Venous Line (CVL) insertion. The High Court Judge concluded negligence based on expert testimony regarding the standard of care. (Paras 45, 46, 50, 55)
(B) Standard of Care - The court reiterated that the Bolam test applies in determining the standard of care for diagnosis and treatment, noting that a doctor is not liable if acting in accordance with accepted medical practice. (Paras 50, 51)
(C) Quantum of Damages - The court affirmed the award for loss of earnings and future care costs but reduced aggravated damages from RM500,000 to RM100,000, citing excessive assessment. (Paras 66, 78)
Facts of the case:
The deceased suffered a cardiac arrest after complications during childbirth, leading to a failed CVL insertion by the 3rd defendant. The plaintiff claimed negligence from all defendants.
Findings of Court:
The court upheld the High Court's findings on negligence against the 3rd defendant while absolving the 2nd defendant.
Issues: Whether the 3rd defendant was negligent and liable for the deceased's death, and the appropriateness of the damages awarded.
Ratio Decidendi: The court found sufficient evidence of negligence from the 3rd defendant, linking the failed CVL insertion to the death, while the 2nd defendant acted appropriately.
Result: Appeal on liability dismissed; appeal on quantum of damages partially allowed.
A. Introduction
[1] This is an appeal by the appellant (the 3rd defendant in the court below) against the decision of the learned High court Judge (HCJ) dated 26 May 2022 in allowing the claim of the 1st respondent (the plaintiff in the court below) against the appellant in a medical negligence action.
[2] In the High court, the 1st respondent sued the following defendants:
1. Mahkota Medical Centre Sdn Bhd (as the 1st defendant)
2. Dr Nor Azlina binti Awang (as the 2nd defendant)
3. the appellant (as the 3rd defendant)
4. Dr Thirugnana Sambanthan (as the 4th defendant)
[3] The claim against the 4th defendant was subsequently withdrawn. After a full trial, the learned HCJ ordered, among others, that:
i. the plaintiff's claim against the appellant be allowed.
ii. the plaintiff's claim against the 1st defendant was allowed on the principle of vicarious liability and non- delegable duty.
iii. the plaintiff's claim against the 2nd defendant was dismissed.
iv. the 1st defendant's claim for a contribution or indemnity from the 3rd defendant is allowed.
[4] In respect of damages, the learned HCJ made the following order:
[5] Dissatisfied with the said decision, the appellant filed this appeal against:
i. the plaintiff (as the 1st respondent);
ii. the 1st defendant (as the 2nd respondent); and
iii. the 2nd defendant (as the 3rd respondent).
[6] In this judgment, the parties will be referred to as they were in the High court.
B. Factual Matrix Of The Case
[7] The facts of the case can be gleaned from the grounds of judgement, the pleadings and the submissions of the parties which we would adopt with necessary modifications.
[8] On 02 May 2015, the deceased was first seen by the 2nd defendant being the Consultant Obstetric & Gynaecologist when she was at 5 weeks gestation to confirm pregnancy. She had irregular menses and subfertility due to some medical condition. From thereon, the deceased had 9 antenatal visits with the 2nd defendant. The deceased, at the same time, also had antenatal follow up at government clinic. The deceased's estimated date of delivery was on 30 December 2015.
[9] On 12 December 2015, at around 6.00 a.m. ie before the estimated date of delivery, the deceased was admitted to 1st defendant medical centre. She had labour pains.
[10] At around 9.00 a.m. on the same day, the deceased was admitted to the labour room. A vaginal examination done showed cervical oscillation at 4-5cm, station -3 and partial effacement. An amniotomy done revealed clear liquor. Oxytocin (2/4 unit) was started.
[11] The deceased's labour progress was uneventful. At around 11.30 a.m. the deceased requested for epidural for labour pain relief. Cervical dilation was 7 cm, and liquor was clear. Oxytocin was at 4 units (45 dpm) and the record showed that uterine contractions were moderately strong.
[12] In response to the deceased's request, the 2nd defendant made a referral to the 3rd defendant for epidural anaesthesia to be provided to the deceased.
[13] At around 12.55 p.m., the deceased delivered a baby girl, of 3.05 kg. The estimated blood loss was 350 ml. The episiotomy site was sutured after deliver of the placenta and membrane. The record indicate that the deceased's uterus well contracted after intravenous oxytocin.
[14] At around 2.00 p.m., the deceased was bleeding from the episiotomy site as well as from vaginal wall tears sustained during the delivery process and the 2nd defendant removed the tampon from the vagina. Arrangement was made for re-suturing. The 2nd defendant called for the 3rd defendant to administer epidural.
[15] At about 3.30 p.m., the 2nd defendant was informed that the deceased's haemoglobin had dropped to 8.1g/dl and blood pressure was low at 67/34 mmHg. Estimated blood loss from the delivery and subsequent repair of the birth trauma was between 1 litre to 1.5 litre. The 2nd defendant ordered for blood test and 2 pints of blood transfusion for the deceased. An abdominal ultrasound done showed no retained plac
