Medical practitioners owe a duty of care to patients, and establishing negligence requires proof of a breach of the standard of care which was not met by the plaintiff in this case.

[1] Plaintiff consulted the 2nd defendant on 21 May 2001 with the history and complaint of pain in the abdomen before menstruation and dysmenorrhoea, inter alia. The 2nd defendant is an Obstetrician and Gynaecologist practising at the Gleneagles Medical Centre ('the hospital'), wholly owned and operated by the 1st defendant. Through an ultra sound scan, plaintiff was diagnosed clinically to have endometriotic cyst in her left and right ovary. She was admitted to the Hospital on 5 June 2001 for surgical procedure called laparoscopic ovarian cystectomy. On 6 June 2001, 2nd defendant performed the laparoscopy on the plaintiff to confirm the presence of the two endometriotic cysts and forthwith to remove them. After the laparoscopy, however, no cyst was seen and cystectomy was thus not carried out. Plaintiff was then given injection of Zoladex. However, despite the laparoscopy having been done, plaintiff still suffer the same complaint of pain. She subsequently visited the Sungai Petani Hospital where after scanning, plaintiff suspected that she still had the cysts which 2nd defendant did not remove. On 8 July 2002, Dr Benny Khaw from Singapore Women's Specialist Centre had successfully removed plaintiff's two endometriotic cysts and she did not suffer the same complaint since then. Plaintiff alleged that the 2nd defendant had breached his duty of care to the plaintiff in failing to remove the endometriotic cysts in her left and right ovary during the laparoscopy performed on 6 June 2001 and had wrongfully administered two Zoladex injections on the plaintiff on 7 June 2001 and 5 July 2001. She filed this action for damages alleging professional negligence on the part of the 2nd defendant. The 1st defendant is sued for vicariously liable since it was its Hospital that the 2nd defendant performed the laparoscopy procedure. 2nd defendant denied all allegations of negligence and contended that there were no endometriotic cysts seen during the laparoscopy conducted on 6 June 2001 on the plaintiff and the two Zoladex injections given to the plaintiff are an accepted form of treatment for the endometriosis that the plaintiff was suffering from.

The Issues

[2] The main complaints of the plaintiff herein this case are the failure of the 2nd defendant to successfully remove the two endometriotic cysts in her ovary and the wrongful administering of two Zoladex injections on her. Hence the issues can be deduced as follows:

(i) Whether plaintiff had in actual fact two endometriotic cysts in her ovary before and at the time laparoscopy was performed by 2nd defendant on 6 June 2001.

(ii) Whether 2nd defendant was negligent in the course of performing the laparoscopy.

(iii) is it wrongful for 2nd defendant to administer two Zoladex injections on the plaintiff after laparoscopy; and

(iv) is the 1st defendant vicariously liable for the act of the 2nd defendant.

Evaluation & Findings

[3] Learned counsel for the 2nd defendant has submitted the cases of Chien Tham Kong v. Excellent Strategy Sdn Bhd & 2 Ors, [2009] 7 MLJ 261 , Mathew Scott Oakley & 2 Ors v. Dr George Varughese & Anor; [2010] 10 CLJ 322 and Payremalu Veerappan v. Dr Amarjeet Kaur & Ors; [2001] 3 MLJ 725 ; [2001] 4 CLJ 380 ; [2001] 3 AMR 3305 pertaining to the plaintiff's burden to prove negligence against the defendants on the basis that what was done was what a reasonably competent practitioner skilled in that particular art would not have done or would have done and that the negligence, if proved, would result in damages to the plain