James Foong J:

The Plaintiff's Claim

The plaintiff is now 63 years of age. Sometime in the latter part of 1984 he consulted the defendant, who was and still is an orthopaedic surgeon. According to him, his complaint was numbness in his fingers. On the advice of the defendant, he underwent a surgery performed by the defendant on his cervical spine. This was on the 19 December 1984. For ease of reference I shall refer to this operation as the 1st operation. For three weeks subsequent to the operation he experienced paralysis of both his lower and upper limbs and incontinence. Not prepared to continue with post-operative treatment by the defendant, the plaintiff discharged from the defendant's care and admitted himself to the General Hospital.

There, on 10 January 1985, one Dr. Kazem operated on him in the same area of his body. This operation I shall refer to as the 2nd operation. He improved slightly. But after a period of 3 1/2 years, he subjected himself to yet another operation. This time, performed by one Dr. Fadzli Cheah, and in the same region of his body. This operation, I shall refer to as the 3rd operation. As a result of this 3rd operation, he claims that his condition improved marginally. Seemingly undeterred, the plaintiff underwent a fourth operation on 15 November 1989. This was performed by a visiting professor of surgery, Mr. Max Arbi of Canada. This operation, which was carried out in Malaysia, shall be referred to by me as the 4th operation.

Despite these four operations the plaintiff's present condition, as declared upon by him, is as follows:

(1) weakness of the right hand;

(2) weakness of both legs;

(3) inability to stand on his own;

(4) ability only to move with crutches; and

(5) lack of urinary and bowel control.

Deciding that it was the defendant who caused him these miseries, sufferings and loss of earnings due to his inability to work, he sues the defendant.

His cause of action, as set out in his statement of claim, is founded on negligence by the defendant in failing to diagnose, treat and advise him on the 1st operation.

For the particulars of negligence, the plaintiff listed the following:

(1) the defendant had failed to inform him of the inherent risk;

(2) the defendant had assured him of a definite relief to the numbness in all his fingers;

(3) the defendant had assured him that he will not be in danger in such an operation;

(4) the defendant had failed to exercise reasonable care and skill during the operation so as to negligently cause damage to his spinal nerve resulting in the present residue;

(5) the defendant had failed to cure him of his initial complaints;

(6) the defendant had failed to provide post operative care; or alternatively, abandoning the care and cure causing him to procure the services of another competent medical practitioner;

(7) alternatively the defendant gave erroneous diagnosis;

(8) the defendant had failed to introduce the operative instrument from the correct angle and thereby obviating the possibility of damage to his spinal nerve;

(9) the defendant had failed to ascertain and assess his muscle power before the operation; (10) the defendant had failed to introduce the operative instrument from the correct angle, thereby damaging his cord and/or lacerating the vessel of his cord and causing the present residuals;

(11) the defendant had failed to decompress his cord at C6;

(12) the defendant had failed to remove osteophytes at CS level during the operation thereby causing the narrowing of his spinal canal at C5-6 level;

(13) the defendant had failed to use proper instrument (eg,) the cloward which would have prevented the defendant from coming into contact with the spinal nerve;

(14) the defendant had failed to appreciate and/or advise him that the operation should have been done by a neuro-surgeon and not an orthopaedic surgeon, or alternatively, failing to have a neuro-surgeon present at the operation;

(15) the defendant had failed to