A dentist's duty of care includes emergency preparedness; failure to comply with statutory requirements may constitute negligence if it contributes to patient harm.

Introduction

[1] We gave our decision earlier, where we had, by majority, dismissed the appeal with costs. My learned brother, Hashim bin Hamzah JCA, has read this judgment in draft and agreed to it.

[2] The appellant, then 78 years old, suffered brain damage after she visited the dentist, namely the respondent. She has since remained bedridden and dependent on others for sustenance. It was alleged that the appellant's condition was due to an anaphylactic shock caused by the respondent's negligence. The High Court dismissed the appellant's claim after a full trial, hence this appeal.

Facts

[3] The appellant went to the respondent's dental clinic to address a toothache. This clinic was situated on the first floor. It was agreed that one of her molars needed to be extracted. The respondent had firstly injected Lignocaine into the appellant's gums to anaesthetize it. She was then given some tablets of Amoxicillin, Flagyl and paracetamol to consume before the extraction. She struggled to breath soon after. The respondent then performed the Heimlich manoeuvre on the appellant. That seemed to have relieved the appellant. The respondent nevertheless proceeded to call for an ambulance. The appellant and her daughter then made their way downstairs out of the clinic while the respondent was on the phone calling for an ambulance. The respondent had called the hospital for an ambulance but was told that none was available. The appellant and her daughter then went to the hospital, ferried by a good Samaritan. The respondent went in his car.

[4] The appellant suffered a cardiac arrest upon arrival at the hospital's emergency department. She was successfully resuscitated but suffered what is known medically as Hypoxic-Ischemic Encephalopathy, a type of brain damage. The attending physician noted in his records that the appellant had suffered a post-cardiac arrest secondary to an anaphylactic shock. Her airways were not blocked when she was intubated.

The High Court's Findings

[5] The High Court summarised the allegations of negligence against the respondent as follows:

(i) Failing to diagnose the appellant to ascertain whether she was allergic to penicillin-based medicines, which in this case was Lignocaine and Amoxicillin: and

(ii) Failing to have the necessary equipment to stabilise the appellant's condition or to resuscitate her and to arrange and supervise her transfer to the hospital properly.

[6] It was not disputed that the respondent, as a dentist, owed a duty of care to the appellant as his patient. On the first issue, the learned High Court Judge held that the injury suffered by the appellant was not due to the medications that the respondent gave. The learned Judge's findings were based on several factors. Of the medications given to the appellant, only two could have caused an anaphylactic shock: Lignocaine and Amoxicillin.

[7] Lignocaine, which is used as a local anaesthetic, was ruled out as the appellant had previously been administered it by the respondent when she went for a tooth extraction in 2013. She did not suffer any adverse reaction then. Lignocaine was also applied to the Ryles tube used on the appellant when she was hospitalised without any adverse reactions.

[8] Amoxicillin was also ruled out. The learned Judge came to this finding as it would require at least thirty minutes for the body to absorb Amoxicillin after ingestion before it can take effect. The appellant had suffered breathing difficulties about one to four minutes after she had taken it.

[9] The second issue took up much of the learned Judge's deliberation. It was contended that the respondent was inept after the appellant had suffered breathing difficulties, as he:

• had failed to ascertain the cause of her breathing difficulties,

• did not take charge of the situation, leavi