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2025 MarsdenLR 4657
HIGH COURT MALAYA GEORGETOWN
MOHAMMAD NABILL SAJID MOHAMMAD ASLAM SAJID – Appellant
Versus
GOVERNMENT OF MALAYSIA & ORS – Respondent
[Civil Suit No: PA-21NCvC-8-07/2023]
The Plaintiff failed to prove medical negligence as the Defendants met the standard of care expected in their treatment, applying the Bolam test to assess liability.
Headnote:(A) Civil Law - Medical Negligence - Legal and evidential burden of proof - The Plaintiff claimed for medical negligence against hospital defendants, but the court held that the Plaintiff failed to prove negligence as per the standards of care expected of medical practitioners. (Paras 1, 5, 9-12, 13-19)
(B) Standard of Care - The court clarified the standard of care in medical negligence, applying the Bolam test, indicating that physicians are not negligent if they follow a practice accepted by a responsible body of medical men skilled in that discipline. (Paras 13-16)
(C) Timeline of Treatment - The court noted the treatment timeline and justified the decisions taken by the medical staff, concluding that the delay did not constitute negligence. (Paras 18-32)
Facts of the case:
The Plaintiff sustained severe injuries from a road accident and alleged that the Defendants failed to provide timely surgery, causing permanent damage resulting in severe disabilities. The Defendants contended they acted within an acceptable standard of care, adhering to medical protocols. (Paras 2, 3, 4)
Findings of Court:
The Defendants acted within the standard of care and the Plaintiff failed to discharge the burden of proof demonstrating negligence. (Paras 6-12, 19-37)
Issues: The primary issue was whether the medical staff met the expected standard of care and whether their actions contributed to the Plaintiff's injuries. (Paras 5, 9-12)
Ratio Decidendi: The court reiterated that liability in medical negligence requires proof that the standard of care was breached and emphasized the importance of the Bolam test in evaluating medical decisions. (Paras 13-16, 19-37)
Result: The Plaintiff's claim was dismissed with no order as to costs.
| Table of Content |
|---|
| 1. overview of case and circumstances (Para 1 , 2) |
| 2. plaintiff's claims and arguments presented (Para 3 , 4) |
| 3. judicial finding on liability and burden of proof (Para 5 , 6 , 7 , 8) |
| 4. standard of care in medical negligence (Para 13 , 14 , 16) |
| 5. assessment of damages and final judgment (Para 39 , 41) |
Introduction
[1] The Plaintiff ("P") filed this suit for medical negligence against the Defendants. After a full trial, I dismiss P's action. Here are the grounds of my judgment.
Background facts
[2] The agreed facts and chronology of events are these.
(a) The 1 Defendant is vicariously liable for the acts and omissions of the 2 to 32 Defendants. The 15 Defendant is also liable based on the doctrine of non - delegable duty of care. The 2nd to 32nd Defendants are the employees of the 1st Defendant. They were involved in the treatment of P at the Penang General Hospital/Hospital Pulau Pinang ("Hospital PP").
(b) On 11 July 2020 at 12:40 am., P was involved in a road accident wherein he sustained injuries. He was conveyed to the emergency department of Hospital Balik Pulau at 1:02 am., where he was treated.
(c) On the same day at 3:10 am., P was transferred from Hospital Balik Pulau to Hospital PP for further treatment. He was seen at the emergency department of Hospital PP and was subsequently examined by the orthopaedic unit.
(d) A CT cervical and thoracic was carried out on P. It revealed C5 vertebral body fracture with retropulsion into the spinal canal, with T4 anterior vertebral collapsed with angulation.
(e) A MRI spine was also carried out on P. It revealed spinal cord oedema with spinous process fracture at T2 and T3, and fracture dislocation of T3 and T4 level.
(f) P was diagnosed with the following injuries:
(i) Incomplete spinal cord injury (ASIA C) with:
a) Burst fracture of C5 vertebrae with retropulsion into spinal canal;
b) T3 and T4 level fracture dislocation;
c) Bilateral T4 lamina fracture;
d) Left T3, T4, T5 and T6 transverse process fracture; and
e) T3, T4 and T6 spinous process fracture.
(ii) Close fracture body of left scapula.
(iii) Mild traumatic brain injury with posterior inter - hemispheric bleed.
(iv) Left lung contusion with left haemo - pneumothorax and bilateral lung effusion.
(v) Left sided 1st, 2nd, 4th, 5th and 6th ribs fracture.
(vi) Right 2nd rib fracture.
(g) P was then admitted to the Intensive Care Unit (ICU) on the same day. The next day on 12 July 2020 at 12:50 pm., he was examined by the neurosurgery unit. On 13 July 2020, he was seen by the orthopaedic team. On 14 July 2020, he was examined by the orthopaedic team.
(h) On 15 July 2020 at 1:35 pm., a surgery was carried out on P. Namely anterior cervical corpectomy and fusion of C5 with posterior spinal instrumentation and fusion of T1 / T2 until T5 / T6.
(i) On 21 July 2020, P underwent tracheostomy for airway management and prolonged ventilation. On 23 July 2020, he was referred to the rehabilitation team. On 21 August 2020, he was discharged from Hospital PP. He was readmitted to Hospital PP from 18 November 2020 to 11 December 2020 and from 24 February 2021 to 26 February 2021.
(j) As a result of the serious disabilities, P will for the rest of his life depend on others for all activities of his daily living.
The Plaintiff's case
[3] P's case is this.
(a) The Defendants did not do a decompression surgery. They only did a fixation surgery 4 days later on 15 July 2020 to stabilize the fracture components of the spine. By which time, the spinal cord had already sustained secondary injury. The permanent damage to the spinal cord has caused serious disabilities to P, in particular his left upper limb and both his left lower limbs. The Defendants had given up hope based on the premise that the spinal cord injury could not have been salvaged from the outset.
(b) The decompression surgery to relieve the pressure on the spinal cord should have been performed without delay on P to salvage the spinal cord. If it had been carried out without dela
