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2026 MarsdenLR 1968
HIGH COURT MALAYA ALOR SETAR
JOHN LEE KIEN HOW @ MOHD JOHAN LEE, J
AB – Appellant
Versus
ILHAM FITRI MURAD & ORS – Respondent
[Civil Suit No: KA-23NCvC-1-01/2023]
In medical negligence cases, independent expert evidence is strictly required to establish the standard of care and prove causation. A court cannot rely on lay evidence or the doctrine of res ipsa loquitur to determine technical clinical breaches, and the absence of such evidence warrants dismissal in limine.
Headnote:(A) Evidence Act 1950 - Section 45 - Expert evidence - Medical negligence - Requirement of independent medical expert testimony to establish standard of care - Non-production of expert evidence is fatal to a claim involving technical clinical issues - “The court must not arrogate to itself an unearned expertise in highly specialised non-legal disciplines… aside from the reading of the law, to form an objective opinion of the required standard of care.” (Paras 17, 19, 21)
(B) Civil Procedure - Submission of no case to answer - Principles for determination - Evidence must establish a case in law and discharge the burden of proof - “It is not a question of whether any evidence exists, but whether the evidence adduced is legally sufficient to establish the elements of the tort.” (Paras 15, 16)
(C) Evidence Act 1950 - Section 114(g) - Adverse inference - Failure to produce crucial expert evidence allows for presumption that such evidence would be unfavorable to the party - (Para 23)
(D) Torts - Doctrine of res ipsa loquitur - Not applicable to medical negligence where technical clinical matters regarding human pathology are involved - Doctrine does not shift the legal burden of proof - (Paras 32, 34, 39) (E) Evidence Act 1950 - Section 58 - Facts formally admitted in pleadings are deemed proven and dispensed from requirement of further proof - (Paras 56, 58)
Facts of the case:
A minor plaintiff underwent a ritual circumcision procedure. Following the surgery, the patient experienced complications and subsequent follow-up care. A claim for medical negligence was filed alleging substandard surgical technique and unsterile instruments. The defendants elected to submit no case to answer, citing the plaintiff's failure to call medical expert witnesses to prove the standard of care, breach, and causation.
Findings of Court:
The court found the plaintiff failed to establish a prima facie case as the claim relied solely on lay opinions and lacked the necessary independent medical expert evidence to define the standard of care or prove a breach thereof. The court also held that the doctrine of res ipsa loquitur was inapplicable to this context and that the plaintiff admitted facts through the Statement of Agreed Facts that effectively broke the chain of causation due to delayed referral actions.
Issues: The main issues were whether a medical negligence claim can proceed without expert testimony, the applicability of res ipsa loquitur in surgical complications, and the legal effect of a "no case to answer" submission when the plaintiff fails to discharge the evidentiary burden.
Ratio Decidendi: In highly specialized fields like medical practice, a court cannot determine the standard of care through lay observation. The failure to call an expert witness to address clinical methodology and standards of care is fatal to the plaintiff's case. Furthermore, facts admitted by parties during the pre-trial stage are binding and obviate the need for further evidence on those specific points.
Result: Claims dismissed; judgment for the defendants with costs.
| Table of Content |
|---|
| 1. procedural requirements for a submission of no case to answer. (Para 1 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17) |
| 2. mandatory requirement of expert evidence in medical negligence claims. (Para 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30) |
| 3. inapplicability of res ipsa loquitur in complex clinical cases. (Para 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39 , 40 , 41 , 42) |
| 4. parties strictly bound by pleadings; unpleaded issues are impermissible. (Para 43 , 44 , 45 , 46 , 47 , 48 , 49 , 50 , 51) |
| 5. plaintiff's failure to prove causation and contradictory evidence. (Para 53 , 54 , 55 , 56 , 57 , 58 , 59 , 60 , 61 , 62 , 63 , 64 , 65 , 66 , 67 , 68 , 69) |
| 6. failure to prove damages through lack of evidence/pleadings. (Para 70 , 71 , 72 , 73 , 74 , 75 , 76 , 77) |
| 7. case dismissed for failure to establish prima facie evidence. (Para 78 , 79 , 80 , 81) |
JUDGMENT
(After Full Trial)
[1] This medical negligence action presents a fundamental procedural anomaly: an attempt by the plaintiff to establish clinical breach and causation in the absolute absence of expert medical testimony. Inevitably, the plaintiff failed to establish a prima facie case, prompting the defendants to elect to submit no case to answer upon the close of the plaintiff's case. This litigation serves as a stark reminder that the cardinal maxim "ei incumbit probatio qui dicit, non qui negat" — he who alleges must prove — remains an immutable threshold that must be crossed before any claim can command the assistance of the court.
Facts And Background
[2] On 30 November 2019, the plaintiff, then a nine-year-old boy, attended Poliklinik Ihsan (the 4th Defendant) to undergo a ritual circumcision. The procedure was carried out by the 1st and 2nd Defendants, who are medical assistants. Following the procedure, the plaintiff experienced persistent bleeding, pain, and difficulty passing urine.
[3] The Plaintiff returned to the 4th Defendant's clinic on multiple occasions for follow-up care:
(i) 13 December 2019: The Plaintiff presented with bleeding and pain. He was attended to by the 3rd Defendant, who performed wound dressing and prescribed medication.
(ii) 4 January 2020 and 21 January 2020: During these visits, the 3rd Defendant noted "delayed healing" and observed a fibrous layer growing over the glans penis, which was gradually obstructing the urinary outlet.
(iii) 23 January 2020: Upon the father's request, the 3rd Defendant performed a wound debridement to remove the fibrous layer. Post-procedure, it was discovered that the fibrous layer was adhered to the glans rather than originating from the prepuce.
(iv) 28 January 2020: A fifth visit occurred where the 3rd Defendant noted the wound was improving with no active bleeding.
[4] On 10 February 2020, the 3rd Defendant issued a referral letter for the plaintiff to see a urologist. Independent of this, on 13 February 2020, the plaintiff's school also issued a referral letter to Hospital Sultanah Bahiyah (HSB) following the plaintiff's ongoing complaints of pain.
[5] The Plaintiff subsequently attended HSB on 17 February 2020 for further management. Medical records from HSB dated 5 July 2020 indicate that the circumcision wound had successfully healed and that the plaintiff was able to pass urine well.
The Trial And Parties' Submissions
[6] During the trial, the plaintiff called two witnesses:
(i) The Plaintiff's father and legal representative, SP1, who is a contract manual labourer by trade; and
(ii) The Plaintiff, SP2, was, at the time of the alleged incident and is currently still a minor.
[7] As the defendants elected for a submission of no case to answer, no witnesses were called.
[8] The Plaintiff contends that the ritual circumcision performed on 30 November 2019 was executed with gross medical negligence involving improper surgical techniques and unsterile instruments. The Plaintiff's submission emphasises that the 1st and 2nd Defendants were unauthorised and unqualifi
