1. Medical negligence claim arising from complications following a ritual circumcision procedure. (Para 2 )
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2026 MarsdenLR 2929
HIGH COURT MALAYA, ALOR SETAR
JOHAN LEE KIEN HOW, J
AB – Appellant
Versus
ILHAM FITRI MURAD & ORS – Respondent
[CIVIL SUIT NO: KA-23NCVC-1-01-2023]
Medical negligence claims require expert evidence to establish the standard of care under the Bolam test. Without such evidence, a prima facie case is not established, and the doctrine of res ipsa loquitur cannot substitute for professional medical testimony in complex clinical matters.
Headnote:(A) Medical Negligence - Standard of Care - Requirement of expert evidence to establish breach under the Bolam test - Court cannot arrogate expertise in specialized non-legal disciplines to determine clinical standards (Paras 19, 21).
(B) Submission of No Case to Answer - Procedural tool where a defendant elects not to call witnesses - Successful if: (i) no case is established in law even if evidence is accepted at face value, or (ii) evidence is so unsatisfactory that the burden of proof is not discharged (Paras 13, 14, 16).
(C) Res Ipsa Loquitur - Principle of evidence to infer negligence, not substantive law - Does not shift the legal burden of proof and is not ordinarily applicable in medical negligence cases where expert evidence is required to demonstrate a breach of the standard of care (Paras 32, 34).
(D) Evidence Act 1950 - Section 58(1) - Facts formally admitted in writing by parties or their solicitors are deemed proven and dispensed from further proof (Para 56). (E) Pleadings - Parties are strictly bound by their pleadings - Unpleaded factual allegations cannot be introduced at the submission stage as an ambush (Paras 45, 46).
Facts of the case:
A minor underwent a ritual circumcision and subsequently experienced complications, including the formation of a fibrous layer. The plaintiff alleged that the procedure was performed with gross negligence using unsterile instruments and that there was a failure to provide a timely specialist referral. The defendants elected to submit no case to answer upon the close of the plaintiff's case, citing the total absence of expert medical testimony.
Findings of Court:
The plaintiff failed to establish a prima facie case of medical negligence. The absence of expert evidence was fatal to the claim as the standard of care could not be established. The doctrine of res ipsa loquitur was inapplicable given the facts. Furthermore, the chain of causation was severed by the plaintiff's own delay in acting upon medical referrals.
Issues: Whether the plaintiff could establish medical negligence without expert testimony; whether the doctrine of res ipsa loquitur could be invoked to prove negligence; and whether the delay in seeking hospital treatment broke the chain of causation.
Ratio Decidendi: The standard of care in medical negligence must be evaluated via the Bolam test, which necessitates evidence from a responsible body of medical professionals. Courts must not substitute their own opinion for professional expertise in specialized fields. Res ipsa loquitur cannot be used to bypass the requirement for expert evidence in complex clinical matters. A significant delay by a patient in responding to medical referrals constitutes a novus actus interveniens, breaking the chain of causation.
Result: Plaintiff's claims dismissed in their entirety.
Legal Category Hierarchy
- tort
- practice and procedure
Table of Contents
2. Plaintiff alleges substandard surgical technique and unsterile instruments; defendants argue the absence of expert medical testimony is fatal to the claim. (Para 8 , 9 )
3. The plaintiff failed to establish the standard of care via expert evidence, and the chain of causation was severed by the father's delay in seeking referral. (Para 17 , 23 , 35 , 41 , 61 , 68 )
4. Medical negligence requires establishing the standard of care and causation through expert evidence based on the Bolam test. (Para 19 , 21 )
5. Claims dismissed in their entirety with costs awarded to the defendants. (Para 79 , 81 )
6. Is expert medical evidence mandatory to establish a breach of the standard of care in medical negligence?
Yes, the standard of care and causation must be evaluated against the Bolam test, requiring views from a responsible body of medical professionals, unless sufficient documentary evidence from other practitioners proves the claim. (Para 19 , 21 , 25 , 27 )
7. Does the doctrine of res ipsa loquitur shift the legal burden of proof in medical negligence cases?
No, res ipsa loquitur is a principle of evidence that permits the court to draw an inference of negligence to assist the plaintiff in discharging the evidential burden, but the legal burden of proof remains with the plaintiff. (Para 32 , 34 )
8. Under what circumstances can a defendant successfully submit that there is no case to answer?
A submission of no case to answer succeeds when either no case has been established in law even after accepting the plaintiff's evidence at face value, or the evidence is so unsatisfactory that the burden of proof is not discharged. (Para 13 , 15 )
9. Can a party raise a mixed question of fact and law during oral submissions if it was not pleaded?
No, parties are strictly bound by their pleadings. A party cannot introduce unpleaded factual allegations or mixed questions of fact and law at the submission stage to ambush the opposing party. (Para 45 , 46 )
10. How does a patient's delay in acting on a medical referral affect the chain of causation?
A protracted inaction in responding to a medical referral can constitute a novus actus interveniens, which severs the chain of causation between the defendant's actions and the resulting injury. (Para 61 )
Johan Lee Kien How J:
[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 fourth defendant) to undergo a ritual circumcision. The procedure was carried out by the first and second defendants, who are medical assistants. Following the procedure, the plaintiff experienced persistent bleeding, pain, and difficulty passing urine.
[3] The plaintiff returned to the fourth 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 third defendant, who performed wound dressing and prescribed medication;
(ii) 4 January 2020 and 21 January 2020: During these visits, the third 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 third 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; and
(iv) 28 January 2020: A fifth visit occurred where the third defendant noted the wound was improving with no active bleeding.
[4] On 10 February 2020, the third 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 first and second defendants were unauthorised and unqualified to perform the procedure in that specific setting, acting outside their professional scope. They argue that the subsequent development of a fibrous layer over the glans penis, which obstructed urinary flow and caused prolonged suffering, was a direct consequence of substandard surgical execution and a failure by the third defendant to provide a timely specialist referral. The plaintiff invoked the doctrine of res ipsa loquitur, alleging that these complications speak for themselves, despite the absence of an independent medical expert. In relief, the plaintiff sought significant damages, including RM35,000 for future aesthetic corrective surgery.
[9] Conversely, the defendants have moved for a submission of no case to answer, arguing that the plaintiff's failure to call a medical expert witness is fatal to a claim involving technical issues of diagnosis and treatment. They submit th
