Failure to adequately inform a patient of surgical risks constitutes negligence, establishing vicarious liability for related damages.

[1] There are 2 appeals before us. Appeal No W-02-2752-2010 is an appeal by the 1st and the 2nd defendant doctors, and Appeal No W-02-2824-2010) is by the 3rd defendant hospital. Their appeals are against the decision of the High COURT at Kuala Lumpur made on 01 September 2010. The High COURT had allowed the claim on Medical Negligence against the 2 doctors and accordingly found the hospital vicariously liable for the same.

[2] We have heard both the appeals on 22 April 2014 and having considered all the submissions before this COURT, we dismissed the same for the reason we set out below. We will refer to the parties as there were referred to in the High COURT in this judgment.

[3] The plaintiff had a Giant Retinal Tear with detachment in his right eye. He consulted the 1st defendant, Dr. Hari Krishnan who advised him to undergo an operation at the 4th defendant hospital. The 1st defendant performed a retinal detachment operation (First Operation) on the plaintiffs right eye on 26 August 1999. After the First Operation, the plaintiffs right eye was painful and could only see faint light. The plaintiff was discharged on 30 August 1999. The 1st defendant then told him that the recovery of his right eye would take about one month or more. The 1st defendant also fixed an appointment for the plaintiff to see him in a weeks time, which was on 07 September 1999.

[4] On 04 September 1999, two days after his discharge, the plaintiffs right eye became watery and he had bullish vision. Two days later, the plaintiff sneezed twice and there were tears of blood. He immediately telephoned the 1st defendant who assured him that it was merely superficial bleeding and that he need not come to the hospital immediately. Further the 1st defendant told him that his condition was not alarming.

[5] However, the next day after the incident, the plaintiff went to see the 1st defendant on his own accord. The 1st defendants visual check confirmed that there was bleeding in the plaintiffs right eye but the 1st defendant did not scan the same. The earlier appointment on 07 September 1999 was nevertheless maintained.

[6] On 05 September 1999 before the date of the appointment, an external bruise had appeared on the plaintiffs right eye. The plaintiff then went to see the 1st defendant on the appointment date, that was, on 07 September 1999. The 1st defendant reassured the plaintiff that, there was no cause for concern but recovery would be slow and told him to come back for another appointment a week later, on 14 September 1999.

[7] On 12 September 1999, the plaintiff suffered continuous pain and felt strong pressure in the right eye. On the appointment date, which was on 14 September 1999, the plaintiff went to see the 1st defendant at the 3rd defendant hospital. Upon physical and visual inspection, the 1st defendant told the plaintiff that he would require a second operation to repair the retina in his right eye, which according to him, had folded outward. Further, the 1st defendant advised the plaintiff that the operation had to be carried out on the same very afternoon due to the urgency of the situation.

[8] The plaintiff said he was reluctant to undergo the proposed operation and requested that the 1st defendant to verify and confirm the situation before he decided to go through with it. At the insistence of the plaintiff, the 1st defendant conducted a scan to confirm his findings. According to the plaintiff upon the analysis of the scan report the 1st defendant admitted to the plai