James Foong J:

Introduction

[1] The first plaintiff is the husband of the second plaintiff.

[2] In early January 1997, the second plaintiff, who was then 65 years of age, had a fall. She fractured the neck of her left femur with displacement. She also had a crack fracture of her tibia. Initially, she was admitted to University Malaya Hospital but since this hospital could not perform an operation on her soonest, she sought treatment from the second defendant. After being X-rayed at the emergency ward of the second defendant, she was referred to the first defendant for treatment.

[3] On 13 January 1997, the first defendant performed a surgery on the second plaintiff known as 'Thompson hemiarthroplasty'. This involved the insertion of a metal prosthesis into the second plaintiff's femur shaft. In order for the prosthesis to sit well, the femur shaft should be properly and sufficiently reamed to accommodate the prosthesis where the neck of this metal insertion would rest on the calcar Once this prosthesis is properly inserted and with its round head reduced into the hip socket, the second plaintiff should be able to walk without any pain.

[4] Soon after this operation (which I shall refer to as the first operation), the second plaintiff was instructed by the first defendant to ambulate and bear weight on her legs. She did, but according to her, she experienced pain. Going by the notes of the first defendant, this patient was able to walk with the aid of a walker It is not in dispute that it is an accepted medical practice to instruct the patient to ambulate and to bear weight after this kind of operation to avoid muscle wastage and bedsore.

[5] After the second plaintiff was discharged, she attempted to walk with the aid of a walker or human assistance but she said that she continued to experience severe pain. Then on 1 February 1997, she fell. This time she fractured the lesser trochanter of her femur, which warranted a second operation. This second operation was undertaken by the first defendant. Before this second operation (second operation) was carried out on 3 February 1997, the second plaintiff was X-rayed on the affected part. It shows fracture of the lesser trochanter causing the mouth of the femur to become large, and the prosthesis though has moved down into her femur has become unstable.

[6] The second operation was carried out on 3 February 1997. In this operation, the first defendant first removed the prosthesis. He then re-inserted it. This time he used bone cement to bind the prosthesis to the femur This would give a stronger hold of the prosthesis in the femur To avoid any leakage of the bone cement onto the surrounding tissues, and to wait for the hardening of the cement he held gauze over the area. It is pertinent to point out that medically, as disclosed by the evidence of doctors who testified in this case that bone cement, being a foreign object, if left in the surrounding tissues may cause infection.

[7] On 6 February 1997, the second plaintiff was discharged. She was advised by the first defendant to ambulate and to bear weight. At time of discharge, she was supplied with antibiotic and pain killer Antibiotic was prescribed because the second plaintiff was a diabetic and was more prone to infection.

[8] On 8 February 1997, the second plaintiff's wound in the area operated became infected with discharges. Unable to secure the immediate service of the first defendant, due to the Chinese New Year holiday, the second plaintiff sought medical attention from one Dr Siddanna, a private practitioner, who made a house call on the second plaintiff. The wound, with stitches still intact, was cleaned and dressed.

[9] On 20 February 1997, the first defendant saw the second plaintiff. According to the first defendant, he noted that the wound has cleared and is clean. However, he instructed the second plaintiff to continue with dressing. For dressing, the second plaintiff would have to be at the second defendant's hospital