Ahmad Zubir Zahid v.

Datuk Dr Zainal Abidin

[2019] 5 CLJ Abdul Hamid & Ors 273

A AHMAD ZUBIR ZAHID v. DATUK DR ZAINAL ABIDIN

ABDUL HAMID & ORS
COURT OF APPEAL, PUTRAJAYA
HAMID SULTAN ABU BACKER JCA
ABANG ISKANDAR JCA
B
RHODZARIAH BUJANG JCA
[CIVIL APPEAL NO: W-02(NCVC)(W)-1087-06-2017]
2 NOVEMBER 2018

TORT: Negligence – Medical negligence – Standard of care – Principles in Foo Fio

C Na v. Dr Soo Fook Mun & Anor – Whether court to determine doctor acted
reasonably and logically and got facts right – Whether medical negligence cases
could not be decided by medical judgment – Whether to be decided by way of
judicial determination – Whether standard of care extended only to advise of risks
associated with proposed treatment – Whether extended to diagnosis and treatment
D
The appellant (‘plaintiff’) filed an action for professional negligence against
the defendants for the death of his wife (‘the deceased’). The deceased first
saw the first defendant at Institut Jantung Negara (‘IJN’) and informed him
that she had mitral valve replacement in 1998 and a subsequent terminated
pregnancy. On 19 April 2012, the deceased informed the first defendant that
E she was pregnant. The first defendant, upon observing that the deceased’s
vital signal was normal advised the deceased to take Casprin blood thinner
for the second trimester of her pregnancy and an ECHO to be done at her
next appointment. On 1 October 2012, the deceased sent an SMS to the first
defendant that she was suffering from shortness of breath, light headedness
F and numbness etc. The first defendant arranged an appointment for the
deceased with Dato’ Dr Sanjiv on 6 October 2012. The deceased did not
show up for the appointment and requested a new appointment on
13 October 2012. However, on 8 October 2012, the deceased sent an SMS
to the first defendant requesting to be admitted to Pantai Medical Centre
G (‘PMC’) as she was experiencing tiredness, shortness of breath and chest
pain. The first defendant then called the deceased to go to emergency at IJN
or PMC. The deceased did not want to be admitted and wanted to see the
first defendant’s colleague, Dr Azar, on 10 October 2012. On 9 October
2012, the deceased went to IJN, where she was seen by the second defendant
and the deceased gave her medical history and that she was still on Clexane.
H
The second defendant examined the deceased and found that she had normal
functioning mitral valve with a fast heart beat consistent with pregnancy. The
second defendant advised the deceased to continue with Clexane. On the
same day, the deceased went to PMC Emergency Department and after triage
assessment, the deceased was breathless and hyperventilating. Upon
I obtaining the result of the ECG, the first defendant instructed the deceased
to be transferred to the ICU. The deceased subsequently passed away. The
cause of death was certified as ‘acute pulmonary oedema secondary to
274 Current Law Journal [2019] 5 CLJ

prosthetic valve malfunction’. The plaintiff refused post-mortem to be done A

on the deceased. The case involved issues related to medical advice and
treatment and the extent of duty of care as well as liability of hospitals in
providing professional services. The High Court dismissed the plaintiff’s
action and hence, the appeal.
B
Held (dismissing appeal with costs)
Per Hamid Sultan Abu Backer JCA delivering the judgment of the court:
(1) The issues on standard of care are often related to diagnosis, treatment
and advice. The conservative position was that a doctor’s duty towards
his patient is that he has to exercise a fair and reasonable standard of care
C
and skill, ie, a skill of an ordinarily competent medical practitioner, as
reflected in Bolam v. Friern Management Committee (‘Bolam’). The case of
Bolitho v. City and Hackney Health Authority (‘Bolitho’) qualified the
Bolam principle, that the conduct of doctors as well as the opinion was
subject to judicial scrutiny and the judge has to apply common sense to
D
come to a just conclusion and it cannot be achieved by a mechanical
process in the guise of medical judgment or determination. (paras 13 &
16)
(2) The Australian case of Rogers v. Whitaker extended the duty of care
principle between the doctor and patient to new heights, to the detriment
E
of the doctors and giving protection for the patients, of the right to be
informed of the risks involved. The case of Naxakis v. Western General
Hospital further extended the principle of Rogers v. Whitaker in relation
to the duty to advise, to the realm of diagnosis and treatment. The
decision in Montgomery v. Lanarkshire Health Board (‘Montgomery’)
F
extended the scope of responsibility of doctors to focus on what is said
to be a ‘patient centred test’ or ‘prudent patient test’. A doctor is thus
required to take reasonable care to ensure that the patient is aware of any
material risks involved in any recommended treatment, and of any
reasonable alternative or variant treatments. This ‘broad test’ virtually
had placed doctors as well as experts to be severely cross-examined with G
a view to discredit their evidence and to establish liability as well as
quantum. (paras 17-19)
(3) The Federal Court in the case of Foo Fio Na v. Dr Soo Fook Mun & Anor
(‘Foo Fio Na’) stated that the court, ultimately, must determine whether
the doctor acted reasonably and logically and got his facts right. In H
consequence, medical negligence cases in Malaysia could not be decided
by medical judgment, but it has to be by way of judicial determination.
Further, in Zulhasnimar Hasan Basri & Anor v. Dr Kuppu Velumani P &
Ors (‘Zulhasnimar’) the Federal Court accepted Rogers v. Whitaker and Foo
Fio Na with regards to standard of care. However, the court confirmed I
that it was extended only to advise of risks associated with any proposed
 Ahmad Zubir Zahid v. Datuk Dr Zainal Abidin
[2019] 5 CLJ Abdul Hamid & Ors 275

A treatment and did not extend to diagnosis and treatment in that Bolam
is still applicable but subject to qualification as stated in Bolitho. The
Malaysian courts’ decision did not incorporate the ‘broad test’
propounded in Montgomery or the ‘patient autonomy’ concept.
(paras 20, 21 & 24)
B
(4) The court disagreed with the plaintiff’s contention that the cause of death
was irrelevant and the fact that no post-mortem examination was
undertaken was also irrelevant, when the plaintiff themselves had
refused the post-mortem and the issue in respect of cause of death and
medical negligence was heavily contested, and the trial judge had made
C a finding on these issues. It might have been different if the post-mortem
report was made available. The failure to allow post-mortem might
attract s. 114(g) of the Evidence Act 1950. However, the trial judge had
already taken into consideration the totality of evidence and came to a
conclusion that the plaintiff’s claim must be dismissed. In essence, the
D case related to finding of facts and did not impinge on the principles
stated in the case of Foo Fio Na, Zulhasnimar and/or Dr Hari Krishnan
& Anor v. Megat Noor Ishak Megat Ibrahim & Anor. In consequence,
appellate intervention was not warranted. (para 28)
Bahasa Malaysia Headnotes
E
Perayu/plaintif memfailkan tindakan kecuaian profesional terhadap
defendan-defendan atas kematian si mati, isterinya. Si mati, pertama kali
berjumpa defendan pertama di Institut Jantung Negara (‘IJN’) dan
memaklumkan bahawa dia melalui penggantian injap mitral pada 1998 dan
mengalami keguguran kandungan kemudiannya. Pada 19 April 2012, si mati
F
memaklumkan defendan pertama bahawa dia hamil. Defendan pertama,
selepas pemerhatiannya mendapati tanda-tanda penting si mati normal,
menasihati si mati mengambil pencair darah Casprin untuk tempoh trimester
kedua dan ECHO dibuat semasa janji temu berikutnya. Pada 1 Oktober 2012,
si mati menghantar SMS kepada defendan pertama memberitahu bahawa dia
G mengalami kesesakan nafas, pening-pening dan kekebasan dan lain-lain.
Defendan pertama menguruskan janji temu antara si mati dengan
Dato’ Dr Sanjiv pada 6 Oktober 2012. Si mati tidak hadir untuk janji temu
itu dan meminta janji temu baharu pada 13 Oktober 2012. Walau
bagaimanapun, pada 8 Oktober 2012, si mati menghantar SMS kepada
H defendan pertama memohon agar dimasukkan ke Pantai Medical Centre
(‘PMC’) kerana dia berasa letih, sesak nafas dan sakit dada. Defendan
pertama menyuruh si mati pergi ke bahagian kecemasan di IJN atau PMC.
Si mati tidak mahu dimasukkan ke dalam wad dan hendak berjumpa dengan
rakan sekerja defendan pertama, Dr Azar pada 10 Oktober 2012. Pada
I
9 Oktober 2012, si mati pergi ke IJN dan dirawat oleh defendan kedua dan
si mati memaklumkan sejarah perubatannya dan bahawa dia masih
mengambil Clexane. Defendan kedua memeriksa si mati dan mendapati dia
mempunyai injap mitral yang berfungsi normal dengan degupan jantung yang
276 Current Law Journal [2019] 5 CLJ

lebih cepat konsisten dengan kehamilan. Defendan kedua menasihati si mati A

meneruskan dengan Clexane. Pada hari yang sama, si mati ke Jabatan
Kecemasan PMC dan selepas penilaian triage, defendan mengalami sesak
nafas dan hiperventilasi. Setelah mendapat keputusan ECG, defendan
pertama mengarahkan agar si mati dipindahkan ke ICU. Si mati kemudian
meninggal dunia. Sebab kematian disahkan sebagai ‘acute pulmonary B
oedema secondary to prosthetic valve malfunction’. Plaintif tidak mahu
bedah siasat dijalankan terhadap si mati. Kes ini melibatkan isu-isu berkait
dengan nasihat perubatan dan rawatan dan tahap kewajipan berjaga-jaga serta
liabiliti hospital dalam memberi perkhidmatan profesional. Mahkamah
Tinggi menolak tindakan plaintif dan dengan itu, rayuan ini. C
Diputuskan (menolak rayuan dengan kos)
Oleh Hamid Sultan Abu Backer HMR menyampaikan penghakiman
mahkamah:
(1) Isu-isu berkenaan standard berjaga-jaga seringkali berkait dengan
D
diagnosis, rawatan dan nasihat. Kedudukan konservatif kewajipan
doktor terhadap pesakit adalah doktor perlu melaksanakan standard
berjaga-jaga yang adil dan munasabah, iaitu, kemahiran pegawai
perubatan yang biasanya berkompeten, seperti yang dibayangkan dalam
Bolam v. Friern Management Committee (‘Bolam’). Kes Bolitho v. City and
Hackney Health Authority (‘Bolitho’) membataskan prinsip Bolam, bahawa E
tindakan doktor-doktor dan pendapat mereka tertakluk pada penilaian
kehakiman dan hakim perlu mengguna pakai akal budi demi mencapai
keputusan adil dan ini tidak boleh dicapai secara mekanikal dengan
samaran penghakiman atau pemutusan perubatan.
F
(2) Kes Australia Rogers v. Whitaker melanjutkan prinsip kewajipan berjaga-
jaga antara doktor dan pesakit ke tahap baharu, yang memudaratkan
doktor-doktor dan memberi perlindungan kepada pesakit, berkaitan hak
untuk dimaklumkan tentang risiko yang terlibat. Kes Naxakis
v. Western General Hospital melanjutkan lagi prinsip dalam kes Rogers
v. Whitaker berkaitan kewajipan menasihati, ke bahagian diagnosis dan G
rawatan. Keputusan dalam kes Montgomery v. Lanarkshire Health Board
(‘Montgomery’) melanjutkan skop tanggungjawab doktor-doktor untuk
memfokus terhadap apa yang dikatakan ‘ujian berpusatkan pesakit’ atau
‘ujian pesakit berhati-hati’. Oleh itu, doktor perlu berjaga-jaga
memastikan pesakit mengetahui apa-apa risiko material yang terlibat H
dalam mana-mana rawatan yang dicadangkan, dan apa-apa alternatif
munasabah atau rawatan berlainan. ‘Ujian luas’ ini sebenarnya
membolehkan doktor-doktor serta pakar-pakar disoal balas dengan keras
untuk menjadikan keterangan mereka diragui dan untuk membuktikan
liabiliti serta kuantum. I
(3) Mahkamah Persekutuan dalam kes Foo Fio Na v. Dr Soo Fook Mun &
Anor (‘Foo Fio Na’) menyatakan bahawa mahkamah pada dasarnya perlu
memutuskan sama ada doktor bertindak secara munasabah dan logik dan
 Ahmad Zubir Zahid v. Datuk Dr Zainal Abidin
[2019] 5 CLJ Abdul Hamid & Ors 277

A faktanya betul. Oleh itu, kes-kes kecuaian perubatan di Malaysia tidak

boleh diputuskan secara pemutusan perubatan, tetapi secara pemutusan
penghakiman. Selanjutnya, dalam kes Zulhasnimar Hasan Basri & Anor
v. Dr Kuppu Velumani P & Ors (‘Zulhasnimar’) Mahkamah Persekutuan
menerima Rogers v. Whitaker dan Foo Fio Na berkaitan standard berjaga-
B jaga. Walau bagaimanapun, mahkamah mengesahkan bahawa ia
berlanjut hanya untuk menasihati risiko yang berkait dengan mana-mana
rawatan yang dicadangkan dan tidak berlanjut pada diagnosis dan
rawatan, iaitu, Bolam masih diguna pakai tetapi tertakluk pada syarat
yang dinyatakan dalam Bolitho. Keputusan mahkamah-mahkamah di
C
Malaysia tidak menggabungkan ‘ujian luas’ yang dinyatakan dalam
Montgomery atau konsep ‘autonomi pesakit’.
(4) Mahkamah tidak bersetuju dengan hujahan plaintif bahawa sebab
kematian tidak relevan dan fakta bahawa pemeriksaan bedah siasat tidak
dijalankan juga tidak relevan, apabila plaintif sendiri enggan bedah siasat
D dijalankan dan isu berkaitan dengan sebab kematian dan kecuaian
perubatan dicabar kuat, dan hakim bicara membuat dapatan atas isu-isu
ini. Keadaan mungkin berbeza jika laporan bedah siasat dikemukakan.
Kegagalan membenarkan bedah siasat akan membangkitkan s. 114(g)
Akta Keterangan 1950. Walau bagaimanapun, hakim bicara telah pun
E
mempertimbangkan keseluruhan keterangan dan membuat kesimpulan
bahawa tuntutan plaintif wajar ditolak. Pada dasarnya, kes ini berkaitan
dengan dapatan fakta dan tidak mencerobohi prinsip yang dinyatakan
dalam kes Foo Fio Na, Zulhasnimar dan/atau Dr Hari Krishnan & Anor
v. Megat Noor Ishak Megat Ibrahim & Anor. Oleh itu, campur tangan
rayuan tidak wajar.
F
Case(s) referred to:
Bolam v. Friern Hospital Management Committee [1957] 2 All ER 118 (refd)
Bolitho v. City and Hackney Health Authority [1998] AC 232 (HL) (refd)
Dato’ Dr V Thuraisingam & Anor v. Sanmarkan Ganapathy & Anor [2015] 8 CLJ 248
CA (refd)
G Dr Hari Krishnan & Anor v. Megat Noor Ishak Megat Ibrahim & Anor And Another
Appeal [2018] 3 CLJ 427 FC (refd)
Foo Fio Na v. Dr Soo Fook Mun & Anor [2007] 1 CLJ 229 FC (refd)
Hii Chii Kok v. Ooi Peng Jin London Lucien And Another [2017] SGCA 38 (refd)
Kyros International Sdn Bhd v. Ketua Pengarah Hasil Dalam Negeri [2013] 3 CLJ 813
CA (refd)
H Montgomery v. Lanarkshire Health Board [2015] UKSC 11 (refd)
Naxakis v. Western General Hospital (1999) 197 CLR 269 (refd)
R v. Bateman [1925] All ER 45 (refd)
Rogers v. Whitaker (1992) 175 CLR 479 (refd)
Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital
[1985] AC 871 (refd)
I
Zulhasnimar Hasan Basri & Anor v. Dr Kuppu Velumani P & Ors [2017] 8 CLJ 605
FC (refd)
278 Current Law Journal [2019] 5 CLJ

Legislation referred to: A

Evidence Act 1950, ss. 46, 51, 114(g)
Federal Constitution, arts. 5, 8
For the appellant - Manmohan Singh Dhillon & KB Karthi; M/s PS Ranjan & Co
For the 1st & 2nd respondents - Maidzuara Mohammed & Harish Nair; M/s Raja, Darryl
& Loh B
For the 3rd respondent - Felix Raj & Christina Lau; M/s Felix Raj Chambers
For the 4th respondent - T Tharumarajah & Amos Siew; M/s Azim Tunku Farik & Wong
[Editor’s note: Appeal from High Court, Kuala Lumpur; No: 22NCVC-357-07-2014
(affirmed).]
C
Reported by S Barathi

JUDGMENT
Hamid Sultan Abu Backer JCA:
D
[1] The appellant/plaintiff (the husband of the deceased) who had filed an
action in professional negligence against the defendants for the death of the
deceased, appeals against the decision of the learned High Court Judge who
had dismissed the action.
Preliminaries E
[2] This is a unique case in medical negligence related to a strong-willed
deceased. The deceased who had not strictly followed medical advice and
appointments, had admitted herself in the hospital in the last leg of her life
and that too within one or two hours. Notwithstanding some preliminary
professional assistance was provided, had died. To compound the problem, F
the family of the deceased also had refused a post-mortem on the deceased.
This had actually deprived the plaintiff the best primary evidence of the
cause of death. On the facts of the instance case, best evidence would have
given a greater probative force than all the expert evidence.
[3] It must be noted that the development of case laws in medical G
negligence which lean heavily towards patient care as opposed to the
principles stated in Bolam v. Friern Hospital Management Committee [1957]
2 All ER 118 had given a full load of armoury for a claimant in medical
negligent case literally to plead and cross-examine witnesses in a harsh
manner to secure a monetary compensation. In that process, the dignity and H
integrity of professionals in essential service may be blemished and/or
destroyed. Due to the development of case laws in other jurisdictions, it is
now in a sad state of affairs and need statutory intervention. We will
elaborate on this further.
[4] On the date of hearing of this appeal, the learned counsel for the I
appellant requested a two-day hearing, for a claim where the monetary sum
may be about RM1 million only and that too in an area of tort where the
judicial principles are well settled. We took the view that: (i) it was
 Ahmad Zubir Zahid v. Datuk Dr Zainal Abidin
[2019] 5 CLJ Abdul Hamid & Ors 279

A unreasonable for the appellant to seek a two day hearing on the date of appeal
on such matters; (ii) judicial time must be proportionately spent in public
interest; (iii) if the case raises a point of public interest as opposed to general
principles of law, then the time of hearing should be sorted out at the case
management stage or request made to the President of the Court of Appeal,
B for a longer hearing.
[5] We informed the counsel that we have already read the appeal records
and the submissions that the parties have filed earlier and the bench took the
view that a time allotment of 30 minutes per party will be sufficient to
highlight the issues involved. We also informed the parties that we want
C further submission on the effect of the failure to do the post-mortem as the
cause of death was not strictly established due to such failure. For that
purpose, we had agreed to give parties time for further written submission.
[6] Parties, after the hearing, have filed further submissions. We have
read them and will now deliver our judgment.
D
[7] It must be noted that the first respondent’s role was one of consultant
and he was not at the scene when the deceased died. The second respondent’s
role was in respect of preliminary attendance. The complaint against the
hospital is related to lack of professionalism in patient care. The learned trial
judge had dealt with each and every complaint as well as the strength of the
E
medical evidence. In essence, His Lordship, in our own words, took the view
that it was a trumped-up claim which was also not rooted in law and
dismissed it with a total cost of RM250,000. The trial itself had taken a phase
of more than one and a half year, with a number of professional medical
witnesses for the plaintiff as well as the defendants.
F
Brief Facts
[8] In the instant case, the learned trial judge had written a meticulous
judgment setting out the facts and law in a simple and lucid manner, making
the judgment a class of its own to demonstrate the judge’s ability to write a
G speaking judgment as well as a learned judgment. This judgment must be read
with the said judgment to appreciate the facts and law.
[9] The case principally involves issues related to medical advice and
treatment and the extent of duty of care as well as liability of hospitals in
providing the professional services. To save court’s judicial time, we repeat
H the facts of the case and the decision of the court as placed before us in a
rudimentary manner. It read as follows:
1. The plaintiff/appellant/P1 is suing in his personal capacity and as the
administrator for his wife/the deceased/DC. DC died at Pantai Medical
Centre (PMC) on 9.10.2012. The causes of action are medical negligence
I and breach of contract. The defendants/respondents are; D1 a consultant
cardiologist of PMC, D2 a senior medical officer of Institut Jantung
Negara (IJN), D3 a company that owned and managed PMC, and D4 a
company that owned and managed IJN.
280 Current Law Journal [2019] 5 CLJ

2. DC first saw D1 in 2002 at IJN. DC informed D1 that she had mitral A

valve replacement in 1998. DC was pregnant in 2011 but the pregnancy
was terminated due to death of the fetus. About 6 months before her
death i.e. on 21.3.2012, DC saw D1 for follow up appointment. DC
informed D1 she wanted to get pregnant again via frozen egg transfer.
DC’s fertility doctor told DC to switch from Warfarin blood thinner
medication to Clexane. DC wanted to take Clexane as advised. B

3. On the next day i.e. on 22.3.2012, D1 advised DC to be prescribed for

Clexane for 0.4 ml and Warfarin 3 mg to be taken daily if DC got
pregnant. About a month afterwards i.e. on 19.4.2012, DC informed D1
that she was pregnant. D1 observed that DC’s vital signs were normal.
D1 advised DC to take Casprin blood thinner for 2nd trimester of her C
pregnancy and an ECHO be done at her next appointment.
4. On 31.5.2012, DC was at 12 weeks gestation. DC informed D1 that she
had bad morning sickness but it was now better. DC also had shortness
of breath but not as bad as the 1st pregnancy. DC still taking Clexane at
this time. DC’s blood pressure and pulse are within normal range. D
5. On 28.6.2012, DC was at 16 weeks gestation. DC complained about her
palpitations if DC lied on her right side. DC had no shortness of breath
on exertion. DC still taking Clexane. No significant findings. On
26.7.2012, DC had a loss of appetite. No other significant findings. On
6.9.2012, no significant findings. The next appointment was fixed to
Dr. Azar and Dato’ Dr Sanjiv as they were available for consultation. E

6. On 26.9.2012, DC sent an SMS to D1 that she got swollen feet but no

chest pain. On 27.9.2012, DC went to see Dr. Raman who testified that
DC only complained about getting tired and she was happy and in good
spirits. On 1.10.2012, DC sent another SMS to D1 that DC had shortness
of breath, lightheadedness and numbness etc. and DC would like to have F
another appointment. D1 called DC and arranged an appointment with
Dato’ Dr. Sanjiv on 6.10.2012. DC did not show up but requested a new
appointment on 13.10.2012.
7. However, on 8.10.2012 i.e. 1 day before her death, DC sent an SMS
to D1 requesting to be admitted to PMC as she felt tired, shortness of G
breath and chest pain. D1 then called DC to go to emergency at IJN or
PMC. DC did not want to be admitted and wanted to see D1’s colleague,
Dr. Azar, on 10.10.2012.
8. On 9.10.2012, the day that DC died, DC went to IJN about 2.30 am
as she was seen by D2. DC gave her medical history to D2. She was still
H
on Clexane. D2 examined DC that she had normal functioning mitral
valve with a fast heartbeat consistent with pregnancy. D2 advised DC to
continue with Clexane. On 7.40 pm on the same day, DC went to PMC
Emergency Department. After triage assessment was performed by nurses
at 7.45 pm, DC was breathless and hyperventilating.
9. SD3 stationed at the PMC Emergency Department. SD3 ordered ECG I
be made to DC. SD3 then called D1 upon receiving the ECG result.
Haziness was detected in the lower part of both DC’s lungs. D1 instructed
SD3 to transfer DC to Dr. Azar at ICU. Dr. Azar saw DC at 9.30 pm.
 Ahmad Zubir Zahid v. Datuk Dr Zainal Abidin
[2019] 5 CLJ Abdul Hamid & Ors 281

A DC passed away at 10.40 pm. The cause of death was certified as “Acute
Pulmonary Oedema Secondary to Prosthetic Valve Malfunction”. P1 as
the husband refused post mortem be done on DC.
10. P1 claimed that; the defendants/DD were negligence and in breach
of contract among others; failed to give sufficient advice, failed to consult
B to the proper specialist doctor, failed to act sufficiently, failed to seek
second opinion etc. Special Damages claimed by P1 are medical expenses,
funeral expenses, costs to obtain letter of administration, costs of
obtaining medical records, travelling expenses and loss of contribution for
RM570.823.90.
11. P1 prayed for: General Damages including bereavement. Special
C
Damages of RM570,823.90. Costs and other suitable relief.
12. The defendants/DD stated that: DD denied all the claim.
13. High Court: P1’s claim is dismissed with costs of RM150,000 to
R1&R2, RM50,000 to R3 and RM50,000 to R4.
D Grounds Of Decision Of High Court
Whether P1 Could Prove His Claim On The Balance Of Probabilities
[14] The court accepted the principle in Bolam’s case that P1 has to prove
that D1 had not acted in accordance with the accepted practise expected
of him as Consultant Cardiologist. The absence of post mortem and
E
differing opinion left the court unable to determine the most probable
cause of death without embarking on a guessing exercise.
[15] DC declined Warfarin as she believed that was the cause of the death
in the 1st pregnancy. D1 had discharged his duty of care in advising DC.
A doctor could not diagnose Pulmonary Hypertension with just the
F ECHO reading. Mostly, P1 is claiming that another test or another
specialist or another system could have save DC where DD should not
be faulted for not doing so. P1 failed to prove all the claims against DD.”
[10] The memorandum of appeal of the appellant reads as follows:
1. That, in this medical negligence case, the learned trial Judge had failed
G
to apply correctly, sufficiently or at all the legal principles concerning:
1.1. the application or non-application, as dictated by the circumstances,
of the Bolam test;
1.2. the standard of care expected of doctors in matters of diagnosis and
H treatment;
1.3. the patient-centred test in regard to a doctor’s duty to give advice
and information to a patient, especially on the risks and benefits of
each treatment option;
1.4. the assessment of expert evidence;
I
1.5. causation of damage, including the doctrine of material contribution
to an indivisible injury or to damage;
1.6. the point that the standard of proof is not a scientific standard;
282 Current Law Journal [2019] 5 CLJ

1.7. reasonable foreseeability of damage; A

1.8. the direct liability of the owners and managers of hospitals, as

providers of healthcare, for breach of their non-delegable duty of
care;
1.9. the vicarious liability of the owners and managers for the negligence
in their hospitals of healthcare practitioners, including nurses, B
medical officers, specialists and consultants;
1.10. false or misleading pleading; and
1.11. the eventually unsuccessful suppression of relevant evidence
showing lack of care;
C
The Bolam Test and the Bolitho Qualification to It
2. that the learned trial Judge had erred in applying the Bolam test to
certain aspects of the case when it was not relevant;
3. that the learned trial Judge had erred in applying the Bolam test to
aspect of the case: D

3.1. which did not involve the exercise of professional skill and
judgment; and/or
3.2. which required compliance by the Respondents with their
contractual obligations and/or statutory duties;
E
4. that, when applying the Bolam test, the learned trial Judge had failed
sufficiently or at all to apply the Bolitho qualification to it.
Bolam Test Not Relevant as Regards Causation of Damage
5. that the learned trial Judge had failed to recognise sufficiently or at all
that the Bolam test has no relevance to the issue of causation of damage; F

Failure to Give Advice and Information Regarding Material Risks and

Benefits of Treatment
6. that the Bolam test does not apply to the duty to give advice and
information to patients regarding the risks and benefits of each treatment
G
option;
7. that the learned trial Judge had not addressed the issue of the
Respondents failing to give to the deceased advice and information
regarding the material risks and benefits of each of the treatment options;
8. that the learned trial Judge had erred in deciding in effect that such H
issue should not be decided because the deceased was not available to
give evidence;
9. that the learned trial Judge had erred in deciding in effect that no
breach of the duty of care to give such advice and information to a patient
could be proven if the patient had died before trial;
I
10. that the learned trial Judge had given no regard to the point that the
prudent patient test as regards such duty does not cease to exist if the
patient concerned had died before he or she could give evidence;
 Ahmad Zubir Zahid v. Datuk Dr Zainal Abidin
[2019] 5 CLJ Abdul Hamid & Ors 283

A No Standard of Scientific Proof

11. that the learned trial Judge had failed to apply sufficiently or at all the
principles of causation of damage;
12. that the learned trial Judge had not directed himself as regards there
being no standard of scientific proof in this case, including regarding the
B medical and expert evidence;
Death Certificate
13. that the learned trial Judge had failed to reject a certificate of death
which was issued by a doctor who had not attended at all to the
deceased;
C
14. that there was non-compliance with the provisions of the Births and
Deaths Registration Act 1957, including s 22(1) thereof;
15. further or alternatively, that the learned trial Judge had failed to take
any or sufficient account of the evidence, factual and expert, showing that
D the Respondents and their servants or agents had materially contributed
to the death of the deceased,
Hearsay
16. that the learned trial Judge had failed to apply the rule against hearsay
to the contents of the death certificate, which was a Part B document and
E the maker of which had not testified to its contents.
Onus of Proof
17. that the learned trial Judge had erred:-
17.1. as regards the party on whom the onus of proof lay; and
F 17.2. by relying on the onus of proof, including regarding proof of the
cause of death, although there was sufficient evidence for making
findings of fact in favour of the Appellant;
Burden of Proof or Contents or Death Certificate
18. that the Respondents had not discharged the burden of proof of the
G
truth of the contents of the death certificate when they relied upon it;
Post-Mortem Examination
19. that the learned trial Judge had erred in deciding that the cause of
the death of the deceased could not be ascertained by the Court because
H no post-mortem examination had been undertaken;
20. that the learned trial Judge had erred in failing to decide that the legal
onus was on the Respondents, and not the Appellant, to seek a
post-mortem examination;
21. that the learned trial Judge had erred in not recognising that there was
I no legal right vested in the Appellant, as the next of kin of the deceased,
to stop such an examination from being undertaken;
284 Current Law Journal [2019] 5 CLJ

22. that the learned trial Judge had failed to decide: A

22.1. that the Respondents had acted contrary to law by relying on the
Appellant’s wishes against a post-mortem examination being
undertaken;
22.2. that the Respondents were mistaken in thinking that the Appellant
had the power to stop such an examination from being undertaken; B

22.3. that the Respondents had not given the Appellant proper advice and
information regarding the question as to whether such an
examination should be undertaken;
22.4. that a proper interpretation to ss 328-341 of the Criminal Procedure
C
Code did not give the Appellant the right of refusal to such an
examination;
22.5. that, in the absence of a post-mortem examination and of a valid
death certificate, the duty of the Court was to apply the best
evidence rule as set out in the Evidence Act 1950 and at common
law, including by weighing the evidence of the medical and expert D
witnesses; and
22.6. that, in this case, there was no need for a post-mortem examination
when, in many civil and criminal cases, including of missing or
unavailable dead bodies, no such examination had been undertaken
but the causes of death were proven in court pursuant to the best E
evidence rule;
Expert Evidence and Law Evidence
23. that the learned trial Judge had erred in not giving sufficient or any
weight to the common ground between the experts on both sides and
which was sufficient to establish liability and causation of reasonably F
foreseeable damage;
24. that the learned trial Judge had failed to give sufficient or any weight
to:
24.1. the admissions of fact and/or opinion made by the Respondents
and their expert and lay witnesses; and G

24.2. the criticisms made by both the Appellant’s experts and the
Respondents’ experts and the admissions made regarding various
material aspects of the treatment given to the deceased, including
as regards the delay in giving the necessary treatment, and the
failure to undertake necessary investigations and procedures H
without delay;
25. that the learned trial Judge had failed to give any regard at all to the
provisions of ss 46 and 51 of the Evidence Act 1950, which respectively
require the weighing by the Court of the grounds for an opinion and the
facts supporting or not supporting an opinion; I
Findings of Fact and the Drawing of Inferences
26. that the findings of fact made were against the weight of the evidence;
 Ahmad Zubir Zahid v. Datuk Dr Zainal Abidin
[2019] 5 CLJ Abdul Hamid & Ors 285

A 27. that there was a failure to make necessary findings of fact and to draw
proper inferences from the findings of fact;
Insufficient Judicial Appreciation of Evidence
28. that there had been insufficient judicial appreciation of the evidence;

B Suppression of Evidence
29. that the learned trial Judge had failed to give sufficient or any weight
to the eventually unsuccessful suppression of material evidence by the 1st
Respondent;
False and Misleading Defence
C
30. that the learned trial Judge had failed to give sufficient or any weight
to the misleading part of the 1st Respondent’s Defence by which he had
pleaded that he was out of the country at a time when the deceased
needed and sought from him urgent medical attention but admitted, after
a number of attempts on his part to hide the truth before and during the
D trial, that he was in fact in Kuala Lumpur at the time.
System Failures Amounting to Negligence
31. that the learned trial Judge had failed to give sufficient or any weight
to the unchallenged evidence showing system failures amounting to
negligence in the hospitals concerned.
E
Incomplete Judgment
32. that the learned trial Judge, when dismissing the Appellant’s claim,
gave an incomplete judgment in that various issues of law and fact
presented on behalf of the Appellant were not given sufficient or any
consideration; and
F
Quantum
33. that the learned trial Judge had failed to give a decision on quantum.”
The Jurisprudence Related To Medical Negligence, Advice, Treatment And
Liability Of Hospital
G
[11] The law on medical negligence is related to evolutionary
jurisprudence. The courts in common law jurisdiction have been, by virtue
of judicial pronouncements, increasing the liability of doctors in favour of
patients. Such an approach may be correct in countries like England and
Australia where the courts are allowed to dictate the common law principles
H
from time to time. That privilege is not vested in a country where the
Constitution has vested the powers of legislation making process to
Parliament. Usurping Parliamentary process and increasing liability of
doctors may not be a fair procedure pursuant to rule of law as envisaged
by the Federal Constitution. It may also impinge on arts. 5 and 8 of
I the Federal Constitution. Thus, Malaysian courts have been careful in
adopting any wide proposition which may impinge on medical profession.
(See Dato’ Dr V Thuraisingam & Anor v. Sanmarkan Ganapathy & Anor [2015]
8 CLJ 248).
286 Current Law Journal [2019] 5 CLJ

[12] Leaving aside the jurisprudence mentioned above, the law on medical A
negligence has been an evolutionary process and courts lean towards the
English and Australian decisions to dignify the lawmaking process. The
jurisprudence related to medical negligence had been captured in the case of
Dato’ Dr V Thuraisingam where the coram consisted of Hamid Sultan Abu
Backer JCA, Badariah binti Sahamid JCA and Prasad Sandosham Abraham B
JCA. We will not set out the jurisprudence stated, save to outline the
evolutionary development here in a rudimentary form.
[13] The issues on standard of care are often related to diagnosis, treatment
and advice. The law on medical negligence and its application is often
difficult, as facts and circumstances are not the same in each case and it varies C
from case to case. The conservative position is that a doctor’s duty towards
his patient is that he has to exercise a fair and reasonable standard of care
and skill, ie, the skill of an ordinarily competent medical practitioner.
(R v. Bateman [1925] All ER 45). This proposition is reflected in Bolam’s case.
D
[14] The Bolam test propounded in 1957, had dominated the
Commonwealth countries for quite some time. It deals with diagnosis,
treatment and advice in a lump form to ascertain standard of care to make
the doctor liable or negate liability. Bolam’s case in essence, did not permit
the court to find the doctor’s negligent in preference to one body of
distinguished professional opinion to another. The Bolam’s case placed a high E
threshold on the plaintiff to establish negligence when the defence could
demonstrate differing medical opinion on the issue. Bolam test was related to
medical determination and not judicial determination on the issue of standard
of care.
F
[15] An attempt was made as early as 1985 to increase the liability of
doctors. In Sidaway v. Board of Governors of the Bethlem Royal Hospital and the
Maudsley Hospital [1985] AC 871, by majority, Bolam test was accepted and
it also rejected the proposition related to the duty to advise of the risk
involved in a particular treatment.
G
[16] A successful attempt was made to increase the doctors’ liability in
1997. In Bolitho v. City and Hackney Health Authority [1998] AC 232 (HL);
[1997] 2 WLR 1151, the court qualified the Bolam principle to say that it is
not the number of experts by the defence which should determine the issue
but it is for the judge to consider the evidence. By Bolitho’s principle, the
conduct of doctors as well as the opinion is subject to judicial scrutiny and H
the judge has to apply common sense to come to a just conclusion and it
cannot be achieved by a mechanical process in the guise of medical judgment
or determination.
[17] The shocking news for doctors arrived through the decision of an
I
Australian case. (See Rogers v. Whitaker (1992) 175 CLR 479 (Whitaker)]. The
Whitaker’s case attempts to extend the duty of care principle between the
doctor and patient to new heights, to the detriment of the doctors and giving
protection for the patients, of the right to be informed of the risks involved.
 Ahmad Zubir Zahid v. Datuk Dr Zainal Abidin
[2019] 5 CLJ Abdul Hamid & Ors 287

A [18] Further, assault on the medical profession was made through the
Australian case of Naxakis v. Western General Hospital [1999] 197 CLR 269.
Naxakis’s case extended Whitaker’s principle and compromised the principle
stated in Bolam in totality. The court extended the principle of Whitaker’s
case in relation to the duty to advise, to the realm of diagnosis and treatment.
B
[19] Following from the above decisions, the Supreme Court of England in
Montgomery v. Lanarkshire Health Board [2015] UKSC 11 extended the scope
of responsibility of doctors to focus on what is said to be a ‘patient centred
test’ or ‘prudent patient test’. The law now requires a doctor to take
reasonable care to ensure that the patient is aware of any material risks
C involved in any recommended treatment, and of any reasonable alternative
or variant treatments. This ‘broad test’ virtually has placed doctors as well
as experts to be severely cross-examined with a view to discredit their
evidence and to establish liability as well as quantum. An experienced
counsel for the plaintiff can virtually through cross-examination tactics, be
D able to conquer the ‘broad test’ expounded by the courts. The reason is that
‘broad test’ is generic in nature and has no confined parameters as to what
the medical profession should do or should not do. In addition, to satisfy the
criteria for the ‘broad test’, the costs of treatment will be multifold as well
as professional indemnity insurance for doctors may also increase.
E [20] The Bolam’s case as well as Rogers’ case were considered by the Federal
Court in the case of Foo Fio Na v. Dr Soo Fook Mun & Anor [2007] 1 CLJ 229.
The Federal Court did not reject the Bolam principle or Whitaker’s principle
in toto but added a rider, ie, to say that the court ultimately must determine
whether the doctor acted reasonably and logically and got his facts right. In
F consequence, medical negligence cases in Malaysia could not be decided by
medical judgment, but it has to be by way of judicial determination.
[21] Further, the Federal Court in Zulhasnimar Hasan Basri & Anor
v. Dr Kuppu Velumani P & Ors [2017] 8 CLJ 605; [2017] 5 MLJ 438 accepted
Whitacker’s case and Foo Fio Na with regards to standard of care. However,
G the Federal Court confirmed that it is extended only to advise of risks
associated with any proposed treatment and does not extend to diagnosis and
treatment in that Bolam’s case is still applicable but subject to the
qualification as stated in Bolitho’s case.
[22] In addition, the Federal Court in Dr Hari Krishnan & Anor v. Megat Noor
H Ishak Megat Ibrahim & Anor And Another Appeal [2018] 3 CLJ 427, confirmed
what was said in Zulhasnimar’s case and in an unprecedented manner held
that aggravated damages may also be awarded. The relevant part of the
Federal Court’s decision read as follows:
(1) Although the High Court judgment in the instant case was a non-
I
speaking one, it did not follow that a retrial or a rehearing should be
ordered. Further, since the appeal was heard and disposed of by three
judges on the panel of the Court of Appeal, the requirements of s. 38 of
the Courts of Judicature Act 1964 (‘CJA’) were met. The unanimous
288 Current Law Journal [2019] 5 CLJ

judgment of the Court of Appeal had already been delivered orally in A

open court and in the presence of all three judges, thus s. 42(1) of the
CJA did not apply. In the circumstances, the judgment of the Court of
Appeal was valid. In view that the Court of Appeal was validly constituted
at the time the judgment was delivered on the appeal, the fact that two
of the three panel members had retired at the time the written grounds
of judgment were subsequently given, was a non-issue. Appellate courts B
are advised to avoid ordering a retrial merely on account of a
non-speaking judgment by a trial judge or the absence of any finding of
fact on a particular issue. The statutory requirements for a retrial had not
been established and thus a retrial or a rehearing was not warranted.
(paras 38-54)
C
(2) The case of Rogers v. Whitaker, which was followed in Foo Fio Na, in
regard to the standard of care in medical negligence, is restricted only to
the duty to advise of risks associated with any proposed treatment; it does
not extend to diagnosis and treatment. With regard to the standard of
care for diagnosis and treatment, the Bolam test still applies subject to
qualifications as stated in Bolitho. The Bolam test is essentially a ‘doctor D
knows best’ test. As long as there are two conflicting views on the
acceptable medical practice, and the defendant doctor acted based on one
of the conflicting views, he would be exonerated from liability. In short,
the standard of care is decided by the medical profession. The Bolitho test
is the extension of the Bolam test, which calls upon the court to analyse
the logic and reasonableness of the conflicting medical opinion advanced E
by the defence before accepting the same. (paras 61-63)
(3) The duty to explain risks is specific in nature; the consent form, signed
by the plaintiff prior to the operation and relied upon by Dr Hari and Dr
Namazie, only contained general precautions that the operation involved
risks. Neither Dr Hari nor Dr Namazie had warned the plaintiff of the F
risks of bucking and blindness at any material time. A reasonable person
in the patient’s position would be likely to attach significance to it. In
relation to this particular patient, given that the plaintiff had previously
requested for scans to be conducted and enquired on the need for the
operation, it was apparent that the plaintiff would attach significance to
warnings of such risks. As such, such risks were considered to be material G
risks in the second operation. The duty had been breached by Dr Hari and
Dr Namazie. They were therefore negligent and had deprived the plaintiff
of the chance to make an informed decision as to whether to proceed with
the operation or otherwise. (paras 74-76)
(4) Both the plaintiff’s expert (SP4) and Dr Hari’s expert (SD4) agreed that H
the second operation would only be necessary if there was retinal
detachment. However, contemporaneous documents and testimonies of
witnesses showed that there was no retinal detachment. In view thereof,
Dr Hari failed to establish that he had acted in accordance with a practice
accepted as proper and responsible by a responsible body of medical
practitioners skilled in that particular art, in diagnosing that the plaintiff’s I
condition required the second operation. Thus, the Bolam test was not
satisfied and accordingly, Dr Hari was negligent when he subjected the
plaintiff to an unnecessary operation, which ultimately caused the plaintiff
 Ahmad Zubir Zahid v. Datuk Dr Zainal Abidin
[2019] 5 CLJ Abdul Hamid & Ors 289

A to lose his eyesight. Dr Hari also failed to produce any evidence to show
that the procedure he adopted when the SCH occurred was in accordance
with the practice accepted by a responsible body of medical practitioners.
As such, the Bolam test was not satisfied on the facts and Dr Hari was
negligent in the choice of procedure adopted in treating the plaintiff.
(paras 78-81)
B
(5) In respect of Dr Namazie’s treatment of the plaintiff, the anaesthetist
was negligent in failing to keep the plaintiff anaesthetised completely
during the second operation. Applying the Bolam test, Dr Namazie did not
produce any evidence to show that his failure to ensure that the plaintiff
did not buck during the second operation was supported by a body of
C responsible medical opinion. The plaintiff had bucked during the second
operation because the plaintiff was not anaesthetised completely. The
bucking could have been avoided and controlled by additional drugs. In
view of the evidence, the top up dose administered on the plaintiff was
clearly mistimed. Therefore, the doctors’ appeal on liability was dismissed.
Applying the relevant tests as clarified in the case of Zulhasnimar Hasan
D Basri & Anor v. Dr Kuppu Velumani P & Ors, both Dr Hari and Dr Namazie
were negligent in their advice of risks, diagnosis and treatment of the
plaintiff. (paras 82-85)
(6) Aggravated damages could and had been awarded as a separate head
of damage in tort (Mohd Ridzwan Abdul Razak v. Asmah Hj Mohd Nor; refd).
E Aggravated damages are frequently awarded in defamation cases for
injury to a person’s reputation; hence there was no reason to exclude this
kind of damages from medical negligence cases, which involve real injury
to a person’s body. In the circumstances, the second question was
answered in the negative. As such, the doctors’ appeal on quantum was
dismissed. (para 99)
F
(7) Where the doctor is ascertained to be a truly independent contractor
in the circumstances, the private hospital could not be held vicariously
liable for the sole negligence of that doctor. The true relationship between
a private hospital and a doctor practising therein must be determined from
the relevant contractual terms and the factual circumstances of the case.
G The answer to the question posed in the hospital’s appeal was therefore
in the negative. From the entire sequence of events, Dr Hari’s diagnosis
of the plaintiff’s condition, advice to undergo the second operation and
conduct of the second operation were done in the course of Dr Hari’s
private practice. There was no evidence that the hospital exerted any
control over Dr Hari’s advice and conduct of the second operation, which
H was attributable to his own recognisably independent business. The mere
change in location to the hospital for the follow up appointments and the
use of the hospital’s facilities in conducting the second operation, did not
change the independent nature of Dr Hari’s business in his treatment of
the plaintiff. The structure of fees was also not indicative of a contract
of service between employers and employees: Dr Hari charges his own
I fees to his patients and was required to pay fees for using the hospital’s
facilities and services. The hospital’s role in collecting the patient’s fees
and remitting them to Dr Hari was administrative in nature. Dr Hari’s
advice and conduct of the second operation were not done on behalf of
290 Current Law Journal [2019] 5 CLJ

the hospital, and was not a part of the hospital’s business activity. Dr Hari A
was indeed acting in the capacity of an independent contractor and not
an employee of the hospital. As such, no vicarious liability could be
imposed on the hospital for Dr Hari’s negligence. (paras 119-122)
(8) Dr Namazie was a visiting consultant to the hospital and was
requested to provide his services to the hospital by the latter’s medical B
director on a temporary basis. The management of the hospital did not
interfere with Dr Namazie’s work. In addition, he was not paid by the
hospital for the services he rendered. The fees for his services were paid
by the patient to Dr Namazie through the hospital, and the hospital’s role
in collecting the fees was purely a matter of administrative convenience.
These factors were characteristic of a contract for services with C
independent contractors, rather than a relationship of employment.
Accordingly, the hospital was not vicariously liable for the negligence of
Dr Namazie in the second operation. (paras 123-126)
(9) Where a hospital is held to owe a non-delegable duty to its patient
to ensure that reasonable care is taken in his treatment, the hospital may D
be held liable to the patient if the duty is breached, regardless to whom
performance of that duty is delegated. Applying the case of Woodland
v. Essex County Council (‘Woodland’) to the present case, it was indubitable
that the plaintiff, as a patient admitted in the hospital for the second
operation, fell into the category of especially vulnerable persons and was
dependent on the hospital for protection. The plaintiff was undoubtedly E
placed in the hospital’s custody or care upon admission for the purposes
of the second operation. The role of the hospital was confined to
providing the necessary facilities and services for the second operation. As
far as the plaintiff was concerned, the plaintiff was dependent on the
hospital for the facilities and services indispensable for the second
operation, including anaesthetic services. It was unchallenged that Dr F
Namazie was requested by the hospital to provide his anaesthetic services
at the material time and the plaintiff was left with no choice of
anaesthetist for the second operation. The hospital had delegated to Dr
Namazie the responsibility to administer doses properly so as to keep the
plaintiff anaesthetised throughout the second operation. This was an
integral part of the positive duty assumed by the hospital to the plaintiff G
to ensure that care was taken in the provision of anaesthetic services. Dr
Namazie was negligent in the performance of the duty delegated by the
hospital to him, in mistiming the top up dose and thereby causing the
plaintiff to regain consciousness and buck during the second operation.
Therefore, applying the principles in Woodland, the hospital owed a
non-delegable duty to the plaintiff to ensure that reasonable care was H
taken in the anaesthetic services provided, and the hospital was liable for
the breach of this duty. Thus, the hospital’s appeal was dismissed.
(paras 127-140)
(10) The law on vicarious liability and non-delegable duty is an ongoing
development. This court took heed of the proviso in Woodland to I
“proceed with caution, incrementally by analogy with existing categories,
and consistently with some underlying principle” and to impose liability
“only in so far as it would be fair, just and reasonable.” To make a broad
 Ahmad Zubir Zahid v. Datuk Dr Zainal Abidin
[2019] 5 CLJ Abdul Hamid & Ors 291

A announcement on the liability of all private hospitals in medical negligence

cases on the basis of policy alone would risk over-generalising the nuances
of modern business relationships, and result in an unprincipled approach
to liability.”
[23] The courts in Singapore which had traditionally accepted Bolam
B principle have also now moved without any legislative amendments to
support its decision to subscribe to what is referred to as “patient autonomy
test”. (See Hii Chii Kok v. Ooi Peng Jin London Lucien And Another [2017]
SGCA 38). The court had set out a modified Montgomery test which can be
summarised as follows:
C The modified Montgomery test proceeds in stages as follows:
(a) The patient must identify the exact nature of the information that
he alleges was not given to him.
(b) The patient must establish why it would be regarded as relevant and
material from his own perspective.
D
(c) The doctor must have been in possession of that information.
(d) The court must consider why the doctor chose to withhold the
information from the patient from the doctor’s perspective.
(e) Whether it was justifiable for doctor to do so.
E
The instances of waiver by patient are as follows:
(i) When patient informs the doctor he wishes not to hear further
information about the proposed treatment or alternatives.
(ii) When treatment was provided on an emergency basis.
F
(See Medical Negligence and Malpractice in Singapore – updated as per
23 October 2017).
[24] It is important to appreciate that the Malaysian courts’ decisions do
not incorporate the broad test propounded in Montgomery’s case or the
G
‘patient autonomy’ concept. Montgomery’s case opens the door to robust
pleadings as well as harsh cross-examination tactics which will lengthen trial
process as can be garnered in the instant case. Any cross-examination tactics
based on Montgomery principle against the medical profession may not be
within our jurisprudence. In addition, liability as well as quantum cannot be
based on principles related to Montgomery’s case. The law on medical
H
negligence in Malaysia needs appropriate legislative intervention to provide
proper safeguards for patients as well as doctors.
Conclusion
[25] We have read the appeal records and the able submissions of the
I parties. After giving much consideration to the submissions of the learned
counsel for the appellant, we take the view that the appeal must be dismissed.
292 Current Law Journal [2019] 5 CLJ

[26] After having gone through the submissions of the parties and reading A
the judgment of the learned judge, we do not think the judgment as well as
the decision to dismiss the plaintiff’s claim is plainly wrong to warrant
appellate intervention.
[27] In the further submission as requested by the court, the learned
B
counsel of the appellant says:
The cause of death is irrelevant. The fact that no post-mortem
examination was undertaken is also irrelevant.
[28] We do not think so when the appellant themselves have refused the
post-mortem and the issue in respect of cause of death and medical negligence C
was heavily contested and the learned judge had made a finding on these
issues. It may have been different if the post-mortem report was made
available. The failure to allow post-mortem may attract s. 114(g) of the
Evidence Act 1950. However, we do not wish to dwell on this area of
jurisprudence as we take the view that the learned judge had taken into D
consideration the totality of evidence and came to a conclusion that the
plaintiff’s claim must be dismissed. In essence, the case relates to finding of
facts and it also does not impinge on the principles stated in Foo Fio Na,
Zulhasnimar and/or Dr Hari Krishnan, and in consequence appellate
intervention in our view, is not warranted. (See Kyros International Sdn Bhd
E
v. Ketua Pengarah Hasil Dalam Negeri [2013] 3 CLJ 813; [2013] 2 MLJ 650).
[29] For the reasons stated above, the appeal is dismissed with costs.
Deposit is to be refunded.