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DALAM MAHKAMAH RAYUAN MALAYSIA

(BIDANGKUASA RAYUAN)

RAYUAN SIVIL NO: W-02-2752-2010

BETWEEN

1. DR. HARI KRISHNAN2. DR. MOHAMED NAMAZIE …  APPELLANTS

AND

1. MEGAT NOOR ISHAK BIN MEGAT IBRAHIM2. THE TUN HUSSIEN ONN

NATIONAL EYE HOSPITAL …  RESPONDENTS

(Dalam Mahkamah Tinggi Malaya di Kuala LumpurDalam Wilayah Persekutuan, Malaysia

Guaman Sivil No. S (2)(S8)-22-523-2000

Between

1. Megat Noor Ishak bin Megat Ibrahim …  Plaintiff

 And

1. Dr. Hari Krishnan

2. Dr. Mohamed Namazie

3. The Tun Hussien Onn

National Eye Hospital …  Defendants

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DALAM MAHKAMAH RAYUAN MALAYSIA

(BIDANGKUASA RAYUAN)

RAYUAN SIVIL NO: W-02-2824-2010

BETWEEN

THE TUN HUSSIEN ONNNATIONAL EYE HOSPITAL …  APPELLANT

AND

1. MEGAT NOOR ISHAK BIN MEGAT IBRAHIM2. DR. HARI KRISHNAN

3. DR. MOHAMED NAMAZIE …  RESPONDENTS

(Dalam Mahkamah Tinggi Malaya di Kuala LumpurDalam Wilayah Persekutuan, Malaysia

Guaman Sivil No. S(2)(S8)-22-523-2000

Between

1. Megat Noor Ishak bin Megat Ibrahim …  plaintiff

 And1. Dr. Hari Krishnan

2. Dr. Mohamed Namazie

3. The Tun Hussien Onn

National Eye Hospital …  Defendants

(An appeal against the decision of YA Puan Zura binti Yahya, JudicialCommissioner, High Court Malaya, Kuala Lumpur made

on 01.09.2010)

CORAM

LINTON ALBERT, JCA

MAH WENG KWAI, JCA

ROHANA YUSUF, JCA

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JUDGMENT OF THE COURT

[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 01.09.2010.

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 22.04.2014 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 3rd defendant hospital. The 1st defendant

performed a retinal detachment operation (First Operation) on the

plaintiff’s right eye on 26.08.1999. After the First Operation, the

plaintiff’s right eye was painful and could only see faint light. The

plaintiff was discharged on 30.08.1999. The 1st defendant then told him

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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 week’s time, which was on 07.09.1999.

[4]  On 04.09.1999, two days after his discharge, the plaintiff’s 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 defendant’s visual check

confirmed that there was bleeding in the plaintiff’s right eye but the 1st 

defendant did not scan the same. The earlier appointment on

07.09.1999 was nevertheless maintained.

[6]  On 05.09.1999 before the date of the appointment, an external

bruise had appeared on the plaintiff’s right eye. The plaintiff then went

to see the 1st  defendant on the appointment date, that was, on

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07.09.1999. 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 14.09.1999.

[7] On 12.09.1999, the plaintiff suffered continuous pain and felt

strong pressure in the right eye. On the appointment date, which was

on 14.09.1999, 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 plaintiff that his earlier findings. Namely, that

the plaintiff’s retina had folded and the need for second operation, was

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incorrect. The proposed operation was then called off. The 1st 

defendant subsequently fixed another appointment on 21.09.1999.

[9]  The appointment on 21.09.1999 was supposed to be a routine

check-up. After having inspected the plaintiff, the 1st defendant said that

he was convinced the retina in the plaintiff’s right eye had folded or

partially detached. He recommended a second operation to be carried

out on the same afternoon. The plaintiff was shocked and requested for

a scan to confirm the finding because he said his vision had improved

and there was no sign of any deterioration.

[10]  The 1st  defendant told the plaintiff that a scan would be

unnecessary because he could verify it from his physical inspection.

The 1st defendant said that the improved vision in the plaintiff’s right eye

was only temporary and may subsequently worsen. The plaintiff said he

had also raised other concern with the 1st defendant namely, the safety

aspect of the recommended operation. The plaintiff then got himself

admitted at 12.00 pm on the same day for the operation, which was

fixed at 2.00 pm (the Second Operation).

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[11]  Dr. Mohamed Namazie (2nd  defendant) was the anaesthetic for

the Second Operation. The plaintiff claimed that the 2nd  defendant did

not examine or interview him in respect of his medical history. A

sedative was administered by a nurse without any supervision by the

2nd  defendant at about 1.00 pm. Thereafter the plaintiff was wheeled

into the operation theatre at 2.00 pm for the Second Operation, which

commenced at around 3.00 pm.

[12]  The plaintiff regained consciousness at about 6.30 pm. He felt

numb in his right eye. He was told that the 1st defendant would come to

examine him in the evening on 22.09.1999.

[13]  On 22.09.1999, the 1st defendant examined the plaintiff. He then

informed the plaintiff that some problems had occurred during the

Second Operation. The plaintiff had regained consciousness during the

operation and bucked while the 1st  defendant was strengthening the

retina with laser. As a result, the plaintiff had developed extensive

haemorrhage with profuse bleeding in the right eye. The plaintiff in fact

bucked towards the end of the operation resulting in Supra-Choroidal

Haemorrhage (SCH). The 1st  defendant also assured the plaintiff that

he would regain his eyesight provided the retina remained intact after

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the bleeding in the right eye subsided. The 1st defendant did not raise

the possibility of the plaintiff’s right eye going blind. 

[14]  Subsequent to the Second Operation, the plaintiff experienced

severe pain, continuous bleeding and a total loss of vision of his right

eye. Relying on the 1st defendant’s advice the plaintiff said he remained

hopeful to regaining his vision. The 1st defendant advised the plaintiff to

stay in the hospital for 7 days. The plaintiff was also advised to sit in an

upright position at all times so that the blood in his right eye could

subside. During this period, the plaintiff said he suffered severe nervous

shock, mental agony, extreme anxiety and distress over the condition of

his right eye. He was also suffering from more severe pain and agony.

[15]  After 7 days in the hospital the plaintiff was discharged on

26.09.1999. The plaintiff said he was not told of the true status of his

right eye. On 27.09.1999, the 1st defendant referred the plaintiff to one

Dr. Pall Singh, for a second opinion on the status of the plaintiff’s right

eye (see letter of referral dated 04.10.1999). It was from reading this

letter that the plaintiff discovered for the first time that the 1st defendant

in fact removed the lens in his right eye during the Second Operation

without his consent and/or knowledge.

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[16]  Dr Pall Singh declined to operate because he said the plaintiff’s

chance of recovery would be slim. Dr. Pall Singh told the plaintiff that

the plaintiff ’s retina was badly uprooted with a lot of internal blood

clotting. Further, Dr. Pall Singh was of the opinion that washing the front

part of the eye, as suggested by the 1st  defendant would be futile, as

the problem within the eyeball must first be dealt with. Continuous

bleeding within the eyeball would continue to cause blood occupy the

cornea.

[17]  The plaintiff then went back to consult the 1st  defendant on

01.10.1999. The 1st  defendant told the plaintiff that there was still

bleeding in his right eye and that he would advise for procedure to be

performed on 05.10.1999. The plaintiff said this was contrary to what

the 1st  defendant’s earlier assurance, which was that when the blood

subsided the retina would still be intact.

[18] The 1st  defendant referred the plaintiff to Dr. Seshan Lim of the

Lions Eye Centre. Upon examination Dr. Seshan Lim was of the opinion

that the plaintiff’s right eye was beyond saving. The plaintiff said that

was the first time it was clearly made known to him the real position and

condition of his right eye, that his right eye was blind since the Second

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Operation and that no possible medical procedure may rescue the

situation.

[19]  The plaintiff was still hopeful to rescue his right eye. With the

advice of Dr. Pall Singh, the plaintiff sought medical assistance in

Singapore. In Singapore, the plaintiff consulted one Dr. Ong Sze Guan,

of the Singapore National Eye Centre. Dr. Ong told the Plaintiff that, the

plaintiff's right eye was badly damaged, as it was drenched in blood for

more than 25 days. On the recommendation of Dr. Ong, the plaintiff

underwent surgery in an attempt to save his vision, a procedure, which

included the patching of the retina and removal of blood clot, on

15.10.1999. The report by Dr. Ong Sze Guan dated 21.12.1999 states

that the effort was unsuccessful.

[20]  The medical report by the 1st  defendant dated 24.11.1999

confirmed that the plaintiff’s right eye is permanently blind due to retinal

detachment and that his left eye needs prolonged follow up treatment.

[21]  The plaintiff alleged that the injuries and loss of vision in the right

eye were caused by the negligence of the 1st  defendant and the 2nd 

defendant as well as the 3rd defendant. The plaintiff also alleged that the

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injuries and loss of vision in the right eye were also caused by the

negligence of the 1st and 2nd defendants as servants or agents of the 3rd 

defendant.

Findings of the High Court 

[22]  The High Court found all the 3 defendants liable. In her broad

grounds of judgment the learned Judicial Commissioner (JC) found the

1st and 2nd defendants negligent in that they failed to warn the plaintiff of

the risks of bucking and blindness and that they were also negligent in

the care and management of the plaintiff. In her grounds of judgment

she stated that she had agreed with the written submission of the

learned counsel for the plaintiff (at pages 21 to 59) as well as at pages

7 to 9 relating to expert evidence of the witnesses. The learned JC also

found the 3rd defendant hospital vicariously liable for the negligence of

the 1st and 2nd defendants.

The Appeal

[23]  Learned Counsel for the appellants raised a number of issues in

their grounds of appeal. We will deal with each of them as herein below.

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Non speaking judgment

[24]  The first complaint raised by all the defendants was the criticism

on the judgment of the learned JC. It was said that the judgment is a

non-speaking judgment, that the judgment was read out by Deputy

Registrar after the learned JC had retired, and that it was a mere

adoption of the written submissions of the counsel for the plaintiff.

Learned counsel contended that the learned JC failed to appreciate the

evidence adduced before her since there was no discussion of the

evidence and arguments in the judgment. Premised on these reasons

learned counsel sought for an order of a retrial.

[25]  We agree with learned counsel for the defendants that the

 judgment of the learned JC was indeed a non-speaking judgment.

However, there is no law that can allow an appeal simply because the

 judgment of the lower court was a non-speaking judgment. No doubt,

we do not condone such practice by the learned JC. We take the view

that it is the duty of a trial judge to state clearly in a judgment the facts

of the case as adduced in evidence, the legal issues requiring

determination as well as the application of the laws to the facts and how

the learned trial judge reached a conclusion on the findings of facts and

law. Then it is for the appellate court to determine whether or not the

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learned trial judge had committed any error in the findings of facts and

the application of laws to those facts.

[26]  The failure by a trial judge to carefully state his reasons and

findings would create enormous difficulties at the appellate stage. It

would entail the appellate court to sieve through the appeal records and

peruse the notes to see if they are sufficiently supportive of the decision

and findings of the trial judge or otherwise.

[27]  Indeed the appellate court would not simply interfere with those

findings unless they are erroneous. Upon our perusal of the Appeal

Records before us, we agree with the findings of the learned JC and her

award of damages for the reasons we elaborate below.

The negligence of the 1st and 2nd defendants

[28] The High Court found that both doctors were negligent in relation

to the Second Operation, which had resulted in the blindness of the

plaintiff’s right eye. As against both defendants, the plaintiff alleged that

there were no explanations by the defendants of the risk of blindness,

so as to offer him a well informed choice as laid down in the case of

Foo Fio Na v Dr. Soo Fook Mun & Anor [2007], 1 MLJ 593. The

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plaintiff’s evidence was that he was never informed by the 1st defendant

of the risk of blindness in undergoing the Second Operation.

[29]  The defendants had suggested to the plaintiff that the 1st 

defendant had explained the risk of blindness, which was eventually

established as being cause solely by the plaintiff’s  bucking during the

operation. No evidence was however established that either of the

defendants had indeed explained the risk of bucking to the plaintiff at

any material time. The fact that the plaintiff never met the 2nd defendant,

nor been interviewed of his medical history prior to the administration of

the anaesthetic would draw a conclusion of failure to explain the risk of

bucking by the 2nd defendant. In his evidence the plaintiff said he had

never met the 2nd  defendant until the day of trial. The plaintiff said he

heard the word “buck” used for the first time by the 1st defendant after

the Second Operation.

[30]  The defendants’ case was that there was no duty to explain the

risk, as the Second Operation was an emergency. This contradicted the

evidence of the 2nd defendant who testified that the operation was a

semi urgent one. It would also be wrong for the defendants to suggest

that the plaintiff was aware of the risk simply because of his previous

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operation. The plaintiff did not buck during the earlier surgery. The

plaintiff was very cautious and in fact requested for Dr. Manavalan to

perform the anaethetic prosedure because he was certain that Dr.

Manavalan would be mindful of his previous history.

[31]  The defendants further sought to rely on the Consent Form signed

by the plaintiff, which states the operation involves risks and

complications both from known and unknown source to absolve the

duties to explain risks. In our view the Consent Form was no

explanation. We agree with the counsel for the plaintiff that the duty to

explain risks in this case are specific in nature and reliance cannot be

placed on such statement, which was meant to be a general precaution,

in the Consent Form.

[32]  The defendants also submitted that the plaintiff did not plead

failure to explain risk by the defendants as the basis of his claim and

hence cannot rely on this ground to establish his case. We agree with

the counsel for the plaintiff that in the course of the trial and during

submission before the High Court, both the 1st and 2nd defendants had

accepted as the plaintiff’s pleaded case that the defendants failed to

warn the plaintiff of risks involved. This is because questions were put

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to the plaintiff by learned counsel for the defendants regarding the issue

of warning and the risk in the operation. Our perusal of the Appeal

Records show that the plaintiff’s  written submission addressed on the

same. In this regard we are guided by the Federal Court case of

Karuppanan Ramasamy & Anor v El izabeth Jeevamalar

Ponnampalam   & Ors (Sundaram a/l Marappa Goundon & An or,

Interveners and Raya Real t i, thi rd p arty)  and another appeal [2010] 1

MLJ 156. The issue of unpleaded case therefore does not arise.

[33]  The crux of the plaintiff’s case against the 1st  defendant was

premised on the fact that he had wrongly advised the plaintiff to

undergo the Second Operation and that the method or procedure

adopted by 1st  defendant was wrong. On top of it, the plaintiff’s

condition was further aggravated by assurances that were proven to be

unreliable after the Second Operation.

[34]  The evidence of the expert witness for the plaintiff, Dr. Billy Tan

(SP4) from Gleneagles Singapore, supported the plaintiff’s case that the

1st  defendant had put the plaintiff through the unnecessary Second

Operation and that the 1st  defendant had not properly diagnosed the

plaintiff’s problem. There was no need for the Second Operation

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according to Dr. Billy Tan who stated that the records do not show any

retinal detachment to justify the Second Operation. SD4 (Dr. Wong) on

the other hand in cross-examination admitted that he could have

presumed retinal detachment from the records to support the Second

Operation. The plaintiff’s case was that there was no retinal detachment

but only retinal tear prior to the Second Operation. The record of the 1st 

defendant confirmed that there was no retinal detachment. Dr. Billy Tan

had also reinforced his view that there was no retinal tear by referring to

the referral letter (dated 05.10.1999 page 482 AR Vol. 3). He said no

surgeon would refer a patient to a fellow surgeon for treatment without

mentioning detachment if there was one. The referral letter to Dr.

Seshan only states that a Second Operation was done, as the vitreous

cavity is hazy. The 1st defendant stated no mention of detachment.

[35]  On the procedure and treatment adopted by the 1st defendant, Dr.

Billy Tan had explained that the golden principle in managing SCH is to

“close up and get out”. The view on “close up and get out” method finds

support in the literature in Exhibit P3 titled, “Vitreoretinal Disease The

Essentials”  which states that for intraoperative SCH the surgeon must

immediately close all ocular incisions. In another literature on the

subject in Exhibit P5, it is stated that the management of SCH consists

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of immediate closure of the wound. SD4 also agreed on the proposition

and opined it to be a principle casts in stone and not subjected to

individual preference. Immediate closure is necessary in order to

prevent SCH from worsening and turning into expulsive haemorrhage

where all the ocular contents of the eye will be expelled from the eye.

[36]  The 1st  defendant claimed in his testimony that he had

immediately closed up the scleral wounds. However, evidence shows

that waited for 5 minutes and then proceeded to open up a bigger

incision to remove the lens. We further note that this was never the

pleaded case of the 1st  defendant nor was it noted anywhere in

documents.

[37]  SP5 (Professor Alexis Ernald Delilkan) said some built up

pressure is necessary to stop the bleeding and if the pressure gets

excessively high after that, there would be other means to control the

pressure such as by medication. Dr. Wong had also agreed that some

built up pressure is needed to stop SCH. Though Dr. Wong supported

the removal of the lens, his view is subject to the fact that SCH is

deemed stable before it should be done and if the SCH is continuing, he

agreed that a surgeon should not do cataract extraction. There is no

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evidence however from SD1 that the SCH had stopped when the lens

were removed.

[38]  The 1st defendant justified removing the lens to prevent a painful

blind eye. This view was not agreed to by SD2. SD4 said it is not

necessary to operate, just to flatten everted edges if there is no

detachment.

[39]  The 1st  defendant had proceeded to do an Extra Capsular

Cataract Extraction (ECCE) after the SCH occurred. This is against all

textbook and established clinical teachings. When questioned as to why

there is no textbook or literature to teach surgeons or doctors to do

cataract surgery to prevent such serious painful conditions, which are

allegedly frequently encountered by patients with massive SCH, SD4

was evasive and did not answer the question posed.

[40]  It is interesting to note that both SD2 and SD4 testified that the 1st 

defendant had to remove the lens to continue with the operation. This

appear to be a new allegation not pleaded by the 1st defendant or said

by the 1st defendant in his testimony. The 1st defendant merely said that

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he removed the lens to prevent painful blind eye, but never say that he

removed the lens with a view to continue with the operation.

[41]  The 1st  defendant was aware that the plaintiff’s right eye was

blinded on the operating table because he was the one who removed

the lens during the Second Operation but yet failed to explain or told the

plaintiff so. Instead the 1st  defendant gave the plaintiff false hope that

the eye would regain vision once the blood subsided and retina

remained intact. In fact the 1st  defendant had retained the plaintiff for

another 7 days in the hospital. The 1st defendant had advised the

plaintiff to rest in a particular position to ensure blood in his eye

subsided.

[42]  In this regard we took note that both SD2 and SD4 testified that

the 1st  defendant had to remove the lens to continue with the

operation. This statement however, is not in tandem with the 1 st 

defendant’s case who said he removed the lens to prevent painful blind

eye. He had never stated that he removed the lens with a view to

continue with the operation.

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[43]  Having perused through the Appeal Records we agree with the

plaintiff’s counsel that 1st  defendant is negligent in his care end

management of the plaintiff, in the Second Operation. Relying on the

experts findings and evidence we find the 1st  defendant had wrongly

advised the plaintiff to undergo the Second Operation which otherwise

would not have subjected the plaintiff to the unnecessary risks,

including the instance of bucking, which caused the plaintiff to be totally

blind in his right eye.

[44]  It was also clearly established that the procedure adopted by the

1st  defendant for an Extra Capsular Cataract Extraction (ECCE) after

the SCH was against all textbook and established clinical teachings. For

intraoperative SCH the surgeon must immediately close all ocular

incisions. As stated in the Atlas of Complications in Ophthalmic Surgery

(Exhibit P5) at p.3.8 that:-

“Recognition of a supra  choroidal hemorrhage during surgery

is critical in preventing the extrusion of intraocular contents.

Management consists of immediate closure of the wound”  

[45]  SD4, under cross-examination, agreed with the above textbook

teaching. The principle is, according to SP4, is ‘cast in stone’ and not

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subject to individual preference of each surgeon. SP5 further stated if

anything were to be done, it would be a procedure called sclerotomy,

which was to drain the blood from the eye. SP5’s view is supported by

the study produced by SD5 in Exhibit D20, which SD5 said were

authored by ‘top surgeons in their field’.

[46]  In conclusion we find the case of negligence against the 1st 

defendant in his care and management of the plaintiff clearly

established. If he had not wrongly advised the plaintiff to undergo the

Second Operation, the plaintiff would not have been subjected to

unnecessary risks, including the bucking incident in this case, which led

to SCH and later, total blindness.

Anaesthetic Aspect 

[47]  In relation to the anaesthetics aspect both experts, Professor

Delilkan (SP5) and Dr. Sylvia Das (SD5), agreed to the following

important principles:

a. The aim of surgery is to avoid bucking;

b. Close monitoring of the patient is required during the operation;

c. Vital signs should be recorded by the anaesthetist, including

resting BP rate, BP rate and heart rate;

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d. Bucking is not a complication;

e. Bucking can be avoided;

f. Bucking can be prevented even if objective monitor/machines

are not available;

g. Bucking during intra ocular surgeries is rare as anaesthetist

takes, extra caution to prevent it;

h. Risks involved in anaesthetics must be explained to the

patient;

i. A patient must be interviewed when he is fully awake and not

under the influence of drugs;

 j. Full and complete anaesthetic record is important, anaesthetist

should complete the anaesthetic record after the operation;

k. Operation is teamwork and there should be on-going

conversation between the surgeon and the anaesthetist; and

l. The conduct of anaesthesia involves peri-operative care i.e.

pre-Intra and post operation.

[48]  As an Anesthetist the 2nd  defendant agreed that it was his

responsibility to keep the plaintiff anaesthetized completely, throughout

the operation, relaxed and pain-free. It is clearly established that the

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plaintiff was not anaesthetised completely as he bucked, resulting in

finally to blindness.

[49]  We agree with learned counsel for the plaintiff that the 1st 

defendant had a part to ensure that the plaintiff was kept totally

immobile and still throughout the operation. The 1st  defendant had

admitted that both surgeon and anaesthetist must monitor the state of

anaesthesia of the patient.

[50]  Both the anaesthetist experts agreed that the operation is

teamwork and there must be on-going communication between the

surgeon and the anaesthetist. In this case, the 2nd defendant admitted

that bucking occurred because the muscle relaxant drug wore off.

[51]  In our view the very fact that muscle relaxant drug wore off is a

clear indication of negligence. The fact that the plaintiff did not buck

further after top up dose was given shows that the bucking could have

been avoided and controlled by additional drugs. In evidence there was

clearly mistiming of top up dose since it was not disputed that if a top up

had been given earlier, the plaintiff would not have bucked.

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[52]  Anaesthetist experts, namely, Professor Delilkan (SP5) and Dr.

Das (SD5) agreed that bucking is not acceptable to them as

anaesthetists. In fact SP4 (Dr. Billy Tan) also testified that bucking is

not acceptable to him as a surgeon.

[53]  In his defence the 2nd defendant pleaded that the bucking of the

plaintiff was an unavoidable complication. We do not find this defence

tenable as it is not supported by the 2nd defendant’s own expert SD5.

Both SP5 and SD5 agreed that in longer operation objective monitors

like the peripheral nerve stimulator and end-tides carbon dioxide

monitor would be used. Both experts agreed however that bucking in a

shorter operation could still be avoided without the said monitors.

[54]  The negligence of the 2nd  defendant in the anaesthetic aspect

covered both the pre and post operation. It was established that

bucking occurred during the Second Operation. Both experts agreed

that the 2nd  defendant should have completed the anaesthetist record

as there was no clear recording when bucking occurred. There were

inconsistent testimonies by the SD5 on the top up schedule.

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[55]  It cannot be denied that the 2nd  defendant did not interview the

plaintiff of his medical history prior to the administering the anaesthetic

on the plaintiff. The drugs were ordered by the 2nd  defendant without

seeing the plaintiff.

[56]  For all the above reasons we are of the view that the case against

the 2nd defendant was likewise clearly made out. The 2nd defendant is

liable for failure to advise on the risk involved and the cause of bucking,

which eventually caused the plaintiff to be blind in his right eye.

The liability of the 3rd defendant

[57] The learned trial judge found the 1st and 2nd defendants, were the

agents of the hospital (3rd defendant) which rendered the 3rd defendant

vicariously liable. In her judgment she found ample evidence, which

established that the 3rd  defendant had allowed the 1st  and 2nd 

defendants to hold themselves out as the agents of the 3rd defendant.

[58]  In our view, Hospital is an institution that provides medical service

and treatment to sick patients. Such services can only be given by

doctors, nurses and other support staffs. A hospital cannot exist without

doctors. The learned JC was correct to say that whatever arrangement

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entered between the doctors and the hospital, is purely internal. The

negligence of doctors cannot absolve the liability of the hospital by mere

internal arrangement. When a person presents himself at the hospital

for treatment he is seeking treatment from that hospital, knowing that

the service would be provided through a doctor or someone at the

hospital. A hospital on the other hand is nothing but a provider of

medical care and services and would never exist independently without

the service provider such as doctors and nurses. The relationship

between doctors and the hospital is inextricable.

[59]  We do not agree with the submission of the 3rd defendant that the

defendant doctors were independent contractors and not its employee

and hence cannot be held vicariously liable. There are no dearth of

authorities to suggest otherwise. The textbook “Law in Medical

Negligence and Compensation” 2nd  edition by RK Bag, the author

stated at p.325.

“The liability of the hospital authorities extends to the faults ofdoctors and other employees whether their employment is

 permanent or temporary or casual, paid or honorary, whole-timeor part-time as in the case of visiting physicians or surgeons.”  

The hospital authority is vicariously liable for the negligence of itsRadiographers, House-surgeons, whole-time Assistant MedicalOfficers and Anaesthetists…”

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[60]  In another text book “Medical Law” by Andrew Grubb, 3rd edition,

2000 the learned author at page 298, referred to an extract from Picard

‘The Liability of Hospitals in Common Law Canada’ which inter alia

states that:-

“The quality of the duties owed by a hospital has led to theirsometimes being referred to ‘non-delegable’. This has thesignificant effect of making the employer of an independentcontractor strictly liable for any negligence of the contractor incarrying out the duty of care which was the employer’s but whichhe had contracted or delegated to the independent contractor. Thisis an exception to the general rule that an employer is not liable forthe negligence of an independent contractor employed by him.”  

[61]  In our view in the admission of a patient, a hospital must be

regarded as giving an undertaking that it would take reasonable care to

provide for his medical needs. There is an overriding and continuing

duty upon hospital as an organization, to provide the services to its

patients. The hospital cannot be mere custodial institution to provide a

place where medical personnel meet and treat patients (see Ellis v

Wallsend District Hospital (1989) 17 NSWLR 553).

[62]  In the case of Dr. Wong Wai Ping & anor v Woon Lin Sing &

Ors  [1999] 6 CLJ 23, the hospital was held vicariously liable for the

negligent act of the doctor when the court found that the gynecologist in

that case was the servant and agent of the hospital, despite their

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contractual arrangement to state otherwise. This finding was based on

the facts such as, that there was only one bill paid for the service of the

gynecologist who was assisted by the nurses of the hospital in the

discharge of his duties as a gynaecologist, he was assisted by the

nurses who were servants of the hospital, the agreement between the

doctors and the hospital was found to be internal arrangement between

the parties, no notice was brought to the attention of the plaintiff about

the internal arrangement, which is neither legally binding on the patient

nor would it exempt the hospital from liability for negligence (see Roe v

Minister of Health [1954] 2 QB 66).

[63] In the case of Cassidy v Ministry of Health  [1951] 2 KB 343

Lord Denning LJ held that hospital authorities are liable for negligence

in the treatment of a patient, which does not depend on whether the

contract under which he was employed was a contract of service or a

contract for services. He opined that where a person is himself under a

duty to use care, he could not get rid of his responsibility by delegating

the performance of it to someone else, no matter whether be it to a

servant under a contract of service or to an independent contractor

under a contract for services. A patient knows nothing of the terms on

which a hospital employed its staff. A patient only knows that he was

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treated in a hospital by people whom the hospital authorities appointed

for which the hospital authorities must be answerable for the way in

which he was treated.

[64]  The following facts were established at the trial of the present

case:-

i) the fees paid by the Plaintiff for the operations were paid to the

3rd  defendant hospital and not to the 1st  or 2nd  defendants

separately. The invoices came from the hospital for the two

operations (as found at Bundle A pages 64 and 72)

ii) the 3rd defendant had held out the 1st defendant was a doctor

of the 3rd defendant hospital. The 1st defendant confirmed that

in 1999, there was a signboard at the reception area of the 3 rd 

defendant wherein the 1st defendant’s name was stated as the

‘Visiting Consultant Ophthaimologist’.

iii) the 2nd defendant confirmed that he was the only anaesthetist

on duty on the day of the Second Operation and the plaintiff

had no choice in choosing his own anaesthetist.

iv) the 3rd  defendant provided all the facilities, drugs and nurses

or other assistants for both operations.

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v) the 3rd  defendant controlled the drugs to be prescribed by

doctors practicing there, whether they are full time employees

or not.

[65] Premised on the above reasons we found no error made by the

learned JC in her finding that the 3 rd defendant hospital is liable for the

negligent acts of the 1st and 2nd defendant.

Damages 

[66]  The learned JC then allowed the claim of the plaintiff and awarded

damages as follows:

i. RM200,000.00 as general damages;

ii. RM1,000,000.00 as aggravated damages;

iii. RM8014.00 as special damages,

[67]  In awarding the amount of damages it must be noted that the 1st 

defendant’s Ophthalmic report (at page 100 and 101 of Bundle A)

states that the plaintiff’s injuries  as ‘The post operation period was

stormy with prolonged hyphaema and hazy media. Vision was

questionable light perception only. The patient was seen by two other

ophthalmologists. There was poor prognosis due to prolonged choroidal

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haemorrhage. The patient received left prophylactic argon laser

treatment by an ophthalmologist in Kuala Lumpur. Further treatment to

right eye was done in Singapore. The right eye is currently permanently

blind due to retinal detachment. His left eye needs prolonged follow up

treatment.

[68]  In determining the granted damages learned JC had given

consideration to the following facts. The plaintiff was and with severe

pain, continuous bleeding and finally a total loss of vision of his right

eye after the Second Operation. The plaintiff was made to believe that

his eye sight would return and was given false hope when he was made

to stay in for 7 days in the hospital, to sit whenever possible in an

upright position at all times, so that the blood in his right eye could

subside, which gave him false hope that he would regain his eyesight.

In evidence, the 1st  defendant in fact had already decided at the

operation table to prevent painful blind eye subsequently by removing

the lens.

[69]  The plaintiff was not informed at the earlier instance that his right

eye was beyond salvation and nothing could be done to rescue the

situation. This had caused the plaintiff to suffer severe nervous shock,

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extreme anxiety and distress. The plaintiff was depressed and

experienced a fear of future incapacity in the event something were to

happen to his remaining functioning eye (left eye).

[70]  The plaintiff also suffers embarrassment, humiliation and

discomfort at the workplace and in public due to the lack of vision and

movement in his right eye. The plaintiff wears a pair of sunglasses to

shield his blind right eye.

[71]  The plaintiff had been deprived of the ordinary experience one

would go through as he has lost the sight in one eye. He is only able to

experience the joys of life through one eye and is no longer able to

experience the full pleasures in activities that he enjoys such as reading

and playing golf.

[72]  The plaintiff testified he had lost prospect of promotion in his job

as the General Manager, Group Legal Division of UMW, that he was

due to be promoted to the position of Corporate Director or Executive

Director. The plaintiff was not promoted for the last 10 years due to his

loss of sight in one eye, compared to his contemporaries. In our view

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the learned JC did take into account to the about facts in awarding

aggravated damages. We have no reason to disturb the same.

[73]  Premised on all the above reasons, we dismissed both the

appeals with a global costs of RM150,000.00, here and below to the

plaintiff.

-signed-

ROHANA YUSUFJudgeCourt of Appeal Malaysia

Dated: 1st September 2015

Counsel for the Appellants in appeal No. W-02-2752-2010:

Mr. P S Ranjan with Mr. M S DhillonMessrs PS Ranjan & Co

 Advocates & SolicitorsTingkat 12, MUI PlazaNo.1, Jalan P. Ramlee50250 Kuala Lumpur

Counsel for the 1st Respondent in appeal No. W-02-2752-2010: Mr. Lim Chee Wee withMs. Claudia Cheah & Mr. David TanMessrs Skrine

 Advocates & SolicitorsUnit No. 50-8-1, Tingkat 8Wisma UOA Damansara50, Jalan DungunDamansara Heights50490 Kuala Lumpur

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Counsel for the 2nd Respondent in appeal No. W-02-2752-2010: Mr. Kanagasabapathi with V. Savithiri

Messrs Kanaga, Suresh & Co Advocates & SolicitorsTingkat 12, MUI Plaza76, Jalan Pudu55100 Kuala Lumpur

Counsel for the Appellant in appeal No. W-02-2824-2010:Mr. Kanagasabapathi withV. SavithiriMessrs Kanaga, Suresh & Co

 Advocates & SolicitorsTingkat 12, MUI Plaza76, Jalan Pudu55100 Kuala Lumpur

Counsel for the 1st Respondent in appeal No. W-02-2824-2010:Mr. Lim Chee Wee withMs. Claudia Cheah & Mr. David TanMessrs Skrine

 Advocates & SolicitorsUnit No. 50-8-1, Tingkat 8Wisma UOA Damansara50, Jalan DungunDamansara Heights50490 Kuala Lumpur

Counsel for the 2nd and 3rd Respondents in appeal No. W-02-2824-2010:Mr. P S Ranjan with Mr. M S DhillonMessrs PS Ranjan & Co

 Advocates & SolicitorsTingkat 12, MUI PlazaNo.1, Jalan P. Ramlee50250 Kuala Lumpur

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