DALAM MAHKAMAH RAYUAN MALAYSIA

(BIDANGKUASA RAYUAN)
RAYUAN SIVIL NO: W-02-2752-2010
BETWEEN
1. DR. HARI KRISHNAN
2. DR. MOHAMED NAMAZIE

APPELLANTS

AND
1. MEGAT NOOR ISHAK BIN MEGAT IBRAHIM
2. THE TUN HUSSIEN ONN
NATIONAL EYE HOSPITAL

RESPONDENTS

(Dalam Mahkamah Tinggi Malaya di Kuala Lumpur

Dalam Wilayah Persekutuan, Malaysia
Guaman Sivil No. S (2)(S8)-22-523-2000
Between
1. Megat Noor Ishak bin Megat Ibrahim

Plaintiff

Defendants

And
1. Dr. Hari Krishnan
2. Dr. Mohamed Namazie
3. The Tun Hussien Onn
National Eye Hospital

DALAM MAHKAMAH RAYUAN MALAYSIA

(BIDANGKUASA RAYUAN)
RAYUAN SIVIL NO: W-02-2824-2010
BETWEEN
THE TUN HUSSIEN ONN
NATIONAL EYE HOSPITAL

APPELLANT

AND
1. MEGAT NOOR ISHAK BIN MEGAT IBRAHIM
2. DR. HARI KRISHNAN
3. DR. MOHAMED NAMAZIE

RESPONDENTS

(Dalam Mahkamah Tinggi Malaya di Kuala Lumpur

Dalam Wilayah Persekutuan, Malaysia
Guaman Sivil No. S(2)(S8)-22-523-2000
Between
1. Megat Noor Ishak bin Megat Ibrahim

plaintiff

Defendants

And
1. Dr. Hari Krishnan
2. Dr. Mohamed Namazie
3. The Tun Hussien Onn
National Eye Hospital

(An appeal against the decision of YA Puan Zura binti Yahya, Judicial
Commissioner, High Court Malaya, Kuala Lumpur made
on 01.09.2010)
CORAM
LINTON ALBERT, JCA
MAH WENG KWAI, JCA
ROHANA YUSUF, JCA
2

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-022824-2010) 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
plaintiffs right eye on 26.08.1999.

After the First Operation, the

plaintiffs right eye was painful and could only see faint light. The
plaintiff was discharged on 30.08.1999. The 1st defendant then told him
3

that the recovery of his right eye would take about one month or more.
The 1st defendant also fixed an appointment for the plaintiff to see him
in a weeks time, which was on 07.09.1999.

[4]

On 04.09.1999, two days after his discharge, the plaintiffs right

eye became watery and he had bullish vision. Two days later, the
plaintiff sneezed twice and there were tears of blood. He immediately
telephoned the 1st defendant who assured him that it was merely
supercial bleeding and that he need not come to the hospital
immediately. Further the 1st defendant told him that his condition was
not alarming.

[5]

However, the next day after the incident, the plaintiff went to see

the 1st defendant on his own accord. The 1st defendants visual check
conrmed that there was bleeding in the plaintiffs 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 plaintiffs right eye. The plaintiff then went
to see the 1st defendant on the appointment date, that was, on
4

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 conrm the
situation before he decided to go through with it. At the insistence of the
plaintiff, the 1st defendant conducted a scan to conrm 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 plaintiffs retina had folded and the need for second operation, was
5

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 plaintiffs 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 plaintiffs 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
xed at 2.00 pm (the Second Operation).

[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
7

the bleeding in the right eye subsided. The 1st defendant did not raise
the possibility of the plaintiffs 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 defendants 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 plaintiffs 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.
8

[16] Dr Pall Singh declined to operate because he said the plaintiffs

chance of recovery would be slim. Dr. Pall Singh told the plaintiff that
the plaintiffs 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 defendants 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 plaintiffs right eye was beyond saving. The plaintiff said that
was the rst 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
9

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

conrmed that the plaintiffs 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
10

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.

11

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
12

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
plaintiffs 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
13

plaintiffs 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 plaintiffs 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
14

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 plaintiffs pleaded case that the defendants failed to
warn the plaintiff of risks involved. This is because questions were put
15

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 plaintiffs written submission addressed on the
same. In this regard we are guided by the Federal Court case of
Karuppanan

Ramasamy

&

Anor

Elizabeth

Jeevamalar

Ponnampalam & Ors (Sundaram a/l Marappa Goundon & Anor,

Interveners and Raya Realti, third party) and another appeal [2010] 1
MLJ 156. The issue of unpleaded case therefore does not arise.

[33] The crux of the plaintiffs 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 plaintiffs
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 plaintiffs case that the
1st defendant had put the plaintiff through the unnecessary Second
Operation and that the 1st defendant had not properly diagnosed the
plaintiffs problem. There was no need for the Second Operation
16

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 plaintiffs case was that there was no retinal detachment
but only retinal tear prior to the Second Operation. The record of the 1 st
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
17

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
18

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

19

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 plaintiffs 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
defendants 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.

20

[43] Having perused through the Appeal Records we agree with the
plaintiffs 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
21

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. SP5s 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;
22

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

23

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.

24

[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 defendants 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.

25

[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
26

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 of
doctors and other employees whether their employment is
permanent or temporary or casual, paid or honorary, whole-time
or part-time as in the case of visiting physicians or surgeons.
The hospital authority is vicariously liable for the negligence of its
Radiographers, House-surgeons, whole-time Assistant Medical
Officers and Anaesthetists

27

[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 their
sometimes being referred to non-delegable.
This has the
significant effect of making the employer of an independent
contractor strictly liable for any negligence of the contractor in
carrying out the duty of care which was the employers but which
he had contracted or delegated to the independent contractor. This
is an exception to the general rule that an employer is not liable for
the 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
28

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
29

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 3rd
defendant wherein the 1st defendants 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 3rd 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
defendants Ophthalmic report (at page 100 and 101 of Bundle A)
states that the plaintiffs 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
31

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,
32

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

33

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.

-signedROHANA YUSUF
Judge
Court 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 Dhillon
Messrs PS Ranjan & Co
Advocates & Solicitors
Tingkat 12, MUI Plaza
No.1, Jalan P. Ramlee
50250 Kuala Lumpur
Counsel for the 1st Respondent in appeal No. W-02-2752-2010:
Mr. Lim Chee Wee with
Ms. Claudia Cheah & Mr. David Tan
Messrs Skrine
Advocates & Solicitors
Unit No. 50-8-1, Tingkat 8
Wisma UOA Damansara
50, Jalan Dungun
Damansara Heights
50490 Kuala Lumpur
34

Counsel for the 2nd Respondent in appeal No. W-02-2752-2010:

Mr. Kanagasabapathi with
V. Savithiri
Messrs Kanaga, Suresh & Co
Advocates & Solicitors
Tingkat 12, MUI Plaza
76, Jalan Pudu
55100 Kuala Lumpur
Counsel for the Appellant in appeal No. W-02-2824-2010:
Mr. Kanagasabapathi with
V. Savithiri
Messrs Kanaga, Suresh & Co
Advocates & Solicitors
Tingkat 12, MUI Plaza
76, Jalan Pudu
55100 Kuala Lumpur
Counsel for the 1st Respondent in appeal No. W-02-2824-2010:
Mr. Lim Chee Wee with
Ms. Claudia Cheah & Mr. David Tan
Messrs Skrine
Advocates & Solicitors
Unit No. 50-8-1, Tingkat 8
Wisma UOA Damansara
50, Jalan Dungun
Damansara Heights
50490 Kuala Lumpur
Counsel for the 2nd and 3rd Respondents in appeal No. W-02-28242010:
Mr. P S Ranjan with
Mr. M S Dhillon
Messrs PS Ranjan & Co
Advocates & Solicitors
Tingkat 12, MUI Plaza
No.1, Jalan P. Ramlee
50250 Kuala Lumpur

35

36