[2014] 1 LNS 542 Legal Network Series

IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR

IN THE STATE OF WILAYAH PERSEKUTUAN, MALAYSIA
[CIVIL SUIT NO: S22 - 38 - 2010]

BETWEEN

1. MOHD YUSOFF @ MOHD YUSOF ABD. GHANI ... PLAINTIFFS

2. KALSOM BINTI HASSAN

(ibu ayah sah dan orang tanggungan bagi ELMIZAN
BIN MOHD YUSOFF (simati))

AND

1. DR ABD WAHAB SUFARIAN

2. AMPANG PUTERI SPECIALIST HOSPITAL SDN BHD

(both c/o No. 1, Jalan Mamanda 9,
Taman Dato Ahmad Razali
68000 Ampang Selangor) ...DEFENDANTS

GROUNDS OF JUDGMENT

Introduction

1. Elmizan bin Mohd Yusoff (“the deceased”) died on 12 April 2007, at the age of

30 after spending 21 days in Ampang Puteri Specialist Hospital Sdn Bhd (“the

second defendant”). During his hospitalization, he was primarily under the

care and management of the first defendant, Dr Abdul Wahab Sufarian (“Dr

Abdul Wahab”), a Consultant Chest and General Physician. He was initially

diagnosed and treated for dengue but the diagnosis was later revised to

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dengue haemorrhagic fever. His parents, the first and second plaintiffs, allege

that the death of their son was caused by the negligence of Dr Abdul Wahab

and the second defendant in making an erroneous diagnosis.

2. They have brought this against Dr Abdul Wahab and the second defendant

for breach of duty and breach of contract in the diagnosis and the treatment

afforded to their son whilst in their care. They also claim that the second

defendant is vicariously liable for the negligence of Dr Abdul Wahab.

3. The basis of the plaintiffs’ claim against the defendants is set out in paragraphs

6 to 9 of the amended statement of claim:

“6. The first defendant together with the other specialists

attached to the said Hospital made a clinical diagnosis that

the deceased was suffering from dengue fever;

7. The medical report issued by the first defendant would show

that all tests allegedly conducted by the first plaintiff and/or

the said hospital in respect of the said deceased, showed

negative findings to dengue fever;

8. The first defendant and/or the said hospital and/or either or

both of them were so negligent in their diagnosis, diligence,

car e, kno w led g e, s kill m anag em e nt and caution in

adm inis ter ing the tr eatm ent f or the de c eas ed that a f te r 21

da y s of adm is s ion to the s aid H os p ital, the de ceas e d’ s

condition deter ior at ed g r adu all y and h e died on 12 A p r il

2007; and

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9. The cause of death of the deceased was due solel y to the

negligence of the first and/or the second and/or both the

defendants.”

Narrative

4. The deceased arrived at the Accident & Emergency Department of the second

defendant’s hospital on 22 March 2007 with a history of fever for 4 days,

headache and generalized body ache, nausea and vomiting. He was then

admitted into the second defendant’s hospital under the care and management

of Dr Abdul Wahab, who had his practice there.

5. Dr Abdul Wahab was the physician primarily responsible for the care,

management and treatment of the deceased until his demise on 12 April 2007.

Upon his admission, the doctor performed a clinical examination and ordered,

among others, a liver function test and blood tests. He found no plasma

leakage or bleeding on the deceased. Dr Abdul Wahab made a initial clinical

diagnosis of dengue fever and treated him for that. He further ordered a dengue

serology test, a hepatitis serology, and urine analysis. Ultrasound of the

abdomen was also ordered as the deceased had jaundice.

6. The serology test for dengue was negative. The tests were repeated for the

next 3 days but continued to show negative for dengue fever. The deceased’s

condition did not improve and on 25 March 2007, he became breathless and

started to gasp for air. Whereupon, chest X-rays were done and the report

showed that the deceased had a “bilateral patchy shadowing” in his lungs. At

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this point, Dr Abdul Wahab suspected that the deceased may have had

pulmonary oedema (plasma leakage), pneumonia or pulmonary haemorrhage.

He then prescribed intravenous antibiotic and intensive care and ventilation and

transferred the deceased to the Intensive Care Unit (“ICU”). Later, he revised

his initial diagnosis of dengue to Severe Tharombaytopenia with Pulmonary

Haemorrhage and Shock Lung Syndrome (“ARDS”) from dengue haemorrhagic

fever (“DHL”). Further serology tests for dengue/DHL, however, continued to

show that it was non reactive.

7. The doctor then sought the assistance of a Consultant Cardiologist, a

Consultant Gastroenterologist, a Consultant Nephrologist, Dr Goh a Consultant

haematologist and three consultants anaesthetists, who were all attached to

the Hospital, to help him co-manage the deceased. In the meantime, the

medical condition of the deceased remained critical and did not show any

signs of improvement.

8. Whereupon, on 6 April 2007, Doctor Abdul Wahab sought assistance from

specialists in other hospitals, when it became clear to him that he needed

assistance to determine the virus that was causing the deceased’s illness. In

this connection, he phoned Dr Jeyamalar, a senior virologist with Institute

Medical Research (“IMR”). Upon her request, he sent to IMR tracheal

aspirate samples collected from the deceased’s throat for analysis. On 9 April

2007, when the condition of the deceased deteriorated further, he consulted Dr

Visalechy Purusothanam (“Dr Puru”), a consultant haematologist with Ampang

General Hospital.

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9. All serology tests continued to show that the deceased was not dengue

afflicted. Eventually, the deceased succumbed to his illness on 12 April 2007 at

the ICU.

10. The cause of death was certified as ‘Severe Thrombocytopenia with Pulmonary

Haemorrhage ARDS Multiple Organ Failure’ in the death certificate. No post

mortem was conducted to conclusively determine the cause of death based on

a refusal form signed by the first defendant, a retired policeman.

11. A medical report issued by Dr Abdul Wahab, subsequent to the death of the

deceased, confirmed that all tests in respect of the said deceased, had

showed negative findings to dengue fever.

Dengue/DHL

12. Before I deal with the issues in this case, it will be useful to state a few well

known facts about dengue/DHL. Dengue fever is transmitted by the bite of an

Aedes mosquito infected with a dengue virus. The mosquito becomes infected

when it bites a person with dengue virus in his blood. Dengue hemorrhagic

fever is a more severe form of the viral illness with a high mortality rate.

Doctors can diagnose dengue infection with a serology test to check for the

virus or antibodies to it. There is no known specific medicine to treat dengue

infection.

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Issues

13. In dealing with the liability of Dr Abdul Wahab and the second defendant, there

are three questions to be answered:

a) Were the defendants negligent in:

(i) their diagnosis and treatment of the deceased for

dengue/DHL?

(ii) failing to investigate if the deceased’s infection could

have been caused by pneumonia or influenza A?

b) If so, whether the death of the deceased was caused by

the negligence of the defendants?

Negligence

14. In order to establish liability, and to obtain an award of compensation against a

doctor or a hospital, it is incumbent on a plaintiff to prove that on a balance of

probabilities there has been negligence in law. In medical negligence cases,

there can be no liability in the absence of proof of fault. For the plaintiffs to

succeed in their claim. They have to prove (1) the defendants owed a duty

of care to the deceased; (2) the defendants were in breach of that duty; and(3)

the plaintiff suffered loss and damage in consequence of that breach.

Witnesses

15. The father and mother of the deceased were the only two witnesses who gave

evidence in support of the plaintiffs case. On the other hand, Dr Abdul Wahab

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testified on his behalf and called Dr Tan Lian Huat, a specialist in Internal

Medicine (Infectious Diseases) as his expert witness, whilst the second

defendant called Noor Haslina binti Harun in support of its case.

Testimony of plaintiffs

16. According to the plaintiffs, the deceased was a fit young man prior to his death.

They were at all material times advised by Dr Abdul Wahab and led to believe

that their son was suffering from dengue/DHL. However, when their son was

receiving treatment in the ICU, Dr Jeyamalar had approached them and

informed them that Dr Abdul Wahab had sought her assistance to identify the

virus that was causing their son’s illness. She went on to tell them that she had

advised Dr Abdul Wahab that his diagnosis and treatment of the deceased for

dengue/DHL was wrong as he was actually suffering from pneumonia.

17. The plaintiffs also testified that on another occasion, a different doctor, one Dr

Puru, had approached them and alerted them that their son was not suffering

from dengue but Severe Acute Respiratory Syndrome (“SARS”). He explained

to them that the respiratory problems of the deceased was because of SARS.

The plaintiffs said that on both occasions when they were advised that the

diagnosis and treatment was erroneous, Dr Abdul Wahab was not present.

18. It was in evidence, as earlier noted, no post mortem was conducted as the

first plaintiff had signed a refusal to consent to post mortem form. According

to the first plaintiff, he did not know that the form he had signed was a refusal

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form because the contents of the form were in English and not explained to

him. Both of the plaintiffs maintained that they were not advised by Dr Abdul

Wahab nor the second defendant, that a post mortem was essential to

determine the cause of death of their son.

Testimony of Dr Abdul Wahab

19. In his evidence, Dr Abdul Wahab maintained that his diagnosis of dengue and

DHL was correct based on his clinical examination and tests results. He

denied that he had adopted a tunnel vision and had focussed only on

dengue/DHL. He maintained that he had kept an open mind and, did consider

that the deceased’s illness could be due to some other virus instead of the

dengue virus, when the serology tests suggested it was not dengue. He

explained that he had ordered numerous other tests and investigations to rule

out other causes, inter alia like Hepatitis A IgM, HBsAg HCV Antibody and

blood cultures. All these tests were negative. He added that he had also

considered, inter-alia, pneumonia and influenza A virus but the results of all

these tests too were negative.

20. According to the doctor, he changed his diagnosis of the deceased’s medical

condition from dengue fever to DHL as the latter had all the major clinical

manifestations of DHL such as high fever, thrombocytopenia (low platelet) and

plasma leakage. He went on to explain that he concluded that the deceased

was suffering from plasma leakage based on the ultrasound report of the

deceased’s abdomen which indicated a small right basal pleural effusion and,

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the chest x-ray report dated 25 March 2007 which stated that the

bilateral patchy shadowing in the x-ray maybe due t o pulmonar y

oedema ie, fluid in the lungs of the deceased.

21. According to Dr Abdul Wahab, when the condition of the deceased started to

deteriorate rapidly, he had consulted Dr Jeyamalar on the possibility of the

deceased having a different strain of dengue virus or some other viruses. He

sent a tracheal aspirate sample obtained from the deceased’s throat to the

IMR, to identify the virus but IMR was unable to detect the virus that had

infected the deceased. He then contacted Dr Puru for assistance.

22. Dr Abdul Wahab denied that Dr Puru and Dr Jeyamalar had informed him that

his diagnosis was wrong and that the deceased was suffering from pneumonia

or SARS.

23. He went on to explain that the reason he had repeated the serology tests until

the very end was because some patients would not react to the dengue tests

although infected with the dengue virus. He pointed out that the serology test

reports expressly provided therein that a “non-reactive” result was not an

indication that the deceased did not have the dengue virus.

24. Under cross-examination, Dr Abdul Wahab was asked to explain why the

cause of death was not stated as dengue in the death certificate, if his

diagnosis was correct. His replied that he did not do so because all the

serology tests done on a daily basis did not show it was dengue, although the

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clinical symptoms of the deceased and X-rays indicated otherwise. He was

further asked to explain why he had prescribed antibiotics for the deceased

since dengue is a viral infection. The doctor accepted antibiotics is not usually

prescribed for dengue, but had done so in this case because the deceased

had exhibited symptoms of complications arising from dengue.

25. Dr Abdul Wahab also denied that he had unreasonably clung to his diagnosis

of dengue/DHL although the chest X-rays and serology tests, should have

made him question if his diagnosis was correct. He maintained that dengue is

a clinical diagnosis and cannot be ruled out merely because laboratory results

did not support the diagnosis.

Testimony of Dr Tan

26. Dr Tan Lian Huat testified that he has been involved in dengue study with the

World Health Organisation (“WHO”) and written several papers on dengue. He

said that he was very familiar with adults’ sides of dengue management and is

considered to be one of the experts in the country on this subject.

27. He opined that Dr Abdul Wahab’s diagnosis of dengue and DHF was not

erroneous based on the clinical symptoms experienced by the deceased as

recorded in the medical records, tests results and investigations. He

explained that the fact that the serology tests were negative, did not indicate

that Dr Abdul Wahab’s diagnosis was wrong as a small percentage of the

population do not seroconvert to dengue serology test.

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28. Dr Tan explained that classical dengue becomes DHL when the patient

develops breathing difficulty as a result of plasma leakage into his lungs. He

added that according to WHO Guidelines, the classical symptoms of DHF are

high fever, haemorrhagic phenomenon, plasma leakage and thrombocytopenia.

He said that the medical records and test reports demonstrated that the

deceased had all the symptoms of dengue and DHL and also a distended gall

bladder another common symptom of DHL.

29. The diagnosis of dengue, explained Dr Tan, has two components; clinical

diagnosis and laboratory diagnosis. He said that as there are patients who will

never seroconvert to the dengue diagnostic test, despite laboratory test results,

clinical diagnosis could not be ruled out. He was of the opinion that Dr Abdul

Wahab had carried out various and relevant tests when the latter noted that

the deceased’s clinical and laboratory parameters were not in keeping with

the typical dengue infection like breathlessness and the progression of the

disease.

30. On the chest X-rays, Dr Tan said that the interpretation of X-ray has to go

together with the clinical picture, clinical information, patients symptoms and

laboratory results. A radiologist, he explained, interprets X-rays based on the

changes on the X-rays as he does not have the full history findings. Dr Tan

pointed out that portable chest X-rays were done by the defendants as

suggested by chest X-ray report dated 25 March 2007, None of the

subsequent chest X-rays done suggested it was pneumonia.

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31. Dr Tan went on to explain that the samples sent to IMR did not indicate that

the deceased was suffering from influenza A. He explained that IMR would

have performed tests on common respiratory viruses which included influenza

A. He added that the Test report from IMR stated that common respiratory

viruses were not detected.

32. Dr Tan further added that the medical records showed that the initial symptoms

of deceased did not include flu and sore throat, which are classical symptoms

of influenza A. In the result, the possibility of the deceased suffering from

Influenza A, he concluded, was extremely low. He confirmed that antibiotics

are not used for treating dengue, unless there are complications. In a case of

pure virus infection, antibiotics do not help. He said that antibiotics when

prescribed for pure dengue infection is not detrimental to the patient’s health.

33. Under cross-examination, his impartiality and creditworthiness was seriously

challenged. It was put to him that he was not an independent witness and his

evidence was biased in favour of the defendants.

34. He was asked to explain why both he and Dr Abdul Wahab have taken the

position that the cause of death was probably due to dengue/DHL despite

repeated serology tests results. He answered as follows :

“Yes. It goes back to what we have been trained to deal with

diseases in medicine. We have to start out with history taking,

physical examination. These two aspect of the assessment are the

most crucial one because that provide a base for our further

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plan and further decision. The investigational tool are just
additional tool that help to support our impression and our
clinical suspicion so all the test that we, that has been created
to help us to diagnose are helpful in somewhat in, in some
situation but not 100% time would be correct in that sense
because we do know very well following an infection not
everybody will seroconvert meaning not everybody would be
able to mount the antibody response for the test to be
detected.”

35. In further cross-examination, he was asked about a PCR test that was done

by Dr Abdul Wahab some two weeks after the deceased was diagnosed with

dengue/DHL. He was asked to explain if the defendants were negligent in not

doing the test within the first week. In answer, he explained that it was true that

it is advisable to do the PCR test for genetically identifying dengue within the

first week, as the DNA of the dengue virus would not be detectable if the test

is delayed. But, clarified that this test was generally only available in

research hospitals like University Hospital and it is not a routine practice to do

the tests in private hospitals.

Testimony of Noor Haslina binti Harun

36. The second defendant’s witnesses testified that Dr Abdul Wahab was an

not an employee, agent or servant of the Hospital but an independent contractor.

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First issue : Whether the defendants were negligent ?

37. I shall deal with issues (i) and (ii) as stated in paragraph 13 together. The crux

of the plaintiffs’ case is that Dr Abdul Wahab’s diagnosis and treatment of their

son for dengue/DHL was erroneous as there was no indication compelling a

diagnosis that it was dengue. His life could have been saved if the defendants

had investigated other causes at an early stage by seeking help from Dr

Jeyamalar and Dr Puru sooner.

38. It is common ground that Dr Abdul Wahab owed the deceased a duty of care

in diagnosing and treating his illness as the attending doctor in charge of the

care and management of the deceased. At such, the next issue I need to

consider is whether his diagnosis and treatment of the deceased for

dengue/DHL was erroneous and in breach of his duty of care to him.

The applicable test: Standard of care

39. The parties were in disagreement as to the test that was applicable to

determine the liability of the defendants. The plaintiffs took the position that it

was the test laid down by the Federal Court in Foo Fio Na v. Dr Soo Fook

Mun & Anor [2007] 1 MLJ, whilst the defendants maintained that it was the

Bolam test as formulated by McNair J in Bolam v. Friern Hospital

Management Committee [1957] 2 All ER 118 and approved by the Court of

Appeal in Gleneagles Hospital (KL) Sdn Bhd v. Chung Chu Yin [2013] 8

CLJ 449. The defendants argued that the Foo Fio Na did not apply to the

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present case as the Federal Court had made it clear that the test is applicable

to determine the duty and standard of care of a medical practitioner who is

alleged to have failed in his duty to provide medical advice to a patient on the

inherent or material risks of a proposed treatment. As the pleaded case of the

plaintiffs against the defendants was premised on medical misdiagnosis

and treatment, the rule in Foo Fio Na case was inapplicable.

40. In answer, the plaintiffs contended that the defendants submission was

misconceived as the plaintiffs case’s is premised on the allegation that Dr

Abdul Wahab was negligent in failing to advise the deceased and/or them, of

the possibility of there being causes other than dengue. And, therefore the

Foo Fio Na test was applicable.

41. In view of the positions taken by the parties, it becomes necessary to examine

the amended statement of claim to ascertain what is the pleaded case of the

plaintiff. It is a cardinal rule of pleadings that parties are bound by their

pleadings. A perusal of the averments therein indicates that the defendants

are correct in the submissions they make that the claim is premised on

misdiagnosis and treatment. This is further borne out by the list of agreed

issues filed by the parties which was in these terms :

(a) Whether in the circumstances of this case the first defendant

had in his treatment of the deceased, acted in accordance

with the standard of care expected of the first defendant;

(b) Whether the death of the deceased can be said in law to

have been caused or materially contributed by the first

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defendant and/or the second defendant in breach of his duty
of care owed to the deceased; and
(c) Whether in the circumstances of this case, the plaintiffs are
entitled to the damages, interests and costs as pleaded in the
amended statement of claim.
(emphasis added)
42. As the complaints of the plaintiffs relate to the diagnosis and treatment of the
deceased, the test applicable is the Bolam test and not Foo Fio Na. In the
former case, McNair stated (at 121-122) :

'How do you test whether this act or failure is negligent? In an

ordinary case it is generally said, that you judge that by the
action of the man in the street. He is the ordinary man. In one
case it has been said that you judge it by the conduct of the
man on the top of a Clapham omnibus. He is the ordinary man.
But where you get a situation which involves the use of some
special skill or competence, then the test whether there has
been negligence or not is not the test of the man on the top of a
Clapham omnibus, because he has not got this special skill.
The test is the standard of the ordinary skilled man exercising
and professing to have that special skill. A man need not
possess the highest expert skill at the risk of being found
negligent. It is well established law that it is sufficient if he
exercises the ordinary skill of an ordinary competent man
exercising that particular art … A doctor is not guilty of
negligence if he has acted in accordance with a practice
accepted as proper by a responsible body of medical men
skilled in that particular art … Putting it the other way round, a
doctor is not negligent, if he is acting in accordance with such a
practice, merely because there is a body of opinion that takes a
contrary view.'

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43. In accordance with the Bolam test, for a plaintiff to succeed he must adduce

evidence to show that the medical practitioner failed to exercise a reasonable

degree of skill and care. The medical practitioner can therefore be held liable if

he failed to act in accordance with the practice accepted as proper by a

responsible body of medical men skilled in that particular field. In matters of

diagnosis and treatment, the Court perforce has to rely on and evaluate expert

evidence given by a defendant’s peers as a consequence of the Bolam test.

A plaintiff would therefore be required to adduce independent expert

evidence in the appropriate speciality to establish that the conduct of the

medical practitioner did not measure up to that standard that a responsible

body of medical opinion would have accepted as proper.

44. There is one other point that I need to address on the use of medical articles

downloaded from the internet to establish the standard of care expected of

the defendants. In the present case, the plaintiffs had relied on Wikipedia

medical articles and reports downloaded from the internet to establish

negligence. The defendants objected stating that the contents of the articles

were unreliable and did not meet the criteria of a medical opinion by a

responsible body. The plaintiffs replied that these articles and reports in the

Wikipedia are the results of specialists giving their views and there was no

basis to reject them in the absence of evidence to demonstrate that the

persons who wrote these articles in Wikipedia for reference are not

specialists in their own field.

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45. The law requires issues of fact to be decided on the evidence actually given

orally in court, and subject to cross-examination. In my judgment, it is not

permissible to try issues of negligence on medical opinions contained in

extracts taken from articles downloaded from the internet, no matter how

eminent its author may be, until and unless the maker is called to test the

worth of that opinion by cross-examination (unless there is an agreement

between the parties to admit the same). In contested medical negligence

cases, expert medical opinion will be relevant and useful where it is based

on the facts of the case which others have observed and to which they have

testified in a particular case. Therefore, in my judgment, before these

articles can be admitted, it must be possible to test the medical opinion

offered by cross-examination. I therefore do not accept the plaintiffs’

contention that the articles that they relied on can be admitted without

calling the makers.

Burden of Proof

46. The plaintiffs accepted that the burden was on them to prove negligence and

not for the defendants to show that they were not negligent. But, it was argued

that there is no rule that in every case expert medical evidence must be called

to establish the standard or duty of care expected of a medical practitioner. A

failure to do so, it was argued, was not fatal, as the law permits a plaintiff to

rely on admissions in the defence and circumstantial evidence to prove a

breach of duty.

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47. In the present case, it was argued that the plaintiffs were entitled to rely on

the unreasonable position taken by the defendants in the defence that the

cause of death was dengue/DHL despite the fact that the results of the medical

tests negated it. In this regard, reliance was placed on the negative results of

the serology tests and the following passage in the Chest X-ray report dated 25

March 2007 which stated, “there is a patchy consolidation seen in the right and

left lung with air bronchogram seen and may be due to either pulmonary

oedema or pneumonia. Clinical correlation and follow up chest X-ray is

suggested.” The X-ray report, it was argued, indicated that pneumonia was a

possible cause for the respiratory problems of the deceased but, there the

medical records and notes of the defendants did not show it was investigated.

In further support of their case, the plaintiffs also relied on their

conversations with Dr Jeyamalar and Dr Puru that the diagnosis of

dengue/DHL was erroneous.

48. The plaintiffs contended on the basis of the above evidence, the plaintiff had

raised a prima facie inference that the defendants were negligent and this

had shifted the evidential burden to the defendants to prove that their

diagnosis and treatment of the deceased for dengue was correct. It was

argued that the defendants have failed to rebut the evidential burden on

them by calling all the specialists who had helped to co-manage the

deceased. The glaring failure to call Dr Jeyamalar and Dr Puru, justified the

drawing of an adverse inference against the defendants under section 114 (g)

of the Evidence Act 1950, that if called, they would not have supported his

diagnosis of dengue/DHL.

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49. The defendants disputed that a breach of duty can be proven without medical

evidence. In the alternative, contended that the items of evidence relied

upon by the plaintiff were insufficient to raise a prima facie inference of

negligence against them so as to shift the evidential burden to them. In

support of this proposition, reliance was placed on the oft cited case of

Selvaduray v. Chinniah [1939] MLJ 253. In the further alternative, the

defendants argued that they have discharged the evidential burden on them to

rebut the plaintiff’s case through the evidence of Dr Abdul Wahab and Dr Tan.

The evidence of Dr Tan had refuted the allegations of negligence made

against them. It was argued that there was no obligation on them to call Dr

Jeyamalar and Dr Puru as the burden was on the plaintiffs to prove these

conversations in view of sections 101, 102 and 103 of the Evidence Act. 1950.

50. I turn now to deal with the above arguments. It is true that the deceased died

whilst he was under the care and management of the defendants and whilst

receiving treatment there. There is no presumption in law that a patient who

dies in a hospital whilst receiving treatment or a patient who comes out of

hospital in a worse condition than he went in constitutes proof of negligence.

The primary obligation still rests on the plaintiff to adduce evidence by calling

expert medical witnesses to establish in what way the diagnosis and treatment

of the defendants was contrary to accepted or approved practice.

51. The law however, does provides that in some circumstances where harm to

the patient does not normally occur in the absence of negligence, the maxim

res ipsa loqitar can be invoked by a plaintiff to establish a prima facie case of

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negligence, eg, where a doctor who operates on the wrong eye, or leaves

swabs or surgical instruments inside the patient after an operation.

52. The case of Mahon v. Osborne [1939] 2 K B 14 provides a vivid illustration.

In that case, a surgeon left a swab in the abdomen of his patient he had

operated on, and the patient died. Goddard L.J. said (at 50):

“There can be no possible question but that neither swabs

nor instruments are ordinarily left in the patient’s body, and

no one would venture to say that it is proper, although in

particular circumstances it may be excusable, so to leave

them. If, therefore, a swab is left in the patient’s body, it

seem to me clear that the surgeon is called on for an

explanation, that is, he is called on to show not necessarily

why he missed it but that he exercised due care to prevent it

being left there ... If a patient on whom had befallen such a

misfortune as we are now considering were not entitled to

call on the surgeon for an explanation, I cannot but feel that

an unwarranted protection would be given to carelessness,

such as I do not believe the profession itself would either

expect or desire.”

53. The plaintiffs in the instant case, did not rely on the doctrine of res ipsa

loquitar to establish their case, but took the position that at the close of the

plaintiffs case, there was sufficient evidence to raise a prima facie inference

of negligence against the defendants which shifted the burden to the

defendants. The commentary in Sarkar on Evidence (15 th edn) vol 2 at p

1452, on this point states:

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There is an essential distinction between the 'burden of

proof as a matter of law and pleading and as a matter of
adducing evidence. The burden in the first sense is always
constant but the burden in the sense of adducing evidence
shifts from time to time having regard to the evidence
adduced or the presumption of fact or law raised in favour
of one or the other [ Ajit Pd v. Nandini A 1975 Or 184 ]. If the
prima facie case is not rebutted by cogent evidence and
remains unanswered or the answer given does not create
serious doubt in the mind of the court then the burden of proof
on the pleadings should be deemed to have been discharged
[Mg Hmoot v. Offl Receiver 14 R 704; A 1937 R 276; see also
Bhola v. Bhagwat 13 CPLR 159; Gangadin v. Bahoram A
1937 N 230 ]. The true test of onus in the case of 'shifting'
has been thus put by Lord Hanworth MR:

'It appears to me that there can only be sufficient evidence

to shift the onus from one side to the other if the evidence is
sufficient prima facie to establish the case of the party on
whom the onus lies. It is not merely a question of weighing
feathers on the one side or the other, and of saying that if
there were two feathers on one side and one on the other
that would be sufficient to shift the onus. What is meant is,
that in the first instance the party on whom the onus lies
must prove his case sufficiently to justify a judgment in his
favour if there is no other evidence' [ Stoney v. Eastbourne R
D Council (1927):1 Ch 367, 397].”

(emphasis added)

54. The above passage was approved and adopted by the Court of Appeal in
Cheong Heng Loong Goldsmiths (KL) Sdn Bhd & Anor v. Capital
Insurance Berhad & Anor Appeal [2004] 1 MLJ 353. Applying the test as set
out in Sarkar quoted above, the question is whether the 3 pieces of evidence
that the plaintiffs relied on were sufficient to justify a judgment in their favour if
there was no other evidence.

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Conversations with Dr Jeyamalar and Dr Puru

55. I start with the plaintiffs conversations with Dr Jeyamalar and Dr Puru.

According to the plaintiffs, the doctors had informed them that Dr Abdul

Wahab had sought their assistance to treat the deceased. The doctors had

confided in them that the diagnosis of dengue was wrong. It must be

observed that these conversations that the plaintiffs allude to in their evidence

are not mentioned in the statement of claim. Further, it is inconsistent with

their pleaded case. In their statement of claim, the plaintiffs denied that Dr

Abdul Wahab had consulted Dr Jeyamalar and Dr Puru and pleaded that

the defendants were negligent for:

(c) alleging that there was a Senior Consultant, a clinical

haematologist from Kementerian Kesihatan Malaysia who

attended to the deceased by way of consultation when

there was indeed no such consultation; and

(d) Alleging that there was a Senior Virologist from Institute of

Medical Research of Malaysia who was consulted when

there was no such consultation.

56. The plaintiffs proffered no explanation for their marked departure from their

pleaded case. It is trite law that parties are bound by their pleaded case and

cannot depart from it without first amending their pleading. In the

circumstances, the evidence of the plaintiffs on this issue was rendered

unbelievable in light of the inconsistent positions taken by them in their

evidence and pleading.

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57. Further, neither Dr Jeyamalar and Dr Puru were called by the plaintiffs to
corroborate their evidence on this issue. It was their contention that they were
under no obligation to do so. The question as to who bears the burden of
proof of calling a particular witness to prove a fact, is afforded by the judgment
of the Court of Appeal in Juahir bin Sadikon v. Perbadanan Kemajuan
Ekonomi Negeri Johor [1996] 3 MLJ 627. In that case, the plaintiff claimed
that the defendant through one Tan Sri Dato' Haji Basir Basir had made an
offer to sell the land to him at the price of RM7,000-RM8,000. He applied for
,inter-alia, specific performance of the agreement. This was denied by the
defence. Tan Sri Basir was not called as a witness to prove that an offer was
made. In drawing an adverse inference against the plaintiff for not calling him
as a witness, Siti Norma Yaakub JCA said (at 635)
“He who alleges must prove such allegation and the onus is
on the appellant to do so. See s. 103 of the Act. Thus, it is
incumbent upon the appellant to produce Tan Sri Basir as his
witness to prove the allegation. The fact that the appellant was
unable to secure the attendance of Tan Sri Basir as a witness
does not shift the burden to the respondent to produce the
witness and testify as to what he had uttered, as firstly, the
respondent never raised such an allegation and, secondly, has
denied even making one. For this very reason, the adverse
inference under s. 114(g) of the Act relied upon by the
appellant cannot be accepted as establishing that if the witness
had been produced, his evidence would work against the
respondent. There is no obligation in law for the
respondent to produce the witness as that obligation rests
with the appellant, the party who alleges, and the fact that
the appellant was unable to do so is fatal to his

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case. For this very reason too, the adverse inference

under s. 114(g) is invoked against the appellant. ”

58. The passage quoted above illustrates that the obligation was on the plaintiffs to

call Dr Jeyamalar and Dr Puru as witnesses in support of their case. For the

reasons given, in my judgment, there was no credible evidence to support the

plaintiffs claim that they had been informed by Dr Jeyamalar and Dr Puru that

the dengue diagnosis was wrong.

The Chest X-rays

59. All medical reports in the present case were put in part B of the documentary

evidence meaning that formal proof has been dispensed with, subject to

contents being proved by calling the maker or by other means. The plaintiffs

relied on the chest X-ray report dated 23 March 2007 which suggested the

deceased could have been suffering from pneumonia, as prima facie evidence

of negligence. It was said that the diagnosis of dengue was inconsistent with

the chest X-ray report, and it was for Dr Abdul Wahab to proffer an

explanation.

60. In response, the defendants contended that in view of the position taken by the

plaintiffs that they (the defendants) were not entitled to rely on the contents of

the documents in Part B without calling the specialists and the makers

concerned, the same rule applied to the plaintiffs as well. As the radiologist

who made the chest X-ray report was not called, the plaintiff was precluded

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from relying on it. It was argued that the plaintiffs should not be allowed to blow

hot and cold by taking contrary positions. In the alternative, the defendants

argued that if the contents of the report are admitted as evidence, it was

imperative to read the said report carefully. It was pointed out that the report

did not state the patchy consolidation in the lungs could only be due to

pneumonia but instead had clearly stated it could be due to either

pneumonia or plasma leakage (dengue).

61. In my judgment, there is force in the defendants submission. It would be unfair

to allow the plaintiffs to blow hot and cold. If the plaintiffs take the position that

the truth of the contents of documents in Part B must be proven by calling the

makers, this would mean that they are precluded from relying on the X-ray

report as the radiologist was not called. Even if I am wrong in my conclusion

that the plaintiffs are precluded from relying on the X-ray report, there is nothing

in the report to persuade me that it justifies an inference of negligence against

the defendants. The X-ray report was not evidence which demonstrated in any

way that the diagnosis of dengue was wrong. In the result, this evidence

does not assist the plaintiff in proving that the diagnosis was wrong.

Serology tests

62. The serology tests were the most crucial piece of evidence that the

plaintiffs relied on to show that the dengue diagnosis and treatment was

erroneous. But, the note at the bottom of the serology test reports made it

abundantly clear that a negative result did not exclude dengue. Thus, a

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person could be infected with the dengue virus and the serology test would not

reveal this fact. In the light of note on the serology reports, the serology results

was not evidence that justified an inference that the defendants were

negligent.

63. For the reasons given, I am unable to agree with the plaintiffs that at the

close of the plaintiffs case, thus established sufficient facts which gave rise to an

inference that the dengue diagnosis and treatment was wrong. It is not

permissible or possible for the court to reach its own view, in the absence of

expert medical witnesses called by the plaintiffs, that the first defendant’s

diagnosis was wrong and that no reasonably skilled doctor would have come to

the same conclusion based on the results of the medical tests conducted. In

the absence of any prima facie evidence to show that the diagnosis and

treatment of the deceased for dengue was wrong, the plaintiff’s claim must fail.

64. Section 102 of the Evidence Act provides that burden of proof in a suit or

proceeding lies on that person who would fail if no evidence at all were given

on either side. This is illustrated by the following passage in the decision in

Selvaduray v. Chinniah (supra):

“The burden of proof under section 102 of the Evidence

Enactment is upon the person who would fail if no evidence at

all were given on either side, and accordingly the plaintiff must

establish his case. If he fails to do so, it will not avail him to

turn round and say that the defendant has not established his.

The defendant can say "It is wholly immaterial whether I prove

my case or not. You have not proved yours" (see the judgment

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of the Privy Council in Raja Chandranath Roy v. Ramjai

Mazumdar 6 Bengal Law Reports p 303).”

65. Even if I am wrong in my conclusion that the evidence adduced by the

plaintiffs has failed to establish a prima facie case, I am satisfied that the

evidence adduced by the defendants was sufficient to rebut the plaintiffs case

that the dengue diagnosis was erroneous. Dr Tan expressed the view that the

defendants had done all that was necessary to identify the virus that had

infected the deceased. I reject the scathing criticisms made by the plaintiffs of

Dr Tan’s partiality. In my judgment, there was no basis to conclude that Dr

Tan’s was a partial and an unreliable witness. All that the court is required

to do under Bolam/ Bolitho to determine whether Dr Tan’s view scan qualify

as representative of a “responsible body of medical opinion”, is whether his

views satisfy the threshold test of logic ie, were his views capable of

withstanding logical analysis. His evidence meets this requirement. I accept

his evidence that in dengue/DHF cases, dengue laboratory tests are not

conclusive, and it is essential for a doctor to make a clinical diagnosis based

on the patient’s symptoms and clinical examination.

66. I also accept his evidence that the complaints of inaction and delay made by

the plaintiffs are unfounded. Pneumonia and influenza A were investigated,

but ruled out. The deceased was referred to other specialists when it became

evident that their expertise was needed.

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67. I accept Dr Tan’s opinion that the diagnosis of Dr Abdul Wahab that the

probable cause of death of the deceased was due to dengue/ DHF was not

erroneous and is supported by the results of the medical tests results and the

symptoms he had at the material time. A medical practitioner cannot be

faulted for failing to identify the specific illness or deceased from which the

patient is suffering. The fact that his diagnosis and treatment failed to produce

an improvement in the patient’s condition cannot tantamount to negligence.

68. I therefore find that the plaintiffs have failed to establish to discharge the legal

burden on them to establish that the defendants were negligent in

misdiagnosing their son’s illness and failing to investigate whether his illness

could have been caused by pneumonia or influenza A. In the event I am

wrong in this conclusion, and the defendants are negligent in making an

erroneous diagnosis, it becomes necessary for me to consider whether it was

the defendants negligence which caused or materially contributed to the death

of the deceased.

Second issue: Whether the death of the deceased was caused by the

negligence of the defendants?

69. It is common ground that the burden is on the plaintiffs to establish that the

alleged negligence of the defendants, caused or materially contributed to the

death of the deceased. See decision of Court of Appeal in Dr Gun Suk Chyn

& 2 Ors v. Kartar Kaur a/l Jageer Singh [2014] 1 AMR 200. The plaintiffs

adduced no evidence to establish that the death of the deceased was due to

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the negligence of the defendants in misdiagnosing his medical condition as

dengue.

70. In the present case no post mortem examination was done on the deceased.

There is evidence that the first plaintiff had signed a form refusing to give

consent for a post mortem to be conducted. It cannot be gainsaid that if a post

mortem had been done, it would have indicated the infection that caused the

death of the deceased. I do not accept the evidence of the first plaintiff that he

did not know that the document that he had signed was a refusal form. I am

satisfied that he knew the nature of the document on which he had affixed

his signature. The first plaintiff is a retired policeman and it is improbable that

he would not have known the nature of the document that he had signed.

Having declined to give his consent, it is not open to the plaintiffs to take the

position that his son’s death was caused by the negligence of the defendants.

In the result, I find that the plaintiffs have also failed to prove causation.

Remaining Issues

71. In view of my conclusion that the plaintiffs have failed to establish that the

defendants were negligent, it becomes unnecessary to decide the other

issues that were raised in this case.

Conclusion

72. That completes my judgment. I therefore dismiss the plaintiffs claim with

costs. I am well aware that the plaintiffs will find it very difficult to accept that

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there was no fault on behalf of the defendants as their son died whilst in

their care and management. It is indeed a tragic case, but medicine is not an

exact science and sometimes there is only so much doctors can do. It will never

be known with certainty what was the cause of his death as no autopsy was

done in this case. But, the evidence in this case shows that Dr Abdul Wahab

was not negligent in the diagnosis he made.

DATED: 6 MAY 2014

(S M KOMATHY SUPPIAH)
Judicial Commissioner
High Court of Malaya
Kuala Lumpur

Counsel: -

For the plaintiff - Kamalanathan Ratnam (Vinod Kamalanathan with him); M/s
Vinod Kamalanathan & Associates

For the 1 st defendant - Maidzuara Mohammed (Low Chinn Yi with him); M/s Raja,
Darryl & Loh

For the 2 nd defendant - T Tharumarajah (Ellaine Alexander with him); M/s Azim,
Tunku Farik & Wong

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