Case summary: Datin Nor Rizam bt Abdul Wahab (menyaman sebagai pentadbir estet Dato’ Ir Zainudin bin A Kadir) v Pusat Pakar Tawakal Sdn Bhd & Ors [2024] MLJU 1292

Introduction

1. The Plaintiff, Datin Nor Rizam bt Abdul Wahab (“Plaintiff”), acting as the administrator of the estate of her late husband, Dato’ Ir Zainudin bin A Kadir (“Deceased”) filed a suit against Pusat Pakar Tawakal Sdn Bhd (“1^st Defendant”), Dr. Haji Mohd Solahuddin (“2^nd Defendant”) and Dr. Zulkifli Bin Mohamed Haris (“3^rd Defendant”) for alleged medical negligence leading to injury and eventual death of the Deceased.

2. Since 2012, the Deceased complained that he was suffering vertigo, fever and flu. After consulting with his physician then, he was referred to the 2^nd Defendant where he was advised to undergo an operation known as bilateral functional endoscopic sinus surgery with septoplasty and turbinoplasty (“surgery”).

3. Thereafter, the Deceased was admitted into the care of the 1^st However, complications arose post-surgery which purportedly led to the deteriorating health and death of the Deceased.

4. The salient events leading up to the death of the Deceased are set out below.

• • (i) Events at the operating theatre and observation room
  • The records show that the surgery went well and that there was no untoward incident that occurred during the surgery.
  • The 3^rd Defendant had administered reversal agents (atropine and neostigmine), and the Deceased was extubated after demonstrating the ability to breathe independently.
  • Based on the Aldrette Scoring system, the score recorded was 10/10 and the Deceased was said to be qualified to be sent to the normal ward instead of the High Dependency Unit or Intensive Care Unit. The pre-discharge checklist indicated that the Deceased did state that the pain was at the rate of 8/10.
  • The Deceased was observed for a period of 15 minutes after the surgery and a further 15 minutes after the reversal agent was administered. The 3^rd Defendant had a discussion with the 2^nd Defendant before deciding to discharge the Deceased from the observation room to the normal ward. The 3^rd Defendant also spoke to the Deceased to ensure that he was well, could control his bodily functions and could breathe unassisted by machines in deciding that it was safe for the Deceased to be released to the normal ward.
• • (ii) Events at the normal ward
  • The Deceased was carted into the normal ward at 9.10pm. Around 9.30 p.m., the Deceased’s condition deteriorated and showed signs that he was asphyxiated. The Deceased’s skin turned bluish indicating low blood oxygen levels and he had difficulty in breathing.
  • The 2^nd Defendant who happened to make his rounds nearby was alerted of the situation and initiated a Code Blue. He immediately started to resuscitate the Deceased after the crash cart was brought into the ward within 5 minutes of the Code Blue alarm.  The initial intubation attempt failed. The 2^nd Defendant had only resuscitated the Deceased using the supplied ambu bag with the air alone in the room, without the oxygen link. The oxygen converter required to connect the ambu bag to the oxygen supply was missing from the ward.
  • The 3^rd Defendant was also alerted of the Code Blue alarm and arrived at the ward at around 9.35 p.m. It was found that the 2^nd Defendant had wrongly intubated the Deceased and the endotracheal tube was inserted into his oesophagus.
  • The 3^rd Defendant removed the earlier endotracheal tube. He then ambu bagged the Deceased with the oxygen line connected with sufficient oxygen supplied, and the Deceased was successfully resuscitated. The Deceased was then sent to the Intensive Care Unit for further care.
• • (iii) Events at the Intensive Care Unit
  • The Deceased underwent multiple CT scans, showing cerebral oedema and both cerebral and cerebellar oedema, consistent with hypoxic ischemic encephalopathy i.e a type of brain injury that occurs when the brain experienced a decrease in oxygen or blood flow.
  • Despite further medical interventions, the Deceased’s condition did not improve, and he was later discharged with severe neurological impairments. He unfortunately passed away subsequently.

Findings of the High Court

5. On the issue of whether the Deceased was fully informed of all possible alternatives and that the risks of the operation and anaesthesia, the Court did not find any liability against the Defendants.

• (a) The Court found that the doctors have explained all of the related risks to the Deceased. The only error on the part of the 2^nd Defendant as pointed out by the learned Judge was the failure to note down in detail the particulars of the advice given to the Deceased.

• (b) The Deceased was given ample time to consider whether to undertake the operation. In this regard, the Court was of the opinion that the duly executed consent forms were indicative that the risks of the operations and anaesthesia were sufficiently explained to the Deceased.

6. The Court however found the Defendants to be negligent for the events post-surgery and held them to be jointly and severally liable for the damages claimed by the Plaintiff. Below are the findings made by the Court:-

In respect of the 2^nd Defendant and 3^rd Defendant:-

• • (a) The decision to discharge the Deceased after being in the observation room for 30 minutes was found to be premature and taken as evidence that the 2^nd Defendant and 3^rd Defendant were negligent.

• • • (i) There was no proper discussion between the nurses and the doctors on the Aldrette scoring. The nurses did not explain the condition of the Deceased to the 2^nd Defendant and 3^rd Defendant at the time when the Aldrette scoring was recorded.
    • (ii) The 2^nd Defendant’s own expert witness, Dr. Jeevanan Jahendran agreed that based on the risks involved in the operation, it is prudent to have kept the Deceased in the observation bay for at least an hour to ensure that the Deceased would be able to breathe on his own and mitigate any possible risks of asphyxiation, more so when the type of operation was undertaken within the airway region of the Deceased. Dr. Jeevanan Jahendran also said that he would have sent the Deceased to the High Dependency Unit to ensure that the Deceased is given sufficient attention considering the age of the Deceased, his condition that he was still drowsy and the pain score at the rate of 8.
    • (iii) The clinical assessment undertaken, despite being based on the Aldrette score, falls short of the standard expected of a competent and reasonably experienced medical practitioner. The 2^nd Defendant and 3^rd Defendant had failed to appreciate the risk faced by the Deceased, the type of medication used and the type of operation undertaken in this case before the Deceased was discharged.

• • (b) The Court further found that the 1^st Defendant was negligent and did not act in accordance with the expected standards of a hospital providing care to its patient.
    • (i) The 1^st Defendant failed to ensure that proper medical facilities were made available to the Deceased at the ward. The oxygen adapter was missing from the room and had to be sourced elsewhere during the critical time, which had led to the Deceased being in a cyanosed state.
    • (ii) The nurses who attended to the Deceased did not record the incident in detail and failed to record the missing oxygen adapter as well as the 2^nd Defendant’s failure to undertake the intubation.
    • (iii) There were no records made and kept by the 1^st Defendant of the Code Blue event detailing the respiratory or cardiac emergency performed.

• • (c) The Court also found the 2^nd Defendant to be negligent in failing to intubate the Deceased successfully when he was cyanosed. The intubation should have been successful within a short time of at most 4 minutes and not within 10 minutes. The Court rejected the 2^nd Defendant’s explanation that he does not usually undertake the intubation of the patients and that his last attempt was during his housemanship. In rejecting the 2^nd Defendant’s suggestion that such tasks should be left to the anaesthesiologist, the Court relied on the expert’s opinion, Dr. Jeevanan Jahendran and Dr. Syed Rozaidi who explained that an ENT surgeon would be able to intubate properly as they are trained within the trachea region and would be familiar with the air passageway. This is a skill expected of any reasonably competent doctor, even from a houseman fresh from university.

• • (d) In assessing the evidence including the expert’s testimonies, the Court held that the actions of all the Defendants are inextricably linked to one another that caused damage to the Deceased and his eventual death. The Court ordered the damages of RM5,178,037.21 to be borne jointly and severally by the Defendants.

Key takeaways

7. This case highlights the following trite legal principles:-

• • (a) A doctor / medical practitioner owes a duty of care to his or her patient that must be discharged in “accordance with a practice accepted by a responsible body of medical men skilled in that particular art.
  • (b) A doctor / medical practitioner is not guilty of negligence if he or she has acted in accordance with such a practice, even if there exists a body of opinion that takes a contrary view.
  • (c) The said doctor / medical practitioner also owes a duty of care to the patient to warn him or her of the material risk inherent in the treatment that is being proposed.
  • (d) What amounts to a material risk will depend on the circumstances of the case and “whether a reasonable person in the patient’s position would be likely to attach significance to the risk.
  • (e) The medical practitioner is “duty bound by law to inform his or her patient, who is capable of understanding and appreciating such information of the risks involved in any proposed treatment” to enable the patient to make an election of whether to proceed with the proposed treatment with knowledge of the risks involved or decline to be subjected to such treatment.

8. In addition, this case echoes the principle set out recently by the Federal Court in the case of Siow Ching Yee (menyaman melalui isteri dan wakil litigasinya, Chau Wai Kin) v Columbia Asia Sdn Bhd [2024] MLJU 444 wherein the Court emphasized that private hospital owes a non-delegable duty of care for the treatment and care of patients, regardless of who it may have delegated that duty and who may have performed the act or omission complained of.

9. It is also essential to note the importance of maintaining thorough records of all events to effectively present your position in Court. In this case, the Defendants were at a disadvantage due to the absence of records, including the 2nd Defendant’s advice to the Deceased on alternative treatments, discussions between the nurses and the 2^nd and 3^rd Defendants regarding the Deceased’s condition and Aldrette scoring, and details of the Code Blue event.

10. Lastly, a comprehensive assessment and opinion by experts in the relevant expertise play a critical role in medical negligence claims. For instance, in this case, the Court preferred the opinion of Prof Dr. YK Chan over Dr. Syed Rozaidi, as Prof. Dr. Chan’s report was thorough, took into account all material factors and provided clear justifications for his opinion.

This article is intended to be informative and not intended to be nor should be relied upon as a substitute for legal or any other professional advice.

About the Authors

Chan Jia Ying
Senior Associate
Civil & Commercial Dispute Resolution, Corporate & Commercial Contracts, Taxation, Insolvency & Winding Up, Employment, Medico-Legal
Harold & Lam Partnership
jiaying@hlplawyers.com

Damia Amani
Associate
Dispute Resolution
Harold & Lam Partnership
damia@hlplawyers.com