1. Damages that one can seek when pursuing a medical negligence claim are compensatory in nature, meant to cover the losses and suffering incurred due to the negligence. Generally, the types of damages fall under the following categories: –

• (i) Special Damages;
• (ii) General Damages; and
• (iii) Aggravated Damages

Special Damages

2. Special damages are monetary losses that can be quantified for example, medical bills, costs of medical equipment, rehabilitation, supplements and special food, travelling expenses, traditional treatments, counselling, costs of engaging a carer or maid etc.

3. In Nur Arissa Naura Noor Affrizal & Anor v Dr. Abirami Kunaseelan & Ors [2023] 5 CLJ 793, the Court awarded costs for amongst others, cost of special equipment, cost of therapies and counselling sessions, cost of personal care items (wipes and creams), cost of value of care and costs for continuous expenses for nutrition, special food, vitamins and supplements.

4. What if you do not have documentary proof or receipt for certain expenses? Understandably, it would be unrealistic to expect anyone to keep a record of all the receipts, bills and/or invoices for all the expenses. In such situation, the Court may accept oral testimony to support the claims, provided that the expenses are within a reasonable sum and they are justifiable in the circumstances (Nur Syarafina bt Sa’ari v Kerajaan Malaysia & Ors [2019] 12 MLJ 41).

5. Additionally, any pecuniary losses suffered during the period from the date of the negligent act until the conclusion of the case where the Court delivers its decision is also claimable and had been granted by the Court (Nurul Husna Muhammad Hafiz & Anor v. Kerajaan Malaysia & Ors [2015] 1 CLJ 825).

General Damages

6. In contrast to special damages, other types of claims that are non-monetary and/or cannot be quantified are termed general damages. Examples of general damages, which are non-exhaustive, include the followings:-

• (i) pain and suffering arising from physical pain and psychological impact such as trauma, anxiety and depression caused by the injury.
• (ii) loss of amenities of life, e.g. loss of body faculties, deprivation of ordinary experiences, sexual impotence, loss of marriage prospects.
• (iii) loss of earning capacity.
• (iv) Gratuitous care provided by family members to the victim.
• (v) Future general damages such as physiotherapy, medications, surgeries, medical equipment, consumables etc.

7. General damages are commonly awarded based on precedents, comparable cases, factual assessments and estimations of a reasonable sum for the injuries sustained by the victim.

8. For better illustration, below are some cases where the Court awarded general damages.

• i. In the case of Sheela Christina Nair v Regency Specialist Hospital Sdn Bhd & Ors [2016] MLJU 1899, the plaintiff underwent a laparotomy to remove fibroids but suffered perforation of her small intestines due to negligently performed surgery. As a result, she suffered injuries to her bowel and had to rely on colostomy bags for support. Despite eventual recovery from the prolonged suffering, the Court recognized the extent of her pain and awarded her RM240,000.00 for both physical and emotional distress, and for the loss of amenities of life.
• ii. In the case of Pantai Medical Centre Sdn Bhd v Fareed Reezal Arund & Another Appeal [2022] 2 CLJ 173, the Court awarded RM400,000.00 to the plaintiff, who suffered serious brain injury resulting in a persistent vegetative state, as general damages for pain and suffering and loss of amenities of life.
• iii. In Nur Arissa Naura Noor Affrizal & Anor v Dr Abirami Kunaseelan & Ors [2023] 5 CLJ 793, the Court awarded RM500,000.00 as general damages for pain and suffering, and loss of amenities of life, considering that the patient was a 4-year-old child suffering from brain damage and was estimated to have another 40 years of life expectancy.
• iv. In Airis Nurhana Bt Alfian (seorang kanak-kanak yang menyaman melalui ibu bapa dan wakil litigasinya Alfian Bin Zainudin) v Darul Aiman Sdn Bhd & Anor [2023] MLJU 214, the Court considered the evidence that de-rotational surgery would be required in the future and allowed reasonable expenses associated with such future expense, including the cost of the surgery, physiotherapy and occupational therapies, consultation fees, cost of equipment and replacements.
• v. In Yusnita Bt Johari (suing through her husband and litigation representative Khairil Faiz Bin Rahamat) v Dr Jerilee Mariam Khong & Ors [2023] 9 MLJ 629, where the plaintiff suffered severe and irreversible brain damage as a result of the defendant’s negligence, the Court awarded, amongst others, the sum of RM 3,348,889.60 for pain and suffering, loss of amenities of life and future general damages (including cost of assistive equipment, medical expenses, therapy, care, future loss of earnings and the value of care provided by family members).
• vi. In Norfazlin Bt Zamani v Kerajaan Malaysia & Ors [2022] MLJU 3696, the plaintiff lost her reproductive organs as a result of the defendant’s action. The Court awarded, amongst others, the sum of RM260,000.00 for the physical and psychiatric pain and suffering, and loss of amenities of life that the plaintiff has to endure.

Aggravated Damages

9. Aggravated damages are awarded as additional compensation for intangible injuries to the interest or personality of the victim, resulting from the contumelious, offensive or exceptional conduct of the defendant.

10. In the case of Hari Krishnan & Anor v Megat Noor Ishak Bin Megat Ibrahim & Anor and other appeal [2018] 3 MLJ 281, the Federal Court upheld an award of RM1million as aggravated damages against the defendants who subjected the plaintiff to unnecessary risks of bucking which led to blindness in the plaintiff’s right eye.

11. Other grounds that led the Court to award aggravated damages include the suppression of medical reports, refusal to admit liability in clear cases which prolonged the proceedings, and altering the medical records (Ahmad Radhiq Arbee bin Ahmad Rejal Arbee (as a husband and dependant of Sharifah Shalihah bt Sayed Abdullah, deceased) & Ors v Kerajaan Malaysia & Ors [2020] 10 MLJ 459; Nur Syarafina bt Sa’ari v Kerajaan Malaysia & Ors [2019] 12 MLJ 741; Dato’ Stanley Isaacs v The Government of Malaysia & Ors [2019] 8 MLJ 331).

Conclusion

12. It is important to be mindful that ultimately, the amount awarded by the Court is discretionary and hinges on the specific facts of the case. It is crucial to support your claim with expert medical opinions and seek legal advice promptly, while details are still fresh in mind. This enhances the credibility of your case and ensures that you can effectively pursue compensation for the losses and suffering incurred.

About the authors

Chan Jia Ying

Senior Associate

Civil & Commercial Disputes Resolution, Corporate & Commercial Contracts, Taxation, Insolvency & Winding Up, Medico-Legal

Harold & Lam Partnership

[email protected]

Damia Amani binti Shaiful Bahri

Senior Associate

Dispute Resolution

Harold & Lam Partnership

[email protected]