Legal Negligence Claim Over Cerebral Palsy Case

[2013] 1 LNS 1274 Legal Network Series
IN THE HIGH COURT OF MALAYA AT JOHOR BAHRU

IN THE STATE OF JOHOR DARUL TA’ZIM
[CIVIL SUIT NO: 22-515-2009]
BETWEEN
1. SA-ART SAE-LEE
Juga dikenali sebagai SA-ART PHUAKTHIM
2. CLEO LI HUIFEN (budak)

mendakwa melalui ibu dan
sahabat wakilnya, Sa-Art Sae-Lee
juga dikenali sebagai Sa-Art Phuakthim … PLAINTIFFS
AND
1. DR NOOR AINI HAJI SA’ARI

2. MEDICAL CENTRE (JOHOR) SDN BHD … DEFENDANTS
DI HADAPAN
YA TUAN GUNALAN MUNIANDY
PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI
JUDGMENT
Factual Background
[1] At all material times preceding the commencement of this suit, the
First Plaintiff (PW3) was a patient of the First Defendant (DW2) who
practised as an obstetrician and gynaecologist (‘O and G’) employed by the
Second Defendant at a specialist hospital owned by the Second Defendant
known as Puteri Specialist Hospital in Johor Bahru (‘PSH’).
[2] The Second Plaintiff is an infant who sues by PW3 as her mother
and next friend. She is now aged about 10 - 11 years.
1
[3] PW3 is a Thai national married to a Malaysian Chinese gentleman

(PW1) who is now about 64 years old. She understands neither Bahasa
Malaysia nor English and is able to converse only in Thai and some
Chinese.
[4] This is how the events leading to the claim began. On

07.07.2002, PW3, then aged 33, together with PW1, her husband, engaged
the services of DW2 at PSH. During the consultation on that day, DW2
carried out an examination on PW3 and confirmed that the latter was
pregnant with twins. They were naturally elated with little or no knowledge
of the attendant danger and higher risks involved and what was to follow.
Some 4 months later, on 17.11.2002, PW3 was observed by DW2 to be
suffering from pregnancy induced hypertension and upon DW2 ’s advice,
she was admitted into PSH for further management of her pregnancy.
[5] Sometime in the morning of 20.11.2002 PW3 was informed by

DW2 that the younger of the twins that she was bearing had died. At about
1.00 p.m. on the same day DW2 performed a caesarean section operation
on PW3 whereupon both the Second Plaintiff and the dead twin were
delivered.
[6] Subsequently, at 1½ years of age, the Second Plaintiff was

diagnosed to be suffering from cerebral palsy/atrophy. Hence, the present
claim by the Plaintiffs against the Defendants for negligence resulting in the
disabilities that she now endures. The claim against the Second Defendant
has since been withdrawn before the trial commenced.
Plaintiffs’ Claim
[7] The Plaintiffs pleaded cause of action founded on a host of

allegations has been summarized in the Defence Submission as follows:
“1) the pre-natal screening, examinations and findings were not

done or recorded properly by the 1st Defendant so that the
management of the twin pregnancy could be carried out
satisfactorily;
2
2) the 1 st Plaintiff’s twin pregnancy was not observed

sufficiently by the 1 st Defendant to determine the danger of
continuing her pregnancy;
3) the 1 st Defendant failed to advise the 1 st Plaintiff on the
alternative options such as termination of pregnancy,
Selective Feticide, referral to an MFM specialist and in-utero
transfer;
4) the 1st Defendant failed to obtain an opinion from an MFM
specialist;
5) the 1 st Defendant failed to warn the 1st Plaintiff of the risks of
continuing the pregnancy; and
6) the 1 st Defendant’s failure to carry out the necessary
procedures and to attend adequately to the TTTS caused
the 2 nd Plaintiff’s cerebral palsy.”.
“MFM” refers to ‘materno-fetal medicine’ while ‘TTTS’ stands for twin to twin
transfusion syndrome.
[8] In the Amended Statement of Claim, it is further alleged, inter-alia,

that the First Defendant,
1) Failed to determine the amnionicity and chorionicity, the
amniotic fluid volumes, the fundal heights and growth of the
foetuses properly, in time or at all;
2) Failed to obtain advice/opinion of or to transfer the First
Plaintiff to a tertiary level fetal medicine centre;
3) Failed to attend properly, in time or at all to the serious
morbidity faced by the Second Plaintiff when the co-twin
showed discordant fetal anomaly;
4) Failed to make proper findings and record adequately all
findings during the ante-natal and intra-partum care period
3
and thereby failed to appreciate the First Plaintiff’s

monochorionic twin pregnancy and its complications.
Defence of the First Defendant
[9] DW2 categorically denied having been negligent in the treatment
and management of PW3’s twin pregnancy right up to the delivery of the
Second Plaintiff. In gist, the defence as summarised in her Counsel ’s
submission is as follows:
“The 1 st Defendant did not cause or materially contribute to any
loss and/or damage that may be proven to have been, or will be,
suffered by the Plaintiffs.
It is the 1 s t Defendant’s case that there were no viable
options that could have prevented the 2 n d Plaintiff’s
disabilities; and
As a matter of causation, the 2 n d Plaintiff’s cerebral palsy
was caused by prematurity which could not have been
avoided.
The 1 st Defendant had, in the circumstances pertaining to the
Plaintiffs, acted with the skill and diligence expected of a medical
practitioner in her respective position and in accordance with the
practice accepted by a responsible body of medical opinion in
Malaysia at that material time in 2002.
Given the circumstances, the 1 st Defendant’s conservative or
expectant management of the 1 st Plaintiff’s pregnancy was
appropriate.
There was clear medical indication that an urgent delivery of
the 2 nd Plaintiff was necessary. As such, the 2 nd Plaintiff had
to be delivered prematurely.”.
Issues for Determination
[10] 1) Whether the First Defendant had breached her duty of care
towards the First Plaintiff in the management and treatment of
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the First Plaintiff’s twin pregnancy which was a high risk

pregnancy (‘HRP’)?
2) Whether the breach of the duty of care or negligence by the
First Defendant, if any, had caused the disabilities and mental
impairment suffered by the Second Plaintiff?
Analysis of Evidence
[11] Both parties called distinguished experts in the fields of O & G and
paediatrics in support of their respective cases. It was a contest of which
expert evidence on medical negligence withstood the test of logical
analysis. The defence submitted that as a general rule expert evidence in
a medical negligence case may only be rejected by the Court if it is
demonstrated that such evidence does not withstand logical analysis.
Reference was made to the judgment of Lord Browne-Wilkinson in Bolitho
v. City & Hackney Health Authority [1997] 3 WLR 1511 (at p. 1160) which
states:
“... if, in a rare case, it can be demonstrated that the professional
opinion was incapable of withstanding logical analysis, the judge is
entitled to hold that the body of opinion is not reasonable or
responsible.
In the vast majority of cases, the fact that distinguished experts in
the field are of a particular opinion will demonstrate the
reasonableness of that opinion.
I emphasise that in my view it will very seldom be right for a judge
to reach the conclusion that views genuinely held by a competent
medical expert are unreasonable. The assessment of medical
risks and benefits is a matter of clinical judgment which a judge
would not normally be able to make without expert evidence. As
the quotation from Lord Scarman makes clear, it would be wrong
to allow such assessment to deteriorate into seeking to persuade
the judge to prefer one of two views both of which are capable of
being logically supported. It is only where a judge can be satisfied
that the body of expert opinion cannot be logically supported at all
5
that such opinion will not provide the bench mark by reference to
which the defendant’s (doctor’s) conduct falls to be assessed.”.
[12] In order to resolve the issues in dispute scrutiny of the history of

antenatal (prenatal) care by DW2 is called for. The first antenatal visit was
on 16.05.2002 at 8 gestational weeks or amenorrhea. All vital signs on
examination were normal. A twin pregnancy was diagnosed by ultrasound.
The crown rump length (‘CRL’) was equivalent to 11 weeks 6 days for the
first twin and 11 weeks 1 day for the second twin. Chorionicity was not
determined and the drawing appears to suggest monocorionic twins. The
expected date of delivery recorded as 22.02.2003 was not corrected at this
visit.
[13] According to Plaintiffs’ expert witness (PW7) who was then Head
of the O & G Department, Kuala Lumpur General Hospital, there is poor
documentation of the various subsequent visits as the dates are not clearly
seen and the gestational age appears not to have been corrected despite
the discrepancy between the ultrasound parameters and the gestational
age. There were also errors in the notation of white blood cells and status
of the second twin.
[14] PW7 further noted that DW2 had failed to determine chorionicity at
the earliest possible opportunity. This would have enabled her to classify
chemical risk, offer genetic counseling and prenatal screening if required.
Chorionicity and amnionicity can be assessed accurately in 100% of cases
when performed before 13 weeks, DW2, in DW7’s opinion, failed to
perform detailed examination of the membranes after delivery to determine
the chorionicity. DW2 failed to send the placenta and membranes for
histopathological examination.
[15] The subsequent visits were uneventful except for the discrepancy
in growth rates between the first twin and the second twin. At 27 weeks
gestational age by ultrasound the first twin weighed 826 gm while the
second twin at 26 weeks 2 days weighed 826 gm.
6
[16] Two weeks later, on 17.11.2002, DW3 was admitted for mild
pregnancy induced hypertension (blood pressure at 160/100) and twin-to-
twin transfusion syndrome (‘TTTS’) was noted. At this point, the first twin at
on ultrasound gestational age of 28 weeks and 6 days weighed 1450 gm
while the second twin at 28 weeks and 1 day weighed only 900 gm
indicating an increased rate of growth difference. On 18.11.2002 she was
considered for discharge on the following day as her blood pressure and
CTG (cardiotocography) had normalised. However, on the following day
the discharge was cancelled due to the increased blood pressure.
[17] In PW7’s view, DW2 should not have considered discharge on

18.11.2002 as the diagnosis was also TTTS which should have been
investigated further. TTTS could already have been suspected at 24
weeks gestational age itself due to the significant weight difference
between the twins (1102 to 826 gm) DW2 should have initiated counseling
and perhaps also referred the case to a materno-fetal medicine specialist at
that juncture. A Doppler ultrasound at the time of discharge should have
been performed to enable assessment of the severity of the TTTS. If DW1
did not have the expertise to carry out the test, the patient could have been
referred to another medical practitioner or the public hospital. An in-utero
transfer would have provided optimal conditions for the foetus after birth
rather than transfer after birth as was done in this case.
[18] PW7 also said that a patient who had a twin pregnancy faced a
high risk of morbidity when the co-twin dies. In the event of this, the
surviving twin faced a high risk of cerebral palsy. In PW7 ’s finding, the
cause of the cerebral palsy was probably a peripartum factor although a
postpartum factor such as insult during the transfer to Hospital Sultanah
Aminah, Johor Bahru (‘HSA’) cannot be conclusively excluded.
[19] In PW7’s view, the failure of DW2 to document the chorionicity and
amnionicity of the twin pregnancies at an early stage resulted in failure to
advise PW3 on the treatment options available, including early termination
of the pregnancy. A Doppler examination after admission, which she failed
to perform, would have allowed the patient to keep the foetus in-utero as
long as possible to obviate the effects of prematurity. An in-utero transfer
which would have provided the best outcome for the surviving twin was not
7
advised to the patient. The severity of the pre-eclamptic process was not
assessed as DW2 failed to assess protein-uria on a daily basis. In
conclusion, he said that the shortfalls in antenatal care aggravated an
already high risk twin pregnancy with the demise of the co-twin.
[20] Dr. Malinee Thambyayah (PW6) was a paediatric neurologist

engaged by the First Defendant to examine the Second/Infant Plaintiff
(‘Cleo’) and produce a report. However, her report submitted to the First
Defendant on 14.11.2009 was filed in Court by the Plaintiffs who called her
as a witness. She agreed with the MRI findings of radiologist Dr. Vimalah
of the Pantai Specialist Hospital whose report was produced. In PW6 ’s
finding, the likely and probable cause of the cerebral palsy suffered by Cleo
is a combination of the following:
(a) This was a monochorionic twin gestation complicated by

TTTS from possibly 19 weeks gestation.
(b) Death of Co-twin resulting in acute feto-fetal transfusion.
(c) Hypoglycemia and Metabolic Acidosis diagnosed at birth and

during resuscitation resulting in Hypoxic Ischaemic
Encephlopathy (HIE) which in due course led to cerebral
palsy and quadriplegia.”.
[21] The co-twin was found macerated upon surgery (caesarian

section) which implied that it had died at least 12 hours earlier. Dr.
Catherine Tham (PW4), the attending pediatrician, testified that the
demise of the co-twin would have taken place at least 48 hours earlier.
According to PW6, fresh still births usually reflect the quality of intrapartum
care (during labour) while macerated still birth reflects the quality of
antenatal care (pre-natal care during pregnancy). The inference in this
case was that there were shortcomings in the antenatal care resulting in
the said macerated still birth.
[22] According to the Magnetic Resonance Imaging (‘MRI’) Brain

Report, the findings of Dr. Vimalah are, inter alia, these:
8
“…
There is marked reduction in white matter volume. This maybe
due to hypoxic-ischaemic injury which is high in twin pregnancies
of the monochorionic type due to twin-twin transfusion.
There are no basal ganglia, thalamic, brain stem or cerebellar
infarcts.
The corpus callosum is very thin. There is ulegyria seen
bilaterally.
CONCLUSION
1) Bilateral periventricular leucomalacia, markedly decreased
white matter bulk and cerebral atrophy.
2) No thalamic, basal ganglia, brain stem or cerebellar
infarcts.”.
[23] PW6 disagrees with the view of defence expert Dr Hussain Imam
(DW1) that events at birth (intrapartum) and immediately after birth
(perinatal) are not a likely cause of Cleo's brain injury. She says that cystic
leucomalacia is a more severe form of brain injury which the infant did not
suffer as shown by the MRI done by Dr. Vimalah in 2009. An ultrasound
done at an early stage on day two of the infant's life would not have
revealed brain damage; only MRI or serial ultrasound could have detected
this damage.
[24] Associate Professor Mahesh Choolani (PW8), Senior Consultant

O & G from Singapore, commented comprehensively or the ante-natal care
of the infant. His essential findings and observations are these. There was
no proper recording of the symphysis fundal height ('SFH') of the foetuses
to determine consistency with gestation age. As the SFH was recorded as
smaller in weeks 24 and 26, it implied severe oligohydramnios or that the
twins were extremely small, ie, lesser amnioitic fluid and hence signs of
TTTS. The gestational age discrepancy was resolved by DW2 only on
admission on 20.11.2002.
9
[25] According to PW6, an early determination of chorionicity and

amnionicity which was important for accuracy was not done at all. It would
have enabled DW2 to consciously look for TTTS because diagnosis of
TTTS requires the presence of HCDA twins and difference in amniotic fluid
volume. The amniotic fluid (liquor) was not documented. Its purpose is to
know the individual maximum amniotic fluid pocket in each of the two sacs
and if done, would have triggered the diagnosis of TTTS. Likewise, a
Doppler should have been done as any abnormality in Doppler would
indicate that the foetus is seriously compromised and the babies can be
brought out before the foetal demise. The death of one foetus in-utero
would result in shunting of blood from one side to another causing
hypotension and therefore, cerebral palsy can occur.
[26] In gist, what PW6 said about TTTS was that if DW2 had
recognised its onset earlier, prompt remedial measures could have been
taken such as obtaining consultation, referral or urgent assistance for care
of the patient, who could have been enlightened on the risks and the
available options. The obstetrician needed to know the risk of neurological
damage caused by TTTS. The best evidence there is in DW2’s medical
notes is that during admission there was suspicion of TTTS but the saverity
and grade of the TTTS are not documented at all. DW2’s anticipation was
an extreme preterm birth of a pair of twins compromised by TTTS.
Concerns of mortality, long term morbidity, cost of prolonged ICU
admission and possibility of in-utero transfer to a Government Hospital
ought to have been discussed but were not clearly noted. The
shortcomings in the antenatal record where chorionicity was not mentioned
and amniotic fluid pockets were not measured left no clear evidence to
make the diagnosis of TTTS. As all the data was not in place even a MFM
specialist would find it difficult to make the diagnosis.
[27] Dr. Hussain Imam (DW1), a Senior Paediatric Neurologist and

Head of the Department of Paediatrics in Hospital Kuala Lumpur ( ‘HKL’)
first gave evidence on the likely causation of Cleo’s cerebral palsy and
quadriplegia. According to him, it is very difficult to give an exact time of
the brain damage suffered by Cleo as it was a gradual occurrence and not
one of sudden onset. This was what he said as to whether it occurred
during the events surrounding her birth:
10
“This is unlikely as she had a relatively good Apgar score of 7 at 1

minute and 8 at 5 minutes. If there was catastrophic event at birth,
the Apgar score would be below 5 at 5 minutes.
She was also noted to be active and was moving all four limbs once
her premature lungs had been supported by intubation and
ventilation. She did not show any signs of acute neurological injury at
the time of birth such as a depressed conscious level or fits. Her
cranial ultrasound was also normal. She was subsequently weaned
off the ventilator on day 4 without difficulty and could be started on
oral feeds on day 3 of her life.
These facts indicate that she did not suffer any serious hypoxic
ischemic injury at the time of birth.”.
[28] He was also of the view that it was unlikely based on the facts that
the brain damage occurred in-utero. The cause is likely to have been a
sub-acute process after the child was born rather than a single catastrophic
event before or during the child’s delivery. His view was essentially that the
probable cause of Cleo’s cerebral palsy was her prematurity and the known
complications associated with severe premature birth. He said that as the
child was born between 28 to 30 weeks gestation, that itself was a known
risk factor for subsequent periventricular leucomalacia (‘PVL’). He
subsequently added that Cleo suffered from other complications of
prematurity such as idiopathic respiratory syndrome and hypoglycaemia
that could have contributed to the brain damage. However, he said in
cross-examination that the overriding factor was the Apgar score at the
time of birth irrespective of the physical condition of the baby then such as
pale, dusky, etc. A good Apgar score and ultrasound (‘USG’) reading 2
days later revealed no ischemic damage which showed that the infant did
not suffer hypoxic injury at birth. For similar reasons, he discounted
hypoxic ischemic injury or brain damage in utero. According to him, the
PVL shown in the 2009 MRI by Dr. Vimalah was common in premature
babies. If there had been a single catastrophic event before or during birth,
the MRI would have shown cystic leucomalacia and not PVL. However, no
reported studies were produced to confirm his opinion.
[29] DW1 also discounted TTTS between the surviving and the
deceased twins in-utero in that the onset of TTTS would have caused
11
severe hypotension and anaemia resulting in brain damage. As the MRI

done by Dr. Vimalah in 2009 did not disclose this damage, TTTS could not
have occurred. His opinion on this issue was shown to be based on certain
wrong assumptions. Dr. Malinee never found severe hypotension of which
there was no evidence. From the medical literature referred to by DW1
himself (Barkovich - Exhibit D17) severe hypotension was a different
situation from mild to moderate hypotension, each with different effects. In
the latter situation, only damage to the periventricular/deep white matter is
shown. This is exactly the injury noted by Dr. Vimalah in the 2009 MRI,
scan arising from mild to moderate hypotension. Among Barkovich ’s
findings was that patients with moderate injury almost always had spastic
and dyskinetic motor impairment. DW1 himself, surprisingly, said that the
type motor impairment that Cleo suffers from is “spastic and dyskinetic
palsy”, ie, dystonic, which is one of the 3 physiological classifications of
cerebral palsy.
[30] DW1 also made reference to medical literature by Volpe which
only concerns severe and not moderate TTTS. He had not noted the
observation of Volpe that, “The TTTS is the setting for most brain injury
associated with twin gestations”. He merely disagreed with this view
without substantiating his stand.
[31] Hence, it can be seen that DW1’s premises for the conclusion that
the brain damage suffered by Cleo resulting in cerebral palsy could not
have occurred in-utero by reason of TTTS were shown to be incorrect and
unjustified. DW1’s view that postnatal events around more than 37 weeks
of the child’s post-conceptional age was a possible cause of the brain injury
was not supported by any explanation or medical opinion. There was no
evidence of any postnatal event seven weeks after delivery that indicated
that the child suffered a sub-acute brain damage at or around that point in
time. She was in hospital for one month after birth during which time there
was no evidence of any injury being suffered. DW1 conceded in cross-
examination that early ultrasound (USG) diagnosis that did not reveal brain
damage could not possibly determine whether the cerebral insult in the
infant occurred antenatally or as a consequence of post-natal events. This
was when he was referred to a study that found that white matter damage
may not be shown in early scans. Further, that the cerebral atrophy that
was noted evolved over a number of months. He also conceded that the
12
mechanical ventilation of the infant upon birth exposed it to a greater risk of

PVL. Also, as conceded by the paediatrician (Dr. Tham), that the Apgar
score was subjective and had its limitations. It was inappropriate to use it
alone to establish the diagnosis of asphyxia.
[32] Coming now to the evidence of the First Defendant (DW2) in her
defence to the claim, she admitted that her course and training as an O &
G specialist covered high risk pregnancies (‘HRP’) and management of
multiple birth. She defended the treatment and care that she had rendered
as being adequate and proper.
[33] While agreeing that serial ultrasound (USG) had to be done for
antenatal visits, she maintained that monthly USG was also considered
serial. This is contrary to the opinion of Dr. Malinee that serial meant
regularly or daily. As for correct pregnancy dating, she was aware that in
2002 it was essential but had forgotten to correct the gestational age to
arrive at the estimated date of delivery (‘EDD’). It was only done on the
day of the operation on 20.11.2002. She also agreed that the ante-natal
records did not contain any description of the amniotic fluid volume.
Similarly, she agreed that USG was a definitive why of recognising foetal
death but it was only done on 20.11.2002 to confirm the demise of the co-
twin that necessitated the caesarian operation. No USG was done on the
mother or the foetuses from admission on 17.11.2002 until then.
[34] The CTG records produced by DW2 were wholly unsatisfactory

and far from conclusive. An undated CTG was claimed to be that of the
second dead twin on 20.11.2002 solely by recollection. A second CTG has
a handwritten date of 18.11.2002 without any record of on which twin it was
done. A third CTG was also undated on which she herself wrote second
twin and claimed that it was done on 17.11.2002. She also claimed it
showed a good heart rate of the second (dead) twin. No CTG record of the
first twin (‘Cleo’) was produced without any credible explanation. The CTG
records were, thus, of negligible evidential value and could not assist
DW1's defence.
13
[35] DW2’s assertion that both twins were normal until 20.11.2002
conflicted with the overall evidence for several reasons. When she
admitted the mother on 17.11.2002, she recorded TTTS and mild
pregnancy induced hypertension (‘PIH’). On 18.11.2002, only one heart
rate was heard by DW2 on the left side, indicating the demise of one twin
by that date. On 19.11.2002, she noted poor progress of ‘foetus’, not
‘foetuses’. PW4 (the paediatrician) in her report recorded that the second
twin had died 48 hours prior to the delivery which would be before
18.11.2002. Therefore, on the evidence, DW2 had no valid reasons for
delaying urgent remedial measures right from 17.11.2012 to overcome the
risk created by the demise of the co-twin. In fact, failure to detect the
demise at that point in time was tantamount to negligence on her part.
[36] According to DW2, she was aware that this was a case of
monochorionic diamniotic twins (‘MCDA’) despite her drawings not showing
two gestational sacs which is indicative of this type of twins. What is
important is that she had diagnosed the onset of TTTS which only occurs in
monochorionic twins, particularly MCDA cases, and was aware of intra-
uterine growth discrepancy (‘IUGD’) from the weight discrepancy between
the two foetuses. The question was whether she had managed the HRP
with a sufficient degree of caution and urgency. The Plaintiffs ’ contention
was that the evidence disclosed her failure to appreciate the risks involved
and poor management of the HRP.
[37] DW2’s evidence that she had previous experience in handling
MCDA cases with the assistance of Dr. Catherine Tham (PW4) was
negated by the evidence of the latter that she had never assisted DW2
previously in MCDA cases. DW2 had also not produced records of such
handling despite a Notice to Produce Evidence. Even though DW2
confirmed that USG was the definite way of evaluating the condition of the
twins, her records and testimony showed that no USG was done on 18 and
19.11.2002 and only one was done on 20.11.2002. During this crucial
period, no repeat or serial USG was done and instead only a CTG was
done. Doing a CTG was shown not to be the definitive way of evaluating
the condition of the twins to ascertain the imminent death of the co-twin.
Her report that demise of one twin on 20.11.2002 was confirmed by the
placenta was not supported by any histological study having been done on the
placenta to confirm the diagnosis.
14
[38] DW2 in her medical report also states that Cleo was delivered well
with an Apgar score of 9. This was contrary to the evidence of the
paediatrician (DW4) that she needed resuscitation at the operation theater
(‘OT’) and had to be transferred to the Neonatal Intensive Care Unit
(‘NICU’) where she was diagnosed to suffer from respiratory and metabolic
acidosis that required intubation, ventilation and treatment during her stay
there. She had also to be Ambu-bagged for transfer from the OT to the
NICU. Hence, DW2’s evidence that there were no indications of the infant
being compromised at birth conflicted with the undisputed facts and lacked
credibility.
[39] The antenatal medical notes of DW2 which the experts relied upon
on the issue of the causation of Cleo's cerebral palsy only disclosed the
diagnosis of TTTS at two stages of the pregnancy, viz, upon admission on
17.11.2002 and on the date of the operation on 20.11.2002. There was a
complete absence of any further tests, examinations and findings which
would have facilitated expert opinion on the issue at hand.
[40] The Plaintiffs contended that the standard of care shown by DW2
to the expectant mother in respect of this extremely HRP of MCDA twins
was appallingly low for these reasons:
“(i) Proper obstetric management would have enabled her to

recognize the development of TTTS at an early stage and to
take measures or make referral.
(ii) The imminent death of co-twin was apparent on 17.11.2002

when mother was admitted with diagnosis of TTTS. No
ultrasounds (USG) to diagnose the condition of the twins
were done on 17, 18 & 19 November 2002. Neither was a
Doppler done.
(iii) As the 1 st Defendant was aware of TTTS, she must be or

should have been aware that the death of the co-twin would
immediately bring about acute feto-fetal transfusion to the
surviving twin and cause morbidity. This fact of acute feto-
fetal transfusion was agreed to by all experts.”.
15
[41] The evidence as to the treatment rendered to the First Plaintiff

considered together with the opinions of Plaintiffs’ experts pointed to DW2
not having acted with sufficient urgency and diligence commensurate with
the risks associated with TTTS to the surviving twin particularly consequent
upon the demise of the co-twin.
[42] Dr. Raman Subramaniam (DW3), the MFM specialist called by the
First Defendant came to the defence of her management of this twin
gestation HRP. The Plaintiffs, however, strongly urged the Court to reject
his opinions and findings on the ground that he had not shown himself to
be an independent and unbiased expert witness. It was alleged that apart
from being present almost throughout the trial, he had actively participated
in assisting defence counsel from time to time in the course of the trial
during the examination of Plaintiffs‟ expert witnesses and the cross-
examination of DW2. In disagreeing with the suggestion of Plaintiffs ’
counsel that he was biased in expressing his opinions, he sought to justify
the position he had taken by explaining that he had testified for both
Plaintiffs and Defendants in medical negligence cases. This is surely an
insufficient explanation to clear the air as to the doubts cast on his
independence and fairness as regards his evidence on the critical issues in
this case.
[43] Expert witnesses, who are generally highly-skilled professionals
with training in specialized fields, as in this case, are indeed a special class
of witnesses as their opinions are admissible as evidence under the law
[Section 51 Evidence Act, 1950] and crucial in assisting the Court to arrive
at a fair and just decision. As such, their professional integrity and
impartiality are of fundamental importance. Strict limits ought to be
observed as to the partisan approach taken and the extent of their
involvement in a party’s case at the trial. In this regard, Plaintiffs ’ counsel
drew the attention of the Court to the advice of Lord Wilberforce in
Whitehouse v. Jordan (1981) 1 All ER 267 as follows:
“One final word. I have to say that I feel some concern as to the
manner in which part of the expert evidence called for the plaintiff
came to be organized. This matter was discussed in the Court of
Appeal and commented on by Lord Denning MR. While some
degree of consultation between exper t s and l egal advi ser s i s
16
entirely proper, it is necessary that expert evidence presented to

the court should be, and should be seen to be, the independent
product of the expert, uninfluenced as to form or content by the
exigencies of litigation. To the extent that it is not, the evidence is
likely to be not only incorrect but self defeating.”.
[44] While I did not deem it fit to reject in toto the opinions and
evidence of DW3, a foremost and recognized MFM expert in the country,
on the grounds raised by the Plaintiffs, there were clearly aspects in his
evidence that called into question his independence and impartiality. To
start with, he had prepared his own witness statement and drafted
questions all of which elicited responses in favour of the defence. There
was wholly absent a proper and critical analysis of the treatment and care
rendered by DW2 in this complicated case of HRP that was called for from
an expert of his standing. This is especially so as the poor and incomplete
recording of medical notes by DW2 had hampered the Plaintiffs ’ experts
from expressing conclusive opinions on vital issues relating to the alleged
negligence by DW2.
[45] A perusal of DW3’s evidence revealed certain unsatisfactory

features. As against the weight of evidence, he said that proper
documentation of chorionicity and amnionicity would not have avoided the
adverse outcome as it would have made no difference. Chorionicity, in his
view, was hardly ever checked and growth of the foetus was done by serial
USG and changes in liquor (amniotic fluid) volume. This view was plainly
inconsistent with the body of evidence based on the various medical texts
and findings referred to by the experts including himself. The bottom line
was that it was extremely important to determine chorionicity of each
multiple pregnancy as early as possible for a proper diagnosis of “structural
and chromosomal abnormalities”. The same applied to his denial of the
importance of amniotic fluid volume being documented on a routine basis
which was not done by DW2.
[46] The prevailing and more acceptable view was that of Prof
Choolani (PW8) that if amniotic fluid volume had been documented it would
have triggered the diagnosis of TTTS. An element of bias was apparent
from the view expressed by DW3 on this material issue.
17
[47] Plaintiffs’ counsel also raised an issue of DW3 changing his

opinion in examination-in-chief that the demise of the co-twin was not a
case of TTTS but discordant growth or selective intra-uterine growth
reduction (‘IUGR’). In his Witness Statement, DW3 had not disagreed with
DW2’s diagnosis of TTTS nor had he expressed any opinion that the co-
twins’s demise IUGR or selective IUGR without TTTS. In fact what he had
earlier said was that he could not determine the exact cause of death but
that the discordant growth was clear. Nowhere had he discounted TTTS as
a factor. He supported his latter opinion by saying that PW8 too was of the
opinion that there was no evidence of polyhydramnios (excessive amniotic
fluid) so that this must be a case of selective. However, a perusal of PW8 ’s
evidence did not support DW3’s opinion. DW3 appeared to have
misquoted PW8. In answer to a question in cross-examination as to
whether PW8 had seen any polyhydramnios from the record, he said that
he could not answer the question as amniotic fluid volumes were not
documented in the antenatal period. While confirming that IUGR without
TTTS, known as selective IUGR, was possible, nowhere in his evidence did
he say that this was a case of selective IUGR and not TTTS.
[48] DW3 further denied the importance of the Doppler in the instant
twin HRP as was explained in the evidence of Dr. Ravindran [PW7] merely
by saying that Doppler was hardly ever done as not everybody has the
machine and CTG was the standard practice. He had not considered
whether the Doppler machine was available at the First Defendant hospital
in 2002.
[49] Generally, the complaint against the evidence of DW3, which
consisted of questions and answers prepared by himself, was that his
defence of the management of this pregnancy by DW2 as being proper and
sufficient was a bare expression of opinion without ascribing any reasons
or grounds for his opinion. He had, for instance, maintained that DW2 had
conducted all the necessary tests and examinations that could have
enabled an earlier determination of the adverse outcome. However, he
had failed to disclose what were the tests and examinations that DW2 had
actually carried out for this purpose. This was contrary to the view
expressed by Plaintiffs‟ experts that from the incomplete records and notes
of DW2 she had done virtually nothing to enable an early prognosis of the
adverse outcome, including the imminent danger to the surviving twin.
18
DW3 stressed that there was no known risks or danger to the foetuses until
20.11.2002 whereas the report of PW4 states that the co-twin, which was a
macerated stillbirth on delivery, had demised some 48 hours earlier. DW2
herself had admitted the mother on 17.11.2002 with a diagnosis of TTTS
and a note of poor prognosis of foetus. DW3 had failed to address the said
important evidence of PW4 which carried serious implications pertinent to
the issue of the alleged negligence by DW2.
[50] The evidentiary value of expert opinion depends largely on the
veracity of grounds given in support thereof. In other words, it has to be a
reasoned opinion for reception by the Court in the determination of issues
in dispute. Section 51 of the Evidence Act, 1950 states:
“Grounds of opinion when relevant
51. Whether the opinion of any living person is relevant, the
grounds on which his opinion is based are also relevant.”
In “The Expert Witness” by Jean Graham Hall & Gordon D. Smith, a
passage from the judgment of Cazelet, J in Re J (Child Abuse: Expert
Evidence) [1990] FCR states:
“Expert witnesses are in a privileged position: indeed only experts
are permitted to give an opinion in evidence. Outside the legal
field the court itself has no expertise and for that reason frequently
has to rely on the evidence of experts. Such experts must express
only opinions which they genuinely hold and which are not biased
in favour of one particular party. Opinions can, of course, differ
and indeed quite frequently experts who have expressed their
objective and honest opinion will differ, but such differences are
usually within a legitimate area of disagreement. On occasions,
and because they are acting on opposing sides, each may give his
opinion from different basic facts. This of itself is likely to produce
a divergence.
The expert should not mislead by omissions. He should
consider all the material facts in reaching his conclusions, and
must not omit to consider the material facts which could detract
from his concluded opinion.
19
If experts look for and report on factors which tend to support

a particular proposition or case, the report should still:
(a) provide a straightforward, not a misleading, opinion;
(b) be objective and not omit factors which do not support

their opinion; and
(c) be properly researched.”.
The Law on Medical Negligence
[51] The leading case which enunciated the principle of law relating to
the standard of care in determining medical negligence is Bolam v. Friern
Hospital Management Committed [1957] 2 All ER 118 where McNair J,
held:
“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.”.
[52] The above is commonly referred to as the Bolam principle.
Whether this principle has any further application in our jurisdiction is a
matter of debate since the advent of the Federal Court decision in Foo Fio
Na v. Dr. Soo Fook Mun & Anor [2007] 1 MLJ 593. It is, however, generally
accepted that the applicability of the Bolam principle across the board in
medical negligence cases has been watered down by the Federal Court
which dealt with the following question [per Steve Shim, CJ (Sabah and
Sarawak) in Foo Fio Na v. Dr. Soo Fook Mun & Anor [2002] 2 MLJ 129]:
“The main question for which leave is sought is stated as follows:

Whether the Bolam test as enunciated in Bolam v. Friern Hospital
Management Committee [1957] 2 All ER 118, in the area of
medical negligence should apply in relation to all aspects of
medical negligence.”.
20
[53] The Federal Court in answering the question posed in the negative
went on to hold that:
“The Bolam Test has no relevance to the duty and standard of
care of a medical practitioner in providing advice to a patient on
the inherent and material risks of the proposed treatment. The
practitioner is duty bound by law to inform his patient who is
capable of understanding and appreciating such information of the
risks involved in any proposed treatment so as 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.
… On this basis the Rogers v. Whitaker test would be more
appropriate and a viable test of this millennium than the Bolam
Test. On that the question posed to this court was answered in
the negative. The appeal was allowed and the orders of the High
Court on quantum are to be restored.”
[Per Siti Norma Yaakob FCJ, Foo Fio Na v. Dr. Soo Fook Mun & Anor
[2007] 1 MLJ 593].
[54] The Federal Court in the above case adopted with approval the
following passage from the Australian High Court case of Rogers v.
Whitaker [1992] 175 CLR 479 which held:
“In Australia, it has been accepted that the standard of care to be
observed by a person with some special skill or competence is that
of the ordinary skilled person exercising and professing to have
that special skill. But, that standard is not determined solely or
even primarily by reference to the practice followed or supported
by a responsible body of opinion in the relevant profession or
trade. Even in the sphere of diagnosis and treatment, the
heartland of the skilled medical practitioner, the Bolam Principle
has not always been applied. Further, and more importantly,
particularly in the field of non-disclosure of risk and the provision of
advice and information, the Bolam Principle has been discarded
and, instead, the courts have adopted the principle that, while
evidence of acceptable medical practice is a useful guide for the
21
courts, it is for the courts to adjudicate on what is the appropriate

standard of care after giving weight to the paramount
consideration that a person is entitled to make his own decisions
about his life.”.
[55] In Sidaway v. Governors of Bethlem Royal Hospital [1985] A.C., at

p. 881, Lord Scarman described the Bolam principle in these terms:
“The Bolam principle may be formulated as a rule that a doctor is

not negligent if he acts in accordance with a practice accepted at
the time as proper by a responsible body of medical opinion even
though other doctors adopt a different practice. In short, the law
imposes the duty of care: but the standard of care is a matter of
medical judgment.”.
[56] On whether a medical doctor has breached the accepted standard

of care imposed on him in respect of diagnosis and treatment, useful
reference may be made to the judgment of Abdul Malek Ahmad, JCA (as
he then was) in Dr Chin Yoon Hiap v. Ng Eu Khoon [1998] 1 MLJ 57 (at p.
76) as follows:
“But where the conduct of a doctor, or indeed of any professional

man, is concerned, the circumstances are not so precise and clear
cut as in the normal case. In the realm of diagnosis and treatment,
there is ample scope for genuine difference of opinion and one
man clearly is not negligent merely because his conclusion differs
from that of other professional men, nor because he has displayed
less skill or knowledge than others would have shown. The true
test for establishing negligence in diagnosis or treatment on the
part of a doctor is whether he has been proved to be guilty of such
failure as no doctor of ordinary skill acting with ordinary care would
be guilty of.”
[57] It is thus, clear that the position of the law as it stands today is that
the application of the Bolam test is restricted to the role of the medical
doctor pertaining to diagnosis and treatment only and does not extend
further to the provision of advice or information to a patient on the inherent
22
and material risks of any proposed treatment. It is only the question

whether the doctor had breached the duty of care to his patient in
accordance with acceptable standards of care of the profession that is a
matter of medical judgment. Hence, the Court has to primarily consider
and be guided by medical opinion in determining this issue.
Conclusion
[58] The crux of the defence contention is that no causative link had
been established by the Plaintiffs between the diagnosis made and the
treatment and care rendered by DW2 to PW3 (the mother) and the cerebral
palsy and other residuals suffered by the child (‘Cleo’). Put another way,
that the breach of the duty of care, if any, owed to PW3 by DW2, was not
proved to have caused the disabilities sustained by Cleo. Reference was
made to Bonnington Castings v. Wardlaw [1956] AC 613 where Lord Reid
remarked:
“It would seem obvious in principle that a pursuer or plaintiff must

prove not only negligence or breach of duty but also that such fault
caused or materially contributed to his injury...”.
[59] Further, to another case in point, Wilsher v. Essex Area Health

Authority [1988] 1 All ER 871 where it was held:
“Where a plaintiff’s injury was attributable to a number of possible

causes, one of which was the defendant’s negligence, the
combination of the defendant's breach of duty and the Plaintiff's
injury did not give rise to a presumption that the defendant had
caused the injury. Instead the burden remained on the plaintiff to
prove the causative link between the defendant ’s negligence and
his injury, although that link could legitimately be inferred from the
evidence. Since the plaintiff's retinal condition could have been
caused by any one of a number of different agents and it had not
been proved that it was caused by the failure to prevent excess
oxygen being given to him the plaintiff had not discharged the
burden of proof as to causation.”.
23
[60] It was submitted that there was simply no basis to find that DW2
had caused or materially contributed to the neurological damage that befell
Cleo. The turn of events was said to disclose that the likely and probable
cause was prematurity that was shown to be unavoidable. The Plaintiffs,
on the other hand, contended that the breach of duty of care to PW3 by
DW2 was the primary cause for the child’s present condition due to the
standard of care given by DW2 being appallingly low well below that
expected of an ordinarily skilled professional in the given field.
[61] In summary, my findings on liability are these. This is an

undisputed case of HRP arising out of a monochorionic twin pregnancy
(‘MTP’) that should have been carefully and diligently managed by DW2 as
the attending O & G in accordance with recognised standards of care
consistent with her skills and training. The risk to the surviving twin, the
Second Plaintiff (‘Cleo’), was aggravated by the in-utero fetal demise of the
co-twin which led to the feto-fetal TTTS between the surviving twin and the
demised twin. This, in turn, in all probability, had an adverse effect on the
surviving twin causing the eventual neurological damage in-utero. The end
result is that Cleo now suffers neurological impairment and disabilities,
specifically cerebral palsy and guardiplegia.
[62] PW4 (Prof Choolani) by reference to several studies commented

that twins have a higher risk of fetal and infant mortality and morbidity than
singleton births and the surviving co-twin of a fetus that dies in-utero is
particularly at risk. For all gestational ages, upon this event, the risk of
cerebral palsy is higher in same-sex twins compared to different sex twins.
This appeared to be the exact scenario in the instant case where DW2 did
not seem to have sufficiently addressed the urgency of the situation. The
question was whether the various failures and omissions alluded to during
the ante-natal and antepartum periods when PW3 was under her care
amounted to negligence or breach of duty of care on her part in the
management of the HRP. In this regard, the Court has to consider
cumulatively the evidence as a whole, including the reports, findings and
opinions of several medical specialists called as expert witnesses. No
comment or opinion on this primary issue can be viewed in isolation.
24
[63] Having scrutinised the material evidence and the opinions and
findings of the expert witnesses, the following facts figure prominently in the
determination of the central question as to whether DW2 had been
negligent in the management of this pregnancy:
i) The likely causes of the neurological damage and

impairment suffered by the infant were apart from
prematurity, TTTS and demise of the co-twin, both of which
were not detected early and dealt with appropriately and
adequately;
ii) There was no reference to a tertiary level medical centre

despite the high risks of foetul compromise that became
apparent from the severe weight discrepancy between the
twins that reflected IUGR;
iii) There were discrepancies in the gestational age as

determined by dates and ultrasound which were resolved
only at a very late stage just before birth;
iv) Chorionicity and amnionicity were not determined early that

could have prompted an early detection and diagnosis of
TTTS for remedial measures to be taken. Amniotic fluid
(liquor) volume was not documented. A proper
documentation would have triggered a diagnosis of TTTS;
v) The weight of evidence pointed to the demise of the co-twin

several days before delivery which was not detected early by
DW2 due to failure to carry out the appropriate tests; and
vi) Available options to overcome the risk of neurological

damage to Cleo brought about by the monochorionic twin
pregnancy (‘MTP’) and complicated by TTTS were not
seriously considered or carried out. For instance, a
procedure called septosomy was available at the material
time.
25
[64] To resolve the question of negligence, the test to be adopted is

whether DW2 had conformed to the standard of care to be observed by a
person with some special skill or competence which is that of an ordinary
skilled person exercising or professing to have that skill. [ Rogers v.
Whitaker test adopted by the Federal Court in Foo Fio Na (supra)].
[65] In the final analysis, based on all the facts and opinions expressed
pertaining to the above issue, I concluded that in managing the HRP that
PW3 underwent and the complications that followed giving rise to the
serious risks to the surviving infant, the First Defendant had, on a balance
of probabilities, failed to exercise the standard of care to be observed by
her as a person professing to have that special skill or competence and
thereby, had breached the duty of care that she owed to the Plaintiffs. Had
she exercised the degree of care as required the damages and disabilities
suffered by the First Plaintiff could in all likelihood have been averted. In
the circumstances, I held that it had been proved that the negligence of the
First Defendant had materially contributed to the impairment and disabilities
suffered by the First Plaintiff. She was, therefore, held to be liable for
negligence to the Plaintiffs as pleaded.
Quantum
General Damages
[66] It is not in dispute that the infant Plaintiff (‘Cleo’) was diagnosed
with cerebral palsy, quadriplegia and bilateral blindness. The details of her
disabilities are to be found in the report of Dr. Malinee (PW6) as follows:
“Cerebral palsy with quadriplegia
No control or normal movements in all her 4 limbs and trunk of the
body
Intellectual/cognitive impairment/mental retardation
Severe communication disability - no spoken words
Profound global developmental delay (chronological age 6.3
years; gross motor age 6-8 months level; fine motor age 6-8
months level)
26
Pseudo-bulbar palsy - marked speech and feeding difficulties
Poor vision
Epilepsy
Loss of bladder and bowel control
Bilateral severe hip dislocation
Scoliosis with pelvic obliquity
Under nutrition/poor growth.”.
In Gleneagles Hospital (KL) Sdn Bhd v. Chang Chu Yin seorang budak
(infant) yang menuntut melalui bapa dan sahabat wakilnya, Chung Shen
Yong) & Ors. & Another Appeal [2013] MLJU 615 the Court of Appeal
upheld the High Court's award of RM350,000.00 for dystonic-spastic
diplegia cerebral palsy due to birth asphyxia. It was held that the High
Court had taken into consideration the mental retardation, disabilities and
loss of amenities suffered by the infant Plaintiff.
[67] The case of Nor Majidah bt Ibrahim v. Othman bin Mohamed

[2004] MD para 1592 where RM450,000.00 was awarded for quadriplegia
cerebral palsy, with global development delay and other disabilities
involved an award by consent. As rightly argued by the defence, being a
consent award, it was not appropriate to use it as a precedent in this case.
It was submitted that the award of RM500,000.00 for general damages
sought by the Plaintiffs was excessive and unprecedented for being against
the trend of awards for similar disabilities.
[68] The closest comparable, in my view, is Gleneagles Hospital KL

Sdn Bhd (supra) where the award for cerebral palsy and residuals was
RM350,000.00. Having taken into consideration the nature, severity and
extent of the disabilities in this case as outlined above compared to that
case, I assessed the fair and reasonable award for the infant Plaintiff ’s pain
and suffering and loss of amenities to be RM400,000.00.
27
Special Damages
[69] It is trite law that any claim for special damages must be
specifically pleaded and strictly proved as opposed to general damages
which is subject to assessment (See Sam Wun Hoong v. Kader Ibramshah
[1981] 1 MLJ 295 at 297, FC). In Yeap Cheng Hock v. Kajima-Taisei Joint
Venture [1973] 1 MLJ 230 at 236 Syed Agil Barakbah, J. held:
“The general principle is that the plaintiff must be prepared to

prove his special damages unless it has been agreed. It is not
enough for him to write down the particulars and leave them for the
court to decide. It is for him to prove them.”.
[70] The first issue to be decided for this head of damages was the
appropriate multiplier to be applied based on the life expectancy of the
infant Cleo. PW6 estimated her life expectancy to be at least 22.4 - 38.8
years or even up to 38.8 years based on an examination of Cleo in 2009.
However, at the trial, PW6 testified that she could not give a definite figure
but estimated the life span of around 20+, 30+. The defence expert, Dr.
Hussain Imam (DW1), could only say for certain that the infant had a good
chance of reaching adulthood. In his view, to assess her life span would be
speculative as due to her underlying brain injury she was at a higher risk of
sudden unexpected death epilepsy.
[71] Taking into account a median of PW6’s estimated range of life
expectancy, I assessed the appropriate multiplier for future claims of
special damages to be 32 years less 10 years being the current age of
Cleo, which gave a figure of 22 years.
[72] I then proceeded to award special damages as follows:
1) Medical Expenses
I allowed a total of RM12,077.84 as pleaded for expenses

incurred at Hospital Sultanah Aminah (‘HSA’) - RM389.50
and Puteri Specialist Hospital - RM11,688.34 .
This claim was not disputed.
28
I disallowed the claim for cost of Chinese traditional

treatment at RM300.00 per session twice a week for 35
years amounting to RM29,400.00 . This claim was neither
pleaded nor supported by evidence but only raised in the
evidence of PW1, ie, PW3’s husband and in submissions.
It could, thus, not be considered.
2) Hyperbaric Oxygen Therapy (HBOT)
The infant Cleo underwent this treatment on the
recommendation of PW6 who regarded it as standard
mainstream treatment. There was no dispute that the
expense was incurred at a private centre in undergoing the
treatment as recommended but its necessity and
effectiveness in treating cerebral palsy was challenged by
the defence based on the evidence of DW1. As the expense
was actually incurred and the treatment done on medical
advice, I allowed this item in the pleaded sum of
RM6,800.00 .
3) Extra food and nourishment
The claim was for RM400.00 per month from date of birth to
now and continuing.
The amount pleaded was RM27,200.00 . Among the
grounds of objection to this claim was that no evidence was
tendered that extra expenditure for this item was incurred
since birth. There was only the evidence of PW1 (the father)
that RM400.00 per month was for fish and RM100.00 -
150.00 per month was for special milk. No expert medical
evidence was adduced that special food and nourishment
was necessary for the sustenance of Cleo.
Plaintiffs’ counsel submitted that the sum to be awarded
should be as per the evidence of PW1 which was
RM231,000.00 at RM550.00 per month for 35 years. Even
though the pleaded claim was only RM27,200.00 , it was
contended that it should be allowed as per the said evidence
as it was a continuing claim. I dismissed this contention as
29
parties are bound by their pleadings and the principle of

special damages is that it must be strictly pleaded.
However, I held that the sum pleaded was, under the
circumstances, reasonable based on the condition of Cleo
and allowed this head of claim in the sum of RM27,200.00 .
4) Cost of Nursing Care
The amount pleaded for this claim was RM170,000.00 but
the Plaintiffs submitted a sum of RM840,000.00 at
RM2,000.00 per month for 35 years. The basis of the claim
was the recommendation of PW6 for the help of a full time
carer/domestic helper.
All this while, Cleo had been cared for by her mother, a
fulltime housewife. The defence submitted that regardless of
the child’s condition she would be at home to take care of
the child. The situation was distinguishable from the case
cited by the Plaintiffs for nursing care (Marappan v. Siti
Rahmah [1990] 1 MLJ 99].
Experts for both parties were in agreement that for future
care it would be reasonable to hire a maid to take care of the
child’s needs. PW1 gave evidence that the cost of hiring a
maid would be in the region of RM9,000.00 per month
including her salary, food and lodging. He also suggested a
figure of RM9,000.00 being the usual cost of getting a maid.
Even though no documentary evidence was adduced to
support this cost, it is common knowledge that a reasonable
sum in that region would be incurred as agency fees to
secure a maid.
In view of the expert' evidence, I held that the claim for cost
of hiring a domestic maid was justified for the future care of
the child. I, thus, allowed this item of claim at RM900.00 per
month on a multiplier of 22 years plus RM9000.00 for the
usual cost of securing a maid which amounted in total to
RM246,600.00 .
30
5) Cost of medical and specialist reports

This item was to be claimed under costs and not claimable
as damages.
6) Transport expenses for medical treatment.
The defence objected to this claim together with the claim for
room rental to undergo HBOT treatment in KL on the ground
that no documentary evidence was adduced in support
thereof. However, it is usual practice to make reasonable
awards for necessary expenses that must have been borne
for the purpose of undergoing medical treatment such as
transport costs for hospital visits and in some instances,
costs of accommodation necessitated by distance. Absence
of documentary proof would not be sufficient ground to reject
outright claims for necessary expenses for which reasonable
reimbursement may be awarded. I, therefore, made the
award under this head as follows:
i) Transport for regular check-ups at HSA at RM30.00
per round trip 4 times a year for 32 years:
RM3,840.00.
ii) Transport for physiotheraphy at HSA at RM20.00
per round trip twice per week for 3 months:
RM480.00.
iii) Transport for HBOT together with room rental for 2
months: RM2,500.00
Total award was RM6,800.00
7) Surgery for joint contractures
Both experts were in agreement that the infant Plaintiff would
need surgery to the abductor muscle of both her hips to
facilitate hygience. The cost of RM7,500.00 per surgery if
carried out at a private hospital was also not disputed. The
need to have it done at a private hospital was disputed as it
was available free of charge at a government hospital where
the infant had been receiving care for the past 10 years.
31
As the remaining life span of the infant is about 22 years,

she would require at the most 3 surgeries post trial. At
RM7,500.00 per surgery at a private hospital, the cost
incurred would be RM22,500.00. As this type of surgery was
not shown to be unavailable at a public hospital and to be
urgent, I awarded ½ of the actual cost which amounted to
RM11,500.00 consistent with the principle of mitigation of
damages.
[See Gleneagles Hospital (KL) Sdn Bhd v. Chung Chu Yin
(supra)].
8) HBOT
DW1 regards this form of treatment as ineffective in treating
cerebral palsy (‘CP’) by reference to an authoritative
textbook, 'Cerebral Palsy: From diagnosis to Adult Life '
PW6 who recommended it accepts that it is not regarded as
standard mainstream treatment for CP and relied only on a
single study carried out in Lumut from 1999 - 2000. She
admitted not having assessed the effectiveness of the
treatment by any objective standards. She had merely made
some enquiries from the director of the centre that had
carried out the treatment.
As the medical evidence to support this form of treatment
was insufficient, I held that the burden of proof had not been
discharged and disallowed the claim.
9) Specialised routine tests
These are routine diagnostic tests recommended by Dr
Malinee. The tests are EEG, MRI brain scan and X-ray
pelvis. The claim is for costs of the tests if carried out at a
private hospital. The costs of RM400.00 per year for EEG,
RM2,500.00 per year for MRI and RM300.00 per year for X-
ray at a private hospital were not disputed. It was submitted
that these tests are available at a government hospital where
the child had been registered and had been receiving free
treatment for the last 10 years.
32
The total cost based on the above figures on a multiplier for

22 years being the child's remaining life span came to
RM70,400.00 . As the tests are known to be available at
public hospitals and would be provided free of charge to the
child as a registered patient, I awarded 1/3 of the actual cost
which came to RM23,500.00.
10) Cost of physiotherapy
The claim is for RM150.00 per session for 3 sessions per

week of home-based therapy as recommended by Dr.
Malinee and based on her estimate of RM150.00 per
session. Her recommendation was for either home based or
centre-based therapy.
According to the evidence of the child's father (PW1), the

physiotherapy done at HSA once in 3 months was ineffective
and had to be stopped due to difficulties encountered by the
child. Hence, on the evidence, the claim for home-based
therapy was justified. However, 3 sessions per week
appeared to be excessive and inconvenient to the child and
her parents. 2 sessions per week was, in my view, more
appropriate and reasonable. At RM150.00 per session twice
a week for 22 years came to RM343,200.00. I, therefore,
awarded this sum for the item post trial. There was no
evidence of the child having undergone any home-based
therapy pretrial.
11) Cost of occupational therapy
The claim was the same as above based on the

recommendation and estimate of Dr. Malinee. For the same
reasons, I made an identical award of RM343,200.00 for 2
sessions per week on a multiplier of 22 years.
12) Transportation for physiotherapy and occupational therapies
This claim was disallowed as the Plaintiffs had opted for

home-based therapies for which awards had been made.
33
13) Cost of wheelchair

I accepted the recommendation of Dr. Malinee for a manual
tilt-in space wheelchair estimated to cost RM20,500.00 with
a 5 year life span. Maintenance cost was estimated at
RM1,000.00 per year, These estimates were not disputed
by the defence but it was submitted that the choice of the
wheelchair was not supported by the evidence of a
rehabilitation specialist. Considering the usefulness and
suitability of the wheelchair suggested by Dr. Malinee which
was a mid-range choice, I upheld the suggestion.
The child would require four changes of wheel chair with a
remaining 22 years of her estimated life span. Hence, on
the above estimates, I made an award of RM82,000.00
(RM20,500.00 x 4) for wheelchair and RM22,000.00
(RM1,000.00 x 22 years) for maintenance. The total award
for this item was RM104,000.00 .
14) Manual tilt table
Dr. Hussain Imam (DW1) maintained that this equipment
recommended by Dr, Malinee (PW6) was irrelevant for the
child as she could not maintain an upright posture due to the
multiple contractures. Based on the unchallenged views of
DW1, I disallowed the claim for this equipment which was
shown to be unnecessary and unsuitable.
15) Ankle foot orthosis
PW6 recommended this equipment based on an
examination of the child in 2009. The purpose of the
equipment is to prevent ankle fort orthosis.
When DW1 examined her on 22.12.2002 the deformity
sought to be prevented had already set in. Hence, the
usage of this equipment would not serve any useful purpose
to alleviate the child’s injury. Based on the latest findings of
DW1 which were unchallenged I made no award for this
item.
34
16) Disposable diapers
PW1 testified that the cost of diapers was RM150.00 –

RM200.00 per month. The defence did not dispute the
estimated cost nor the necessity but suggested that future
cost be taken at RM180.00 per month and not RM200.00 per
month as pleaded. I acceded to this suggestion but made the
award for the whole duration of the child’s estimated
lifetime of 32 years.
At RM180.00 per month for 32 years the award came to

RM47,520.00 .
17) Motorised bed
PW6 estimated the cost to be RM8,500.00 with a

replacement every 10 years. The defence did not dispute
the estimate but submitted that it was not absolutely
necessary and if allowed, suggested only one further
replacement.
I accepted the opinion of PW6 that it was necessary to

elevate the patient and particularly useful for quadriplegic
patients who may not be able to turn or roll. As the child
grows, it would be an important device for the caregiver.
Bearing in mind the remaining life span of 22 years, the

award made was RM8,500.00 x 2 amounting to
RM17,000.00 .
18) Home modification
PW6 recommended home modification with lifts, ramps,

rails, bath alterations, etc. estimated to cost about
RM100,000.00 - 150,000.00. Home modification would
indeed be necessary for the safety of the child and to ensure
that the home environment was suitable and conducive to
her needs. The Plaintiffs suggested a reasonable award of
only RM60,000.00 which I, accordingly, granted.
35
19) Vehicle modifications
PW6 took the view that modifications ought to be made to a

normal vehicle to transport the child’s wheelchair. She said
that the vehicle should be modified to include a ramp and
hydraulics. She estimated the cost to be 30 per cent on top
of the cost of a standard vehicle. The Plaintiffs, however,
only asked for a reasonable award of RM30,000.00.
DW1’s view that the modifications were unnecessary as the

parents could just lift the child into the vehicle was rather
unreasonable. Concerns of safety and difficulties in doing so
would certainly arise in the future as the child grows. I,
therefore, made a reasonable award of RM30,000.00 which I
considered appropriate for this item.
The total award for special damages was RM1,279,167.84 .
[73] I awarded interest on special damages at 4 per cent per annum

from the date of birth of the Second Plaintiff until judgment except for future
awards which were to carry interest from the date of judgment. As for
general damages, I awarded interest at 4 per cent per annum from the date
of service of writ until judgment. Interest on the judgment sum was
awarded at 5 per cent until realisation.
[74] I assessed costs to be awarded to the Plaintiffs as RM150,000.00.
DATED: 30 SEPTEMBER 2013
(GUNALAN MUNIANDY)
Judicial Commissioner
High Court of Malaya
Johor Bahru.
36
Counsel:
For the plaintiffs - N Jegatheesan (Jayabalan with him); M/s John Ng &
Jega
Advocates & Solicitors Johor Bahru
For the defendants - Raja Eileen Soraya Raja Aman (Lye Ca-Ryn with
her); M/s Raja Darryl & Loh
Advocates & Solicitors Kuala Lumpur
37

Legal Negligence Claim Over Cerebral Palsy Case

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Legal Negligence Claim Over Cerebral Palsy Case

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[2013] 1 LNS 1274 Legal Network Series

IN THE HIGH COURT OF MALAYA AT JOHOR BAHRU

2. CLEO LI HUIFEN (budak)

1. DR NOOR AINI HAJI SA’ARI

[3] PW3 is a Thai national married to a Malaysian Chinese gentleman

[4] This is how the events leading to the claim began. On

[5] Sometime in the morning of 20.11.2002 PW3 was informed by

[6] Subsequently, at 1½ years of age, the Second Plaintiff was

[7] The Plaintiffs pleaded cause of action founded on a host of

“1) the pre-natal screening, examinations and findings were not

2) the 1 st Plaintiff’s twin pregnancy was not observed

[8] In the Amended Statement of Claim, it is further alleged, inter-alia,

and thereby failed to appreciate the First Plaintiff’s

the First Plaintiff’s twin pregnancy which was a high risk

[12] In order to resolve the issues in dispute scrutiny of the history of

[17] In PW7’s view, DW2 should not have considered discharge on

[20] Dr. Malinee Thambyayah (PW6) was a paediatric neurologist

(a) This was a monochorionic twin gestation complicated by

(b) Death of Co-twin resulting in acute feto-fetal transfusion.

(c) Hypoglycemia and Metabolic Acidosis diagnosed at birth and

[21] The co-twin was found macerated upon surgery (caesarian

[22] According to the Magnetic Resonance Imaging (‘MRI’) Brain

[24] Associate Professor Mahesh Choolani (PW8), Senior Consultant

[25] According to PW6, an early determination of chorionicity and

[27] Dr. Hussain Imam (DW1), a Senior Paediatric Neurologist and

“This is unlikely as she had a relatively good Apgar score of 7 at 1

severe hypotension and anaemia resulting in brain damage. As the MRI

mechanical ventilation of the infant upon birth exposed it to a greater risk of

[34] The CTG records produced by DW2 were wholly unsatisfactory

“(i) Proper obstetric management would have enabled her to

(ii) The imminent death of co-twin was apparent on 17.11.2002

(iii) As the 1 st Defendant was aware of TTTS, she must be or

[41] The evidence as to the treatment rendered to the First Plaintiff

entirely proper, it is necessary that expert evidence presented to

[45] A perusal of DW3’s evidence revealed certain unsatisfactory

[47] Plaintiffs’ counsel also raised an issue of DW3 changing his

If experts look for and report on factors which tend to support

(a) provide a straightforward, not a misleading, opinion;

(b) be objective and not omit factors which do not support

(c) be properly researched.”.

The Law on Medical Negligence

“A doctor is not guilty of negligence if he has acted in accordance

“The main question for which leave is sought is stated as follows:

courts, it is for the courts to adjudicate on what is the appropriate

[55] In Sidaway v. Governors of Bethlem Royal Hospital [1985] A.C., at

“The Bolam principle may be formulated as a rule that a doctor is

[56] On whether a medical doctor has breached the accepted standard

“But where the conduct of a doctor, or indeed of any professional

and material risks of any proposed treatment. It is only the question

“It would seem obvious in principle that a pursuer or plaintiff must

[59] Further, to another case in point, Wilsher v. Essex Area Health

“Where a plaintiff’s injury was attributable to a number of possible

[61] In summary, my findings on liability are these. This is an

[62] PW4 (Prof Choolani) by reference to several studies commented

i) The likely causes of the neurological damage and

ii) There was no reference to a tertiary level medical centre

iii) There were discrepancies in the gestational age as

iv) Chorionicity and amnionicity were not determined early that

v) The weight of evidence pointed to the demise of the co-twin

vi) Available options to overcome the risk of neurological

[64] To resolve the question of negligence, the test to be adopted is

Pseudo-bulbar palsy - marked speech and feeding difficulties

Loss of bladder and bowel control