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Malayan Law Journal Unreported/1995/Volume /TAN AH KAU v THE GOVERNMENT OF MALAYSIA -

[1995] MLJU 183 - 30 August 1995

75 pages

[1995] MLJU 183

TAN AH KAU v THE GOVERNMENT OF MALAYSIA

HIGH COURT (MELAKA)
LOW HOP BING J
CIVIL SUIT NO 25-25 OF 1988
30 August 1995

R K Nathan with Victoria Martin (R K Nathan & Co) for the plaintiff.

Meor Hashimi bin Abdul Hamid (Senior Federal Counsel) for the defendant.

JUDGMENT
I. PROLOGUE
Civil litigations founded upon medical negligence are few and far apart in Malaysia. This may well be an
excellent reflection of the high standard of skill and ability hitherto achieved and shown by the members of
our medical profession who are always working assiduously and with full dedication and commitment, not
only in strict compliance with the rules of medical etiquette and code of ethics, but also never failing to uphold
and materialise their
[1995] MLJU 183 at 2
Hippocrates oath with pride. All their efforts aimed at enhancing the quality of all members of the medical
profession must no doubt be a continuous exercise. The achievement or realisation of this aim will most
certainly augur well for the future. However, there are already some signs of weaknesses and shortcomings
manifested in the exercise of reasonable skill or care, or the lack of it, which may slowly but surely lead to
serious implications including civil liabilities founded on medical negligence. This case before me signifies
and sets in its train, one of several cases, relating to medical negligence, which have been filed in our courts.
It is no doubt the duty of the courts to conduct a full hearing, during which evidence will be unfolded, views
ventilated, ideas analysed, submissions advanced and finally judgment delivered, in an otherwise rarified
area of the law based on medical negligence. Cases such as this will eventually establish the principles of
the rights and liabilities of doctors, their employers and patients, when medical treatment is administered and
dispensed to them.
[1995] MLJU 183 at 3
II. PLAINTIFF'S CLAIM
On 3.4.1986, the agents and servants of the Defendant carried out a surgical operation on the Plaintiff who
was subsequently paralysed completely from his waist and lower limbs. This claim by the Plaintiff against the
Defendant is founded on the Defendant's negligence and/or breach of professional duties in carrying out the
operation. The gist of the claim based on negligence may be stated as follows:

(a) failing to inform the Plaintiff of the risk involved in the operation;
(b) failing to exercise reasonable care and skill during the operation;
(c) failing to cure the Plaintiff after the operation;
(d) failing to provide post-operative care to the Plaintiff;
[1995] MLJU 183 at 4
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(e) alternatively, giving an erroneous diagnosis that the Plaintiff had a cancerous growth that
required immediate operation and removal.
The Plaintiff's additional or alternative claim based on the Defendant's breach of professional duty may be
stated as follows:

(a) failing to exercise a fair, reasonable and competent degree of care and skill in the performance
of the operation on the Plaintiff;
(b) failing to exercise reasonable care and skill in the use of the scalpel and other operative
equipment;
(c) failing to inform the Plaintiff of the inherent risk in performing the operation for the removal of
the alleged cancerous growth and the likelihood of any damage to the spinal nerve;
[1995] MLJU 183 at 5
(d) failing to attend, examine, diagnose and provide early treatment to the injury to the spinal nerve
before discharging him;
(e) failing to take any or any proper precautions during the operation to prevent any damage to the
spinal nerve; and
(f) failing to provide post-operative care to the Plaintiff.
III. FINDING OF FACTS
Sometime in March 1986, the Plaintiff was admitted to the Malacca General Hospital, seen and attended to
for the cure of his backache, by Dr. Thomas Varughese (DW.1), a servant or agent, i.e. a surgeon, of the
Defendant. After initial examination and investigation, the Plaintiff was advised to undergo an operation for
the removal of a cancerous growth, which operation was carried
[1995] MLJU 183 at 6
out by DW.1 on 3.4.1986. As a result of that operation, damage was caused to the Plaintiff's spinal cord,
whereby the Plaintiff became totally paralysed from his waist downwards. The Plaintiff was unable to:

(a) walk;
(b) perform his daily chores;
(c) earn a livelihood;
(d) withstand pain, suffering, agony and distress; and
(e) avert extensive financial loss, damage and expense.
Subsequently, the Defendant's servants or agents abandoned further treatment. The Plaintiff sought
treatment at the Mount Elizabeth Medical Centre, Singapore, but showed no improvement due to the
irreparable damage to his spinal nerve or cord.
Prior to the operation, the Plaintiff was an active lorry driver and could carry out his everyday chores
comfortably. At the
[1995] MLJU 183 at 7
time of the operation, he was 40 years of age and has a family. At the Malacca General Hospital, DW.1
advised the Plaintiff that if the operation was not done, the pain would not improve and there was a fear that
in the future, the Plaintiff would not be able to walk. DW.1 did not inform the Plaintiff that the Plaintiff had
cancer or that there was a growth on his back. The Plaintiff was given 2 pieces of empty forms to sign, but
the contents thereof were not explained to him, nor did the Plaintiff know the reason why he had to sign the
two empty forms. On 1.4.1986, the Plaintiff was told that he had a growth on his back but he was not told of
the risk of operation.
The Plaintiff at his own risk discharged himself on 3.5.1986 i.e. 30 days after the operation, as the Plaintiff
felt that the facilities at home were better since his wife and children could take care of him and he could
receive treatment at the Tangkak District Hospital. The Plaintiff was given a referral letter to the Tangkak
District
[1995] MLJU 183 at 8
Hospital where he was treated as an out-patient once a week to replace the tube to facilitate urination. After
2 or 3 months, the Plaintiff stopped going to the Tangkak District Hospital for treatment as he could urinate
by himself. The Plaintiff also did not resume treatment at the Malacca General Hospital.
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The Plaintiff's wife. (PW.2) confirmed that the Plaintiff is married with 8 children and that she has to bathe
him, change him and take him upstairs. PW.2 further confirmed that the Plaintiff was able to walk before the
operation. She had to leave her job to take care of the Plaintiff.
Before DW.1 attended to the Plaintiff at the Malacca General Hospital on 20.3.1986, the Plaintiff was seen by
a medical officer of the Defendant. The Plaintiff had a history of an injury at his back caused by a piece of
wood and "there was progressive pain and he had difficulty in walking". Examination of the Plaintiff showed
some
[1995] MLJU 183 at 9
weakness in the muscle sensation on the outer aspect of the right leg. DW.1 made a provisional diagnosis of
a prolapsed disc and ordered:

(a) blood test;

(b) examination of urine; and
(c) X-rays of the spine.
On 21.3.1986, the Plaintiff was examined by a medical officer of the Defendant who made the same finding
except that the Plaintiff had reduced sensation on the outer aspect of the right thigh. On the same day, DW.1
examined the Plaintiff and made a provisional diagnosis of intra spinal tumour at the level of the thoracic
vertebra D.11 and D.12. He ordered a myelogram and asked the medical officer to do further neurological
examination. The myelogram was ordered to confirm the diagnosis of a tumour and to highlight problems
within the spinal canal. DW.1 said that the purpose of doing a myelogram was explained to the Plaintiff and
the consent form was taken from the Plaintiff
[1995] MLJU 183 at 10
by one Dr. Ruslan bin Mohd Din (DW.7), through a Chinese nurse, but since the nurse was never called as a
witness, S.114(g) of the Evidence Act 1950 applies.
The first myelogram was done on 24.3.1986 but was abandoned as the fluid obtained was bloodstained and
this could result in false positive results.
Another myelogram was repeated on 29.3.1986. The finding was that of a complete obstruction to a flow of
contrast at D11 and D12 level, with column head showing a concave appearance, suggestive of a spinal
neoplasm, possibly intradural extramedullary, causing complete spinal block. The fluid which was sent for
analysis showed the presence of an increased amount of proteins confirming the myelographic finding of a
complete block. Hence, DW.1 advised the Plaintiff to undergo a surgical operation of the spine and consent
was sought. According to DW.1, the Plaintiff was explained the nature of the surgery and the important
[1995] MLJU 183 at 11
complication of paralysis after surgery and to highlight the problem, the consent was written out in red ink in
the case notes but the person who was said to have explained it to the Plaintiff was not called as a witness.
DW.1 said that the Plaintiff was given time to think about the surgery and given a choice to go elsewhere and
that the Plaintiff was asked to sign the consent for surgery only if he wished. to. DW.1 added that the consent
was explained to the Plaintiff by DW.7 on 1.4.1986, after the Plaintiff fully understood the consequences. The
Plaintiff denied this.
This exploration exercise was carried out by DW.1 on 3.4.1986 and his assistants were Dr. Mohamed Abdul
Majid and DW.7. The findings were:

(a) Intramedullary tumour with the lower border of the tumour at D11;
(b) The upper border of the tumour could not be defined as it extended upwards beyond D5;
[1995] MLJU 183 at 12
(c) The tumour appeared to be malignant and not removable;
(d) The tumour was highly vascularised;
(e) The tumour was necrotic in certain parts of the spinal cord;
(f) The spinal cord was not pulsating on inspection.
Part of the tissue was taken for biopsy. DW.1 removed most of the necrotic tissues. According to DW.1,
benign tumours are often removable completely but malignant tumours are difficult to remove and they carry
a poor prognosis. The Plaintiff was explained the difference between a benign and a malignant tumour.
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According to DW.1 the chances of getting paralysed with a malignant tumour were highlighted.
If the tumour was not removed, the end result, be it malignant or benign, was paralysis. This surgical
exploration was
[1995] MLJU 183 at 13
necessary once a lesion is defined in the spinal cord. The result of the exploration was a low grade
malignant astrocytoma with the presence of necrotic tissues. This result was obtained on 3.5.1986. The
nature of the disease was explained to the Plaintiff and also his brother. Between 3.4.1986 and 3.5.1986, the
Plaintiff was treated for paralysis and complications from paralysis, caused by tumour i.e. low grade
astrocytoma.
DW.1 confirmed that the Plaintiff became paralysed immediately after the surgery, due to the loss of blood
flow to the spinal cord involved in the malignant process. He stated that the standard practice in surgical
exploration involved the process of opening up and looking at the spinal cord, taking pieces of the tissue for
biopsy and removing dead tissue. All the necessary precautions and procedures were taken and followed.
The cause of the tumour is malignant astrocytoma. DW.1 took the biopsy himself and sent it to the Pathology
Laboratory at the Malacca General Hospital. The biopsy was
[1995] MLJU 183 at 14
done on 3.4.1986. The result was negative. The cerebral spinal fluid (CSF) was taken for a report, and the
finding was "no malignant cells identified".
From 3.4.1986, DW.1 knew that the Plaintiff was suffering from malignant tumour clinically, but he didn't
know what kind of tumour and because of this, he could not start any radical cancer treatment. DW.1 then
changed his view and said that the cancer was malignant astrocytoma based on the Pathology Report. He
added that a low grade astrocytoma enables the patient to live up to 20 to 30 years and the Plaintiff had low
grade astrocytoma. This view is supported by NIGEL H. HARRIS in his book on "Postgraduate Textbook of
Clinical Orthopaedics" 1983 where at page 783 the author said:

"... one can prolong life depending on the site of the Lesion using modalities such as Radiotherapy and
Chemotherapy."
[1995] MLJU 183 at 15

DW.1 explained that the Plaintiff was not sent to the Radiotherapic Department because there was no written
Histo-Pathological Examination report.
Although DW.1 hit the spinal cord when he did a laminectomy, he explained that every care was taken not to
injure the spinal cord. The tumour was occupying the whole of the spinal canal, thereby precipitating an
infarction of the spinal cord very easily, and any surgery would involve bleeding and swelling of the tissues.
DW.1 was trying to explain to the Plaintiff the nature of the disease and the difference between malignant
and benign tumour ie an operation in the case of a benign lesion, could lead to paraplegia, while a malignant
lesion may paralyse the Plaintiff. DW.1 said that the Plaintiff had a lesion of such a nature that the Plaintiff
may be paralysed post-operatively. DW.1 was however unable to say whether the Plaintiff had wanted the
operation.
[1995] MLJU 183 at 16
The form used in this case for biopsy was different from the standard form used by the Malacca General
Hospital. DW.1 did not know why the form is different, and why it did not comply with the standard form.
The immediate cause of the paralysis is the cut-off of the blood flow to the spinal cord involved in the
malignant process. The block in the blood flow was due to the operation which resulted in the bleeding and
swelling into the tumour. The incision or cutting into the tumour would cause bleeding and swelling of the
spinal cord, resulting in immediate paralysis. If the Plaintiff had been given this explanation, he might have
rejected the operation. The Plaintiff is entitled to know that he would have had 20 to 30 years to spare had
the so-called cancer taken its course.
On 2.4.1986, when a neurological assessment was done, the power was normal. A normal spinal cord would
pulsate. However, the Plaintiff's spinal cord was not pulsating
[1995] MLJU 183 at 17
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because there was not enough blood flowing into it. The non-pulsating cord could be a result of the
exploration or as a result of positioning the patient and stretching the tumour, thereby precipitating some
bleeding into the tumour. In an operation like this, even moving the patient is dangerous.
The tumour, if it is benign, can be necrotic. Looking at the tumour, one could not be certain if it was benign or
malignant, but DW.1 could have made an educated guess, in which case, he could have pushed for the
biopsy results so that the Plaintiff could be given treatment as soon as possible. After all, in this type of
astrocytoma, one can prolong life by using modalities such as Radiotherapy and Chemotherapy as confirmed
by DW.1.
During the exploration, DW.1 removed some of the necrotic tissues from the spinal cord. The Plaintiff was
never referred to a neurosurgeon although DW.1 confirmed that the Plaintiff had malignant tumour.
[1995] MLJU 183 at 18
The operation was a serious operation, but DW.1 did not know how the operation was explained by one Dr.
Ruslan to the Plaintiff or whether the Plaintiff ever understood the content of the forms or the consequences
of the operation.
DW.1 confirmed that if there were malignant cells in the spinal cord, they could be carried through the fluid
and that it was possible to do a needle biopsy at L3-L4 to see if there was any malignancy. A benign tumour
could be removed. DW.1 said that no one told the Plaintiff that the Plaintiff had astrocytoma. DW.1 admitted
that there was swelling in the dura but he did not record this in his notes.
The Pathology Report was conveyed by telephone as there was a long delay in receiving this Histological
Pathological Examination (HPE) report.
The referral letter to the Tangkak District Hospital did not refer to any cancer treatment.
[1995] MLJU 183 at 19
The Plaintiff was referred to Dr. Sartar Singh (DW.2), the Consultant Radiologist attached to the Malacca
General Hospital in March 1986. DW.2 knew the Plaintiff's medical history. In this case, there was strong
clinical evidence of tumour. The myelogram was done mainly to exclude or confirm the clinical diagnosis of a
spinal tumour.
DW.2 referred to the myelogram findings and the clinical information, which were representative of a spinal
tumour (possibly intradural extramedullary). He could not determine definitely the position because there was
a complete spinal block and it was difficult to delineate the extent of the lesion. He could not say whether the
lesion arose from the substance of the cord when it is called intramedullary or whether it arose or was
located outside the substance but within the covering of the spinal cord.
DW.2 explained that "extramedullary" is still within the spinal cord but outside the
[1995] MLJU 183 at 20
substance of the spinal cord. The spinal cord includes not only the substance of the cord above the colon,
the fluid surrounding the cord substance in the sub-arachnoid space, outside the cord substance, but within
the arachnoid membrane.
DW.2 described "extradural" as arising outside or extending from outside to within the spinal cord and
"extradural tumours" as arising from the emerging nerves and into the spinal canal, external to the dura.
They could also represent secondary tumours involving vertebral bodies and extending into the spinal canal,
external to the dura, or they could represent any growth which is displacing the dural sac.
DW.2 described the tumour as "intradural, extramedullary" i.e. the tumour was outside the substance of the
cord but within the confines of the dural membrane.
When the superior extent of the lesion was not seen and the contrast did not
[1995] MLJU 183 at 21
surround the cord substance entirely, it would be difficult to be certain on myelography, whether the lesion is
"intradural extramedullary" or "intramedullary". However, in view of the concave appearance at the level of
obstruction, it is possible for it to be "intradural extramedullary" lesion. DW.1 did not consult DW.2 in this
respect. From DW.2's impression, an "intradural extramedullary" tumour can at times result in a complete
cure. However in intramedullary tumours, it depends on the extent; extensive tumours are often left alone, as
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the operation would be difficult.

When challenged that the operation was based on DW.1's finding of the tumour being extramedullary, and
DW.1 would not have done so had he known that it was intramedullary, DW.2 said that he had put it as a
possibility. However despite this element of uncertainty, DW.2 did not inform DW.1. DW.2 also did not record
anywhere that from the lack of contrast, extending from the level of
[1995] MLJU 183 at 22
the obstruction, the cord level could not be evaluated.
The radiograph showed a concave appearance to the head of the contrast column on the left, thereby
suggesting the possibility of displacement of the cord, thus further giving the impression that it could be an
intradural extramedullary lesion. However it was not stated in the report. Yet DW.1 said that it was less likely
that it could be intramedullary. This witness agreed that a manometer would help in assessing if there was a
spinal blockage. He explained that if the clinician felt that there was a complete spinal blockage, he would not
ask for a myelogram, because what appears on the myelogram was a complete spinal block. A manometer
would be used, depending on the facilities available and it would show a complete or partial blockage.
The Plaintiff was referred to Dr. N. Arthimulam (DW.3) who visited the Malacca General Hospital every
Tuesday. DW.3
[1995] MLJU 183 at 23
testified that the slide was read and handed over to the laboratory technician of the General Hospital and the
technician filed the slide. However the slide was not with the Hospital or DW.3.
DW.3 found that the Plaintiff had a nerve tumour, astrocytoma. He confirmed this with Associate Prof. Chong
Siew Meng who read the slide and confirmed the finding by telephone i.e. low grade astrocytoma. According
to DW.3, 35 patients with low grade astrocytoma lived for 101 months and in 2 cases, the patients lived for
31 and 17 years respectively.
DW.3 confirmed that both the date of receiving the specimen and the condition of receiving it, were not
recorded. When DW.3 read the slide, the senior technician wrote the report and gave it to the typist to type
but this technician was not called as a witness. DW.3 confirmed that he sent the slide to the Pathologist at
the University Hospital (UH) but he could not remember when
[1995] MLJU 183 at 24
he sent it and when he got it back from UH. DW.3 did not know how the slide was transported and who
collected the slide back. DW.3 however confirmed that once the slide has been read, it has to be preserved.
DW.3 could not even remember when he examined the slide. This witness has only seen 7 cases of
astrocytoma. In my judgment, there is no way of determining what DW.3 saw as the slide was missing and
the Plaintiff had no opportunity of referring the slide to his own expert.
When Dr. Sivanesan (DW.4) saw the Plaintiff in the outpatient department on 20.3.1986, the Plaintiff was
normal. There was no record that the Plaintiff should be sent for Physiotherapy or Chemotherapy. DW.4 said
that in the case of a patient having cancer, he would ask the patient to see a consultant who would make the
decision to refer for cancer treatment.
In this case, he could not make a decision to refer because he was under a
[1995] MLJU 183 at 25
Registrar who would refer the patient to a Consultant. When DW.4 gave the referral letter to Tangkak District
Hospital, he did not send the case notes.
Dr. Ho Keong Bin (DW.5) was at the material time the Medical Superintendant of the Malacca General
Hospital and Chief Administrator. He testified that referral cases were normally sent to Seremban, Kuala
Lumpur or Johor Bahru, but more usually, to Seremban. In this case, though the HPE report was already
late, it was sent to Kuala Lumpur which is further than Seremban. DW.5 confirmed that there was no fixed
rule on a second opinion. No fee was charged between Government Departments e.g. from Malacca General
Hospital to Universiti Kebangsaan Malaysia. He confirmed that the slides were kept in the Pathological
Department and should not disappear. The consultants are the overall heads in their respective fields.
Dr. Selvapragasan a/l Thambiah (DW.6) a neurosurgeon said that he had not examined
[1995] MLJU 183 at 26
the Plaintiff but had reviewed the Plaintiff's entire record. Based on the case notes, the medical officer who
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first saw the Plaintiff had the impression that the Plaintiff had prolapsed disc. When DW.1 saw the Plaintiff,
he changed the diagnosis to spinal cord tumour. Then a myelogram was ordered. DW.6 always read the
myelogram himself before he made his decision on the patient. If the Radiologist was not certain of his
findings, it was advisable for him to get a second opinion. DW.6 would do this.
The condition of the Plaintiff before the operation was pain with difficulty in walking, with minimal weakness
of his lower limb. The spinal operation could be done, either by a neurosurgeon or an orthopaedic surgeon.
However spinal cord lesions are usually operated on by neurosurgeons.
DW.6 confirmed that he would review the films himself and form his own impressions. Here, the entire
tumour could not be removed as it was almost infiltrating into the spinal
[1995] MLJU 183 at 27
cord and after the operation, the patient developed inability to move his lower limbs. The cause might be
immediately due to the swelling of the spinal cord. The surgery precipitated the weakness of the limbs,
affecting the bladder and bowel functions and now the Plaintiff is a paraplegic.
If the compression had been benign and extradural after removing the obstructing tumour, the Plaintiff could
have been cured. However, in this case, the operative findings were consistent with an intramedullary tumour
which could be totally removed.
It is an accepted practice to treat malignant diseases with radiotherapy. The rate of survival depends on the
rate of malignancy in the tumour. DW.6 confirmed that no cancer treatment or radiotherapy was given to the
Plaintiff from 3.4.1986 to 3.5.1986. The alternative available to the Plaintiff was radiotherapy and this would
depend on the surgeon who treated the Plaintiff and the consultation with the
[1995] MLJU 183 at 28
radiotherapist. However, in this case, nothing such as that was carried out. In DW.6's opinion, if the
operation had not been carried out, the Plaintiff would have only developed paraplegia gradually. At the time
of the operation, the Plaintiff was 40 years old. Even if the Plaintiff had been given this alternative i.e. to
develop paraplegia gradually, he could have spent his working life supporting his family. According to the
notes, this alternative had never been put to the Plaintiff.
DW.6 testified that the Plaintiff could have been reassessed as to the condition of the tumour in the spinal
cord, to ascertain if:

(1) Tumour was still there; or

(2) the surgeon has removed most of the tumour when he did a decompression; or
(3) the post-operative swelling of the cord could have caused a cut in the
[1995] MLJU 183 at 29
supply of the blood in the tumour and tumour regression.
Very reluctantly, DW.6 added that there was a possibility that the diagnosis was wrong or there could be a
miraculous cure.
By looking at the tumour, DW.6 could only make an educated guess whether the tumour was malignant or
benign.
DW.6 confirmed that the tumour has blocked the canal and that after doing a myelogram, the Radiologist
could ascertain the level of the blockage. In order to determine the higher level of the blockage, a cisternal
puncture is done. DW.6 said that it was definitely possible to see the higher level of the blockage. However,
the cisternal puncture would only show a block and not the vascularisation.
If the patient's symptoms had never revealed features suggesting that tumour was growing and extending,
DW.6 would have
[1995] MLJU 183 at 30
operated to make sure he did not miss out a benign tumour that could be treated. A tumour is intramedullary
if it is within the spinal cord. A CSF sample taken will show if the tumour is malignant or benign. He did not
know whether the Pathologist could say whether CSF cells are astrocytoma or not. Where the CSF fluid was
tested negative for malignant cells, but the myelogram showed a block, DW.6 would be more inclined to
operate as the tumour may be benign and therefore could be cured.
 Page 8

If the tumour were intramedullary and malignant, DW.6 would have explained the condition to the patient. If it
were confined to a small area, DW.6 would have attempted to remove it so that the patient might have been
cured. However, if the tumour was extensive and total removal was impossible, DW.6 would just do a biopsy
or decompress the tumour.
DW.6 would also explain to the patient that the cutting of the tumour would give
[1995] MLJU 183 at 31
rise to a possibility of a cessation of the flow of blood to the spinal cord and paralysis would occur
immediately after the operation. This however did not appear to have been explained to the Plaintiff. After
repeated questions, DW.6 finally admitted that DW.1 should have explained to the Plaintiff that the Plaintiff
would develop paralysis following surgery. DW.6 admitted that there could be less blood flow to the spinal
cord during the operation and that there would be greater chances of the operation itself causing paralysis.
Before the operation, the power of Plaintiff's knees, leg and ankle reflexes were normal. When asked if there
was anything to suggest that the condition was other than a prolapsed disc, DW.6's answer was that the
diagnosis of a tumour was by DW.1, an orthopaedic surgeon and that of a prolapsed disc was that of a
medical officer. DW.6 could not give any reason why DW.1 came to a diagnosis of a tumour.
[1995] MLJU 183 at 32
A prolapsed disc can also give the same symptoms of a tumour i.e. backache, pain and numbness. DW.6
attempted to justify DW.1's diagnosis by suggesting that DW.1 did not find typical signs of a disc lesion.
However, DW.6 agreed that there was no particular weakness and the Plaintiff was normal, which was also
indicative of a prolapsed disc. When challenged that there was no one factor to have caused DW.1 to have
made the diagnosis, DW.6 justified it by saying that DW.1 made the diagnosis based on the history of the
patient, although nothing was recorded.
If there had been a blockage, the radiologist could have positioned the patient in a trendenburg position (with
the head down) to see if the contrast flowed down further or performed a lateral C1 -- 2 puncture i.e. a
cisternal puncture.
The notes did not show any of these was done. DW.6 opined that had a trendenburg position of the patient
been done, there
[1995] MLJU 183 at 33
would have been no chance of the contrast going below a complete block. However, DW.6 could not be
positive of a complete blockage, because both the pertinent tests were not carried out.
DW.6 explained that flouroscope is the procedure in which a doctor puts in a contrast in the sub-arachnoid
space and positions the patient in different positions and sees, through an X-ray viewing monitor, the flow of
the contrast. Though this procedure was not available in the Malacca General Hospital, it was available in the
Kuala Lumpur General Hospital and private hospitals. This procedure was not administered on the Plaintiff.
DW.6 agreed that the Plaintiff would be told whether the operation would be successful. If, just before the
operation, the doctor discovered that the tumour was intramedullary, then the doctor would warn the patient
of the possibility of paralysis during and after the operation. It would
[1995] MLJU 183 at 34
also be more prudent to get a fresh consent from the patient or the next of kin but this was not done in this
case. The surgeon could determine whether the tumour was intramedullary or extramedullary by referring to
the radiologist's report and looking at the films himself, but again this was not done in the instant case.
Spinal cord tumours and nerve root tumours are usually operated on by neurosurgeons. After obtaining an
MBBS degree, one has to become a fellow of one of the Royal Colleges of Surgeons before one becomes a
surgeon who is a specialist in surgery. DW.6 has done neurosurgery for 14 years and has operated one
intramedullary tumour in a month or one in 3 weeks i.e. about 100 cases in the past 14 years.
Most patients opted out when the complications are explained. Therefore, a surgeon must explain to the
patient that the operation could cause paralysis. That was why most of them opted out. Ideally, the CSF
[1995] MLJU 183 at 35
results should be read by a Pathologist. It is possible to see tumour cells in the CSF fluid. DW.6 confirmed
that an injury to the spinal cord can cause paralysis and this can occur during surgery and that a manometer
can denote a complete blockage.
 Page 9

The spinal cord lesion is operated on by a neurosurgeon because it is in the nervous system. Swelling of the
spinal cord can be decreased by ventilating or draining the CSF. The amount of CSF to drain is within the
knowledge of the neurosurgeon. To reduce swelling, glugocorticoids should be administered. This method is
within the knowledge of the attending doctor.
A laminectomy was done to decompress the spinal cord but a decompression of the tumour was not done. A
laminectomy done by an inexperienced doctor can cause the spinal cord to be affected. In this case, DW.6
confirmed that a cistogram was not done. In a situation where there was no cistologist or pathologist, a
neurosurgeon could stand in to
[1995] MLJU 183 at 36
identify the as trocytoma cells. Where he suspected a tumour, he could send the CSF to a pathologist.
The standard practice of neurosurgeons is to view the myelogram films themselves when there is a complete
block, so as to be convinced whether the X-rays show a lesion, for the purpose of planning surgery. DW.6
has sufficient experience to determine whether there was a complete block. The standard practice in the
Kuala Lumpur General Hospital is to use intra-operative frozen pathology. During surgery, a small piece of
suspected lesion is sent to the pathologist who would tell the surgeon about the nature of the disease. This is
helpful in finding out whether the surgeon has reached the correct spot or whether the tumour is malignant or
benign and whether the tumour is sensitive to radiotherapy and if so, surgery is stopped.
DW.6 confirmed that the Plaintiff's history gave rise to the suspicion that the
[1995] MLJU 183 at 37
Plaintiff should be further investigated. The risk of paralysis is an accepted risk but meticulous care should
be taken to avoid creating this risk during surgery.
DW.7, Dr. Roslan bin Mohd Din, was posted to the General Hospital as House Officer from March to May
1986 when he treated the Plaintiff and recorded the clinical finding of the Plaintiff between 21.3.1986 and
22.3.1986. DW.7 testified that in accepting the consent of the Plaintiff for the operation, DW.7 explained to
the Plaintiff regarding:

(a) the myelogram lumbar sacrum;

(b) the allergic reaction to the injection; and
(c) the risks to the spinal cord.
DW.7 said that he explained in Malay, and it was interpreted by a Chinese nurse. However he cannot
remember the name of the
[1995] MLJU 183 at 38
nurse. This Chinese nurse was not called. Section 114(g) of the Evidence Act 1950 is hereby invoked.
Under S.114(g), the Court may presume that evidence which could be produced and is not produced would if
produced be unfavourable to the person who withholds it. Since it is the contention of the Defendant that the
content of the consent form was explained to the Plaintiff through the Chinese nurse, the nurse should have
been called as a witness, failing which it is proper for me to draw an inference that the nurse if called as a
witness would give unfavourable evidence i.e. there was no explanation of the content of the consent at all.
S.114(g) applied when no evidence is called on a disputed fact: T.R. Mahesuvary v. Lee Yin Shin and
Anor. (1982) 1 MLJ. 284(HC).
DW.7 said that he explained the content of the consent form to the Plaintiff and filled up the form before the
Plaintiff signed it. DW.7 did not record the condition of the Plaintiff but recorded only the
[1995] MLJU 183 at 39
the important factors. DW.7 said that he obtained the consent from the Plaintiff for the exploration and
laminectomy under general anaesthesia. After the operation, no cancer treatment was given.
DW.7 could not say why everything was explained in Malay but that he wrote in English. The name of the
nurse was not stated in the notes. DW.7 did the myelogram on 29.3.1986, but he could not say whether he
had obtained the consent for this. According to the consent forms, the risks and the allergy were not
recorded.
DW.6 said that an operation into the spinal canal had to be done by a neurosurgeon. His myelogram findings
showed that the tumour was extramedullary. The consent was given by the Plaintiff on the basis that the
 Page 10

tumour was extramedullary. He could not say whether any consent would have been obtained if the tumour
had been intramedullary. A fresh consent ought to
[1995] MLJU 183 at 40
have been obtained for the operation based on the finding that the tumour was intramedullary. The original
consent was not recorded in detail. The tumour was found to be intramedullary when the operation was in
progress. However, no fresh consent had been obtained from the Plaintiff or the wife. The whole question of
obtaining the consent of the Plaintiff in relation to the surgical operation remains cloudy and has not been
established by the Defendant to any satisfactory measure. It is therefore my finding that no consent was
obtained from the Plaintiff at all, or even if the consent had been obtained, the content of such consent had
not been fully and comprehensively explained to the Plaintiff.
In May 1986 Puan Kartini bt Amir (DW.8) was on duty at the laboratory of the Malacca General Hospital. She
typed the report from the Histopathological Unit. The draft was in the handwriting of the reporting officer,
DW.3, Dr. Athimulam.
[1995] MLJU 183 at 41
Encik Abd. Halim bin Hj. Abd. Manan, (DW.9) was the Medical Laboratory Technologist attached to the
Malacca General Hospital from March to May 1986. From his records, an entry relating to the Plaintiff
showed that the slide was sent to him on 7.4.1986. The tissue was kept in an ice box preserved in 10%
formalin in saline. DW.9 prepared the slides from the tissue and sent them to the Pathologist and after that, it
came back to DW.9. Anyone who wished to borrow the slide would have to obtain the consent of the doctor
in charge and there was a despatch book for this purpose, in which an acknowledgement was obtained.
However, this despatch book was missing and so not available as evidence.
Nancy Kim, (DW.10) was attached to the Histopathological Unit of the Malacca General Hospital in May,
1986. She confirmed that the entry in D12 Bundle B Page 66 was made on the basis of DW.8's typed report.
Dr. Joshua Mohan Raj, (DW.11) who was posted to the Malacca General Hospital in
[1995] MLJU 183 at 42
April 1993, was asked by the Attorney-General's Chambers to give information regarding the Plaintiff's
slides. However DW.11 explained that the slides were not in his possession; probably they have been
destroyed, although according to Dr. Norizan bte Mohd Annuar (DW.12) the slides were presumably sent to
Dr. Athimulam.
IV. LIABILITY
1. EXPLANATION IN RELATION TO THE CONSENT
It is the Plaintiff's case that the consent was not or not adequately explained by the Defendant's agents or
servants to the Plaintiff. The Defendant submitted that the consent was indeed explained and interpreted to
the Plaintiff.
In my judgment, the issue of the Defendant's liability may be established by the fact that the Plaintiff has not
given his consent to the operation and
[1995] MLJU 183 at 43
that the consent (even if it had been given) had not been fully explained to the Plaintiff in order to enable him
to understand the nature and consequences of the consent in relation to the operation and the diagnosis.
The Plaintiff maintained that he signed 2 blank forms at the same time and he was never explained before
the operation. He signed a blank form for the myelogram and was never explained the reason by the doctor.
Plaintiff was told that if he was not operated on, he would not be able to walk in the future. He was told by the
doctor that 2 weeks after the operation, he would find relief from pain and that was why he consented. This
testimony has not been challenged by the Defendant. In order to establish one's defence, or to challenge or
rebut the Plaintiff's case, it is absolutely essential to put the defence case or the defence story to the other
party in the course of cross-examination
[1995] MLJU 183 at 44
directed at the Plaintiff or the Plaintiff's witnesses:SENG CHONG METAL WORKS LTD. v. LEW FA (1966) 2
MLJ. 63; SHAMSUDDIN v. YAP CHOH TEH & ANOR (1969) 1 MLJ. 26, 28; YEOH CHENG HAN v.
OFFICIAL ADMINISTRATOR (1972) 2 MLJ. 7, 9, FC; FOONG GUN MOI v. LIM YEOK SOON (1978) 1 MLJ.
218, FC; PILLAI & ANOR v. INDEFULA CO. & ORS. (1980) 2 MLJ. 176, 178; MULTAR v. LIM KIM CHET &
 Page 11

ANOR. (1982) 1 MLJ. 184, 185. I therefore find that the Defendant has failed to establish the defence based
on the Plaintiff's consent.
Even by accepting the evidence of DW.1 that the purpose of the myelogram was explained to the Plaintiff
and consent was obtained by DW.7, it is not disputed that DW.1 did not explain that the surgery would cause
the blockage of blood flow.
The Plaintiff did not know it was cancer before the operation, as this was never
[1995] MLJU 183 at 45
put to the Plaintiff. The Plaintiff was told of the cancer only after the operation, after the biopsy report was
received from DW.4. DW.1 has therefore not given sufficient explanation regarding the consent.
DW.7 filled up the form before the Plaintiff signed it. There was no other explanation as to the risk of
paralysis. There was absolutely no explanation that the very act of operation could cause cessation of blood
flow. DW.7 had written on the consent forms in English but he had not recorded in the notes or consent
forms that the Plaintiff had understood him.
The question for the court to decide is whether, at the time the Plaintiff signed the consent forms, the Plaintiff
understood the nature and consequences of the consent and whether the Plaintiff knew the subject matter
which was central to his consent, in the
[1995] MLJU 183 at 46
light of the evidence that ".. . most patients opt out when the complications are explained to the patient. ..".
The Plaintiff is 40 years old and according to the defence expert, low grade astrocytoma is a slow growth
cancer. It does not seem to be logical that a man would wish to subject himself to instant paralysis when the
operation is done. The Plaintiff has a wife and 8 children. Therefore, his priority is to provide for his family.
Although without the operation, there was the prospect of slow paralysis, as opposed to instant paralysis
caused by an operation, the Plaintiff would first wish to think about his family, even if it means being able to
provide for his family for 20 years. The Plaintiff was not given the opportunity to decide whether to opt for or
opt out of the operation. He was not fully explained the fact that:
[1995] MLJU 183 at 47

(1) this was a slow growing tumour;

(2) in the absence of an operation, it would take at least 20 years to lead to paralysis;
(3) if operated on immediately, he would immediately become paralysed.
The consent forms were no doubt signed by the Plaintiff, but the Plaintiff said that he signed blank forms.
What was actually explained? During the operation, the surgeon discovered that the tumour was
intramedullary and a biopsy was done. However, the consent was taken on the basis that the tumour was
extramedullary. To constitute a valid consent, valid in the light of the abovesaid surgical discovery, in relation
to intramedullary tumour, a
[1995] MLJU 183 at 48
consent to cover this would be necessary and advisable.
DW.1 said that he explained the consequences of the surgery to the Plaintiff, but he finally admitted that he
had not explained to the Plaintiff that during the operation itself, there would be an incision or cutting into the
tumour resulting in bleeding and swelling of the spinal cord and that itself would cause the Plaintiff immediate
paralysis. DW.1 admitted that explaining the above would cause the Plaintiff to reject the operation. In the
circumstances, I hold that no valid and proper consent was obtained from the Plaintiff.
DW.7 said that it was only during the operation that DW.1 discovered that the tumour was intramedullary and
when he obtained the consent, he had the myelogram films which showed the tumour to be extramedullary
and this was what
[1995] MLJU 183 at 49
was actually explained to the Plaintiff. It is a fact that the myelogram findings were that of a spinal neoplasm,
possibly intradural - extramedullary but the findings at the operation was intra- medullary tumour.
In CHRISTOPHER ROGERS v. MAREE LYNETTE WHITAKER (1993) 1 CLJ 451, the Australian High Court
(the highest court in Australia) held, inter alia, that:
 Page 12

"... It is the duty of a doctor to warn the patient of any material risk, particularly if the patient, if warned of the risk,
considers it to be significant. .. A risk which entails a duty to warn is one which is foreseeabale and real but not one
which is 'far-fetched or fanciful'".
[1995] MLJU 183 at 50

In the instant case, where the risk of paralysis was very real, more so when the tumour was intramedullary, it
is absolutely essential for the attending surgeon such as DW.1 or any doctor assisting him to warn the
patient of the foreseeable risk of even a finding of intramedullary tumour. The duty to warn the patient arises
here because the risk is both real and foreseeable, as was admitted by the defence expert DW.6. However,
in this case, the question of the tumour being extramedullary and not intramedullary would not arise as,
clearly, there has been in my finding, a wrong diagnosis.
2. DIAGNOSIS
The question of consent is also related to diagnosis. The Defendant clearly erred through its radiologist in
that the Defendant's servant or agent made a wrong diagnosis of the tumour being extramedullary when in
fact it was intramedullary. The myelogram findings
[1995] MLJU 183 at 51
showed a spinal neoplasm possibly intradural extramedullary but the operation showed that it was
intramedullary tumour.
The defence expert DW.6 said that he would check the myelogram films himself, especially when there was
a doubt. Here the radiologist was not certain and the attending surgeon (DW.1) did not even consult with the
radiologist nor the radiologist with the surgeon. The surgeon just accepted the word of the radiologist.
Further, the attending surgeon did not even view the myelogram films himself.
The radiologist could not see the upper border of the tumour, which could have been seen by doing a
cisternal puncture or by using the trendenburg position. None of these methods was used. The CSF finding
showed no malignant cells. The defence expert DW.6 also said that the presenting scenario was different
from a prolapsed
[1995] MLJU 183 at 52
disc. Further, this expert could not understand why the attending surgeon diagnosed the case as a tumour
when the presenting symptoms are the same as in a prolapsed disc. The positioning of the Plaintiff during
the myelogram in order to see if it was intramedullary tumour or lesion is important i.e. whether the Plaintiff
must be placed in a frontal or lateral position, whereby the contrast dye will go sideways and the spinal cord
is thinned out. This did not appear to have been done.
The defence has presented a view that the Plaintiff was suffering from a cancerous tumour. What has
become of the tumour and the cancer? The Plaintiff's status quo was the same after the operation. The
cancerous tumour has not progressed to the other parts of the limbs, mainly the upper limbs. If the upper
border could not have been seen, then the degree of spread would have been relatively advanced. The
defence has not been able
[1995] MLJU 183 at 53
to say what has become of the cancer or were there actually cancer cells? I am of the view that no proper
care and no reasonable steps have been taken by the Defendant's servants or agents to determine that
there was a low grade astrocytoma. The Plaintiff's plea of res ipsa loquitor is not rebutted.
In my judgment, the operation could well have been performed prematurely, because the defence expert has
stated that if the myelogram showed a complete block and the CSF result showed that there were no
malignant cells, then this expert would do surgery because this scenario suggested a benign condition which
could be cured and relatively safer than the scenario that was actually presenting during the operation. That
was why the attending surgeon went ahead with the operation and not because there was cancer. This was
the reason why the defence was unable to produce the cancer
[1995] MLJU 183 at 54
cell-bearing slides for the Plaintiff to send to his experts. The fact was that the operation had caused the
stoppage of flow of blood to the cord and this caused the paralysis.
3. BURDEN OF PROOF
 Page 13

The burden of proof is on the Plaintiff to establish negligence on the part of the Defendant and/or the
Defendant's servants or agents and such burden is discharged on a balance of probabilities. The Plaintiff has
proved this, especially so when there could have been an alternative diagnosis of a prolapsed disc and
various tests and safety measures that could have been taken but were not taken. These cumulatively
showed that there was negligence on the part of the Defendant and/or its servants or agents and there was a
lack of care by the Defendant and/or its servants or agents in treating the Plaintiff.
[1995] MLJU 183 at 55
The evidential burden is, however, on the defence to show that the Plaintiff had a cancerous and malignant
growth through:

(a) the existence of the slides;

(b) the Chinese nurse who was said to be present when the explanation was given to the Plaintiff;
and
(c) the end result or the progressive result of the diagnosis.
DW.5 has testified that the slides could not be lost. DW.14 could not remember that DW.3 had referred the
slides to him. The slides would show whether there was cancer and the myelogram films could have been
put to the defence expert for his views, but this was not done. Hence, the evidential burden has not been
discharged by the defence.
[1995] MLJU 183 at 56
4. WAS THERE CANCER?
The form for the biopsy dated 3.4.86 showed negative result and CSF fluid taken and sent for biopsy report
also proved negative i.e. "No malignant cells identified". Although DW.1 knew from 3.4.86 to 3.5.86 that the
Plaintiff was suffering from malignant tumour clinically, he did not attempt personally to expedite the report to
send the patient for cancer treatment.
Further, even though DW.1 received a telephone call stating that the Plaintiff was suffering from astrocytoma,
he never referred the Plaintiff to the Radiotherapic Department at the Malacca General Hospital for cancer
treatment, where he knew that the Department would further examine for cancer. If one has cancer, the ESR
(Erythrocyte Sedimentation Rate] would be high, whereas in the Plaintiff's case, it was normal. As DW.1 was
not an oncologist,
[1995] MLJU 183 at 57
he was unable to say if the Plaintiff had cancer. There were no cancer cells. DW.1's own medical report
showed that there was no cancer.
Even DW.6, the defence expert, said he did not know how DW.1 came to a diagnosis of tumour and the clue
could be from the plain X-rays, because if there had been a tumour, the X-rays would have shown a
widening of the bony tumour. However the defence did not produce these X-rays to be read by this expert.
Clearly, Section 114(g) of the Evidence Act 1950 would apply here.
DW.3, the pathologist, testified that he sent the slides to DW.12, Dr. Norizam. But, according to DW.9, there
was a despatch book which would show if the slides had been sent elsewhere. This despatch book was
never produced and since it was such an important document, yet no effort was made to explain why it was
not produced. Hence,
[1995] MLJU 183 at 58
S.114(g) of the Evidence Act 1950 operates whereby an adverse presumption is raised against the defence.
Page 735, Clinical Orthopaedics by Nigel Harris, reads as follows:
"The commonest of these is the astrocytoma which tends to be widespread throughout the length of the cord and very
slow growing, being partly solid and cystic. As it is so slow growing, neurological dysfunction may be very slow to
occur. .."

The above passage shows that the Plaintiff could have lived his full life. This was also confirmed by the
defence expert DW.6. Further, astrocytoma could have been found throughout the length of the cord and
could have been easily picked up in the CSF fluid. But the CSF fluid showed no malignant cells.
[1995] MLJU 183 at 59
 Page 14

DW.2 agreed that most patients opted out when they knew of the risks. The Plaintiff was never offered
radiotherapy whether before or after surgery.
DW.1 agreed with Michael Powers and Nigel Harris on "Medical Negligence" page 546 para 25.27, the
relevant passage of which reads as follows:
"Because of the length of treatment, the possibility of acute and chronic side effects and complications, and the
emotional trauma involved, it is essential that the malignant nature of a presumed cancer should be confirmed by
microscopical examination in every case. This examination must be carried out by a reputable pathologist."
[1995] MLJU 183 at 60

In the light of the above expositions of medical views to which the defence witness expressed complete
concurrence, I am of the considered view that the operation in the instant case was carried out on the basis
of premature examination and the lackadaisical attitude of the Defendant's agents or servants and the delay
in obtaining the pathology results are very far from the requisite standard of care needed.
DW.1 agreed with the following passages from Farquharson's textbook of "Operative Surgery", by R.F.
Rintoul, 7th Edition which reads:
"Lumbar Puncture is undertaken for a wide variety of diagnostic and therapeutic purposes. .." (pg. 213). ".. .
Intramedullary tumours are rarely amenable to radical surgery and no attempt should be made to remove the
[1995] MLJU 183 at 61
whole of extradural metastastic tumours. .. Attempts to move the anterior portion and rotation of the cord or dura may
result in serious cord damage." (Pg. 218).

DW.1 also agreed with Bailey & Love's "Short Practice of Surgery", revised by Charles V. Mann & R.C.G.
Russel at Pg. 510 "4. Myelography. This remains the most useful test in the diagnosis of spinal tumours. ..
This test gives the following information:

(a) ....
(b) Extent of cord compression (in the presence of a total block, the upper limit of the tumour is
determined by injecting dye into the cervical theca via a lateral C1 -- C2 puncture).
[1995] MLJU 183 at 62
[This was not performed by the defence, which the defence expert referred to as the cisternal
puncture].
(c) Myelography enables the site of the tumour to be determined in relation to the dura i.e.
extradural, intradural extra-medullary or intradural intra- medullary. .. Intramedullary tumours
are demonstrable by an expanded cord surrounded by contrast medium on all sides". (ibid).
Unfortunately the defence did not produce the myelogram films to be read accordingly. Both DW.1 and the
radiologist ought to have no difficulty in accurately reading the films. They did not do so and no explanation
was given. DW.6 agreed that if there was a total block found on myelogram, immediate neurosurgical advice
must be sought. This is most important because
[1995] MLJU 183 at 63
only a neurosurgeon ought to handle this aspect. DW.1 significantly failed to do so.
Page 511 of the same book reads:
"The objective of management are therefore:

1 ÉÉ
2. É..
3.......
4. Further treatment with radiotherapy or chemotherapy of malignant tumours".

In respect of this passage, DW.1 said that the above was given based on the nature of the tumour. In other
words it is given. However, in the instant case, no radiotherapy or chemotherapy was given. DW.6 agreed
 Page 15

with the following passage at the bottom of Pg. 511:

[1995] MLJU 183 at 64
"In all spinal tumour surgery the avoidance of spinal cord traction, gentle tissue handling meticulous haemostasis and
water - tight closure of the dura are essential.".

DW.1 did not produce his operative notes nor tender evidence regarding this aspect of his surgery. DW.2
could not agree with the following passage at Pg. 747 in "Traumatic Medicine and Surgery for the Attorney"
by Paul David Cantor, M.D., LLB. as the Editor-in-chief:
"(c) Spinal tumours. Spinal cord tumours are usually divided into extradural and intradural growths arising outside of the
cord (extramedullary) and those within (intramedullary)".
[1995] MLJU 183 at 65

DW.2's reason for not agreeing with the above passage was that the book was written by a medical officer.
However, it is to be noted that the author was an Adjunct Professor of Law; Professor of Medical
Jurisprudence, Georgetown University Law Center; Professorial Lecturer, Legal Medicine, Georgetown
University School of Medicine; National Consultant, Medical Jurisprudence, American Red Cross.
DW.6 agreed with the passage at pg. 229 in "Essentials of Neurosurgery - A Guide to Clinical Practice" by
Marshall B. Allen and Ross H. Muller:
"... Intramedullary tumours classically present with a dissociative sensory loss because of damage to crossing central
commisural fibers of the spinothalamic tracts, sometimes secondary to a syrinx. There is a marked disturbance of pain
and
[1995] MLJU 183 at 66
temperature sensation typically at the level of the lesion but preservation of touch and position sense. There may be a
history of accidental burns or a shoulder-cape distribution of loss to pinprick sensation."

None of these symptoms were shown to have existed, nor was DW.1 alerted to them. DW.6 also agreed with
the passage at p.230, ibid, which reads:
"Preliminary diagnostic examinations should include frontal (AP) and lateral x-rays, as well as oblique or swimmer's
view to visualize the cervico-thoracic region. Absence, asymmetry, or overt destruction of a pedicle is suggestive of
metastatic cancer. Extensive metastatic disease may present as a large paraspinal mass of soft tissue seen on plain
[1995] MLJU 183 at 67
radiographs. Malignant lesions have a predilection for vertebral bodies with consequent pathological compression
fractures seen clearly on the lateral x-rays. Plain radiographs are positive in 80 to 90 percent of patients with spinal
tumours, both extrinsic and intrinsic."

However, the plain x-rays were not produced. In fact DW.6 agreed with the further passage at Pg. 230, ibid.
"Intramedullary tumors, like ependymomas and astrocytomas, can attain considerable size and cause widening of the
interpedicular distance, with enlargement of the canal on AP films".

However, no films were produced by the defence. DW.6 agreed with the
[1995] MLJU 183 at 68
following passage 34.39 in "Medical Negligence" by Michael Powers and Nigel Harris:
"Thus a patient with only moderate spinal dysfunction may awaken from an operation to biopsy such a tumour or for its
partial removal, with a paraplegia extending from that level downwards and involving sphincter control. Almost certainly
this is not due to any error of surgical technique but there will be no defence if the patient had not been warned of the
possibility before operation.".

It is abundantly clear that neither DW.1 nor Dr. Ruslan has explained to the patient that the act of cutting into
the tumour would cause stoppage of blood flow and therefore immediate paralysis.
[1995] MLJU 183 at 69
There is, therefore, no defence to this action. Besides, there is no evidence of a tumour at all (no slides
provided). In the circumstances based on the evidence of the Plaintiff and the defence witnesses and upon
cross-examination of the defence experts and upon reading the above passages from various medical
 Page 16

authors who are the leading authorities in their respective specialities, highlighted above and agreed to by
the defence witnesses including DW.1, DW.2 and DW.6, I hold that the Plaintiff has established a case of
negligence against the Defendant on a balance of probabilities.
V. APPORTIONMENT OF LIABILITY
As the Plaintiff has discharged himself against medical advice, I hold that he has contributed to his present
predicament. He has a duty to mitigate the loss consequent upon the Plaintiff's negligence and/or breach of
duties. In YOONG LEOK KEE CORPORATION
[1995] MLJU 183 at 70
SDN. BHD. V. CHIN THONG THAI (1981) 2 MLJ 21, the Federal Court held, inter alia, as follows:
"The law is clear in that as enunciated by Viscount Haldane L.C. in British Westinghouse Electric and Manufacturing
Co. Ltd. v. Underground Electric Railways Co. of London, Ltd. (House of Lords) [1912] AC 673, 689.

'The fundamental basis is thus compensation for pecuniary loss naturally flowing from the breach; but
this first principle is qualified by a second, which imposes on a plaintiff the duty of taking all
reasonable steps to mitigate the loss consequent on the breach, and debars him from claiming any
part of the damage which is due to his
[1995] MLJU 183 at 71
neglect to take such steps. Thus the onus falls upon the Respondent to take all reasonable steps to
mitigate the amount of damage. It is evident that the Respondent acted unreasonably when he left the
hospital against medical advice.".

That being the case, I find the Plaintiff liable to the extent of 20%. Hence, I find the Defendant 80% liable to
the Plaintiff.
VI. QUANTUM
1. GENERAL DAMAGES
Both the counsel for the Plaintiff and for the Defendant respectively submit that the quantum for pain and
suffering and loss of amenities should be RM120,000-00. The Plaintiff is a paraplegic. In ABDUL MUNIR B.
HJ.
[1995] MLJU 183 at 72
ABDUL RAHMAN (1985) 2 MLJ. cl, heard on 10.12.84, the Supreme Court awarded RM120,000-00 for a
paraplegic. The same award was made in NG KAH HENG v. NG PEK CHOO (1989) 1 CLJ. 962 which was
heard on 3.11.88 and in NOOR AZAHAR B. HABIN v. RAJASWARI (1991) 1 CLJ. 150 heard on 29.7.90 the
Court also awarded RM120,000-00.
In 1995, while it was submitted for the Plaintiff that the Court should now consider giving an award of
RM150,000-00 taking into consideration the fall in the value of money, the Defendant left the figure at
RM120,00-00. After considering the above submissions, I award a sum of RM150,000-00 on a full liability
basis. Hence, on 80% liability, the award is RM120,000-00.
2. SPECIAL DAMAGES
(a) Loss of Earnings
[1995] MLJU 183 at 73
The Plaintiff was 40 at time of the operation. There was evidence that his income after deductions was
RM700-00 per month. He was a farmer with a lorry to transport vegetables for sale. It was submitted for the
Plaintiff that the award for loss of earnings should be based on the years of purchase, as follows: 55 - 40 =
15 ÷ 2 = 7 1/2 years.
The Plaintiff's counsel submitted that on a direct multiplier, the quantum should be: 7 1/2 * 12 * RM700 = 90 *
700 = RM63,000-00
The Defence submission was that the Plaintiff's monthly income was RM400-00 and hence, the award
should be: RM400 * 96 = RM38,400-00.
[1995] MLJU 183 at 74
 Page 17

I am of the view that the Plaintiff's claim is fair and reasonable which I uphold accordingly. Therefore, based
on 80% liability, I award a sum of RM63,000-00 * 80% = RM50,400-00. This is to be broken up into pretrial
and post-trial. Since the 7½ years from March 1986 is taken up by the pre-trial loss, the Plaintiff is entitled to
interest at 4% per annum. I therefore interest at 4% per annum with effect from 1.4.1986.
(b) Cost of Nursing Care
The Defence submitted that the Plaintiff is only entitled to RM250-00 per month for this nursing care. The
Plaintiff claimed RM350-00 as cost of nursing care. The Plaintiff has adduced evidence that the wife was
earning RM350-00 per month and she had to give up
[1995] MLJU 183 at 75
her job to take care of the Plaintiff. I hold that a sum of RM350-00 a month is not unreasonable for nursing
care. In fact, in the celebrated case of JAMIL BIN HARUN v. YANG KAMSIAH & ANOR. (1984) 1 MLJ. 217
PC, the Court in 1981 granted RM200-00 per month for nursing care even without any proof.
In so far as his life span is concerned, it would not be unreasonable to say that he could live up to 65 years of
age. I therefore award a period of 65 - 40 i.e. 25 years purchase at RM350-00 per month for nursing care
amounting to 25 * 12 * 350 = RM115,000-00. Hence at 80%, the actual award is RM92,000-00.
Other special damages have been agreed to at RM800-00. I therefore award the following:
[1995] MLJU 183 at 76
a) General damages - RM120,000-00
b) Loss of earnings - RM 50,400-00
c) Nursing care - RM 92,000-00
d) Other specials - RM 800-00
Total RM273,200-00
I also award interest on general damages at 8% per annum from the date of service of writ of summons to
date of judgment and interest on special damages at 4% per annum i.e. on items (b) and (d) from 1st April
1986 to the date of judgment and thereafter on all the sums awarded at 8% per annum from date of judgment
to date of payment and costs.