HIGH COURT OF MALAYA
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www.ipsofactoJ.com/highcourt/index.htm [2006] Part 2 Case 5 [HCM] |
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HIGH COURT OF MALAYA |
| Coram |
Foong - vs - Assunta Hospital (M) Sdn Bhd |
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RAUS SHARIF J |
1 DECEMBER 2005 |
Judgment
Raus Sharif, J
This is an appeal against the decision of the learned Session Court judge ("trial judge") made on August 2, 1997, who dismissed the appellant's claim against both respondents.
On October 30, 2004, after hearing the parties, the appellant's appeal was dismissed. I now give my reasons.
The background facts of this case are these. On December 20, 1985, the appellant was suffering a severe pain in the lower abdominal area. She sought advice and treatment in a private clinic at Old Klang Road. At the private clinic, she was examined by Dr Leong Kok Weng, who later referred her to Assunta Hospital, the first respondent ("hospital").
At the hospital, the appellant was given a medical check-up and thereafter admitted. A short while later she was operated on for appendicitis by Dr AK Sabapathy, the second respondent ("Dr Sabapathy"). During the operation, Dr Sabapathy found that the right ovarian cyst had ruptured. The appellant's ovarian cyst, as well as the appendix was then removed.
After the operation, the appellant was admitted to the ward. While at the hospital, she was managed by Dr Sabapathy until he went on leave on December 28, 1985. During the period Dr Sabapathy was away, the appellant was managed by a consultant surgeon, Dr KT Lim.
After the operation the appellant experienced tremendous pain. When Dr Sabapathy returned from his leave on January 6, 1986 he suggested a second operation (laparatomy). The appellant underwent the second operation on January 7, 1986 and pus was found in the right paracolic gutter and was cleared.
The appellant was discharged from the hospital on January 18, 1986 and went for follow-up check-ups on January 21, 1986, January 28, 1986 and February 25, 1986.
According to the appellant, that on the third visit, Dr Sabapathy told her that it was not necessary for her to come back and that she could go to other clinics for dressing. The appellant then sought and underwent further treatment and medical attention at Tung Shin Hospital, Klinik Ng Lee, Klinik Sri Gombak and Dr Leela Ratos at Kuala Lumpur to reduce her abdominal pain.
In this suit the appellant is claiming against the hospital and Dr Sabapathy for breach of contractual duty and/or professional negligence and/or breach of duty of care by the both of them which resulted in the appellant suffering internal injuries, enduring pain and suffering and mental anguish and has been put to loss and expenses. Both the hospital and Dr Sabapathy denied the allegations.
At the trial the following witnesses were called:
For the appellant
Foong Yee Keng (PW1) - Appellant;
Dr Muthukumaran (PW2) — Consultant Surgeon at Tung Shin Hospital;, and
Foong Chong Keng (PW3) - Appellant's father.
For the respondents
Dr AK Sabapathy (DW1) - Second respondent;
Dr Leong Kok Weng (DW2) — Doctor who referred the appellant to the hospital;
Dr Kylasa Somasundram (DW3) — Consultant Surgeon at Tawakal Hospital;
Theresa Pangajshi (DW4) — Night Supervisor at the hospital;
Kamalasani a/p Nadarajah (DW3) - Head of Pharmacy at the hospital; and
Lee Chong Hing (DW6) - Medical Superintendent at the hospital.
On August 2, 1997, the appellant's claims was dismissed by the trial judge.
Before me the main complaint of the appellant was a failure on the part of the trial judge to consider that negligence was proven against the hospital and Dr Sabapathy with respect to:
the two operations; and
the management of the appellant during the operation and post-operation.
With respect to Dr Sabapathy, it is the appellant's contention that Dr Sabapathy:
failed to insert a corrugated drain to drain the wound in the first operation which by itself had brought about those infections and that he failed to indicate that a drain, if ever, was really inserted;
altered the medical records and tampered with evidence; and
failed to ensure immediate administration of antibiotics after the operation.
With respect to the hospital, it was the appellant's contention that the hospital had through its servants and/or agents:
negligently managed the two operations of the appellant; and
negligently managed the appellant in post operation treatment and care.
At the outset, Mr. Shafee leading counsel for the appellant, complained that there was a 20-year delay on the part of the trial judge in making the decision and judgment. He further complained that there are no grounds found in the judgment. In other words, he is contending that the judgment is a non-speaking judgment. Thus, he submitted that the principle that the appellate court should be slow in interfering with the findings of facts of the court of first instant should not be applicable in this appeal. Hence, he is urging this court to consider the issues afresh based on the evidence available in the record of appeal. According to him, there was sufficient evidence to support the appellant's claims against the hospital as well as Dr Sabapathy, thus he urged this court to find in favor of the appellant.
Leading counsel for Dr Sabapathy, Mr. PS Ranjan, contended that even if the judgment is a non-speaking judgment, there was enough material for this court to support the findings of the trial judge. Accordingly, he urged this court to dismiss the appellant s appeal with costs.
Leading counsel for the hospital, Mr. Edmund Bon, was of the same mind with Mr. PS Ranjan. According to Mr. Edmund Bon, there are materials before this court to justify the decision of the trial judge that on the balance of probabilities, the appellant had failed to prove her case.
To appreciate the arguments of counsel it is necessary to look at what the trial judge said in her grounds of judgment. The trial judge after setting out the facts, said the following [translation]:
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Based on evidence which was adduced by witnesses and from tendered documents, in particular cards like the "cardex card" for medications administered (exh D31); and injection given (exh D35), and the "observation chart" (exh P9Ac) it is clear that treatment was given by DF1. From the record of these cards, it is also clear that the necessary care too was given by DF1. Exhibit P14 ("Doctor's Order Sheet") and Exh P8 ("medicine sheet") show that the medication which DF1 gave was given at the direction of DF2, the doctor who was responsible for the plaintiff's care. When DF1 was away on leave another doctor would look after the plaintiff. As for DF2, when he is on leave, likewise another doctor would look after the plaintiff. DF2 carried out the two operations which was thought to be necessary for the plaintiff. From the evidence of DF2 and his expert witness, DW3, I find that DF2 was not guilty of negligence or omission in his duties/responsibilities towards the plaintiff. I agree with the submission of the defendant that:
— Scott LJ in Mahon Osborne [1939] KB 14, Hence, "a high standard of proof is required in a professional negligence action." In Hucks v Cole, Lord Denning MR. said at p 6:
See Homal v Neuberger Products Ltd [1957] 1 QB 247. In the Vancouver General Hospital case, the Privy Council applied an even higher standard of proof, saying as follows:
I find that the "standard of care test" in this negligence claim has been satisfied by both DF1 and DF2. I cannot find anything which could indicate that the two defendants or anyone of them had failed to discharge their/his duties or were/was negligent in carrying out their/his duties as claimed by the plaintiff. With regards to consent for the two operations, I find that the plaintiff did consent to the first operation. It was an uncontroverted fact that the plaintiff was in an emergency situation and this is evidence that the plaintiff had no choice at the time when she came to DF1 and DF2 on December 20, 1985. Operation must be performed. Exh P2 clearly shows the plaintiff's consent to the first operation. Concerning the second operation, the plaintiff said "I cannot recollect whether I consented to the operation or not." It is obvious that the plaintiff did give her consent when she said, in evidence, that "After December 20, 1985 I don't remember if I ever complained that the operation was done without my consent." Therefore, on the balance of probability, consent was given by the plaintiff for the two operations. For these reasons I dismiss the plaintiff's claims of neglect and breach of duty against DF1 and DF2 with costs." |
With respect, I have to agree that the trial judge did not substantiate her findings with reasons. An easy way out in this kind of situation is for this court to order a retrial. But in view that the cause of this action arose in 1985 and the fact that the case had been delayed for a considerable time, where 9 witnesses had testified and with voluminous documents being tendered as exhibits, it is not in the best interest of all parties concerned, and above all justice, that the case be sent back to the Session Court to be heard again by another judge.
In view of the above, I decided to approach this appeal by examining the record to see whether there are enough materials to support the conclusion of the trial judge that on the balance of probabilities the appellant had failed to prove her case or whether there was sufficient evidence to support the appellant's claims that the hospital and/or Dr Sabapathy were negligent.
1. DR SABAPATHY
I will first deal with the contentions of the appellant on the negligence of Dr Sabapathy:
A. Dr Sabapathy failed to insert a corrugated drain to drain the wound in the first operation
On this issue it is the appellant's contention that Dr Sabapathy had failed to insert a corrugated drain in the first operation as it was not noted anywhere in the doctor's notes. To substantiate her contention, the appellant relied on the evidence of Dr Kylasa Somasundram (DW3) who during cross-examination gave evidence that:
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From the records it seems second defendant saw the plaintiff once on December 21, 1983 and he gave orders but no order to remove the drain. I agree that no note anywhere that he had removed the drain. On the assumption that a drain was inserted and removed, there is a failure to record, this is not mentioned in the doctor's order and the nursing report. It is significant to observe that the dressing was dry and the drain had not served its function. If having observed this is significant to note it down. If the doctor removed it would be noted somewhere either by the doctor or the nurses. If a drain had not been inserted in the first operation it would have shown a certain level of incompetence. Recording by surgeons should be done immediately after the operative procedures and the post-operative orders for the nurses. The infection suffered by plaintiff was not in-consistent with the drain not inserted. |
In connection to the above evidence, the appellant then referred to the evidence of Dr Muthukumaran (PW2), the consultant surgeon at Tung Shin Hospital who stated:
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If a drain had not been done in the first operation, I do not think the complication that had arisen would have arised. Inadequate drainage would have caused the infection. |
Dr Sabapathy in his evidence testified that the drain was inserted but removed 24 hours later. In examination in chief he said as follows:
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When I performed the operation I found there was free blood in the peritoneal cavity. The right ovary had a cyst that had ruptured and the appendix was mildly inflamed. I proceed with the operation. I cleared the peritoneal cavity of the free blood. I excised (removed) the ovarian cyst and then repaired the ovary and removed the appendix. Then clean the peritoneal cavity again. I then put a drain in the wound and closed the incision. During the operation, I cleaned peritoneal cavity twice. Normally we do it only once. Here because there was blood I could not see anything, so I had to clean the blood before I could reach the ovary to see if that was the source of the bleeding. I said I put a drain in the wound. In this particular case it was put so that I could see if there was further bleeding in the ovary. There was no such bleeding after the operation. The drain was there for about 24 hours or less. The drain was removed because there was no bleeding. |
The trial judge did not accept the appellant's allegation that Dr Sabapathy had failed to insert a corrugated drain after the first operation. Instead she chose to believe Dr Sabapathy. On the evidence available, I am in agreement with the trial judge. Dr Sabapathy's evidence that the drain was inserted and removed 24 hours later is supported by the evidence of DW3. DW3 in his evidence said the following:
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Infection of the wound does not necessarily mean improper drainage because the infection is the end result of the interaction of the quantum of bacterial infection against the host resistance against the infection and the support given to host in the form of antibiotic. From my experience, even if a drain is inserted infection can still set in. |
In light of the above I am unable to hold that no drain was ever inserted in the first operation as alleged by the appellant.
B. Dr Sabapathy altered the medical records, and tampered with evidence
The appellant submitted that the fact that Dr Sabapathy altered the medical record and thus tampered with evidence was admitted by Dr Sabapathy himself. The appellant was referring to the evidence of Dr Sabapathy during examination-in-chief where he said:
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The words "in right gutter" were inserted when I transcribed the notes into type written form. P13, I typed it myself. It is type written transcription of the hospital notes. In P13, under date December 20, 1985. P12, I typed "extended medially" but now I say "extended muscle cutting" is correct. At the time I wrote P5 the words "in right gutter" were not there. I added that when I prepared P13, the transcription. I did this about two years back. |
From the above, it was the contention of the appellant that Dr Sabapathy altered his notes two years before the trial to suit his contention that a drain had been inserted in the first operation, even though it had not been done. To the appellant, it was an afterthought on the part of Dr Sabapathy because he realised two years before the trial that he had been grossly negligent in not inserting a drain in the first operation. As such the appellant contended that P5 and P13 are not reliable documents and Dr Sabapathy was not a credible witness.
However as stated earlier, the trial judge accepted the evidence of Dr Sabapathy that a drain was inserted during the first operation. Thus, the contention that Dr Sabapathy altered the record was rightly rejected by the trial judge. To me, what Dr Sabapathy did when he typed P13 was not altering the medical records or tampering with evidence. He was merely recording what transpired in relation to the operation conducted on the appellant. Dr Sabapathy testified in effect that the drain was inserted but not recorded. According to him, at that time he had failed to complete his notes. Thus, only when he prepared his type written notes, he inserted the fact that the drain was inserted, which according to him was a fact. I have no reason to disagree.
Again, on the evidence and facts presented at the trial I am unable to conclude that Dr Sabapathy had altered the medical records and tampered with the evidence.
C. Dr Sabapathy failed to ensure immediate administration of antibiotics after the operation
It is the appellant's contention that there had been undue delay in administering antibiotics after the first operation. According to the appellant, the first administration of antibiotics should be given within the hour of the operation, if not before or during the operation. Here, according to the applicant, the first antibiotics was given about nine hours after the operation, which contributed to the infection, which resulted in the second operation.
It is also the appellant's contention that Dr Sabapathy had failed to insert the word "stet" for immediate administration of medication in the relevant hospital record and caused further confusion as to the administration of that vital dose of antibiotics. It is submitted that had the first respondent put in the word "stet", the particular medicine would have been administered immediately.
It is further contended by the appellant that Dr Sabapathy failed to recognise that the appellant was deteriorating in health from the December 22, 1985 onwards and that immediate alternative steps ought to have been taken. To the appellant, Dr Sabapathy had failed to supervise the support system of the hospital in ensuring his medical directions were carried out. He failed to leave adequate or any instructions before he went on leave from December 28, 1985 to January 6, 1986. According to the appellant, Dr Sabapathy failed to seek an alternative doctor to manage the appellant so that timely operation intervention could have taken place earlier.
Dr Sabapathy testified that the antibiotics were administered without delay. In his evidence he said to the effect:
that the practice of giving antibiotics in 1985/1986 at the hospital, was that as soon as the operation was over, the surgeon writes the posts-operative treatment which included antibiotics;
that the first dose was given in the recovering room attached to the operation theatre;
that there was no practice to give antibiotic injection in such a case just before or during the operation unless the case involved a brain, heart or bone replacement surgery; and
that as far as post-operative antibiotics were concerned, the nurses were aware of the practice. According to Dr Sabapathy the word "ster" did not have to be inserted in the surgeon's instruction to the nurses because it is routine to give the antibiotics immediately without delay.
In his evidence Dr Sabapathy specifically said that after the first operation he ordered Penbritin and Netyromycin to be administered on the appellant. Later he changed antibiotics to Cefoid because of the rise in the appellant's temperature. However he denied that the appellant was having spiking temperatures as suggested by PW2. On this issue he said as follows:
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I do not agree with PW2 that there was spiking temperature from the first operation up to the second operation. "Spiking temperature" means when the temperature goes repeatedly above 38 C (100 F). This was nor so in this case. Before I went on leave drugs were given for the rise in temperature. |
Thus from the evidence available, I am unable to accept the appellant's contention that Dr Sabapathy had failed to ensure immediate administration of antibiotics after the operation. As can be seen later in addressing the appellant's contention against the hospital that antibiotics were in fact administered on the appellant.
2. THE HOSPITAL
Now, I will deal with the appellant's contention on the negligence of the hospital. The complaints of the appellant may be summarised under two headings:
Failure to properly administer adequate and correct antibiotics to prevent post-operative infections.
Failure to appreciate that conservative treatment of the appellant was not working and that the second operation was needed much earlier than it was performed.
A. Failure to properly administer adequate and correct antibiotics to prevent post-operative infections
It is the contention of the appellant that there was a total failure to ensure adequate and correct antibiotics were administered to her to prevent post-operative infections. According to the appellant, the operation was a simple operation for appendicitis. A ruptured ovarian cyst was found, and both appendix and ovarian cyst were removed by the hospital. The appellant contended that she should have been at the hospital for only about 2-3 days but due to the negligent management of the operation and post-operative treatment and care, she landed there for almost a month. To the appellant, the extended stay at the hospital was due to the total failure on the part of the hospital to ensure adequate and correct antibiotics were administered to the appellant after the first operation to prevent post-operative infections. According to the appellant) the negligent management of the operation and post-operative treatment of the appellant made it necessary for the appellant to be admitted at the first respondent for about a month. To the appellant, the failure to ensure adequate and correct antibiotics were administered to her after the first operation was a contributing factor that resulted in the infections and the second operation.
According to the appellant, if Flagyl had been administered from the beginning or after the first operation, infection of the wound could have been avoided. According to the appellant, it is evident that despite the doctor's instruction to administer Flagyl immediately on December 25, 1985, it was only administered to the appellant on December 29, 1985, and that too an inadequate dosage, i.e. 1/5 of the prescribed dosage. To the appellant, this is gross negligence on the part of the hospital.
In reply, the hospital in gist stated as follows:
It was the duty of Dr Sabapathy to prescribe the antibiotics, which was done. It was not the duty of the hospital to ensure that the antibiotics prescribed were the right ones;
The original antibiotics prescribed were the right one, being merely prophylactic antibiotics - Penbritin and Netromycin;
Choice of drugs is dependant on the clinical judgment of the doctor;
There is a body of opinion which supports the view that there is no necessity to give antibiotics for the kind of operation undergone by the appellant. Antibiotics would not have been necessary in the first place to treat the appellant post-operation. The wrong antibiotic or lack of the same could not have caused the infection which led to the second operation. In fact, intra-abdominal infection can still occur despite proper antibiotic cover.
Penbritin and Netromycin and other medication including Flagyl were dispensed to the appellant in accordance with P14. This was corroborated by the Graph Chart P9A, P9B, P9C, and P17. The Color Chart is most reliable. Doctors do not rely on medical sheet; and
New bottles of Flagyl will only be issued by the pharmacy upon return of empty bottles. There has been no situation where medication was not given.
On the issue whether adequate and correct antibiotics were administered to the appellant, it is relevant to refer to what was decided by the trial judge. This is what she stated:
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Based on evidence which was adduced by witnesses and from tendered documents, in particular cards like the "cardex card" for medications administered (exh D31); and injection given (exh D35), and the "observation chart" (exh P9Ac) it is clear that treatment was given by DF1. From the record of these cards, it is also clear that the necessary care too was given by DF1. Exhibit P14 ("Doctor's Order Sheet") and Exh P8 ("medicine sheet") show that the medication which DF1 gave was given at the direction of DF2, the doctor who was responsible for the plaintiff's care. |
Clearly, the trial judge correctly and adequately took into account all relevant evidence and exhibits in arriving at her findings of fact in favor of the respondent on this issue. Unfortunately, she did it without giving her reasons. But as stated earlier on the evidence and facts available in this case, the hospital could not be said to be negligent for failure to properly administer adequate and correct antibiotics to prevent post-operative infections.
With regard to the non-administration of antibiotics to the appellant, before or after the operation, there is evidence to support the view that there is no necessity to give antibiotics for the kind of operation undergone by the appellant. PW2 during cross-examination agreed to two passages in the British Medical Journal, vol 280 January-March 1980 (Medical Literature, p 29) which provides as follows:
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use of prophylactic antibiotics in all cases of acute appendicitis is of questionable value; and |
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if a normal or inflamed appendix is encountered, then an appendictomy should not be followed by any antibiotic treatment. |
Further, another expert (DW3) in cross-examination stated that it is debatable whether prophylactic antibiotics are needed for removal of a normal and mildly inflamed appendix. For a straightforward ruptured ovarian cyst, DW3 agrees that it is again debatable whether prophylactic antibiotics are needed. DW3 agrees that there is a body of opinion which says it is not necessary.
In light of the above evidence, the hospital could not be said to be negligent because insufficient antibiotic was administered to the appellant. In any event as found by the trial judge, sufficient antibiotic and/or other required medicine was administered to the appellant. From the record, there is evidence to support the said findings. P14, the doctor's order sheet clearly indicated that sufficient antibiotics, namely Netromycin, and Penbritin, and other medication including Flagyl were dispensed to the appellant. This was further indicated in the color band in the graph charts marked as P9A, P9B and P9C for the antibiotics in particular Netromycin, Penbritin and Cefoid and in the table and output chart marked as P17 for Flagyl.
P9A, P9B, P9C and P17 were documents tendered by virtue of the system of dispensation in the hospital and evidence was adduced as to the manner the documents were created and recorded. The night supervisor of the hospital, Theresa Paugajshi (DW4) in examination-in-chief gave evidence as to the procedure adopted in the hospital in respect of administration of medication to their patients. According to her, the medication nurse would write the particulars of the patient and the medication on a pink cardex similar to D31, which is used as a reference for the nurses when medication is given. The medication nurse would also write on a white injection card similar to the one marked as D35, the room or bed number of the patient, the date, the name of patient, name of drug and the times to serve the drug. The white injection card is slotted into pigeon holes with the time for administration of the same written on the pigeon holes. When it is due for administration, the drug is put for the intended specific time slot in the compartments. Once the drug has been dispensed to the patient, the white injection card, D33, is moved to the next time slot so that the same procedure will then be repeated. According to DW4, that is the system at the hospital.
In cross-examination by the appellant's counsel, and in re-examination DW4 gave evidence that the staff nurse on night shift will colour a band on the graph chart, marked P9A, P9B and P9C, for the day to indicate that the particular medication has been dispensed to the patient. This is based on the white injection card having been moved to the last slot in the pigeon hole for the last shift and the existence of the correct quantity of empty bottles.
The trial judge accepted the evidence of DW4 on this issue and decided in favor of the hospital. She accepted DW4's evidence that the colour chart is the most reliable to indicate that the drug has been dispensed. I have no reason to disagree.
The appellant has attempted to show that there was insufficient Flagyl administered to the appellant by virtue of the fact that in the medical sheet (P8) Flagyl was recorded as "100 mg" and that certain entries in the medicine sheet were not initialed for other medication like Netromycin, Penbritin and Cefoid. But as submitted by the hospital, the failure to complete notes does not indicate negligence. More important is that there is ample evidence supporting the hospital's contention that the medicine prescribed had been dispensed. There is the evidence of DW4, which is not challenged that Flagyl only comes in 100 ml bottles. Therefore, it is not possible for only 100 gm of Flagyl, as recorded in the medical sheet (P8) to be given as opposed to 100 ml. I am also of the view that the non-initialing of the medicine sheet by the nurses for the antibiotics, Netromycin, Penbritin and Cefoid, does not in any way indicate that those antibiotic have not been dispensed to the appellant. If anything, it indicates a recording carelessness of the nurses. Surely it is not negligence. To me the colour chart supported the evidence that the medicine was dispensed at all times to the appellant. Hence, the applicant's contention that the hospital failed to properly administer adequate and correct antibiotic must fail.
B. Failure to appreciate that conservative treatment of the appellant was not working
The appellant contended that after the first operation Dr Sabapaty went on leave from December 28, 1985 to January 6, 1986. The second operation was conducted on January 7, 1986 i.e. 17 days between the first and second operation. According to the appellant, although there were suggestions for an early laparatomy, there were no actions taken by the attending doctor, Dr KT Lim, at that time. No explanation was given to the appellant by the hospital. The appellant was made to wait until the second respondent returned from his leave to perform the second operation. The delay in preparing the laparatomy, according to the appellant was not justified. To the appellant the delay in the second operation was a contributory factor for her internal injuries, pain and suffering.
The hospital in reply contended that whether an early laparatomy had been done was a clinical judgment and in this case Dr KT Lim who relieved Dr Sabapathy when Dr Sabapathy was away between the period of December 28, 1985 to January 5, 1986 adopted conservative treatment. Thus, according to the hospital, as conservative treatment was adopted, there was no necessity to carry out a laparatomy then.
In this respect it is pertinent to examine what was said by Dr Sabapathy in his evidence. He said that when he returned to work he continued the conservative treatment adopted by Dr KT Lim. However on January 7, 1986, he decided to operate as an infection had localised. He said:
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I terminated conservative treatment because after the evening of the January 6, 1986 she started vomiting again and there was persistent tenderness on the right iliac fossa. This indicate there is a possibility of some pathology (infection) int his area. There is a great possibility that conservative treatment might have helped but would have taken longer period. I decided to operate because of the infection that had already localised. |
I am in agreement with the hospital on this issue. In this case the appellant was not left unattended. Conservative treatment was adopted by Dr KT Lim. Surely, sufficient time had to be given in order to determine whether conservative treatment was working on the appellant. With regard to the suggestion that an early laparatomy should have been performed on the appellant, Dr Sabapathy said:
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lf laparatorny had been taken instead of conservative treatment, it would have resulted in more complication. Thus, to me whether early laparatomy must be carried out instead of adopting conservative treatment was a clinical decision. Different opinions always exist. If one treatment overtakes the other and goes wrong, it cannot be a basis for a conclusion of negligence. |
Thus, if there was a delay, the delay was due to the conservative treatment undertaken by Dr KT Lim. DW3 opined that a second operation should be carried out if there is evidence of complete intestinal obstruction but in this case, he noted from the documents submitted to him which showed that there was no indication of complete intestinal obstruction. Further DW3 in his examination-in-chief stated that there was evidence of septicaemia on December 28, 1985 in the appellant. According to him, with septicaemia it is dangerous to perform a laparatomy on the appellant. The expert witness for the appellant) PW2 concurred with the view. PW2 stated that:
it would be dangerous to perform a laparatomy if there was septicaemia and one of the diagnosis for spepticaemia is by x-ray: and
it is not necessary to do a laparatomy to find the cause of septicaemia.
As stated earlier, the decision whether to operate or not is a matter of clinical judgment of the attending doctor. It is for the attending doctor to decide based on the circumstances of the case at that time. To me, the conservative treatment undertaken by Dr KT Lim was an acceptable and reasonable practice in such circumstances.
The appellant's expert witness, PW2 may have a different view on this matter. But the difference of opinion as to the treatment of a patient does not make a doctor negligent merely because his opinion leading to his diagnosis differs from that of other doctors. What is important is he acts with the ordinary care and skill of a doctor with his qualification. In Hacks v Cole (1968) 112 SJ 483, Lord Denning MR. stated the following:
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A doctor was not to be held negligent simply because something went wrong. He was not liable for mischance or misadventure, nor for error of judgment. He was only liable if he fell below the standards of a reasonable competent practitioner in his Field, so much so that his conduct was deserving of censure or inexcusable. |
What Dr KT Lim had decided then was his clinical judgment. In fact it would be wrong on his part to proceed with a laparatomy operation without attempting conservative treatment. In Schanczl v Singh [1988] 2 WWR 465 (Alta QB) a Canadian case, the defendant surgeon was held negligent for failure to attempt conservative treatment before resorting to spinal surgery. In Schanczl, the patient was referred to the defendant due to persistent pain in his lower back and his left leg. Instead of recommending conservative management such as bedrest, muscles relaxants, heat and traction) the defendant proceeded with a myelogran and spinal surgery, Marshall J stated the following:
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For a specialist to plunge ahead and operate in the circumstances was exercising entirely undue haste .... A surgeon is retained to perform surgery, but also to avoid performing surgery in the appropriate circumstances. |
Thus, I am of the view, the allegation made by the appellant in respect of the conservative treatment, timing of the second operation and the early laparatomy all involved clinical judgment. The hospital cannot be faulted where such Judgment was exercised.
It is for the above-reasons, I am also of the view that the maxim of res ipsa loquitor or "the thing speaks for itself' is not applicable in this case. It is the appellant's contention that the maxim of res ipsa loquitor applies in this case as on the facts there are evidence of the "thing" namely:
Dr Sabapathy failed to insert a corrugated drain in the first operation;
Delay in administering antibiotics after the first operation;
Omission to insert the word "stet" for the immediate administration of medication;
Failure to ensure adequate and correct antibiotics were administered;
Undue delay in the performance of the second operation;
Failed to appreciate the ineffectiveness of conservative treatment;
Failure by both respondents to recognize that the appellant was deteriorating in health and immediate alternative steps ought to have been taken;
Failure of Dr Sabapathy to supervise the support system of the hospital in ensuring his medical directions were carried out. He even failed to leave adequate or any instructions before he went on leave.
To support the arguments, the appellant relies on the following cases to say that the maxim applies to medical negligence cases:
Cassidy v Ministry of Health [1951] 1 All ER at p 577
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I have gone straight to the result because, in my opinion, on the basis that the hospital was responsible for all those in whose charge the plaintiff was, the surgeon, doctor and nurses, the result seems to me to raise a case of res ipsa loquitor. |
Mahon v Osborne [1939] 2 KB 14 at p 22 where the court referred to Ballard v North British Railway Co 1923 SC (HL) 53. Lord Dunedin said:
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Whether the expression res ipsa loquitor is applicable or not depends upon whether in the circumstances of the particular case, the mere fact of the occurrence which caused hurt or damage is a piece of evidence relevant to infer negligence .... Where complete control rests with the defendant and it is the general experience of mankind that the accident in question does not happen without negligence, the maxim may well apply. |
I am of the view that the maxim of res ipsa loquitor does not apply in this case. To me, the fact that the patient came out of a hospital in worse condition than before admission does not constitute proof of negligence by the hospital staff. One must be able to accept that medical treatment carries the risk and the occurrence of injury is not necessarily evidence of lack of reasonable care.
For the above reasons, the appellant's appeal was dismissed with costs.
Cases
Ballard v North British Railway Co 1 923 SC (HL) 43
Cassidy v Ministry of Health [1951] 1 All ER 374, CA
Hucks v Cole (1968) 112 SJ 483, CA
Mahon v Osborne [1939] 2 KB 14, CA
Schanczl v Singh [1988] 2 WWR 465, QB Albta
Authors and other references
British Medical Journal, vol 280, January-March 1980
Representations
Mohd Shafee Abdullah, Frida Krishnan and Azlena Maria (Shafee & Co) for appellant
Edmund Bon and LY Choi (Chooi & Co) for first respondent
PS Ranjan and MS Dhillon (PS Ranjan & Co) for second respondent
Notes:-
This decision is also being reported at [2006] 2 AMR 324
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