Pusat Pakar Tawakal Sdn Bhd v Datin Nor Rizam Bt Abdul Wahab & Ors

Appellant(s): Pusat Pakar Tawakal Sdn. Bhd. .

Respondent(s):

• Datin Nor Rizam Bt Mohd Kenali (Menyaman Sebagai Pentadbir Estet Dato' Ir Zainudin Bin A Kadir)
• Dato' Dr Haji Mohd Solahuddin bin Mohd Kenali
• Dr Zulkifli bin Mohamed Haris

• YA Datuk Ravinthran a/l Paramaguru
• YA Datuk Azhahari Kamal bin Ramli
• YA Dato' Ahmad Fairuz bin Zainol Abidin

• The patient underwent elective sinus surgery (bilateral FESS with septoplasty and turbinoplasty) at the hospital; he was discharged from the recovery bay after only about 20–25 minutes despite complaints of drowsiness, suffered a respiratory arrest in the ward that went undetected by staff, and was wrongly intubated (into the oesophagus) during resuscitation, resulting in permanent hypoxic brain damage and, years later, his death.
• The patient (later his estate, represented by his wife) sued the hospital, the ENT surgeon and the anaesthesiologist for medical negligence; the High Court found all three liable and awarded substantial damages under multiple heads.
• All three defendants appealed against the finding of liability and parts of the quantum award, while the plaintiff cross-appealed on several heads of damages that had been disallowed or reduced.

• Whether the plaintiff's cross-appeal on quantum was procedurally competent given that it raised issues going beyond the scope of some defendants' notices of appeal.
• Whether the applicable standard of care (Bolam/Bolitho for diagnosis and treatment) was breached by the doctors in monitoring, discharge and resuscitation, and whether the hospital's non-delegable duty of care (including provision of emergency equipment and record-keeping) was breached, particularly where expert evidence conflicted.
• Whether various heads of damages were properly awardable, including loss of future earnings/earning capacity under s28A of the Civil Law Act 1956 (and the applicable pre- or post-amendment version), reimbursement of medical expenses partly paid by the patient's employer, costs of maids/caregivers, and aggravated damages where the injured party had since died.

• The Court of Appeal dismissed the preliminary objection on the cross-appeal, holding it was sufficiently connected to the appeals against "the whole decision" of the High Court, and upheld the trial judge's findings of negligence against all three defendants, endorsing his preference for the plaintiff's expert evidence over that of the defendants' experts and his reliance on adverse inference under s114(g) Evidence Act 1950 for missing records/witnesses.
• On quantum, the Court disallowed the claim for loss of earning capacity (as the patient died before any evidence of continued diminished earning capacity could be established) but affirmed awards for general damages, costs of maid/caregiver, statutory bereavement (applying the amended s7 CLA as the death occurred post-amendment), and costs of obtaining medical records and letters/orders for management of the estate.
• The cross-appeal was allowed in part: the Court restored the full claim for hospital and medical expenses (rejecting the "double benefit" argument based on partial employer reimbursement), but disallowed aggravated damages (following the principle that such damages do not survive the death of the injured party), pre-trial damages, out-of-pocket expenses and interest; each of the three defendants' appeals was dismissed with costs of RM50,000 each.