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DI DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU DI DALAM NEGERI DI DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU DI DALAM

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DI DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU DI DALAM NEGERI DI DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU DI DALAM Powered By Docstoc
					     DI DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU
            DI DALAM NEGERI JOHOR DARUL TAKZIM
              GUAMAN SIVIL NO. (MT-1) 22-860-2006


                                ANTARA


RAMANAIDU A/L C SIMANSALOM
                                                              …PLAINTIF

                                   DAN

1.   KERAJAAN MALAYSIA
2.   DR YOGA RAJ
3.   DR SHAMSUL BIN ABDUL RAHMAN
4.   JULIANA BINTI JOHARI
5.   NOR ASIAH BINTI IBRAHIM
6.   RUBAIE BIN KASTAWI
7.   SUKHJIT KAUR
                                                …DEFENDAN-DEFENDAN


                   DI DALAM MAHKAMAH TERBUKA
                    DI HADAPAN Y.A. VERNON ONG
                              HAKIM

                       GROUNDS OF JUDGMENT


      The plaintiff‟s claim is for damages for losses incurred and injuries
suffered due to the negligence and/or breach of contract in the
management of the condition of the plaintiff‟s right knee.

Brief account of the facts

      The plaintiff was born on 11.8.1951. He was at all material times
employed as a security superintendent. He underwent a total knee
replacement operation („the TKR Operation‟) on 19.12.2003 at the Hospital
Sultanah Aminah, Johore Bahru (HSA). HSA is a hospital owned and
                                 Page 1 of 16
managed by the Government of Malaysia (the 1st defendant). The plaintiff
subsequently underwent two operations at HSA to treat the complications
of the TKR Operation; one on 25.2.2004 („the 2nd Operation‟) and the other
on 23.4.2004 („the 3rd Operation‟). The plaintiff will need further medical
and surgical treatment, physiotherapy and special facilities and equipment
so as to enable him to lead as normal a life as possible.

Plaintiff’s case

       Prior to the events in question, the plaintiff had injured his right knee
in a motor vehicle accident in 2001. He was treated at HSA and was
diagnosed to have osteoarthritis of the right knee by the defendant. On
24.8.2001, he underwent an arthroscopic debridement of the right knee
joint at HSA. On 19.12.2003 the plaintiff underwent the TKR Operation at
HSA. The plaintiff was 52 years old at the material time. The plaintiff later
underwent the 2nd and 3rd Operations to treat the complications arising from
the TKR Operation.

      The plaintiff‟s case is that he should not have undergone the TKR
Operation. He also suffered injury because the TKR Operation was
performed negligently. The plaintiff claims special damage, general
damages, interest and costs in respect of the injury and loss suffered
arising from the negligence and breach of contract of the defendants in the
treatment and management of the plaintiff at HSA.

Defendants’ defence

      The defendants contend as follows:

      (i)     the plaintiff suffered severe knee pain due to the motor vehicle
              accident and initially sought treatment not from HSA;
      (ii)    when the plaintiff finally sought treatment from HSA with
              complaints of knee pain and stiffness, he was initially treated
              conservatively (medications, rest, physiotherapy) and also
              given knee joint injections and underwent knee arthroscopy;
      (iii)   the plaintiff was only offered the TKR Operation after 2 years
              after he persisted with multiple clinic visits with the same
              complaints of pain and had progressive reduction in the range
              of motion („ROM‟);


                                   Page 2 of 16
(iv)     the plaintiff was informed of the risks of a TKR Operation (which
         included stiffness) at the orthopaedic clinic by Dr. Yoga Raj and
         reminded again before the consent form was signed by him;
(v)      before the TKR Operation was offered to the plaintiff, clinical
         examination of the plaintiff and the knee arthroscopy strongly
         indicated osteoarthritis in the right knee
(vi)     the TKR Operation was done in a proper standard manner and
         osteoarthritis of the knee joint was noted;
(vii)    after the TKR Operation, the plaintiff was put on a continuous
         passive motion („CPM‟) device and advised to continue physio
         exercises at home. A date was given for the plaintiff to attend
         physiotherapy sessions at the Physiotherapy Department;
(viii)   at the time of discharge on 26.12.2003, the plaintiff was able to
         tolerate CPM up to 90 and was advised to continue physio
         exercises up to 150° at home;
(ix)     the plaintiff was discharged with advice to do physiotherapy at
         home. However, when he came for his first physiotherapy
         session at the physiotherapy department about a month later,
         his right knee ROM was so bad which indicated that the plaintiff
         had not done his physiotherapy at home as advised. At the first
         physiotherapy session, the physiotherapist, Rubaie noted that
         his knee flexion is only up to 45°;
(x)      after four physiotherapy sessions and the plaintiff‟s knee
         condition showed no improvement, Rubaie referred him back to
         the Orthopaedic Department for further treatment;
(xi)     following complaints of stiffness of the knee (later diagnosed as
         arthrofibrosis), the plaintiff was again admitted to HSA for
         physiotherapy and knee manipulation;
(xii)    knee manipulations came with complications and the plaintiff
         unfortunately had one avulsion of the patella tendon, a known
         complication. This complication was expertly managed with
         circlage wire and after that the fracture was fully united and the
         plaintiff had initially increase ROM;
(xiii)   after treatment at the Orthopaedic Department, the plaintiff was
         again sent to the Physiotherapy Department. This time his
         main physiotherapist was Sukhjit Kaur;
(xiv)    later on the plaintiff was discharged from his physiotherapy
         sessions at HSA at his own request and was advised to
         continue physiotherapy at home on a regular basis;

                               Page 3 of 16
      (xv) the plaintiff‟s condition after the physiotherapy sessions with
            Sukhjit Kaur was satisfactory. Under the circumstances, any
            delay in achieving that satisfactory condition was not caused or
            contributed to by any negligent act on the part of the defendant
            by the plaintiff‟s own doing;
      (xvi) the plaintiff was treated in accordance with the appropriate
            standard of care and accepted medical practice at the material
            time.

The law on medical negligence

Burden of Proof

       The plaintiff who desires the Court to give judgment as to the
defendant‟s alleged medical negligence bears the burden of proving the
facts in support of his case (s 101 Evidence Act 1950). In order to do that
the plaintiff must show that there has been a breach of a specific or general
duty that resulted in damage to the plaintiff (Ng Chui Sia v Maimon bt Ali
[1983] 1 MLJ 110).

Standard of Proof

       In civil cases the standard of proof is on a balance of probabilities. In
law, the standard of proof is satisfied if on the evidence the Court considers
that it is more likely than not that the facts exist or does not exist. However,
in civil suits particularly where allegations of negligence against medical
practitioners have been made, such allegations should be assessed on a
high degree of probability – the standard of the ordinary skilled medical
practitioner exercising and professing to have that special medical skill
(Whitehouse v Jordan & Anor [1980] 1 All ER 650).

Standard of Care

      This high degree of probability is inextricably linked to the standard of
care to be exercised by a doctor. It is settled that a doctor owes a duty to
exercise reasonable care and skill. What, however, is the standard of
reasonable care and skill required of a doctor? The Bolam Test has often
been cited and accepted as the locus classicus test (Bolam v Friern
Hospital Management Committee [1957] 2 All ER 118; Chin Keow v
Government of Malaysia [1967] 2 MLJ 45; Elizabeth Choo v Government of
                                   Page 4 of 16
Malaysia [1970] 2 MLJ 171; Kow Nam Seng v Nagamah & Ors [1982] 1
MLJ 128). Briefly, the Bolam Test prescribes two requirements:

   (i) the doctor must have acted in accordance with an accepted medical
        practice; and
   (ii) the accepted practice must be regarded as proper by a responsible
        body of medical men in that art.

      However, in Foo Fio Na v Dr. Soo Fook Mun & Anor [2007] 1 CLJ
229 (FC) the Federal Court adopted the Rogers v Whitaker test (Rogers v
Whitaker [1992] 175 CLR 479) in preference to the Bolam Test. According
to the Federal Court, the standard of care applicable in such cases is not
determined solely or primarily by reference to the practice followed or
supported by a responsible body of opinion in the medical profession.
Therefore, while evidence of acceptable medical practice is a useful guide,
it is ultimately for the Court to adjudicate on what is the appropriate
standard of care, drawing upon the totality of the evidence presented.

Principal issues of fact and issues of law to be tried

      In this present case, the parties have agreed that the two principal
issues to be determined are as follows: (1) Whether the TKR Operation
was necessary in the circumstances? and (2) Whether there was any
surgical error during the TKR Operation?

       At the trial, apart from the plaintiff (PW1) who testified, the plaintiff
also called his wife Mrs Sukhai (PW2) and expert witness Dr. Kuldip Singh
Dhillion (PW3). Four witnesses testified for the defence: staff nurse Nor
Asiah Ibrahim (DW1), physiotherapist Rubaie bin Kastawi (DW2),
physiotherapist Sukhjit Kaur (DW3), the doctor who treated the plaintiff and
who performed the TKR Operation Dr. Yoga Raj (DW4) and expert witness
Dato Dr. Premchandran (DW5).

(1) Whether the TKR Operation was necessary in the circumstances?

     The plaintiff‟s contention is that the TKR was not necessary.
According to the plaintiff‟s expert witness PW3, the criteria for an elective
TKR includes – (i) radiographic evidence of joint damage; (ii) moderate to
severe persistent pain (osteoarthritis) which is not adequately relieved by
non-surgical management; and (iii) a clinically significant functional
                                   Page 5 of 16
limitation resulting in diminished quality of life. PW3 opined that a TKR
Operation was not necessary and in his specialist medical report (exh. P2)
he said:
“A review of the pre-operation x-rays provided no radiological evidence of osteoarthritis
of the right knee. It shows irregularity of the tibial intercondylar region anteriorly. This
irregularity is probably due to an avulsion injury of the anterior cruciate ligament. This is
in keeping with a record in the case notes dated 17/12/03 and operative notes dated
19/12/03. The pre-operation x-rays shows no decrease in articular joint space, no
ostephytes, no subchondral sclerosis, no subchondral cyst or deformity of the joint
which would be expected in ostearthritis of the joint. There is no record in the patient
file to suggest the patient had osteoarthritis of the joint on x-rays. There was a record of
some cartilage loss mentioned at the time of surgery. Has pre-operative range of
motion of the right knee as recorded in the file was 0 to 130°. It is clear therefore that
Mr Ramanaidu did not need a total knee replacement although he had knee pain. A
total knee replacement is indicated when there is severe, unremitting pain in the joint in
the presence of moderate to severe instability of the joint. In such situation, the knee
replacement will provide pain relief, correct deformity and provide stability.”

       DW4 was the orthopaedic surgeon and he was the leading surgeon in
the TKR Operation. DW4 had been seeing and treating the plaintiff since
2001 with the same complaint of right knee joint pain. The plaintiff had
been treated with medications and injections but the pain persisted. An
arthroscopic surgery was also done on the right knee which showed signs
of osteoarthritis. In 2003, the plaintiff returned with the same complaint of
persistent right knee pain. After studying the medical history, clinical
examinations, x-rays and previous arthroscopic findings, DW4 advised the
plaintiff to undergo the TKR Operation. DW4 said that he informed the
plaintiff of the risks of the TKR Operation and gave the plaintiff ample time
to consider his decision.

     The defendants‟ expert witness DW5 agreed with DW4‟s diagnosis.
In DW5‟s expert report (exh. D3) he said:

“In summary, this is a patient who had knee pain following a motor vehicle accident. He
was initially treated with analgesia, rest, knee arthroscopy for his pain and stiffness.
However, he persisted with multiple clinic visits with the same complaints of pain. He
also had progressive reduction in the range of motion. He was given the option of total
knee replacement only after 2 years and after he had not responded to medications,
physiotherapy, rest, key hole surgery (arthroscopy) and knee joint injections. This is the
standard flowchart of treatment options for knee pain which was offered to this patient in
the standard manner. The patient at the time of knee replacement did not respond to all



                                         Page 6 of 16
the treatment modalities available at this hospital in 2003 and the doctors there
proceeded with knee replacement.”

       The experts called by the plaintiff and the defendants have given
evidence which are at variance. Both PW3 and DW5 have given their
expert opinion orally and in writing. However, which expert evidence
should the Court prefer? PW3 was the first orthopaedic surgeon to do a
TKR operation in Malaysia. He is very experienced and has given expert
opinion in court for both plaintiffs and defendants. His expert opinion has
been accepted in Chien Tham Kong v Excellent Strategy Sdn Bhd & Ors
[2009] 7 MLJ 261. PW3 referred to medical literature in support of his
evidence. In particular, PW3 referred to a publication entitled NIH
Consensus Development Conference on Total Knee Replacement (exh.
P4) which stated, inter alia, that candidates for elective TKR should have
radiographic evidence of joint damage moderate to severe persistent pain
that is not adequately relieved by an extended course of nonsurgical
management, and clinically significant functional limitation resulting in
diminished quality of life. PW3 explained that radiological means x-ray and
that the x-ray should show damage to the joint. PW3 also examined the
plaintiff and considered the plaintiff‟s current condition, the plaintiff‟s version
of events and the medical records of the 1st defendant. DW5 was called by
the defence as their expert witness. DW5 is a consultant orthopaedic
trauma and arthroplasty surgeon. He is an employee of the 1st defendant
serving as a consultant and head of department at the Hospital Tengku
Ampuan Afzan, Kuantan. Under cross-examination, DW5 agreed that
according to the Malaysian Medical Council (MMC) guideline that in this
case the expert should have at very least been from another Ministry not
connected to the Ministry of Health. DW5 also admitted that he has never
given expert evidence in court in a medical negligence case before this
case. DW5 also did not examine the plaintiff; nor did DW5 had an
opportunity to hear the plaintiff‟s version of the events. DW5 also agreed
under cross-examination that it is important in a medical legal case for an
expert to consider the versions of both sides.

       PW3 came across as a more credible and independent witness.
PW3 confined himself to giving evidence and did not appear to be an
advocate for the plaintiff‟s case. The Court is satisfied that PW3 is an
independent witness who is skilled in his field of expertise by special study
and by years of experience. For the reasons adverted to above, the Court
is not satisfied that DW5 is an independent expert. In the premises, the

                                    Page 7 of 16
expert evidence of PW3 is to be preferred over that of DW5. Be that as it
may, the evidentiary value of PW3‟s expert evidence can never go beyond
an opinion and can never be of absolute certainty (see PP v Mohamed
Kassin bin Yatim [1977] 1 MLJ 64). The Court will now weigh PW3‟s expert
opinion against the evidence of DW4, the patient file records and pre-
operation x-rays. PW3‟s principal assertion is premised on the fact that
there is no record in the patient file to suggest that the plaintiff had
osteoarthritis of the joint on pre-operation x-rays.

       DW4 testified that in August 2001 he carried out an arthroscopy to
look into the plaintiff‟s right knee joint and found that the plaintiff had
cracking of the cartilage which indicated arthritis. Subsequently, the
plaintiff was discharged and received follow-up treatment. On 14.8.2003,
the plaintiff came back to see DW4 at which time DW4 diagnosed
osteoarthritis on the right knee joint. DW4 prescribed injections into the
knee joint and analgesics. However, the plaintiff returned complaining of
knee pain. Due to the persistent pain in the right knee, DW4 decided to
proceed with the TKR Operation. DW4 also recorded a pre-operative ROM
of the right knee of between 15° - 90°. Under cross-examination, DW4 said
that the most probable cause of the plaintiff‟s stiffness of the right knee was
a fracture of the tibia; that as the tibia is a component of the knee joint, the
plaintiff had a knee joint injury. DW4 agreed that whilst he did not
specifically state „tibia fracture‟ in his operation record dated 19.12.2003, he
said that he had recorded „fragment with Anterior Cruciate Ligament
(“ACL”) attachment avulsed‟ which referred to the tibia fracture.

      However, there is no evidence or medical record of any treatment
being administered for the said avulsion of the ACL attachment or tibia
fracture. In fact, DW4‟s justification to do the TKR Operation on the basis
of his arthroscopy finding is inconsistent with the remarks of a consultant
orthopaedic surgeon “not much O/A changes” (OA referring to
osteoarthritis) in the patient file dated 17.12.2003 (p 63 Bundle B). The
pre-operation x-ray films of 17.12.2003 were not produced in evidence.
There was no explanation or clarification from the maker of the record of
“not much O/A changes”. Further, there is no record in the patient file to
indicate that the plaintiff had osteoarthritis of the right knee joint on pre-
operation x-rays. In addition, the defendant‟s situation is compounded by
the conflicting figures of ROM of the plaintiff before the TKR Operation. In
the face of conflicting entries in the patient file and medical records, it is not
open for the defendants to pick and choose which entry they like to rely on.
                                    Page 8 of 16
The attempts by DW5 and DW4 to explain the conflicting ROM entries as
insignificant is unacceptable as the makers of the ROM entries in question
were not called to testify. Accordingly, the entries in the patient file and
medical records pertaining to the ROM entries are unreliable and
consequently of no probative value.

       It is also pertinent to observe that under cross-examination DW5
agreed on the importance of undertaking radiological investigations before
undertaking a total knee replacement operation. DW5 stressed that x-rays
prior to surgery “is an absolute must” for two reasons. Firstly, it helps to
diagnose osteoarthritis in combination with other factors; secondly, it is
needed to make accurate measurements as to the template and the
implant size to be used.

       After scrutinising the evidence on this issue, the Court is inclined to
the view that the plaintiff‟s complaints of pain were probably due to the ACL
avulsion and/or tibia fracture. There is no record or evidence to show that
the plaintiff received any treatment specifically for the ACL avulsion or tibia
fracture. The plaintiff was only treated for the pain with medications and
injections; and when the pain persisted, DW4 carried out the arthroscopy to
wash the knee joint and look into the condition of the articular cartilage of
the right knee. Apart from DW4‟s testimony, there is no record on the
patient file to suggest that the plaintiff suffered from osteoarthritis of the
right knee joint prior to the TKR Operation. In the circumstances, DW4‟s
diagnosis that the TKR Operation was required is not consistent with the
evidence before the Court. The question is therefore answered in the
negative.

(2) Whether there was any surgical error during the TKR Operation?

       The defendants‟ stand is that the plaintiff developed arthrofibrosis
after the TKR Operation. It was a condition which was detected after he
complained of stiffness and knee manipulation was done. During the knee
manipulation, the plaintiff had avulsion of the patella tendon, a known
complication.   The defendants dispute the plaintiff‟s contention that
arthrofibrosis developed because of surgical error during the TKR
Operation.

     The plaintiff‟s assertion is that the defendants are unable to explain
the outcome of the TKR Operation which was described as “catastrophe”
                                  Page 9 of 16
by DW5 and “bad result” by DW4. In this regard, PW3, referring to a
Review Article entitled “Stiffness in total knee arthroplasty” (exh. P7) opined
that the most frequent causes involved in the development of postoperative
stiffness are related to surgical errors. Under cross-examination DW5
agreed with PW3‟s view but added that it did not apply to this case; though
DW5 did not give any reasons to clarify why it did not apply to this case.
DW5 also agreed that arthrofibrosis would take some time to develop
before it can cause stiffness of the right leg.

       DW5 and DW4 said that arthrofibrosis was probably due to some
genetic cause; however, DW5 also said that arthrofibrosis can take one
week to develop despite good surgical technique. As the plaintiff suffered
stiffness in his right leg immediately after the TKR Operation, arthrofibrosis
could not have been the cause of such stiffness. It is pertinent to observe
that both DW5 and DW4 were, however, unable to tell the cause of the
immediate post-operation stiffness in the plaintiff‟s right leg. If so, what was
the probable cause? According to PW3, the immediate post-operative
stiffness was due to an inadequate tibial cut which caused a 10 mm
proximal shift in the joint line and that had caused tightness of the right
knee in flexion. PW3 had also relied on the fact that the plaintiff never
achieved a ROM of more than 45° post-operatively in suggesting that there
was a surgical error. If it was a case of arthrofibrosis, then the stiffness in
the right leg shall have resolved and the ROM should have improved after
the closed manipulation and reduction surgery carried out to remove the
arthrofibrosis. But even after that procedure the Plaintiff‟s ROM remained
poor, never more than 45%, which again suggests that surgical error was
the cause of the stiffness. PW3 also referred to exh. P4 where it is stated
that “The success of primary TKR in most patients is strongly supported by
more than 20 years of follow-up data. There appears to be rapid and
substantial improvement in the patient’s pain, functional status, and overall
health-related quality of life in about 90 percent of patients; about 85% of
patients are satisfied with the results of surgery”.

       PW3 considered three factors which may lead to post-operative
stiffness of the knee. These factors are pre-operative, operative and post-
operative. PW3 opined that pre-operative factors did not apply because
the plaintiff‟s ROM was full pre-operative, there was no history of previous
multiple surgeries or a high tibial osteotomy. PW3 also excluded post-
operative factors as the plaintiff had no deep infection, no heterotrophic
ossification and the pain management and patient motivation appears
                                  Page 10 of 16
satisfactory. PW3 concluded that technical error was the cause of the post-
operative stiffness. PW3‟s reasons are clearly set out in his expert report
exh. P4 wherein he says
    “The operative factors include technical errors at the time of surgery. These
    included retained osteophytes, imbalance of flexion extension gaps,
    malalignment, improperly sized components and inaccurate patellofemoral
    reconstruction. A review of the post-operative radiographs showed that there
    is a shift in the joint line proximal due to an inadequate tibial cut. Normally the
    joint line should be about 1.5 cm proximal to the tip of the fibula i.e the
    distance from the tip of the fibula to the articular surface should be 1.5 cm.
    However in this case, it was 2.5 cm from the tip of the fibula to the articular
    surface. This 10 mm proximal shift caused tightness of the knee in flexion
    leading to post operative stiffness. A review of the patient‟s records show that
    he never achieved more than 45° knee flexion at any time post-operatively
    even after his second operation which again shows that the technical error
    was the cause of the post-operative stiffness.”

       Both DW4 and DW5 attempted to calculate the joint line while holding
up the x-ray films in the witness box. However, DW4 agreed that he was
unable to calculate the joint line accurately without a viewing box. DW4
contradicted DW5 when he said that after 7 years the implant, its
placement and the joint line would have shifted or shrunk. In contrast,
DW5 said in his evidence in chief that the implant, the placement of the
implant and the joint line have not changed after 7 years when he viewed
and compared both x-ray films (exhs. P6A & P6B) taken by PW3 on
21.12.2010 and the immediate post-operative x-ray films (exhs. P8A &
P8B) taken by DW4 on 21.12.2003. PW3 was aware that there was no
change after 7 years and accordingly he took 1:1 x-rays of the plaintiff‟s
right knee on 21.12.2010 to calculate the joint line; on this point, DW5 was
also in agreement. Under cross-examination, DW4 also attempted to
downplay PW3‟s measurement of the joint line when he said that the x-rays
taken by PW3 “looks terrible”, and then corrected himself by saying “No,
sorry, the x-rays aren‟t terrible, the knee joint looks terrible.”

       In this case, all the plaintiff needs to prove is that poor surgical
technique had caused or materially contributed to the stiffness in his right
leg (Wu Siew Ying v Gunung Tunggal Quarry & Construction Sdn Bhd &
Anor [2011] 1 CLJ 409; Athey v Leonati [1999] Lloyd‟s Law Reports Med
458; Aman Bin Ahmad v Kerajaan Malaysia in Kota Bahru High Court Suit
No. 21-3.2002, unreported). On the totality of the evidence, the Court is
satisfied that the plaintiff has shown that poor surgical technique has
                                       Page 11 of 16
caused or materially contributed to the stiffness in the plaintiff‟s right leg.
PW3 had given his reasons for saying that poor surgical technique or
surgical error was the cause or materially contributed to the post-operative
stiffness of the right knee. His expert opinion was supported by medical
literature. In fact, DW4 also agreed that inadequate cutting of tibia would
lead to knee stiffness. If there was no surgical error but only arthrofibrosis
causing the knee stiffness, manipulation of the knee would have cured the
plaintiff of the knee stiffness; but in this case the manipulation failed to do
the job. PW3 was never challenged that his measurements were wrong.
Neither was PW3 challenged that it was wrong of him to have taken
measurements from x-ray films taken 7 years after the TKR Operation.
DW4 agreed that weight-bearing x-rays should have been taken to
diagnose osteoarthritis and that he did not do it. The ROM of 120° on
17.12.2003 and the x-ray findings of “not much OA changes” are not in
keeping with accepted practice before advising a TKR Operation. Such
findings do not support a need to do an elective TKR Operation. The
failure to advise the plaintiff of the other treatment options and
complications and risks of the TKR Operation is also not in accordance with
accepted practice.

Conclusion

Liability

       On the totality of the evidence, the Court finds that the plaintiff had
substantiated his claim for negligence. There was insufficient evidence of
osteoarthritis to support a decision to perform a TKR Operation. The
defendants have failed to rebut the plaintiff‟s prima facie case when it failed
to call relevant witnesses. Further, the x-rays films for 17.12.2003 were not
produced and no weight-bearing x-ray films were taken. The plaintiff was
not adequately informed of the risks and complications of the TKR
Operation. The evidence shows that the ROM of the plaintiff‟s right knee
deteriorated immediately after the TKR Operation. PW3 had considered all
possible causes and ruled them out before concluding that there was
surgical error. In the light of the foregoing, the Court will now deal with the
issue of quantum.

Quantum of damages

Special damage
                                  Page 12 of 16
     Special damage must be pleaded and proved (Ong Ah Long v Dr. S.
Underwood [1983] 2 MLJ 324; Sam Wun Hoong v Kader Ibramshah [1981]
1 MLJ 295). The following items of special damage claimed are as follows:

1.    Medical expenses - RM9,667.00

      As this item is not disputed by the defendants it is allowed.

2.    Costs of physiotherapy - RM195.00

      This item is not allowed as it is not supported by documentary
      evidence.

3.    Costs of assistance - RM17,500.00 + RM26,000.00

       In principle, the cost of care may be allowed where a plaintiff has
suffered grave and permanent injuries so as to require nursing care and
attendance for the rest of his life. PW1 and PW2‟s evidence on this issue
was not challenged. PW3‟s expert opinion states categorically that
stiffness of the knee is also associated with severe disabling pain in the
knee that interferes with activities of daily living and the quality of life. In
the circumstances, the claim for costs of assistance of RM500.00 per
month for the period from 19.12.2003 to 16.11.2006 and between
17.11.2006 to the date of decision is reasonable. This item is allowed.

4.    Travelling expenses – RM26,000.00

      The item covers travelling expenses for the pre-trial period of 52
months from 17.11.2006 to the date of decision 29.4.2011 at RM500.00 per
month. As no evidence was produced to justify the expenses after
2.11.2006, the claim is only allowed for the period until 17.11.2006. This is
evident from PW1‟s kad pesakit luar and kad lawatan where he attended
61 follow-up and physiotherapy sessions at HSA. Taking into account the
distance between Masai and HSA, a sum of RM50.00 per return trip is a
reasonable sum for travelling expense. At that rate, the total travelling
expenses for the 61 trips at RM50.00 per trip works out to RM3,050.00. In
the premises, travelling expenses of RM3,050.00 is allowed.

5.    Loss of income – RM51,600.00


                                  Page 13 of 16
      This claim for loss of income at the rate of RM2,200.00 per month is
for the period from 1.4.2004 to 15.4.2005 and from 16.7.2005 to 11.8.2006.
The defendant contends that the plaintiff is only entitled to the loss of
income for the first period. The claim in respect of the second period is not
claimable as the plaintiff‟s employment was terminated due to the fact that
his employer ceased operations and left the plaintiff unemployed. In the
premises, the loss of income attributed to the defendant‟s negligence is
limited to RM26,400.00 only.

6.   Cost of walking frame - RM120.00

     This item is not disputed and is allowed.

7.   Fees for medical reports – RM240.00

     This item is also allowed as it is not disputed.


General damage

1.   Pain and Suffering and Loss of Amenities of Life

        The plaintiff‟s claim is for RM150,000.00. Learned Senior Federal
Counsel argued that in the circumstances, a proper award should be
RM30,000.00 (Wong Kong v Yee Hip Transport Co. & Ors [1966] 2 MLJ
234; Tay Tong Chew & Another v Abdul Rahman Bin Hj Ahmad [1985] 1
MLJ 50; Chong Chee Khong & Anor v Ng Yeow Hin [1997] 5 MLJ 786; Lou
Ee Ee v Tan Kin Keong [1986] 1 MLJ 308; Yasin bin Wahab v Loo Kok Wai
[1980] 2 MLJ 43). The defendant‟s contention fails to take into account the
fact that the TKR Operation was not necessary in the first place. This fact
compounded with the long period during which the plaintiff endured pain
and suffering is also evident from the various corrective treatments he
underwent coupled with the long period of medical leave from 19.12.2003
to 25.4.2005. In the premises, a global award in the sum of RM100,000.00
is fair and reasonable in the circumstances.

2.   Revision TKR

     It is not disputed that the plaintiff would require a revision TKR
operation. Given the background of this case, it is appropriate that the
                                 Page 14 of 16
plaintiff be awarded the cost of undergoing a revision TKR operation in a
private hospital of RM35,000.00.

3.    Future Pain and Suffering and Loss of Amenities for Revision TKR

      Flowing from the revision TKR operation, the plaintiff should also be
awarded a sum of RM30,000.00 for the future pain and suffering and the
loss of amenities for the future TKR operation (Shanmugam a/l Gopal v
Zinal Abidin bin Nazim & Anor [2003] 3 MLJ 76).

4.    Loss of Earning Capacity

       Due to the plaintiff‟s inability to obtain re-employment, the plaintiff is
entitled to RM30,000.00 for loss of earning capacity.

5.    Future Cost of Assistance

    The plaintiff is entitled to the future cost of assistance at the rate of
RM500.00 per month for 10 years; which computes to RM60,000.00.

6.    Future Travelling Expenses

       As the plaintiff will have to rely on others for his travelling needs, an
award of RM200.00 per month is a fair and reasonable sum as his
travelling expenses until he reaches the age of 70 years; which sum
computes to RM200.00 per month x 12 x 10 = RM24,000.00.

      By reason of the foregoing, the plaintiffs‟ claim is allowed as follows:

      (1)   Special damage – RM82,977.00;
      (2)   General damage – RM279,000.00;
      (3)   Interest on the special damage at 4% per annum from
            19.12.2003 to the date of judgment;
      (4)   Interest on the general damage at 8% per annum from
            16.11.2006 to the date of judgment;
      (5)   Interest on the judgment sum at 8% per annum from the date of
            judgment to the date of payment.
      (6)   Costs – to be taxed on basis of two counsel.



                                   Page 15 of 16
(VERNON ONG)
JUDGE
HIGH COURT MALAYA
JOHOR BAHRU

DATED:           29TH APRIL 2011



COUNSEL


P S Rajan, A Kalesh, MS Dhillon with K B Karthi - Tetuan P S Ranjan & Co. Units No. 2.1 &
2.2, 2nd Floor, Wisma Bandar, No. 18, Jalan Tuanku Abdul Rahman, 50100 Kuala Lumpur – for
Plaintiff.

Zaliha Mohd Janis and Norazlina bt Ghazali – Peguam Kanan Persekutuan, Jabatan Peguam
Negara, Bahagian Guaman, Pusat Pentadbiran Kerajaan Persekutuan, 62512 Putrajaya - for
Defendants.




VO-j-22-860-2006/mj




                                       Page 16 of 16

				
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