On 14th June 2022, we successfully acted as counsel for the plaintiff patient at the Court of Appeal in a medical negligence case against Hospital Kuala Lumpur & several other defendant doctors (Mohamad Rafiq bin Faudzil v Dr Adzleen binti Mahmood & 8 Ors (Civil Appeal No. W-01(NCvC)(W)-574-10/2020))
The plaintiff patients was blinded on his left eye after being prescribed medication & undergoing surgery at Hospital Kuala Lumpur in 2018. He alleged that he was wrongly prescribed Maxidex, a steroid-based medication, which aggravated the corneal ulcer in his eye at the time. He also alleged that he was not explained of the risks of medication & surgery.
The High Court Judge dismissed the plaintiff’s claim, chiefly on the basis that he did not call expert witnesses to prove his case of medical negligence, which was fatal.
The Court of Appeal bench, which comprised of Suraya Othman JCA, Lee Heng Cheong JCA and Haji Ghazali Haji Cha JCA, unanimously held that there it was not mandatory for a plaintiff in a medical negligence case to produce expert witnesses to prove his/her case, provided that the documentary evidence and evidence of the treating doctors was sufficient. This was consistent with the judgment of another Court of Appeal in Loo Chooi Gaik v Dr Loh Lay Soon [2019] 4 CLJ 281.
The Court of Appeal also invoked an adverse inference against the defendants because of their failure to call a material witness who had signed the medical reports and other important documents which all prima facie suggested that the plaintiff had indeed suffered from corneal ulcer, and it was therefore wrong for Maxidex to be prescribed.
The Court of Appeal reversed the High Court’s judgment, and allowed the plaintiff patient’s claim and awarded him damages in the range of 6-figures.
Wei Jiet was instructed by Messrs Fadly Zakariya in this matter.
