KUGEN & CO

Advocates & Solicitors

Kugen Rama Chendra,LLB (Hons),MMU

Harritraam,LLB (Hons),MMU

2nd June,2024

Idris, PRIVATE & CONFIDENTAL

No.34,Jalan Hang Tuah,
Taman Kerjasama Jaya, BY EMAIL/BY HAND
75450,Melaka Tengah,
Melaka.

Attn: Mdm.Anis Maria

Dear Sir/Madam,

Re: MEDICIAL NEGLIGENCE BY MEDICAL OFFICERS OF KUALA LUMPUR

HOSPITAL ON DIAGNOSIS AND TREATMENT OF ANIS MARIA

We refer the above matter and email from Mr. Idris dated 25.05.2024.We also refer
to the telephone conservation between you and Mr.Harritraam on 26.05.2024, requesting for
an opinion letter with the respect of acts of medical negligence committed by members of
Kuala Lumpur Hospital (“HKL”) on the treatment of Anis Maria.

2. In order to render our opinion, we have reviewed the following documents which was
forwarded to us on 28.05.2024:-

(i) Medical report and record of Anis Maria

(ii) Pay slip of Anis Maria from

(iii)

3. We have reviewed the documents and have identified nine (9) issues that we shall
address in this opinion. The issues are listed as below:

(i) The liability of Kuala Lumpur Hospital on diagnosis and treatment of Anis Maria
(ii) General Damages available for Anis Maria
(iii) Special Damages available for Anis Maria
(iv) BACKGROUND FACTS

4. On 2019 Anis Maria married Idris at the age of 33 and was conceived in 2020. On
2021, Anis Maria was diagnosed with preeclampsia during her 33 rd week of pregnancy which
was not managed properly by the doctors at Kuala Lumpur Hospital through insufficient
treatment. The condition of Anis Maria declined due to the reason above. She was also
diagnosed with acute pulmonary oedema and was treated with intravenous lasix. The baby of
Anis Maria was diagnosed with foetal distress with emergency caesarean delivery was
planned by HKL doctors. However, the anaesthetic medical officer delayed the delivery and
administered another dose of intravenous lasix on Anis Maria.

She was in recovery area for the insertion of triple lumen and arterial lines before taken to the
operation where her baby was stillborn. Anis Maria was found to have liabruptio placenta
and lost 1.5 liters of blood as she was resuscitated and transferred to the ICU.Anis Maria
suffered several complications including complete HELLP syndrome, acute kidney injury
and intraparenchymal bleeding. She was confined to the intensive care unit for 18 days and
was transferred to the ordinary ward but later collapsed due to a mucus plug obstructing her
airway. Cardiopulmonary resuscitation was performed to revive her.

Anis Maria was transferred to Hospital Tuanku Jaafar (HTJ) in Seremban after spending a
month in HKL where she received rehabilitation treatment due to her state of disordered
consciousness, oxygen support, breathing via tracheostomy tube, and feeding via tube. She
spent a month at HTJ for rehabilitation treatment but was found that the her brain injuries was
irreversible. This caused her to be bedridden and in need of constant care from her family
members. She was discharged to her sister’s home in Seremban to be under the care of her
mother and sister. She still required a tracheostomy and nasogastric tube for feeding while
bedridden. On 2022, her condition improved as these medical interventions was deemed
unnecessary. In October 2023, she returned to her matrimonial home in Melaka where her
husband and his sister became her primary caregivers. However, she was experienced seizures
after her discharge and required brief hospitalization on 2022 and 2023. Anis Maria was
hospitalized for 3 weeks at Hospital Ampang due to pressure sores for prolonged periods of
bedrest. Anis Maria also developed contractures in her right ankle joint during this period. On
May 2024, Anis Maria resided at a nursing home due to the inability of her sister in law to
care for 3 months just before, her husband bought a house at Ampang.

Anis Maria’s obstetric and gynaecological expert in Hospital Ampang had criticized the care
given to her at HKL citing the gross delays in obstetric and anaesthetic management has a
direct cause on her medical complications and death of her child. Anis Maria is suffering with
physical and functional disability which requires the constant care of her mother, sister and
her husband, Idris who even hired a maid to assist her. Therefore, Anis Maria through her
litigation representative, Idris, intends to claim the following:

(i) General damages (incorporating the pain, suffering and loss of amenities of life)
(ii) Specific damages(incorporating loss of future earning, travel expenses,
physiotherapy, purchase claim, gratuitous claim, renovation claim and
supplementary claim)
5. Based on the above facts, our advice is set out hereinbelow:-

(a) The liability of Kuala Lumpur Hospital on diagnosis and treatment of Anis
Maria

6. The Burden of Proof on the medical negligence is explained in the High Court case of
Yusnita bt Johari (suing through her husband and litigation representative Khairil Faiz
bin Rahamat) v Dr Jerilee Mariam Khong & Ors [2023] 9 MLJ 629;

[34] It is trite that the burden of proof in cases of medical negligence such as this
is on the plaintiff. It is the plaintiffs burden to prove negligence against the FD on
the basis that what was done was what a reasonably competent practitioner
skilled in that particular act would or would not have done.

7. Applying the case above, the burden of proof is on Anis Maria to prove the medical
negligence on Kuala Lumpur Hospital that the irreversible brain damage, and the state of
physical and functional with death of her stillborn baby was a direct causation of the
negligent actions of the medical officers of Kuala Lumpur Hospital.

8. We refer to Section 45(1) of Evidence Act 1950 sets the admissibility of expert opinion
in Malaysian Courts.
(1) When the court has to form an opinion upon a point of foreign law or of
science or art, or as to identity or genuineness of handwriting or finger
impressions, the opinions upon that point of persons specially skilled in
that foreign law, science or art, or in questions as to identity or
genuineness of handwriting or finger impressions, are relevant facts.

9. Applying Sec 45 of Evidence Act 1950, the opinion of obstetric and gynaecological
expert
of Anis Maria in Hospital Ampang who criticised the duty of care imposed on Anis Maria
will be relevant at Court.
10. The Bolam Test is specifically applicable for case of negligence on medical practitioner
as High Court in Dr Nuur Iman Rahmatullah Khan v Ampang Puteri Hospital Sdn Bhd &
Anor [2023] 12 MLJ 1;held that:

[32] The test propounded in Bolam v Friern Hospital Management

Committee [1957] 2 All ER 118 has long been held to be the locus classicus by
the Malaysian courts on the standard of care in matters of diagnosis and
treatment. The Bolam’s test essentially states that a doctor is not guilty of
negligence if he has acted in accordance with a practice accepted as proper by a
responsible body of medical opinion, even if there is a body of opinion that holds
a contrary view.

11. Applying the case above, the standard of care in the treatment of Anis Maria where the
correct diagnosis and wrong treatment. This was agreed by the obstetric and
gynaecological expert in Hospital Ampang, who criticized the care of Anis Maria at HKL
for gross delays in obstetric and anaesthetic management which is the causation of her
current morbidities and the death of her stillborn baby.

12. The elements of medical negligence is listed by the Court of Appeal in Shalini a/p
Kanagaratnam v Pusat Perubatan Universiti Malaya (formerly known as University
Hospital) & Anor [2016] 3 MLJ 742;

“ [9] In cases of professional negligence and/or medical negligence, the

plaintiff has to prove four elements. They are: (i) duty of care; (ii) breach of
standard of care; (iii) breach of duty care; (iv) caused damages. In
consequence, the plaintiff has to lead evidence to show the standard of care
has been breached. The doctrine of res ipsa loquitur will not ordinarily
apply as the plaintiff will have to discharge the legal burden..”

13. Applying the elements of medical negligence in above case, HKL owed the duty of
care to Anis Maria in terms of correct diagnosis and correct treatment to the diagnosis.
However, the medical officers of HKL with gross delays in obstetric and anaesthetic
management which lead the damages of grave health complications and lead to her death
of stillborn baby. Anis Maria should produce medical reports and affidavit from the expert
at Hospital Ampang to prove that the standard of care breached by medical officers at
HKL.

14. In terms of medical negligence, the concept of causation which binds between the
effect of defendant’s action on the injuries of the plaintiff is explained at the High Court in
Yusnita bt Johari (suing through her husband and litigation representative Khairil Faiz
bin Rahamat) v Dr Jerilee Mariam Khong & Ors [2023] 9 MLJ 629;

“ The court found that the multi-disciplinary team ie, the obstetric team and
anaesthetic team had failed in its duties and therefore its members had to
collectively accept responsibility for their failure. In relation to causation, it
was clear from the evidence that there was an indivisible injury which was a
severe brain damage. The court was of the view that the defendants’
negligence had at least materially contributed to the damage suffered and
thus causation was proven to the extent of 100%. The court further found
that the government was directly liable both in tort and contract for
organisational and system failures and also where it was under a non-
delegable duty of care as a provider of healthcare.”

15. Applying the case above, obstetric and anaesthetic team of HKL had breached of their
duty of care on Anis Maria which lead to her health complications such as HELLP
syndrome, acute kidney injury and intraparenchymal bleeding and death of her stillborn
baby. Her diagnose with preeclampsia was not managed accordingly by doctors at HKL.
Anis Maria was required to be seek the additional treatments at HTJ and Hospital Ampang
for rehabilitation treatment due negligent actions of HKL. She even suffered pressure sores
due to prolonged periods of bedrest and contractures in her right ankle joint due to the
negligence committed by medical officers at HKL. There is a collective responsibility as
the HKL has vicarious liability on the injury sustained by Anis Maria on the acts of the
medical officers of HKL. The injuries of Anis Maria has material contributed by the acts of
medical officers of HKL. The direct causation can be proven that HKL is 100% negligent
for the care on Anis Maria.
16. In conclusion, it’s our considered view that Kuala Lumpur Hospital (HKL) is liable for
medical negligence on diagnosis and treatment on Anis Maria.

(b) General Damages available for Anis Maria

17. The general principles of damages are stated under Shuhazani bt Shoib v Kerajaan
Malaysia [2024] MLJU 795, A plaintiff, who suffered violation by another in his/her
actions, is entitled to general damages for other kinds of loss that are not covered in monetary
terms, to include pain and suffering, mental elaborate and treated trauma, and loss of
enjoyment of life. Secondly, the measure of damages for loss of amenities is the actual loss
regardless of the knowledge of the plaintiff. The level of compensation must reflect the
principle that the monetary value in the current generation must be considered. Thirdly,
Measures of damages are ascertained using reasonable and rational factors with due regard to
legal authorities, as opposed to emotions and imagination. Such factors include age, previous
and current physical/mental health state, any prior or subsequent treatments that the plaintiff
may require, as well as any changes in behaviour and lifestyle.

18. Applying Shuhazani bt Shoib, since injuries of Anis Maria had caused by medical
officers of HKL.Therefore, she should be allowed to seek general damages for non-pecuniary
losses, based on the principles outlined.

19. In the case of Sam Wun Hoong v. Kader Ibramshah [1981] 1 MLJ 295, Civil law
promotes general damages compensation elements hereby established in Malaysia which
follow and defined by the subsequent points: Pain and suffering and other woes Loss of
amenities Earnings loss in the future Loss of earning capability. This is majorly done by
evaluating the nature of injuries, the duration of hospitalization, and comparing it with
awards done in similar cases. In addition to wrong done to the defendant or plaintiff, the
injury caused is considered with reference to the age or rank of the plaintiff, marriage or
unmarried, gentleman, merchant or tradesman and the depreciation or appreciation of the
coin.

20.
19. In accordance to Circular No.255-2018, There are undoubtedly detailed rules of
assessing the loss depending on the type and severity of a personal injury ; they are specified
in the “Compendium of Personal Injury Awards”. This compendium still avails itself in
achieving uniformity and compliance with the standards set in current trends in the courts.

20. Nature and Severity of Injuries: The court shall factor in the degree of physical injuries
inflicted on the baby by Anis Maria. After reviewing the information that the
“Compendium of Personal Injury Awards” provides regarding courts’ referencing of the
guidelines that identify suitable sums for certain harms, I would like to add that it is clear
that these guidelines assist the courts in determining the amounts that are reasonable for
certain types of injuries. For example:

1. Head Injuries: Injury to the brain which causes permanent vegetables state or the
condition of profound unconsciousness: RM 150,000 - RM 300,000.

2. Loss of Fetus: Claims for the loss of a child – RM 25,000 – RM 50,000[1].

3. Psychiatric Damage: Severe mental impairment leading to chronic conditions: RM

50,000 to RM150,000 The negligence claim for severe mental impairment is between RM
50,000 to RM 150,000.

(c) Specific Damages available for Anis Maria

There are several claims which can be made by Anis Maria under the categories of special
damages which is listed as following:-

PURCHASE CLAIM
17. We refer to Foo Fio Na v. Dr. Soo Fook Mun & Anor [2007] 1 MLJ 593, which
established test for medical negligence that require proving that the medical practitioner
failed to exercise reasonable skill and care.

18. We also refer to Rothwell v. Chemical & Insulating Co Ltd [2008] 1 AC 281, it was
held that compensation can include expenses directly incurred due to the injury.

19. In reference to the Shuhazani bt Shoib (menyaman melalui suami dan wakil
litigasinya, Mohd Irwan bin Idris) v Kerajaan Malaysia [2024] MLJU 795, The case
outlines specific amounts for necessary medical appliances and equipment such as
Wheelchair for sum of RM 24,000(8,000x3 purchases), Hospital Bed: 12,000 (6,000 x 2
purchases) and Other necessary medical equipment: Various amounts depending on the
necessity and cost.

20. For instance, in Shuhazani bt Shoib (menyaman melalui suami dan wakil litigasinya,
Mohd Irwan bin Idris) v Kerajaan Malaysia [2024] MLJU 795, specific amounts were
outlined for necessary medical appliances and equipment, such as RM24,000 for a wheelchair
and RM12,000 for a hospital bed.

21. We quote the case of Fazli bin Suboh & Ors v Dr Fatimah bt Ahmad Fauzi & Ors
[2020] MLJU 2652 which listed Suction machine :RM 700.00 with a life span of 5 years.
The award is RM700.00 x 5 years = RM2, 100.00.

22. Applying Fazli bin Suboh & Ors v Dr Fatimah bt Ahmad Fauzi & Ors [2020]
MLJU 2652, the cost of a suction machine was awarded based on its lifespan and necessity.
These cases collectively establish that necessary out-of-pocket expenses resulting directly
from an injury are recoverable.

23. Yusnita bt Johari (suing through her husband and litigation representative Khairil
Faiz bin Rahamat) v Dr Jerilee Mariam Khong & Ors [2023] 9 MLJ 629, listed the sum
for Nasogastric tube for feeding: RM 20 a month and Other necessary medical
equipment: Various amounts depending on the necessity and cost.
24. Alexander ak Ebrit v Macdonal ak Pila @ Pita [2021] MLJU 3074 for the sum of
Tracheostomy tube for a sum of RM265.00 X x 75 times (37.5 years x 2) = 19,875.00.

25.Applying, Alexander ak Ebrit v Macdonal ak Pila @ Pita [2021] MLJU 3074, the cost
of a tracheostomy tube was calculated based on a specific life expectancy, and in Yusnita bt
Johari v Dr Jerilee Mariam Khong & Ors [2023] 9 MLJ 629, the monthly cost of a
nasogastric tube for feeding was recognized.

26. In the terms of Life Expectancy and Multiplier, the determination of the multiplier
depends on the evaluation of the patient’s likely duration of life. This evaluation requires an
investigation into the factual matter of the patient’s life expectancy, typically established
through expert testimony. Furthermore, the determination of the multiplier depends on the
evaluation of the patient’s likely duration of life, which requires an investigation into the
factual matter of the patient’s life expectancy, typically established through expert testimony.

27. Referring to Pantai Medical Centre Sdn Bhd v. Fareed Reezal Arund & Another
Appeal [2022] 2 CLJ 173 CA, it was held that once a multiplier had been decided, no further
deductions should be made based on contingencies already considered. Damages are assessed
on a once-and-for-all basis.

28. Applying the principles from the relevant case law, Anis Maria’s husband can claim the
cost of purchasing necessary medical appliances and equipment, including a tracheostomy
tube, nasogastric tube for feeding, wheelchair, and hospital bed, as these expenses are directly
related to managing her medical condition. The expenses incurred for such medical
necessities are supported by established precedents.

29. Anis Maria’s husband can claim the sum of RM61,285 for the cost of purchasing
necessary medical appliances and equipment, including a wheelchair, hospital bed,
tracheostomy tube, and nasogastric tube for feeding while bedridden. These expenses are
justified and supported by case law, reflecting necessary and reasonable costs directly
related to her ongoing medical care. The determination of the multiplier, based on the
evaluation of life expectancy through expert testimony, ensures that the compensation
reflects a comprehensive, once-and-for-all assessment, aligning with established legal
precedents.
30. In conclusion, Anis Maria’s husband can claim the sum of RM61,285 for the cost of
purchasing necessary medical equipment.

GRATUITOUS CARE CLAIM

31. We refer to In Pantai Medical Centre Sdn Bhd v. Fareed Reezal Arund & Another
Appeal [2022] 2 CLJ 173 CA, it was affirmed that damages are assessed on a once-and-for-
all basis, with no further deductions once a multiplier has been decided.

32. The determination of the multiplier depends on the evaluation of the patient’s likely
duration of life, typically established through expert testimony. Applying Pantai Medical
Centre Sdn Bhd v. Fareed Reezal Arund & Another Appeal [2022] 2 CLJ 173 CA, In the
present case, the plaintiff’s expert (PW1) used the Stroke Life Expectancy Calculator to
estimate the plaintiff’s life expectancy. Based on Anis Maria’s ability to use her right hand
and feed herself with supervision or set-up assistance, PW1 estimated a life expectancy of
between 13 to 14 years

33. Gratuitous claim can be divided into two categories in these situations where the care
given by family members of Anis Maria and the care of a maid to assist her in daily life.

34. We quote the case of Yusnita bt Johari v Dr Jerilee Mariam Khong & Ors [2023] 9 MLJ
629 which allowed the claim for Cost of care provided by the plaintiff’s husband and other
family members where the mother, husband and elder sister was allocated a monthly cost
of RM 1000.00 and the sister-in-law was allocated RM 500.00 per month which in total is
RM 63,000 and RM 31,500 over 63 months respectively which totalled to RM 220,500

They also allowed the claim for the use of a maid, demonstrating that claims for assistance
in care are recognized where the calculation was RM 182,400 (800 per month x 12 months
per year x 19)

35. Anis Maria’s husband, mother, and sister provided extensive care, including assistance
with daily living activities, feeding, and managing her medical needs. This care was
necessary due to the severe and debilitating condition resulting from medical negligence..
Based on Yusnita bt Johari v Dr Jerilee Mariam Khong & Ors [2023] 9 MLJ 629, the
claim for the use of a maid, quantified at RM182,400, supports the argument that care
services have an economic value that should be compensated. Similarly, Anis Maria’s
husband may claim for the care provided by family members which will tabulated for the
mother and sister whom took care of Anis Maria in Seremban for 23 months which is
(RM1000.00 x 2 x 23 Months = RM46,000.00,) and the tabulation for the Husband is
(RM1000.00 x 7 months = RM 7000.00) and the tabulation for the sister-in-law is RM
(500.00 x 7 = RM3500.00) which totals to RM 56,500.00

36. Anis Maria’s husband may claim RM238,900 under Gratuitous claim with
encompasses the total compensation for the care given by family members of Anis Maria
and the care of a maid to assist her in daily life.These expenses are justified and supported
by case law, reflecting necessary and reasonable costs directly related to her ongoing
medical care. The determination of the multiplier, based on the evaluation of life
expectancy through expert testimony, ensures that the compensation reflects a
comprehensive, once-and-for-all assessment, aligning with established legal precedents.

37. In conclusion, Anis Maria’s husband can claim the sum of RM686,000.00 under
Gratuitous claim for the care given by family members of Anis Maria and the care of a maid
to assist her in daily life.

RENOVATION CLAIM

38.We refer to the case of Irwanbudiana bin Amsah (suing as the administrator of the
estate of Child M, deceased) v The Government of Malaysia [2023] 10 MLJ 633 that
states where There is a lack of cogent evidence to show that the old house was inadequate
and Child M needs a bigger house or space to cater for or improve his health condition and
needs. There is no medical evidence to show that Child M needs a bigger room or space due
to his health condition. Further, there is no evidence to show that the old house could not
be renovated and the plaintiff must buy a new house and incur further costs of renovating the
new house. Thus, the evidence and circumstances of the case shows that it is unnecessary or
unreasonable for the plaintiff to buy a new house costing RM330,000 and spend a further
sum of RM150,000 for house renovation on account of Child M health condition and needs.
The new renovated house is or would be used by the plaintiff’s family.

39.Applying the principles of the case of Irwanbudiana bin Amsah (suing as the
administrator of the estate of Child M, deceased) v The Government of Malaysia [2023]
10 MLJ 633 Anis Maria’s husband will not be able to claim the sum of RM 448,400.00
for purchasing and renovating a new home because their previous home Anis Maria’s as the
pleaded sum of RM448,400.00 being the cost approximately RM330,000.00 to purchase the
new home and a further RM150,000.00 that was spent to renovate the home especially
RM49,245.00 of that was used to renovate Anis Maria’ room, therapy space and bathroom
is seemed to be unnecessary and unreasonable as only a small sum of the pleaded
amount tabulates the total amount and the focus should have been more on renovating the
existing home in the best interest of Anis Maria and not purchasing an entirely new one.

40. In conclusion, Anis Maria’s husband will not be able to claim the sum of RM448,400.00
for purchasing and renovating a new home, as these expenses are unnecessary and
unreasonable and the focus should have been more on renovating the existing home in the
best interest of Anis Maria and not purchasing an entirely new one.

SUPPLEMENTARY CLAIM

41.We cited the case of Shuhazani bt Shoib v Kerajaan Malaysia [2024] MLJU 795
where it has stated that in In Inas Faiqah Mohd Helmi (supra.) it was observed by the
Federal Court that vacations are common in our community and that the plaintiff’s family
would still have faced such an expense irrespective of the defendant’s negligence. I must
indeed share the same view. In this regard, I consider the supplementary expense of
RM2,500.00 per annum for holidays to be reasonable and appropriate. In light of the life
expectancy of 14 years, I hereby award the plaintiff the sum of RM35,000.00.
42.Applying the principles established in the case of Shuhazani bt Shoib v Kerajaan
Malaysia [2024] MLJU 795, which has strikingly similar case facts can be utilized where
the court could consider the supplementary expense of RM2,500.00 per annum for holidays
to be reasonable and appropriate keeping in line with the life expectancy of 14 years where
the sum of RM35,000.00 can be granted and Anis Maria’s husband claiming a supplementary
expense of RM5,000.00 per annum for holidays as according to him, her wife having been
deprived of the ability to enjoy life should be given the chance to experience any life
pleasures will be considered.

43.In conclusion, Anis Maria’s husband will potentially only obtain supplementary expense
claim of RM2,500.00 per annum for holidays and not the stated RM 5000.00.
CONCLUSION

18. We trust that the above is of great assistance for your claim, please contact us if any
explanations on the above matter(s).

19.We would like to reserve our right to amend our opinion if there is any new evidence
notwithstanding to documents is provided that may nominally or substantially will
objectively alter our opinion.

20. We would like also humble request your mandate to proceed in this action.