NORSHUHADA BINTI SHAHARUDDIN v 1. ) Syed Faizal Shah Bin Syed Gulzar Ali Shah Sebagai Wasi Tunggal Kepada Harta Pusaka Dr. Zarina Bibi Bt Shah Mohd [Si Mati] [No. Mmc: 22471] 2. ) Dr. Mohd Daud Bin Yahya 3. ) Hospital Bersalin & Poliklinik Pusrawi

Case Significance

Illustrates the assessment of liability and damages in an obstetric medical-negligence claim, including equal apportionment between a treating doctor's estate and the hospital, and confirms that continuing a trial in counsel's absence does not, without more, establish a real danger of bias warranting recusal.

This High Court decision at Shah Alam concerns a claim in medical negligence arising from the plaintiff's treatment during the birth of her sixth child in January 2019 at a maternity hospital, the third defendant. The first defendant was the doctor who treated the plaintiff on the material date; a default judgment had been recorded against the second defendant, the surgeon who performed the caesarean, but was not pursued owing to his bankruptcy. The original treating doctor died during the proceedings, and the first defendant was substituted as the sole executor of her estate under Order 15 rule 6A of the Rules of Court 2012. The action, filed in 2022, was delayed to 2025 by that death and substitution and by several adjournments of the continued trial sought by the first defendant's counsel.

A notable interlocutory issue arose when the first defendant's counsel applied for the trial judge to be recused, on the basis that the trial had continued in counsel's absence on a resumed hearing date — the adjournment request having been e-mailed to the judge only on the morning of the hearing and not to the other parties. The court, after considering the affidavits and submissions, held there was no real danger of bias and dismissed the recusal application with costs.

On the merits, and on the balance of probabilities, the court allowed the plaintiff's claim against the first and third defendants, apportioning liability equally between them, taking into account among other things that the plaintiff had not been referred to an obstetric specialist and the failure to provide anaesthetic services when needed. It awarded general damages of RM200,000 for pain and suffering, aggravated damages of RM200,000, and getting-up fees of RM100,000, with interest at 5% per annum from the date of the writ, while declining unpleaded and unproven claims for distress and special damages. The judgment illustrates the assessment of liability and damages in an obstetric-negligence claim.