1. ) AHMAD FAIZAL BIN MOHAMAD ALI 2. ) NORMALA BINTI HAJI BASIRON 3. ) Kerajaan Malaysia v JAY SHREE L. C. DOSHI (secara sendiri dan sebagai Wasi dan Pemegang Amanah Estet Vinayak Prabhakar Pradhan)

w-01ncvcw-440-07-2024 Court of Appeal (Mahkamah Rayuan) 29 January 2026 • W-01(NCvC)(W)-440-07/2024 • 49 min read
27 cases cited (1 SG, 26 foreign)

Outcome

We therefore dismiss the Appellants appeal on costs. The award of the learned High Court Judge on costs is affirmed.

Quoted verbatim from the judgment of Court of Appeal (Mahkamah Rayuan) (w-01ncvcw-440-07-2024). Read the full judgment on the official Malaysia Courts portal for the complete decision.

Catchwords

Medical Negligence – Duty of care – Informed consent – Failure to disclose material risks – Departure from multidisciplinary tumor board recommendation – Radiofrequency Ablation (RFA) vs. Cryoablation – Bolam test – Standard of care in treatment and aftercare. Damages – General Damages – Pain and suffering – Assessment of quantum – Severity of injury – Full-thickness burn – Multiple surgeries and prolonged treatment – Reasonableness of award – Principles in Yang Salbiah & Anor v Jamil bin Harun. Damages – Special Damages – Private medical expenses – Reasonableness and justification – Two-stage test from Chai Yee Chong v Lew Thai – Availability of treatment in government and local private hospitals – Novus actus interveniens – Award of one-third of claimed expenses. Damages – Aggravated Damages – Compensatory nature – Distinction from exemplary damages – Conduct of defendant – Lack of compassion, remorse, and callous attitude – Whether award is punitive or compensatory – Principles in Rookes v Barnard and Dr. Chandran Gnanappah v Gan See Joe. Costs – Award of costs in medical negligence cases – Complexity of trial – Engagement of foreign expert and senior counsel – Proportionality – Reasonableness – Principles in Bukit Tinggi Hospital Sdn Bhd & Anor v Navin Sharma Karam Chand.

Practice Areas

Damages Tort Civil Procedure

Judges (3)

Mohd Radzi bin Harun Coram Shahnaz binti Sulaiman Delivered Supang Lian Coram

Counsel (8)

James Khong Firm Ambiga Screenevasan Counsel Respondent Barath a/l Manian Counsel Appellant James Khong Counsel Respondent Janini Rajeswaran Counsel Respondent Shazreen Nadia binti Zulkipli Counsel Appellant YC Chang Counsel Respondent Zetty Zurina Kamaruddin Counsel Appellant

Parties (4)

Kerajaan Malaysia Appellant Ahmad Faizal bin Mohamad Ali Appellant Jay Shree L. C. Doshi (secara Sendiri Dan Sebagai Wasi Dan Pemegang Amanah Estet Vinayak Prabhakar Pradhan) Respondent Normala binti Haji Basiron Appellant

Case Significance

Addresses the duty to disclose material risks and the consequences of departing from a multidisciplinary treatment recommendation, and confirms the assessment of general, special and aggravated damages in a medical negligence claim.

This Court of Appeal decision concerns the standard of care in a medical negligence claim, focusing on informed consent and the assessment of damages. The claim arose from a radiofrequency ablation procedure performed on a patient being treated for a recurrent neuroendocrine tumour. The procedure departed from a multidisciplinary tumour board's recommendation for cryoablation and caused a severe full-thickness burn injury. At trial, the respondent, the deceased patient's widow and the executrix of his estate, established that the treating specialist had been negligent in obtaining informed consent, in performing the procedure, and in the post-operative aftercare, and the High Court awarded substantial damages comprising general, aggravated and special damages, together with costs. The appellants challenged the award as manifestly excessive, and the respondent cross-appealed for a higher award. Applying the Bolam standard and related principles, the Court examined the failure to disclose material risks and the departure from the tumour board's recommendation. On general damages it applied the principles in Yang Salbiah v Jamil bin Harun; on special damages, comprising private medical expenses, it applied the two-stage test in Chai Yee Chong v Lew Thai, considering the availability of treatment in government and local private hospitals; and on aggravated damages it distinguished their compensatory character from exemplary damages by reference to Rookes v Barnard, having regard to the manner in which the patient had been treated. The Court found the awards justified, dismissed the appellants' appeal and affirmed the High Court's award, with interest and costs. The judgment is significant for its treatment of informed consent, the departure from a multidisciplinary recommendation, and the assessment of general, special and aggravated damages in medical negligence. The decision is a substantial statement on medical negligence and damages, addressing the duty to obtain informed consent, the consequences of departing from a multidisciplinary treatment plan, and the principled assessment of general, special and aggravated damages, and it declines to disturb a carefully reasoned trial award.

Summary

This medical negligence appeal arose from a Radiofrequency Ablation (RFA) procedure that departed from the multidisciplinary tumour board's recommendation for cryoablation, causing a severe burn injury to the deceased patient. The Court of Appeal largely affirmed the High Court's award of RM1.55 million in damages, reducing special damages for Singapore treatment to one-third of the claimed amount but upholding RM800,000 in general damages and RM500,000 in aggravated damages for the doctor's lack of informed consent, negligent execution, and callous post-operative attitude.

On what basis was the treating specialist found negligent?

The Court upheld findings that the specialist was negligent in obtaining informed consent, in performing a radiofrequency ablation that departed from the tumour board's recommendation for cryoablation, and in the post-operative aftercare, applying the Bolam standard and the duty to disclose material risks.

Were the damages reduced on appeal?

No. The Court found the general, special and aggravated damages justified, dismissed the appellants' challenge to the quantum, and affirmed the High Court's award with interest and costs.

Cases Cited (27)

SLR (1)
[2012] 4 SLR 129
UK (6)
[1964] 1 All ER 367 [1964] 2 WLR 269 [1964] AC 1129 [1997] 2 All ER 762 [1997] 2 All ER 782 [2004] EWCA Civ 1127
MY (20)
[1981] 1 MLJ 292 [1997] 2 MLJ 208 [2004] 2 MLJ 465 [2006] 1 MLJ 675 [2006] 4 MLJ 555 [2007] 1 CLJ 229 [2016] 4 MLJ 282 [2016] 6 CLJ 346 [2016] MLJU 1175 [2016] MLJU 1899 [2017] 7 AMR 560 [2017] 8 CLJ 605 [2018] 1 MLJ 784 [2019] 8 MLJ 331 [2019] 9 CLJ 246 [2020] 9 MLJ 409 [2023] MLJU 1014 [2025] AMEJ 1196 [2025] MLJU 2274 [2025] MLJU 922

Judgment

Read the full judgment on the official Malaysia Courts portal.

Read on eJudgment

Source: eJudgment (w-01ncvcw-440-07-2024)