XXXX v 1. ) GOMBAK MEDICAL CENTRE SDN. BHD. 2. ) DR NOOR FIDAK BINTI SAMSUDIN 3. ) DR ZANA ZALINDA BINTI S MOHD GHAZALI

Case Significance

Clarifies the direct, non-delegable duties owed by a private healthcare facility and its person in charge under the Private Healthcare Facilities and Services Act 1998 in a cerebral-palsy birth-injury claim, and confirms the court's power to consult medical publications in fixing the standard of care.

This Court of Appeal decision concerns a claim in medical negligence brought on behalf of a child, a minor who suffered permanent brain injury resulting in cerebral palsy arising from hypoxia during her birth, and who sued through her father as litigation representative. The defendants were the private medical facility where she was delivered, the person in charge of that facility within the meaning of section 32 of the Private Healthcare Facilities and Services Act 1998, and the doctor who undertook the delivery. The plaintiff's case was that the defendants were negligent in the systems for referral and specialist standby, in failing to diagnose foetal distress, and in the conduct of a vacuum extraction. The High Court had dismissed the claim, holding in particular that the plaintiff had failed to establish that the delivering doctor's conduct caused the injury, given the absence of complete cardiotocography records and evidence that cerebral palsy commonly develops in utero. On appeal, the court addressed the duty of care owed by a medical facility and by its person in charge, and the court's power to refer to medical publications in ascertaining the applicable standard of care. It held the first defendant facility and the second defendant person-in-charge liable for breaches of duties owed directly to the plaintiff, while dismissing the appeal against the delivering doctor on causation. It set aside the High Court's order to that extent, directed that the case be remitted for assessment of damages before another judge, held the first and second defendants jointly and severally liable for damages with pre- and post-judgment interest at 5%, ordered them to pay costs of RM100,000 here and below, ordered the plaintiff to pay the third defendant's appeal costs of RM40,000, and dismissed the first defendant's contribution and indemnity notice against the others. The judgment clarifies the direct duties owed by a healthcare facility and its person in charge.