1.

Whether the respondent has breached his duty to advise the appellant on the

possibilities of complications

1.1. Duty to advise is a task for doctor by virtue of case Foo Fio Na v Dr. Soo Fook

Mun & Anor

1.1.1. Under the case of Foo Fio Na v Dr. Soo Fook Mun & Anor patients

must be informed of material risks prior to a procedure much as under the

Rogers v Whitaker . In Rogers v Whitaker Test, it was held that the court had

a duty to scrutinise the professional practice to ensure that it conforms with

the standard set by law, and not leave that duty to be determined completely

by the medical profession.

1.1.2. Duty to advise is upon the doctor who has the burden to ensure the

patient understand the procedure and consequences that follow the

professional standard as a doctor. A doctor has a duty to warn a patient of the

material risk inherent in the proposed treatment.

1.1.3. Applying to this statement of facts, since the duty to advise has been

imposed under the case of Foo Fio Na, therefore the Respondent has

breached his duty to advise towards the Appellant that resulted the Appellant

suffered damages.
1.2. The Respondent failed to inform the complications that may be suffered by

Appellant due to diabetes mellitus and the Appellant unusual small frame

1.2.1. Under the Medical Ethics Malaysia, a doctor must always maintain

the highest standards of professional conduct. Patients trust doctors with

their lives and well being. To justify the trust, the doctor as a profession have

a duty to maintain a good standard of practice, care and behaviour.

1.2.2. By virtue of Montgomery v Lanarkshire Health Boards case The

Supreme Court reiterated that there was a duty for the doctor to discuss with

the patient the material risks involved in the medically preferred treatment

and any alternative treatment options. The test for materiality was whether a

reasonable person in the position of a patient would think the risk significant.

1.2.3. In the Appellants case, the Respondent had failed to provide

sufficient information about diabetes mellitus and small frame. The

Respondent did not elaborate the consequences that may be suffered by the

Appellant throughout the pregnancy.

2. The respondent has breached his duty of care towards appellant in the

management of the delivery.

2.1. The elements of medical negligence has been fulfilled by the Respondent.

2.1.1. The first element that has been fulfilled is there is a duty of care

from the Respondent towards the Appellant.

2.1.1.1. In the case concerned, there is no doubt that there was a duty of care

on the part of the doctor who had admitted the patient and undertook

treatment. As Lord Hewart said in R v Bateman, "If a person holds

himself out as possessing special skill and knowledge, and he is

consulted as possessing such skill and knowledge, by or on behalf of a

patient, he owes a duty to the patient to use due caution in undertaking

the treatment.

2.1.1.2. In fact the MMCs Code of Medical Ethics 2002 enjoins that

physicians should make decisions which are always in the best interest

of the patient. Thus, reiterating the fiducial nature of the patient-

physician relationship.

2.1.1.3. By virtue R v Batemans case, there is no doubt that there is a duty

of care on part of the Respondent who was the doctor for the Appellant

through her entire pregnancy.

2.1.2. The second element that has been fulfilled is there is a breach of

duty of care on part of the Respondent.

2.1.2.1. Breach of duty in negligence liability may be found to exist where

the defendant fails to meet the standard of care required by law.

2.1.2.2. The standard of care that has been performed by doctor must be

observed. Applying to the Whitetakers test, the standard of care to be

observed by a person with some special skill or competence is that of

ordinary skilled man exercising and professing to have that special skill.

The ultimate questions is whether it conforms to the standard of

reasonable care demanded by law.

2.1.2.3. By referring to the case of Kamalam A/P Raman & Ors v Eastern

Plantation Agency, the court applied the Whitetakers test that decided

there was a breach of standard of care in the medical aspect of diagnosis

and treatment by the doctor to the patient.

2.1.2.4. Applying to Margarets case, the Respondent has breached his duty

of care towards the Appellant when the Respondent failed to perform his

duty as a doctor that resulted the Appellant to suffer damages.

2.1.3. The third element that has been fulfilled by the Appellant is the

damage suffered was a result of breach of duty of care by the

Respondent.

2.1.3.1. There are two issues need to be addressed by the appellant in order

to prove whether the damages suffered by the plaintiff is the

consequence of the Respondents duty which are causation in fact and

causation in law.

2.1.3.2. As for the causation in fact, it can be sought through the but-for

test in order to determined as to whether the respondents action

has in fact caused the damage suffered by the appellant.

2.1.3.2.1. According to the case of Chester v Afshar, the court applied

the but-for test which stated that the failure to advise by the doctor

which is considered as a breach of duty, it would make the plaintiff

to suffer injury that she could have avoided if she knew about the

risk, therefore the court allowed plaintiffs claim for damages.

2.1.3.2.2. In applying the but-for test to this case, the Appellants baby

would not be in a vegetated state if the Respondent had not failed in

disclosing the risk to the appellant prior to the surgery as she would
 have make a different and a safer choice of labour. There for this

element is fulfilled by the respondent in this case.

2.1.3.3. The second issue that need to be addressed is the causation of

law, which can be determined through the direct consequence test.

2.1.3.3.1. direct consequence test involves two stage where firstly

whether damage is foreseeable as a consequence of the defendants

conduct, and if the answer is affirmative, the second stage will took

effect that the defendant will be liable for all the direct

consequences of his conduct, even though the damages is

unforeseeable. It can be conclude that once the person is established

to have committed a tort, he has to bear the all the losses arise as a

consequence thereof.

2.1.3.3.2. In the case of Re Polemis and Furness, Withy & Co Ltd, the

court of appeal applies the direct consequence test and held the

charterers was liable for for all the loss which is a direct

consequences of the negligence committed initially which amounted

to 1 million dollars even though the loss could not have been

foreseen.

2.1.3.3.3. In applying to the statement of fact, by using the but for test

the question arises is but for the respondent's action, would the

appellant still have suffered from the psychiatric illness even though
 the negligence is not committed, the answer is no, therefore the

Appellant had satisfied the causation in fact.

2.1.3.3.4. In applying the causation in law to this case, the first stage is

where the respondent can be considered as liable as the damages

occurred is foreseeable as a consequence of the respondents

conduct that is failure to advise the risk of natural birth to the

Appellant which was foreseeable by the Respondent. Next, as for

the second stage, the Respondent is liable for the direct consequence

of his conduct which is the failure to advise the risk leads to the

Appellant's baby suffered from hypoxic encephalopathy which

causes the appellant to suffer PTSD.

3. It should be reasonably foreseeable by the tort-feasor that the Respondent actions

likely to cause nervous shock to the parent.

3.1. The element of psychiatric illness is established and fulfilled by the

Respondent.

3.1.1. The first element is there must be an actual psychiatric illness

established.

3.1.1.1. Posttraumatic Stress Disorder, or PTSD as it is commonly referred

to, is the development of a set of symptoms including intense anxiety

 that occurs following exposure to extreme trauma that is severe enough

to have actually caused serious injury or threatened to cause injury or

death.

3.1.1.2. In applying to the statement of fact, Margaret the appellant had

suffered PTSD (Post traumatic stress disorder) which is considered as

psychiatric illness as a result of medical negligence performed by the

Respondent. Thus the first element is fulfilled.

3.1.2. The second element is the Appellant is the secondary victim of

the incident which resulted post-traumatic disorder by virtue of

Alcocks case.

3.1.2.1. According to the case of Hambrook v Stokes Bros, the court

expanded its view from primary victim unto secondary victim to allow

secondary victim to claim for damages for the psychiatric illness

suffered even though the victims only suffered from shock and not a

physical injury.

3.1.2.2. In the case of Alcock, the court further illustrated on the person who

is confined as the secondary victim. The court laid down three elements

to be fulfilled to establish as secondary victim.

3.1.2.2.1. A close ties of love and affection

3.1.2.2.1.1. According to the case of McLoughlin v O'Brian ,the

claimant appeal was allowed and the claimant was entitled to

recover for the psychiatric injury received as the claimant was

in a close ties of love and affection with the victims where she

is a wife and a mother.

3.1.2.2.1.2. According to the case of Alcock v Chief Constable

of South Yorkshire Police, the court held that the psychiatric

illness suffered must be reasonably foreseeable which is

determined by the nature of relationship between plaintiff and

the victim , which must be based on love and affection that

 must be proven in court. The presumption of such close ties

exist only between parents and child and between spouses.

3.1.2.2.1.3. In applying to this problem, the Appellant had

fulfilled the elements of close ties of love and affection as the

victim is her own child. A relationship between a parent and a

child is readily recognized by the court.

3.1.2.2.2. Witness the event with their own unaided senses

3.1.2.2.2.1. In the case of Alcock v Chief Constable of South

Yorkshire Police, the court stated that the psychiatric illness

must be a result of what the plaintiff himself perceives with his

senses and even a third party not related to the victim may

claim for damages. The test is whether a reasonable man who

is not prone to distress would also suffer nervous shock in the

same situation.

3.1.2.2.2.2. In applying to this case, the appellant was present

during the surgery. Thus , we can safely say that the appellant

had satisfied the third element that is to witness the event with

her own unaided senses.

3.1.2.2.3. Proximity to the event itself or its immediate aftermath

3.1.2.2.3.1. According to the case Mcloughlin v OBrian ,the

court stated that physical proximity extended to include a

plaintiff who is not at the vicinity of the accident but sees the
 immediate aftermath of it. As for this case, the appellants

appeal was allowed as the two hours gap is considered as

immediate aftermath.

3.1.2.2.3.2. According to the case of Alcock v Chief Constable

of South Yorkshire Police, the court stated that what is

immediate depends on each case, as for this case a claim made

by a plaintiff who saw bodies at the mortuary nine hours after

the incident is not considered as immediate aftermath.

Therefore the plaintiffs claim failed.

3.1.2.2.3.3. In applying to this case, even though the appellant

knew about the condition of her baby a day after delivery, it

can be consider as immediate aftermath by virtue of Alcocks

case.