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PRE-NATAL INJURIES AND THE RIGHT TO SUE

By P S Ranjan & Co.
Advocates & Solicitors
Malaysia

Nur Zulaikha binti Dzulzaili was born on 26 February 2003 at 26 weeks of gestation. The High Court found negligence against Al Zahra Medical Centre and its two obstetrician and gynaecologists for failing to have a safe, reliable and effective system to give to Zulaikha’s mother on 24 February 2003 tocolytics to delay her birth and dexamethasone to mature her lungs. Her mother had attended the Al Zahra Medical Centre on 24 February 2003 with complaints of abdominal pain at 26 weeks of gestation. The medical officer who had attended to her had failed to investigate and consider a diagnosis of pre-term labour and did not refer the mother to one of the two specialists in obstetrics and gynaecology.

At trial, counsel acting on the instructions of the two obstetrician and gynaecologists had put to the mother that she was seen by a medical officer at the Al Zahra Medical Centre on 24 February 2003. That suggestion had put to rest the Medical Centre’s denial that the mother did not seek medical treatment at the Medical Centre on 24 February 2003.The Al Zahra Medical Centre had claimed that with the passage of time the mother’s 2003 medical records had been destroyed according to their protocols. However, the Medical Centre was able to disclose the mother’s 2002 medical records.

The mother next attended the Al Zahra Medical Centre in the early hours of 26 February 2003 and was diagnosed to be in established labour. She was transferred to Putrajaya Hospital and gave birth to Zulaikha later that morning. Zulaikha’s prematurity and immaturity had caused her to suffer cerebral palsy.

The issues in dispute in court were whether the mother was in pre-term labour on 24 February 2003 and whether on a balance of probabilities, giving her tocolytics could have delayed Zulaikha’s birth long enough for the dexamethasone to mature her lungs. The experts on both sides had agreed that the mother was in pre-term labour on 24 February 2003 and should have been given tocolytics and dexamethasone and that if given Zulaikha had a good chance of avoiding the cerebral palsy.

The High Court found negligence against all three Defendants and had awarded the sum of RM 8,122,628-67 as damages, excluding interests and costs.The Court of Appeal dismissed Al Zahra Medical Centre’s appeal on liability but allowed the two obstetrician and gynaecologist’s appeal on liability and ordered Al Zahra Medical Centre to pay the costs of the two obstetrician and gynaecologists.The Court of Appeal had reduced the damages to RM 6,031,971-66 excluding interest and costs.

See: Medi-Circle Sdn Bhd v Nur Zulaikha binti Dzulzaili (suing through father and litigation representative Dzulzaili bin Muhammad Nor) and Other Appeals [2022] MLJU 1575

Al Zahra Medical Centre obtained leave to appeal to the Federal Court on the following question of law:

“Whether a hospital which provides out-patient prenatal medical services to a pregnant woman, whose child is born at a different hospital with brain damage, had in law a duty of care to the as yet unborn child.”

That appeal was dismissed with costs by the Federal Court on 24 February 2023.

In the common law jurisdictions, the right of a child to sue for pre-natal injuries is well established. In Montreal Tramways Co. v Lévillé [1933] 4 S.C.R. 456, the Plaintiff’s pregnant mother and the Plaintiff in utero suffered injuries as a result of the negligence of the Defendant. The Supreme Court of Canada decided that the Plaintiff had a right to sue for injuries suffered during her pre-natal period.

In Watt v Rama [1972] V.R. 353, the Plaintiff had suffered pre-natal injuries, which later manifested at birth when her mother pregnant with her was involved in a motor vehicle accident. The Supreme Court of Victoria upheld the decision of the trial judge that the Plaintiff had a right to sue for her pre-natal injuries.

In the United Kingdom, the common law following ancient enough precedent, allowed for claims in negligence by babies who had been harmed negligently in utero. The Congenital Disabilities (Civil Liability) Act 1976 was introduced which amongst others recognised the common law right to sue for pre-natal injuries.

In the two pre-natal injury cases, namely, Burton v Islington Health Authority de Martell v Merton and Sutton Health Authority [1992] 3 All ER 833 which had followed Montreal Tramways Co. and Watt v Rama, the parties were in agreement that the Congenital Disabilities Act did not apply because the two infant Plaintiffs who had suffered pre-natal injuries were born before the Act was passed.

The Court of Appeal upheld the decisions of the two trial judges that in common law the respective infant plaintiffs in both cases had a right to sue for pre-natal injuries.

In Malaysia, the Courts have allowed claims in many pre-natal negligence cases, for example, in Nurul Husna Muhammad Hafiz v Kerajaan Malaysia [2015] 1 CLJ 825. A patient who has suffered an injury in utero can after being born injured bring a claim against the tortfeasors who had injured her in utero despite there being no legislation such as the UK Congenital Disabilities (Civil Liability) Act 1976. Since the Federal Court did not deliver the grounds of its decision, it is possible that a similar objection as that raised in Zulaikha’s case will once again be raised in some other case.

In Zulaikha’s case, Al Zahra Medical Centre had tried but failed to persuade the Federal Court that there must be similar legislation in Malaysia before a child may be allowed to sue for pre-natal injuries. The Federal Court in dismissing the appeal had accepted the arguments that the common law recognised the right of a child to sue for pre-natal injuries.The Federal Court is not likely to deliver the written grounds of its decision.

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