BRACHIAL PLEXUS INJURY: AIRIS NURHANA BINTI ALFIAN
(an infant suing by her father and litigation representative, Alfian bin Zainuddin) v Darul Aiman Sdn Bhd & Anor [2024] 6 MLJ 552
Airis suffered a brachial plexus injury following her birth on 3 September 2013 at Putra Medical Centre (“PMC”) in Sungai Buloh, Selangor. She was delivered following a vacuum extraction undertaken by Dr Wan Ratna Iza binti Wan Abdul Rahim (the 2nd Defendant), who was the medical officer in the Obstetrics and Gynaecology Department of PMC.
Her claim was dismissed by the High Court on 19 October 2022 but that decision was reversed by the Court of Appeal on 3 October 2024. The Defendants did not seek leave to appeal to the Federal Court.
The High Court Judge had accepted the evidence of the Defendants' witnesses that there was maternal exhaustion despite there being no medical record regarding the same. Ironically, the High Court Judge had rejected Airis’s expert’s evidence of shoulder dystocia causing the brachial plexus injury on the ground that the 2nd Defendant had not mentioned shoulder dystocia in her medical records. PMC’s paediatric medical officer Dr Marina had written “shoulder dystocia” in the medical records but was not called as a witness. The High Court Judge had decided that Airis had the burden of calling Dr Marina as a witness. The High Court Judge in dismissing the claim had accepted the 2nd Defendant’s evidence that in utero maternal propulsions could have caused the brachial plexus injury despite there being no medical record and pleading regarding such maternal propulsions.
The Court of Appeal had decided that the medical records and the evidence did not support the maternal exhaustion finding; and that since Airis was not disputing the contents of the medical records and that the Defendants were disputing the “should dystocia” note written by Dr Marina, the Defendants, had the burden to call Dr Marina as a witness; and that if the Defendants were disputing causation or had a different version of causation then the Defendants were under a duty to plead their version of causation. The experts had agreed that in utero maternal propulsions would at best cause a transient brachial plexus injury which will recover spontaneously. Airis had however suffered an avulsion injury which was more consistent with excessive force being used to free the shoulder after shoulder dystocia had occurred. The learned High Court Judge had unfortunately not considered the concessions made by the experts regarding the causation of the brachial plexus injury. The Court of Appeal had also decided that PMC was vicariously liable for the negligence of the 2nd Defendant and that PMC also owed a non-delegable duty of care to Airis and the parents.
The Court of Appeal had also dismissed PMC’s claim for a contribution or an indemnity against the 2nd Defendant on the following grounds: -
- that PMC was better organised in spreading the risk through pricing and insurance when compared to the 2nd Defendant;
- that since PMC stands to generate profits through its employees’ activities that PMC should bear the liability; and
- that the judgment will serve as a deterrence to encourage PMC to take better control of its employees.
The take home point of the judgment of the Court of Appeal was that if the Defendants were disputing causation then the Defendants were under a duty to plead their version of the causation and also that the Court when making findings of fact must analyse the clinical facts and not simply rely on the entries in the medical records.
