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The Judgment of the Federal Court in Foo Fio Na v Dr Soo Fook Mun and Assunta Hospital [2007] 1 MLJ 593

A note by P S Ranjan & Co.
Advocates & Solicitors
Malaysia

Summary

The Federal Court in Foo Fio Na v Dr Soo Fook Mun and Assunta Hospital [2007] 1 MLJ 593 reversed the decision of the Court of Appeal. When doing so, it set out what it said were “facts … not disputed”. The true position is that the appeal was allowed on the basis of facts which were actually in dispute or in respect of which there was no evidence. Furthermore, the plaintiff had departed from her pleaded case that she had suffered spinal cord injuries in a motor vehicle accident after which she suffered paralysis. At trial, she alleged that her paralysis was caused by compression of the spinal cord by a surgical wire inserted by Dr Soo Fook Mun. That allegation was not pleaded. Even her own expert who was a consultant neurosurgeon did not support her allegation. Neither did other witnesses, medical or expert.

Introduction
  1. In this medical negligence case, Madam Justice Siti Norma Binti Yaakob gave her name to the judgment of the three-member bench of the Federal Court (after one of them had retired). The Federal Court allowed the appeal of the patient the plaintiff against the decision of the Court of Appeal which had decided against her: see Dr Soo Fook Mun v Foo Fio Na & Anor And Another Appeal [2001] 2 MLJ 193.
  2. The judgment of the Federal Court was released on 29 December 2006, 4 years and 7 months after the conclusion of the hearing in the Federal Court. Madam Justice Siti Norma retired on 5 January 2007.
  3. A five-member panel of the Federal Court (at a time when usually three Judges sat for a full hearing) dismissed Dr Soo’s application for review of its judgment. The presiding Judge merely said, “We won’t exercise our discretion.”
Subsequent Questioning by Court of Appeal of the Judgment of the Federal Court
  1. In Dominic Puthucheary & Ors (personal representatives of the estate of Thayalan a/l Kanapathipillai) v Dr Goon Siew Fong & Anor [2007] 5 MLJ 552 later, the Court of Appeal questioned (at paragraph 16) the correctness of the judgment of the Federal Court in Foo Fio Na “on the actual facts of that case.”
Facts … not Disputed”
  1. The Federal Court stated disputed matters as “facts … not disputed” (at paragraph 14) and then made a finding of negligence.
  2. The cause of the patient’s paralysis was disputed by the surgeon, something expressly noted by the Court of Appeal, which said (at page 201 of the report):-
  • “To recapitulate, the plaintiff’s case is that she suffered paralysis because of Dr Soo’s negligence. Dr Soo had denied this, both in his pleaded case and in his evidence.”
  1. The surgeon said that the paralysis was caused by a spinal cord injury suffered during a motor vehicle accident.
  2. The plaintiff herself had pleaded that she had suffered spinal cord injuries in the accident.
  3. A vascular infarction of the spinal cord arose from the accident, leading to paralysis of delayed onset.
  4. In Court, the plaintiff departed from her statement of claim and alleged that neurosurgeon Dr A Mohandas had told her that a wire compressing the spinal cord had caused the paralysis.
  5. That allegation was not pleaded by the plaintiff in the statement of claim. It was raised only at the trial, long after Dr Mohandas had died. There is no report or note written by Dr Mohandas supporting that allegation. The plaintiff admitted that she did not ask Dr Mohandas for a report to support the allegation. In fact, she said to the contrary in her statement of claim, that she had suffered spinal cord injuries in the motor vehicle accident after which she had suffered paralysis. There was no mention in the statement of claim of a wire compressing the spinal cord.
  6. Contrary to what the Court of Appeal had said (see paragraph 6 above), the Federal Court stated as “not disputed” the following (at paragraph 18 of its judgment): -
  • “Following his examination, Dr Mohandas did a myelogram test on her on 5 August 1982 and he found that the wire loop which was placed to correct the dislocation of C4 and C5 vertebrae during the first operation was pressuring the spinal cord and that was the cause of the total paralysis (emphasis supplied).”
  1. That statement by the Federal Court referred to something from a dead person. It was something alledged by the plaintiff to have been found by the later- deceased Dr Mohandas who himself had not written anything to that effect.
Expert Evidence on Both Sides Supporting Defendants
  1. The expert evidence showed that the wire could not have compressed the spinal cord.
  2. This is what the plaintiff’s own expert Dato’ Dr N Arumugasamy said at the trial (with emphasis supplied): -
    • “From the reports I could not determine the cause of the paralysis up to 20.7.82” (the first operation was performed on 19.7.82 and he did not state elsewhere the cause of the paralysis after 20.7.82); and
    • “The wire could not cause injury to the spinal cord if the wire is used under the lamina.”
  3. The surgeon said without challenge that he did pass the wire sublaminarly.
  4. The anaesthetist said in court that during the operation “the blood pressure and pulse remained regular” and “nothing untoward showed”. She also said: -
    • “If the patient’s spinal cord is compressed during the operation the blood pressure would drop drastically.”
  5. The surgeon’s expert said: -
    • “The chance of the wire coming into contact with the spinal cord very little …. It could not cause compression ….”
  6. The surgeon also said that he undertook a second operation, an exploration of the spinal cord some days after the onset of paralysis. He said in court: -
    • “The wire was intact, has not shifted and has not broken. The exploration showed the block the myelogram. It was the swelling of the spinal cord which was caused by the original accident (emphasis supplied)….”
Statement of Fact by Federal Court regarding Consent Forms
  1. As regards the date on which consent to the operation was given, the Federal Court stated as a fact that the Plaintiff signed the consent form for the operation on 12 July 1982.
  2. The Federal Court said (at paragraph 30) that the consent form was signed by the plaintiff when she arrived at the admission counter of Assunta on that date, meaning, even before she saw the surgeon, suggesting therefore that there could have been no discussion of the surgery between surgeon and plaintiff before the plaintiff signed the consent form, therefore putting the surgeon in an indefensible position.
  3. But the Court of Appeal expressly said that the consent form was signed much later, saying (at page 199): -
    • “Then on 15 July 1982, Dr Soo obtained the plaintiff’s consent to perform an open reduction on her.”
  4. The plaintiff’s evidence regarding the date on which she signed the consent form is as follows: -
    • I put it to you on 15.7.1982 you gave a written consent to perform reduction.
    • A: Yes”
  5. Therefore, she signed the consent form in the ward, 3 days after admission! Not at the admission counter on 12 July 1982 as said by the Federal Court!
  6. The Federal Court also appeared to doubt (at paragraph 30) that the plaintiff had actually consented to the second operation.
  7. But this is what the plaintiff said: -
    • “Q: I am suggesting to you that before the second operation you knew the second operation was a major one.
    • A: Yes
    • Q: You gave consent to this?
    • A: Yes (emphasis supplied)
    • Q: You thumb-printed the consent form?
    • A: Yes.”
    • “Q: Do you agree if you did not give your consent Dr Soo will not operate?
    • A: Yes.”
Conclusion
  1. In this case, negligence was found on the basis of matters which were not even in the evidence. Negligence was found contrary to the evidence.

Note: P S Ranjan & Co. had acted for Dr Soo in the proceedings from the High Court up to the Federal Court. The record of appeal filed in the Federal Court continues to be preserved by them. An earlier edition of this note had been used, without challenge, in various other cases following the judgment of the Federal Court in this case.

All Rights Reserved September 2020

 

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