KUALA LUMPUR, Nov 11 — The High Court here has awarded about RM4.2 million in damages to an elderly patient, who was left in a persistent vegetative state after falling from her bed in Prince Court Medical Centre (PCMC) in 2018; she died last September.
The RM4.2 million award for damages for Lim Yoke Har – who was 75-years-old at the time of the incident – included RM1 million in aggravated damages, the highest ever sum awarded as aggravated damages in a medical negligence case since 2010.
Lim had been admitted to PCMC for dengue. Her fall in the private hospital resulted in severe brain damage that left her unable to talk, recognise anyone, or breathe well without support.
The High Court concluded that the patient’s fall was caused by a malfunction of her old hospital bed.
“This is a suitable case for the Court to award aggravated damages. I have to say that the facts here justify an award on the higher end of the scale,” said Judicial Commissioner (JC) Leong Wai Hong in his 101-page written judgment, as sighted by CodeBlue, that was released last October 23 following the court’s verdict on August 27.
“A court of law will award aggravated damages if a defendant’s conduct towards the plaintiff was motivated by spite or malevolence [or if] a defendant’s conduct was high-handed so as to increase the plaintiff’s mental pain and suffering.”
“Aggravated damages” in law are defined as “damages to provide compensation for mental distress or injury to feelings caused by the manner or motive with which a wrong was committed or by the defendant’s conduct subsequent to the wrong.”
The High Court’s ruling in Lim Yoke Har isn’t merely about medical negligence behind Lim’s “tragic fall” in Prince Court, a premier quaternary hospital located in the Golden Triangle of Kuala Lumpur and owned by one of the world’s largest private health care providers, IHH Healthcare Bhd.
Instead, JC Leong’s written judgment tells a damning story about the hospital’s alleged behaviour, as described by the High Court itself in its basis for awarding aggravated damages: shifting blame to the patient and her family, deliberate non-disclosure of material evidence like incident reports, failure to report the fall to the Ministry of Health (MOH) within 24 hours, and “perversion of the course of justice.”
Lim’s case involved two lawsuits that were heard together by the High Court. One was a medical negligence suit by Lim (brought by her son, Goh Seng Cha, as her litigation representative) against PCMC, a doctor, and a staff nurse. Another was Prince Court’s suit against the patient and her family that sought to claim RM334,760.90 for recovery of outstanding hospital bills.
Lim and three of her adult children (who were guarantors for the hospital bill) had contended that they were only liable to pay for dengue treatment, but not all other expenses incurred after the fall. They had already paid PCMC RM84,000 as part of the bill. The High Court favoured the patient in both suits.
In Lim’s suit against PCMC, the High Court awarded the patient damages of RM4,210,642 and costs of RM332,249 (excluding interest), to be paid by the hospital. Prince Court’s claim in its suit against Lim and her family was dismissed with costs of RM40,000 to the patient and her guarantors.
The private hospital was also ordered to pay RM279,970.52 to Lim’s primary doctor who treated her for dengue, Dr Nick Chong Chung King, after the High Court dismissed PCMC’s claim against its consultant physician for a contribution and/or indemnity.
Both the patient’s counsel and the court agreed that no liability should be found against Dr Chong as, according to the trial judge, “it became clear that there was nothing Dr Nick Chong could have done to prevent the fall.” The patient’s claims against Dr Chong (second defendant) and Staff Nurse Zulia Rashila Md Shafar (third defendant) were dismissed.
An award of aggravated damages in a medical negligence case is rare in Malaysia. The RM1 million quantum for aggravated damages in Lim Yoke Har is the highest in over a decade since Megat Namazie v Dr Hari Krishnan in 2010 that also saw an award of RM1 million as aggravated damages.
CodeBlue understands that in subsequent uncommon medical negligence cases with aggravated damages, the awards have been mostly below RM500,000.
Lim’s counsel – Karthi Kanthabalan, a partner at P.S. Ranjan & Co. – had submitted a sum of RM1 million as aggravated damages, relying on the Dr Hari Krishnan ruling.
“The award of RM1 million in Dr Hari Krishnan was awarded in 2010. It is now 2024. With inflation over 14 years and the more serious aggravating factors in this case compared to Dr Hari Krishnan, which I have set out above, a sum of RM1 million for aggravated damages is appropriate,” wrote JC Leong.
The trial judge noted that Lim’s children had entrusted their mother to Prince Court and the doctor for “the best treatment that money can buy.” Before Lim was admitted for dengue and her subsequent fall from her bed in the hospital, she was “enjoying life” as a senior citizen.
Citing testimony from Lim’s children and photographs produced in court, JC Leong noted that Lim was a very active and cheerful person and enjoyed cooking for her children whenever they visited. “She was a very independent woman and needed nobody’s assistance in any of the house chores. She also enjoyed gardening.”
Lim died at age 81 last September 27 in her home in Sri Petaling, Kuala Lumpur, barely a month after the High Court delivered its verdict and six years since she fell into a “persistent vegetative state” in 2018 from her fall in Prince Court.
CodeBlue understands that PCMC has filed appeals to the Court of Appeal in both cases: Lim’s medical negligence suit and its own suit against Lim and her family for nearly RM335,000 in recovery of outstanding hospital bills. But the hospital is not appealing the High Court’s dismissal of its claim for a contribution or indemnity against Dr Chong.
(Editor’s Note: This story is a long read. A short summary of the article can be read on CodeBlue’s X account here).
Three-Month Hospitalisation, Six Procedures, Discharged In A ‘Persistent Vegetative State’
On September 19, 2018, Lim suffered a fall at home and was brought to PCMC for treatment, where she was diagnosed with dengue fever. The patient, who was aged 75 then, was identified as a patient with a high risk of falling under the Morse Fall Risk (MFR) scale.
Lim was recovering well from her dengue infection and was due to be discharged on September 26, 2018.
On the same day, at around 2am, Nurse Zulia attended to Lim and recorded in her nursing report that she had assisted the patient to sit up, the call bell was reachable, and the bed spacer applied. Five minutes later, at 2.05am, the patient screamed and was found lying on the floor, with a laceration wound seen over the head and active bleeding. A CT scan revealed a right-sided intracerebral bleed; Lim was then transferred to the intensive care unit (ICU).
She ended up being hospitalised in PCMC for three months, much of which was spent in either the ICU or the high dependency unit (HDU), and was discharged only on December 20, 2018.
Following her fall, Lim had to undergo a craniotomy to evacuate the haematoma, as well as five other remedial surgeries, all of which were undertaken at Prince Court: extubation and tracheostomy insertion, replacement of tracheostomy, bronchoscopy to clear retained secretions, bronchoscopy and bronchial lavage of retained secretions, and permanent tracheostomy insertion.
Left in a “persistent vegetative state” after her fall, Lim could no longer vocalise and communicate; swallow and clear phlegm without assistance; breathe well without support; indicate her own needs; move any of her limbs; follow any command; control her bowel and bladder movements; or feed herself.
Doctor’s ‘Shocking’ Testimony: Mechanical Failure Of Bed’s Cot Side ‘A Common Problem’
The great question that consumed the trial, according to JC Leong, was ‘why did the patient fall?’. Quoting then UK Prime Minister Winston Churchill’s famous description of Russia in October 1939, he wrote that the cause of Lim’s fall from her bed was “a riddle wrapped in a mystery inside an enigma” for the first 14 days of the trial.
Then on April 26 this year, Day 15 of the 18-day trial spanning three years, Lim’s physician Dr Chong told the High Court that his patient could have fallen because of the bed’s cot side giving way due to mechanical failure.
It was also Dr Chong who testified on the existence of incident reports prepared by the nurses on duty and an internal nursing review conducted after the fall that – according to the judge – were not produced by PCMC for trial.
“I find that much time was taken at trial and, in my view, wasted unnecessarily because Prince Court Medical Centre did not disclose two important reports on the fall. As it transpired, these two reports show that the most likely cause of the fall was a mechanical failure of the bed’s cot side,” wrote JC Leong.
During the trial, PCMC claimed that the patient had caused her own fall by climbing out of bed and that Lim had failed to ensure a family member was present to attend to her.
However, Dr Chong testified that Lim could have fallen due to a mechanical failure of the cot side. The physician’s testimony was “shocking to say the least”, wrote the trial judge.
“Sometimes the cot side, when it’s put up, can suffer mechanical failure. I have seen it many times before, that is you lean on the cot side, I was doing my ward round, the whole thing just gave way. That’s a possibility as well; it’s a common problem,” Dr Chong testified under cross-examination.
A PCMC Nursing Team Review stated that Lim was placed on an “old” Paramount bed. In an incident report, two nurses who were stated to have investigated the fall recommended a change to a “new” Paramount bed if the patient is high-risk MFR (Morse Fall Risk). Paramount is a hospital bed brand.
Besides blaming the patient, PCMC suggested that Dr Chong could have caused Lim’s fall from her bed by prescribing a combination of tramadol and Stilnox to the patient. Tramadol is an opioid medication for moderate to severe pain, while Stilnox (zolpidem) is a sleeping pill used to treat insomnia.
During oral closing submissions last August 26, according to a typewritten transcript filed in court, PCMC’s lawyer Sharmini Navaratnam cited expert evidence that the combination of an opiate and sleep aid could have caused a “confused sensorium” in the patient, contributing to her fall.
“In the event this Honourable Court comes to a conclusion that the fall was due to interaction of tramadol and Stilnox, that it is clear that liability would attach to the Second Defendant [Dr Chong],” according to a written submission by PCMC and Nurse Zulia filed last July 3. The hospital and the nurse were represented by Siva Dharma & Associates, while Dr Chong was represented by Raja, Darryl & Loh.
However, during cross-examination, Dr Chong said it was not possible for Lim to jump over the cot side of her bed.
“It takes a lot of effort to climb over the guard rails and the spacer and if she’s already needing help to sit up, as alluded by the nurse who actually saw her before, I don’t see her being able to climb over the guard rail.”
Nurse Zulia similarly testified that the patient was too weak to climb out of bed on her own if the cot sides or guard rails were up and the bed spacer was in place.
Nursing Team Review Document: Root Cause Of Fall Not Stated, Other Missing Details
PCMC produced two documents for the High Court last April 30 – an Incident Report dated September 26, 2018 (pages 1 to 3) and a PCMC Nursing Team Review (pages 4 to 12) – after JC Leong invoked his power as the judge under Section 165 of the Evidence Act 1950 to order the production of incident reports prepared by the nurses on duty and documents pertaining to the internal nursing review conducted into the fall.
The patient’s lawyer, however, accused the hospital of refusing to disclose the complete “internal nursing review”. Instead, what was disclosed to the court was an “edited, untitled, undated, unpaginated and unsigned ‘chronology’.”
Puspa Tharmalingam – an officer from PCMC’s Quality Assurance unit, who had tendered the document in court – had referred to it as a “slide presentation” prepared for the hospital management, according to the plaintiff’s counsel. There were no slide numbers.
Lim’s lawyer contended that the “internal nursing review ‘document’ was either incomplete and/or edited or completely ‘cooked up’”, pointing out that the document did not state the root cause of the patient’s fall. The document was not dated or paginated; the date on which the nursing review was conducted was not stated; neither were the names of the participants of the nursing review listed; and Puspa had no personal knowledge of the document as she was not involved in the review at the material time.
“It was obvious from Ms Puspa’s evidence and also from every other witness who had testified thereafter, that the ‘internal nursing review’ which Prince Court had disclosed was not and can never be referred to as an internal nursing review document,” asserted Lim’s counsel.
JC Leong wrote in his judgment that “there is much force in the contention of learned counsel for the patient.”
The trial judge further described Puspa as being “economical with the truth”, when the PCMC quality assurance officer was confronted with the lack of details in the Nursing Team Review document, including the names of attendees.
“It’s not here, yes,” Puspa told Lim’s lawyer, Karthi, in court.
“But it’s somewhere in Prince Court, correct?”
“No.”
JC Leong drew “adverse inference” against PCMC for failure to call witnesses to shed light on the non-disclosure of the incident reports prepared by the nurses on duty and an internal nursing review conducted after Lim’s fall, despite opportunity given by the Court.
Under Section 114 Illustration (g) of the Evidence Act, “adverse inference” is described as: “The court may presume that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it.”
The trial judge also found Puspa to be an “unreliable” witness.
PCMC ‘Breached’ Clear Statutory Duty To Report Fall To MOH: Trial Judge
PCMC did not report Lim’s 2018 fall to the MOH within 24 hours of the incident, despite a legal requirement under the Private Healthcare Facilities & Services Act (PHFSA) 1998.
“Besides the non-disclosure of the incident reports prepared by the nurses on duty and an internal nursing review conducted after the fall, Prince Court Medical Centre had also breached a clear statutory duty to report the fall to the MOH,” JC Leong wrote in his ruling.
“Counsel for the patient contends they did not want scrutiny because the MOH would have undertaken an inquiry into the fall. Such a report can also be used as an admission in a court suit by the patient.”
Lim’s lawyer, Karthi, pointed out to Puspa during the trial that any falls in a hospital that results in injury, even a concussion, must undertake incident reporting, as per the PHFSA.
She acknowledged that Lim’s fall was not reported to the MOH, adding that she wasn’t in PCMC’s quality assurance unit in 2018.
The trial judge drew “adverse inference” against Prince Court for failure to call, as a witness to testify, the person or persons in the hospital who made the decision not to report Lim’s fall to the MOH.
PCMC’s counsel told the High Court that the patient’s fall was not reported to the MOH because reporting must be done within 24 hours, claiming that the seriousness of Lim’s fall was not known till after 24 hours.
Lim’s lawyer, however, showed the court evidence that the private hospital was indeed aware within 24 hours, citing physician progress notes with a recording of doctors’ notes that the patient’s CT brain scan showed intracerebral bleeding.
“I accept the submissions of learned counsel for the patient and commend him for his mastery of the facts to assist the Court,” wrote JC Leong.
Prince Court’s ‘Self-Contradicting’ Letters Show Attempt To Shift Blame To Patient And Family: JC
“After the fall, it is clear to me that Prince Court Medical Centre tried to shift the blame to the patient and the family and hid the cause of the fall,” said JC Leong in his ruling.
In a letter dated October 26, 2018, to Lim’s son Goh Seng Kok, then PCMC chief executive officer Mahenthiran Thanapal wrote that a “thorough investigation” was conducted into Lim’s fall at the hospital.
“In view of Mdm Lim’s fall at home on her admission day and her general health condition, family members were encouraged to room in with her…All 4 side rails were up…”
However, the trial judge observed that this letter was “contradicted” by a subsequent letter from Mahenthiran to Seng Kok dated January 9, 2019.
“However, we regret to note that the hospital or the doctors were not informed by family members that the patient has had fall or falls at home just prior to her admission to Prince Court Medical Centre for dengue,” the then PCMC CEO was quoted as saying in his letter.
“This fact was only informed after the incident. If it was made known to the Hospital or the Doctor that she had a fall or falls at home just prior to admission, her admission would have been different.”
According to JC Leong, the then Prince Court CEO attempted to “justify the contradiction” by saying: “This is the fall on the day of the admission, we’re referring to other falls than this.”
“I find Mr Mahenthiran is not a credible witness,” said the trial judge in his ruling.
Court’s Justifications For Awarding Aggravated Damages
The High Court concluded that Lim’s fall was caused by a mechanical malfunction of the cot side of her “old” hospital bed, where it went down and the patient must have rolled over or fallen off the bed.
JC Leong highlighted evidence from Prince Court’s two “self-contradicting” letters to Lim’s family, the Incident Report dated on the day of Lim’s fall, the PCMC Nursing Team Review, and testimonies from witnesses, particularly Dr Chong and Nurse Zulia.
Citing then PCMC CEO Mahenthiran’s first letter to Lim’s family on October 26, 2018, the trial judge said it was clear that the hospital was “well aware” that the patient had suffered a fall at home prior to her admission to Prince Court.
But Mahenthiran’s second letter to Lim’s family on January 9, 2019, indicated that PCMC could not be blamed for the patient’s fall from her bed in Prince Court, purportedly because the hospital was not informed prior of Lim’s previous fall or falls at home.
“Even in court proceedings, Prince Court Medical Centre did not come clean but continued to pervert the course of justice. Witness for Prince Court Medical Centre DW8, Mr Mahenthiran Thanapal, continued to deny there was a contradiction in his two letters,” said JC Leong in his ruling.
In his decision to award aggravated damages to the plaintiff, the trial judge cited the shifting of blame to the patient for her fall. His written judgment also cited the shifting of blame to the patient’s family that “relied on a lie which was exposed in cross-examination.”
The High Court’s grounds of judgment further cited the “deliberate non-disclosure of material evidence”, namely the incident reports prepared by the nurses on duty and the internal nursing review conducted into the fall.
“When the Court ordered the disclosure of the incident reports prepared by the nurses on duty and the internal nursing review conducted into the fall, there was a deliberate failure to disclose the complete documents,” JC Leong wrote.
The trial judge pointed out that the “suppression of evidence and knowledge of the cause of the fall” had resulted in Lim suing Dr Chong and Nurse Zulia that “no doubt caused unnecessary stress to them, not to mention an attack on their reputations as professionals” from the time the suit was filed in 2019 to his decision last August 27.
JC Leong also cited the failure to report Lim’s fall to the MOH within 24 hours or immediately thereafter and thereby “avoiding a statutory inquiry into the fall.”
“Perversion of the course of justice” was another justification by the High Court to award aggravated damages to the patient.
Citing Dr Chong’s testimony that it was “common knowledge” that the cot sides of hospital beds suffered mechanical failures, the trial judge said the old beds in Prince Court should have been checked immediately and replaced before a tragic fall occurred.
“It required the tragic fall in the case before me before Prince Court Medical Centre decided to replace all the old with new beds. This is a case of penny-wise pound-foolish,” JC Leong wrote in his verdict.
When contacted by CodeBlue for a response to the High Court’s written judgment on Lim Yoke Har, particularly the JC’s decision to award aggravated damages of RM1 million, Prince Court declined comment as the case is currently under appeal.
