The Court of Appeal in Mohamad Rafiq Faudzil v Dr Adzleen Mahmood & Ors [2022] MLRAU 286 established the principle that expert witnesses are not always necessary in order for the plaintiff to succeed in medical negligence cases, if the documentary evidence is sufficient to prove his/her claim.
Undoubtedly, in the vast majority of medical negligence cases, it is the duty of a plaintiff to adduce expert witnesses, who would give their opinion on whether breach of duty or causation has been established. After all, the Court cannot arrive at a conclusion on technical scientific matters without the assistance of experts, and the plaintiff cannot discharge his burden of proof accordingly. However, this is not always the case.
In Mohamad Rafiq Faudzil, the plaintiff suffered a searing pain on his left eye & was thereafter blinded after being prescribed a steroid-based medication called Maxidex by the defendants. The plaintiff did not adduce expert witnesses in Court. He relied solely on the defendants’ own documents (medical reports, SOCSO forms, insurance forms, etc.) which all established he was diagnosed from “corneal ulcer”, which the defendant witnesses concede cannot be treated with Maxidex as it would aggravate the bacterial infection. The defendants adduced expert witnesses to testify that he suffered from “corneal hydrops” instead, and there was hence no breach of duty of care when Maxidex was prescribed.
The High Court dismissed the Plaintiff’s suit, whereby one of the key grounds was that he failed to adduce expert witnesses to establish his case.
The Court of Appeal reversed the High Court’s decision. It essentially held that the documentary evidence carried more weight. Additionally, the defendants failed to adduce the defendant doctor who authored this documents as a witness to explain the discrepancy, and an adverse inference was drawn against them. In all the circumstance, the plaintiff was able to discharge his burden of proof to establish negligence.
The defendants sought leave to appeal to the Federal Court on questions of law which essentially sought to establish that it is mandatory for the plaintiff to adduce expert witnesses before he/she can succeed in medical negligence cases. We argued that this cannot be the correct legal proposition, as whether an expert witness is required ultimately depends on the facts of each case. The most glaring example are res ipsa loquitur scenarios, whereby expert witnesses are by definition not required. The Federal Court denied the defendants’ leave to appeal on 30th March 2023.
As such, the principle of the Court of Appeal in Mohamad Rafiq Faudzil remains good law. What would this mean for medical negligence cases in Malaysia? 2 points to note:
(1) It is not mandatory for Plaintiffs to adduce expert witnesses before succeeding in Court. This would however be limited to obvious cases, where the documentary evidence clearly establishes negligence. The Court of Appeal also agreed with the decision of a separate panel in Loo Chooi Gaik v Dr Loh Lay Soon [2019] 4 CLJ 281, where Nallini Pathmanathan JCA (as Her Ladyship then was) held that the evidence of the plaintiff’s treating doctors subsequent to the incident was sufficient to establish a case of negligence. There are a variety of reasons why a plaintiff would not adduce expert witnesses (the high cost being the main reason), and it is up to the plaintiff’s lawyer to make a judgment call & advise accordingly.
(2) For most cases of medical negligence, expert witnesses are still required for a plaintiff to discharge his burden of proof. One would argue Mohamad Rafiq Faudzil & Loo Chooi Gaik were decided because of their specific factual matrix, and ought to be an exception rather than the norm.
Our Lim Wei Jiet acted as counsel for the successful plaintiff at the Court of Appeal & Federal Court, with Mohd Fadly bin Zakariya & Nur Maizatul Syakira binti Hashim acting as co-counsels.
