Malaya High Court: The appeal arose from a medical negligence claim brought by a first-time blood donor who developed a pseudoaneurysm of the right brachial artery and compartment syndrome following a blood donation procedure conducted during a hospital-organised donation campaign. Dr Hj. John Lee Kien How, J., stated that the Sessions Court had erred in relying on the defence expert’s opinion while failing to properly consider the contemporaneous medical records, the evidence of the treating surgeon, and the applicable Ministry of Health Transfusion Practice Guidelines for Clinical and Laboratory Personnel, 2008 (2008 Guidelines).
The Court further held that a plaintiff is not required to adduce independent medical expert evidence where the evidence of treating doctors and contemporaneous records sufficiently establishes breach of duty. Accordingly, the appeal was allowed and the respondents were held liable for medical negligence, subject to a finding of 30% contributory negligence on the appellant’s part.
Background
The appellant was a student and first-time blood donor who participated in a blood donation campaign organised by Hospital Sultanah Bahiyah on 29-11-2015. Prior to the donation, he underwent health screening and was certified fit to donate blood. The blood collection procedure was performed by Respondent 1, a trained phlebotomist.
Shortly after donating blood, the appellant experienced swelling and discolouration in his right arm. He subsequently sought treatment at Hospital Jitra, Hospital Sultanah Bahiyah, and Kedah Medical Centre (“KMC”). He was hospitalised at KMC for seven days and was diagnosed with a pseudoaneurysm of the right brachial artery and compartment syndrome of the right forearm.
The Sessions Court dismissed the appellant’s claim, holding that the blood donation procedure had been carried out in accordance with standard operating procedures, that the injuries constituted rare but recognised complications of blood donation, and that the appellant had failed to prove negligence. Aggrieved, the appellant preferred the present appeal.
Analysis, Law, and Decision
1. Nature of the Injury
The Court held that the Sessions Court had erred in relying on a preliminary diagnosis of a hematoma while failing to accord due weight to the subsequent diagnoses of a pseudoaneurysm of the right brachial artery and compartment syndrome of the right forearm. The Court accepted the evidence of the treating surgeon that the appellant had suffered a structural tear to the brachial artery caused by the venepuncture needle and observed that this injury was distinct from a localised hematoma.
2. Failure to Comply with the 2008 Guidelines
The Court found evidence of significant departures from the standards prescribed by the 2008 Guidelines. The evidence showed that approximately twenty minutes were spent locating a suitable vein, whereas the respondents’ own medical officer acknowledged that attempts extending beyond ten minutes constituted a complication requiring referral. The Court also considered evidence that the needle was manipulated after insertion and that the appellant complained of pain during the procedure.
The Court noted that difficult venepuncture, excessive manipulation of the needle, and the development of a significant hematoma were recognised warning signs of arterial puncture under the 2008 Guidelines. Yet the medical personnel failed to suspect arterial puncture, failed to institute appropriate monitoring, and mischaracterised the swelling as normal. The Court held that the respondents failed to provide the standard of care required by the 2008 Guidelines.
3. Independent Expert Not Required to Establish Negligence
A central issue on appeal concerned the Sessions Court’s reliance on the defence expert witness and its treatment of the appellant’s failure to call an independent expert. The Court held that the trial judge had erred in law in treating the absence of a separate expert as fatal to the appellant’s case.
The Court relied on Loo Chooi Gaik v. Dr Loh Lay Soon, [2019] 4 CLJ 281 and Mohamad Rafiq Faudzil v. Dr Adzleen Mahmood, [2022] CLJU 3027, and held that a plaintiff is not obliged to call an independent medical expert where the evidence of treating doctors and contemporaneous documentary records sufficiently establishes negligence.
The Court stated that the determination of the applicable standard of care is ultimately a judicial function and cannot be delegated to the medical profession. While expert evidence may assist the court, it does not determine the issue. The Court further held that an expert opinion carries no evidential weight where it is founded on an illogical basis or ignores contemporaneous evidence. The Court stated that medical opinions must be subjected to careful scrutiny and that an expert report which overlooks the objective nature of the injury or relies on an incomplete medical record cannot be regarded as a reliable basis for determining liability.
4. Informed Consent
The Court rejected the finding that the appellant had provided valid informed consent merely by signing the donor registration form. Applying Rogers v. Whitaker, [1992] 109 ALR 625, the Court held that the judicial determination of a risk’s materiality turns on patient autonomy and the individual’s specific circumstances.
The Court held that while bruising and minor hematomas may constitute ordinary risks of blood donation, a pseudoaneurysm and compartment syndrome are severe and potentially limb-threatening complications. A reasonable first-time donor would attach significance to such risks. The medical profession cannot unilaterally reclassify a structurally destructive complication as a ‘minor inherent risk’ to bypass a patient’s constitutional right to self-determination.
5. Causation and Contributory Negligence
Applying the “but for” test in Cork v. Kirby Maclean Ltd., [1952] 2 All ER 402, the Court held that the appellant’s injuries were caused by the venepuncture procedure. The treating surgeon’s evidence established that an arterial tear had resulted from the puncture, which in turn led to the pseudoaneurysm and compartment syndrome.
The Court stated that the trial court clearly erred in characterising this injury as a general complication. The evidence demonstrated that such a vascular injury is rare and results from a failure to adhere to the reasonable standard of care during the procedure. Thus, the Court concluded that the chain of causation is established on a balance of probabilities.
Further regarding contributory negligence, the Court apportioned liability between the parties, holding the respondents 70% liable for the negligent venepuncture and subsequent failures in diagnosis and management, and the appellant 30% contributorily negligent for failing to mitigate his loss by refusing admission and monitoring.
6. Decision and Quantum of Damages
The Court held that the appellant had established negligence against the respondents in relation to the venepuncture procedure and the subsequent management of the resulting complications. Therefore, the Court set aside the Sessions Court’s decision and entered judgment in the appellant’s favour against the respondents jointly and severally.
In assessing damages, the Court awarded RM80,000 in general damages and RM8,463.83 in special damages. Applying a 70:30 apportionment of liability, with 30% contributory negligence attributed to the appellant, the total compensatory damages were reduced to RM61,924.68. The Court declined to award exemplary damages and further granted RM80,000 as a global costs order covering both the proceedings in the Sessions Court and the appeal.
[Afiq bin Azman v. Maryani Binti Ahmad, Civil Suit No. KA-12B-4-02/2025, decided on 7-7-2026]
Advocates who appeared in this case :
For the Appellant: M. Humavathi A/P Manikavelu, Messrs. S. Raman & Co.
For the Respondents: Nurul Waheda Abd Rahman and Abdul Rahman Md Zuki, Federal Counsels, Attorney General’s Chambers.