ARTHROSCOPY CAUSING POPLITEAL ARTERY INJURY
The Plaintiff’s claim against the Defendant orthopaedic surgeon and the Hospital was dismissed with costs by the High Court on 19 June 2024. The Court of Appeal by a 2:1 majority allowed the Plaintiff’s appeal with costs and ordered the High Court to assess the damages. The Hospital’s and the orthopaedic surgeon's respective applications for leave to appeal were dismissed with costs by the Federal Court on 10 February 2025.
The judgments of the High Court and the Court of Appeal had been reported and the citations are given below: -
- Tan Sri Dato Mohd Hussin bin Abd Hamid v Gleneagles Hospital (Kuala Lumpur) Sdn Bhd & Dr Charanjeet Singh [2022] MLJU 2432
- Tan Sri Datuk Seri Mohd Hussein bin Abd Hamid v Gleneagles Hospital (Kuala Lumpur) Sdn Bhd & Dr Charanjeet Singh [2024] MLJU 3690, CA (Majority Judgment)
- The unreported judgment in Tan Sri Datuk Seri Mohd Hussein bin Abd Hamid v Gleneagles Hospital (Kuala Lumpur) Sdn Bhd & Dr Charanjeet Singh in the Court of Appeal Civil Appeal No. W-02(NCVC)(W)-1000-06/2002 (Dissenting Judgment)
Google link for the above judgments –
https://drive.google.com/drive/folders/1QDWwYAIrUq_-QNEW_SVvJGZyRFoxJ8Mx?usp=drive_link
Facts
The Plaintiff had a long-standing complaint of pain in his right knee. The orthopaedic surgeon advised him to undergo a total knee replacement which he declined. He did not want to undergo a major operation and hence his decision to refuse to undergo the total knee replacement operation. Several months later the orthopaedic surgeon advised the Plaintiff to undergo an arthroscopy of his right knee. He was advised of the usual risks of an arthroscopy but was not advised on the risk of an injury to his popliteal artery, which was situated outside his knee capsule.
The undisputed evidence was that injury to the popliteal artery during arthroscopy was a rare risk. The orthopaedic surgeon’s expert had testified that such rare risk was a foreseeable risk and that the Plaintiff should have been warned of such risk.
The High Court Judge dismissed the claim and decided against the weight of the evidence that the popliteal artery injury was covered by the general warning of the risk of bleeding within the knee capsule.
The Plaintiff had testified that he was told that there will be bleeding within the knee capsule when the arthroscopy was undertaken. He testified that if he had been warned of the risk of a popliteal artery injury occurring outside the knee capsule that he would not have agreed to undergo the arthroscopy.
The experts for both sides had agreed that the popliteal artery injury was different from the general risk of bleeding during the arthroscopy. The majority in the Court of Appeal analysed the law and the facts and decided that even though the popliteal artery injury was a rare risk that it was a foreseeable risk and that the Plaintiff if warned would likely to have attached a significance to it and would not have undergone the operation.
Ordinarily, the Court of Appeal would be slow in reversing findings of fact. However, in this case, the Court of Appeal had readily intervened in reversing the findings of fact of the High Court Judge which were not supported by the undisputed evidence including the expert evidence.
