Written by Anis Hadirah
A Court of Appeal case study on Nur Fuziatun Mohd Fadzli v Gombak Medical Centre
Coram: Hajjah Azizah Nawawi, Azizul Azmi Adnan, and Faizah Jamaludin JJCA
Brief Facts
On 17 June 2014, the appellant was born at a private healthcare facility. Following her birth, she was found to have a low Apgar score and exhibited signs of respiratory distress, including tachypnoea and grunting. Despite these indicators, the appellant was not immediately referred to a hospital equipped with neonatal intensive care facilities and was only transferred approximately six hours after birth.
Subsequently, the appellant was diagnosed with cerebral palsy, a severe and permanent neurological condition affecting motor function. The appellant contended that the condition was caused by hypoxia suffered during and immediately after birth, which could have been mitigated had appropriate medical care and timely neonatal intervention been provided.
The first respondent was the private hospital where the delivery occurred. The second respondent was the ‘person in charge’ of the hospital under the Private Healthcare Facilities and Services Act 1998 and was also the head of the Obstetrics and Gynaecology Department. The third respondent was the attending obstetrician who conducted the delivery, including the use of vacuum extraction.
The appellant alleged that the respondents were negligent in several respects, including failing to properly diagnose foetal distress, failing to ensure the availability of a paediatrician or neonatal specialist, failing to have proper systems in place for emergency referral, and delaying the transfer of the newborn to a hospital with neonatal intensive care facilities. It was contended that these failures collectively resulted in hypoxic injury, leading to cerebral palsy.
Legal Issues
- Whether the first and second respondents owed a duty of care independent of the attending doctor.
- Whether there was a breach of duty in failing to provide timely access to paediatric and neonatal intensive care.
- Whether the delay in referral and lack of neonatal care materially contributed to the appellant’s cerebral palsy.
- Whether the High Court erred in dismissing the entire claim solely based on the absence of negligence by the third respondent.
High Court Findings
The High Court dismissed the appellant’s claim in its entirety. The trial judge focused primarily on the conduct of the third respondent, the attending doctor, and found that the appellant had failed to establish negligence on the third respondent’s part.
The High Court held that the absence of complete cardiotocography records prevented the court from concluding that foetal distress had occurred or had been negligently managed. It further held that the presence of light meconium-stained liquor was not conclusive evidence of foetal distress and did not, by itself, necessitate surgical intervention or indicate negligence.
In relation to the vacuum extraction, the High Court accepted that the procedure was conducted in accordance with recognised medical standards. The court further relies on medical literature indicating that the method used fell within acceptable limits. The court also accepted expert evidence that cerebral palsy develops in utero in a significant percentage of cases and found that causation had not been proven.
Having found no negligence on the part of the third respondent, the High Court concluded that the claims against the first and second respondents necessarily failed. It held that issues relating to hospital liability, the role of the person in charge, and the assessment of damages were rendered academic. Accordingly, the claim was dismissed, the notice of contribution and indemnity was struck out, and parties were ordered to bear their own costs.
Court of Appeal Findings
The Court of Appeal fundamentally disagreed with this approach and recast both liability and causation.
First, the Court of Appeal held that the second respondent, as ‘person in charge’ under the Private Healthcare Facilities and Services Act 1998 and head of Obstetrics and Gynaecology, owed a general duty of care in tort to patients, including the appellant, to take reasonable care in managing and controlling the hospital so as to protect patients from harm, the Court of Appeal referred to Pengarah Hospital Selayang v Ahmad Azizi Abdullah James where it is a settled law that the director of the public hospital would directly owe a duty of case to the patients of the hospital. It could be seen that the appellant’s injury was a reasonably foreseeable consequence of the services offered by the first respondent, and it was similarly foreseeable that patients could be harmed if the second respondent failed to ensure that the facility’s operations met accepted standards. As a patient of the first respondent, the appellant stood in sufficient proximity to the second respondent for a duty of care to arise. Dr Noor Fidak was not only the person in charge under the Private Healthcare Facilities and Services Act 1998 and its Regulations, but also the head of the Obstetrics and Gynaecology Department, which further strengthened that proximity. In these circumstances, it is just, fair and reasonable to impose a duty of care on her.
Furthermore, the Court of Appeal further held the duty of care also include the duty to make available paediatric care to the appellant. It was affirmed that if there was then no express licence condition mandating a paediatrician on standby, at common law the first and second respondents owed a duty to ensure timely access to appropriate medical experts (including anaesthetists and neonatal paediatricians) to deal with reasonably foreseeable childbirth complications, rejecting the argument that the later-imposed licence condition implied no pre‑existing duty. The Court of Appeal also emphasised that such duty does not extended to the third respondent who was the physician undertaking the delivery of the baby.
On breach of duty, the Court of Appeal found that the first and second respondents failed to prove that any neonatal paediatrician was in fact available on call or for consultation at the material time, noting that the initially named paediatrician was abroad and never engaged as an on‑call consultant, and that the third respondent’s vague claim of having consulted ‘one of two’ paediatricians without identifying or calling them underscored the absence of an organised system. The Court of Appeal also held that there was an unacceptable and negligent delay in transferring the baby to a NICU hospital.
In this case, both experts agreed there was delay in referral within the first six hours of life, the baby’s low Apgar scores and evolving respiratory distress required earlier specialist input, and the evidence of the third respondent looking for mobile numbers and reaching a point of ‘tak tahu mana lagi nak tanya’ (not knowing who else to ask) demonstrated systemic failure in escalation protocols for emergency neonatal transfers. By contrast, the Court of Appeal affirmed the High Court’s conclusion that the third respondent had not breached her personal duty of care. The Court of Appeal asserted that the use and timing of CTG and Doppler monitoring were consistent with accepted practice, light meconium alone did not mandate emergency caesarean section under any guideline, the note ‘CTG still acceptable’ showed ongoing monitoring, and the vacuum extraction technique stayed well within internationally recommended limits on pulls, cup detachments and duration.
On causation, the Court of Appeal held that the High Court’s finding that causation was not proven was plainly wrong because it failed to engage with three critical evidential pillars, which are the poor Apgar scores, the absence of congenital risk factors, and the unanimous expert opinion that the appellant’s cerebral palsy was acquired from perinatal events rather than in‑utero causes. Applying Bonnington Castings v Wardlaw and the Federal Court’s approach in Wong Siew Ying v Gunung Tunggal Quarry, the Court of Appeal emphasised that the hospital and second respondents were liable if their breaches materially contributed to the injury, even if they were not the sole cause, and that the ‘but for’ test is not exclusive in multi‑factor scenarios. The Court reasoned that the low Apgar scores evidenced hypoxia and delivery trauma, that the CDC‑listed risk factors for congenital cerebral palsy were absent in this mother and child, and that both experts agreed the insult causing cerebral palsy arose from traumatic delivery and inadequate neonatal management, such that the trial judge could not reject their opinions without identifying why they were ‘obviously indefensible’ or unsupported by basic facts, contrary to principles in Sek Kim Wah, Dr Lo Sook Ling Adela and Majuikan. The Court of Appeal therefore held that the first and second respondents’ failure to provide timely access to neonatal intensive care materially and adversely contributed to the appellant’s condition and satisfied the causation element, even though the third respondent was personally exonerated.
Ultimately, the Court of Appeal allowed the appeal against the first and second respondents, dismissed the appeal against the third respondent, and remitted the matter to the High Court for assessment of damages before a different judge, with the first and second respondents held jointly and severally liable for damages, pre‑ and post‑judgment interest, and RM100,000 in costs to the appellant, while the appellant was ordered to pay RM40,000 costs to the third respondent.
Conclusion
This is a case of medical negligence decision that clarifies the independent liability of hospitals and persons in charge of healthcare facilities. It affirms that institutional failures, particularly in post-delivery care and neonatal access, can ground liability even where the attending doctor is found not negligent. The decision reinforces the principle that causation may be established through material contribution and highlights the critical importance of functional system in medical care.
Published on 30 December 2025