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Senior lawyer’s widow awarded RM2mil for medical negligence

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High Court imposes aggravated damages on radiologist who showed no compassion even after being told the deceased had suffered horrific burns.

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Free Malaysia Today
The High Court awarded the wife of the late Vinayak Pradhan RM800,000 for pain and suffering, RM700,000 in special damages, RM500,000 in aggravated damages, and RM250,000 in costs.

KUALA LUMPUR:
The High Court has awarded about RM2 million in damages for medical negligence to the widow of Vinayak Pradhan, a senior lawyer and former director of the Asian International Arbitration Centre.

Justice Akhtar Tahir ordered the government to pay Jayshree LC Doshi RM800,000 for pain and suffering, RM700,000 in special damages and another RM500,000 in aggravated damages.

Vinayak, who practised law at Skrine for more than 45 years, died on March 8, 2020 at the age of 72.

Akhtar found the first defendant – an interventional radiologist at the National Cancer Institute (IKN) in Putrajaya – liable but dismissed the suit against the second defendant – a plastic surgeon at Kuala Lumpur Hospital.

Both were government employees.

“The plaintiff has discharged the burden of proof on the balance of probabilities for the claim of negligence against the first defendant (radiologist),” he said.

He also ordered the government to pay RM250,000 in costs to Jayshree, the executor of her late husband’s estate.

However, Jayshree was ordered to pay RM30,000 in costs for her failed suit against the government and the plastic surgeon.

Akhtar said aggravated damages were awarded against the radiologist after he showed no compassion even after being notified of the horrific burns suffered by the deceased.

“He also took a lackadaisical attitude in responding to the distress of the plaintiff and the deceased.

“Even while testifying in court, he did not show any remorse for the pain and suffering he had caused and instead showed an overly smart attitude in answering questions posed by counsel,” Akhtar said in a 27-page judgment released last week.

He said the deceased was a healthy person before a radiofrequency ablation (RFA) procedure was conducted on him, noting that he had lived a full life, which included enjoying outdoor family vacations.

However, following the surgery, Vinayak was bedridden, suffered excruciating pain and had to undergo various medical procedures, especially in Singapore, leaving Jayshree the task of taking full-time care of her husband.

The facts of the case revealed that Vinayak had developed a thymic neuroendocrine tumour, and had undergone surgery in 1998 and 2004.

On Sept 21, 2017, he was referred to IKN following a recurrence of the tumour.

On Oct 9, 2017, a multidisciplinary meeting at IKN attended by doctors from different disciplines, including the radiologist, discussed the discovery of an enlarged tumour.

It was decided at the meeting the tumour near the chest, referred to as primary mediastinal lesion, be treated by cryoablation – a localised ablation therapy that uses extremely cold temperatures to destroy abnormal or cancerous tissues – to shrink its size.

However, the radiologist decided to perform the RFA procedure to debulk the tumour at the left chest area. The procedure was carried out on Dec 12, 2017.

The plaintiff contended that the radiologist had failed to inform her or the deceased that the meeting had recommended cryoablation.

The judge said the plaintiff only found out about this from a medical report dated Aug 24, 2020 which she received from IKN after Vinayak’s death.

Akhtar said the radiologist had induced the plaintiff and the deceased to agree to the RFA procedure by telling them that it carried minimal risk.

“In the court’s view, if the deceased or the plaintiff had the slightest inkling of any potential risk or were informed of the concerns raised at the meeting, they would have sought a second opinion both in Malaysia and abroad,” he said.

Akhtar said the reluctance of the doctors at the meeting and concerns about the risks of further treatment were in the court’s view important information to be conveyed to the plaintiff.

He said the plaintiff’s expert witness had also testified that there was an imminent risk of a burn injury to the skin if the RFA procedure was carried out.

Akhtar doubted if the radiologist had prepared a detailed surgery plan.

“His volunteering to do the procedure, although laudable, was improper and reckless,” he said.

Lawyers Ambiga Sreenevasan, James Khong and Edwin Lim appeared for Jayshree, while federal counsel K Saravanan and Noorul Fhaiez Nayan acted for the doctors and the government.

The government has filed an appeal only on the quantum awarded.

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