Dr Chandran a/l Gnanappah v Gan See Joe (suing as the administrator of the estate of Gan Hong Wee, deceased) & Anor and another appeal

Parties Involved: 

– The First Appellant: Dr. Chandran A/L Gnanappah 

– The Second Appellant: “The Hospital” 

– Respondent: Gan See Joe (on behalf of the estate of Gan Hong Wee, the deceased) 

Introduction 

This landmark case highlights professional medical negligence that may occur due to any missteps made by healthcare professionals along the lines of their duty. The decision made in this case is an important judgement that was made by the Court of Appeal after examining the principles governing medical negligence, including the standard of care expected of medical practitioners, causation, vicarious liability, and the non-delegable duty of care owed by private hospitals. 

While being a long-standing battle between the courts and the involved parties, this case has proven its significance through the facts that goes beyond deciding whether or not one doctor was negligent. It clarifies several other important principles of Malaysian medical negligence law, particularly the responsibilities of doctors and overall the management of private hospitals. 

Facts of the case 

On the 27th of March 2014 Madam Ng, the deceased’s mother, brought him to the hospital that was managed by the second appellant. Which later on introduced him to Dr. Raihanah, who had diagnosed him with pansinusitis alongside possible meningitis, optic neuritis and seizures. A CT scan also showed the deceased’s sinuses were filled with secretions. She administered three types of antibiotics to the deceased before referring him to the first appellant. Who was an independent contractor working for the private hospital.1 

The first appellant, (Dr. Chandran A/L Gnanappah) examines the deceased without the presence of his family and before referring him to another doctor (Dr. Meena). He then went to fill and sign a ‘guarantee letter request form’ to the deceased insurer stating that a sinus surgery had to be performed on the deceased. After that, Dr Meena then confirmed his diagnosis of optic neuritis, however, it is notable that after the confirmed diagnosis, Dr. Meena had only proposed treatments to the deceased’s family and had not taken any steps into giving the deceased any treatment due to the antibiotics that were given to him beforehand by his first doctor, (Dr. Raihanah). Which needed 48 hours before continuing any other treatments. On the 28th of March 2014, the deceased showed no improvements, hence the first appellant met the deceased’s parents, as well as being in the presence of the deceased to advise them that it was necessary to conduct the sinus surgery later on that day.2 

Upon hearing this, the deceased’s mother gave the first appellant her consent towards the sinus surgery. After the surgery, the deceased was seen to be restless and delirious. Moving on to be intubated, transferred to the hospital’s intensive care unit (‘ICU’), he did not regain consciousness. On 7 April 2014, due to financial difficulties of the deceased’s family, the deceased was transferred to Hospital Kuala Lumpur (‘HKL’), and passed away there on the 30th of April 2014. The cause of death was encephalitis of unknown aetiology.3 

After the tragic event, the deceased’s brother, Gan See Joe, acting as the first administrator of the deceased’s estate, first sought a pre‑trial discovery order in the High Court against the second appellant (The Hospital) to compel disclosure of medical records, but the application was discontinued once the second appellant had voluntarily released the records on his own accords, to the first administrator. The administrator then filed a suit against both the first and second appellants , and in response, the second appellant applied for indemnity or contribution from the first appellant in the event of liability being found on their end.4 

During trial, it was revealed that the second appellant had withheld eleven pages of the ICU chart concerning the deceased’s admission, which were later served on all parties. Ultimately, the High Court judge held both appellants liable to the deceased’s estate and awarded damages. Moreover, It was found that the first defendant owed only 80% of the damages awarded instead of 100%, making the second appellant’s application of indemnity not granted by the High Court. In the year 2023, the first and second appellant filed appeals against the High Court’s decision.5 

Legal Issues 

1. Whether the first defendant committed professional medical negligence to the deceased. 2. Whether the first defendant’s negligence contributed materially to the deceased’s death. 3. Whether the second defendant was vicariously liable for the first defendant’s negligence. 4. Whether the second defendant owed a non-delegable duty of care to the deceased. 
2. Whether the second defendant was liable to the deceased’s estate for the late disclosure of the ICU chart. 6. Whether the High Court’s decision on the second defendant’s liability to the deceased’s estate was valid. 7. Whether there should be appellate intervention regarding the High Court’s award in damages. 8. Whether the High Court could impose interest at the rate of 8%pa on the general damages. 9. Whether the High Court erred in deciding the first defendant’s contribution of the total damages and interest. 

Arguments Presented 

1. Appellant(s)’ Arguments 

– The First Appellant’Arguments 

On appeal, the first appellant, (Dr. Chandran A/L Gnanappah), argued and submitted that there was no causal link between the manner in which the first appellant had obtained the deceased’s mother’s consent and the death of the deceased. The appellant further contended that the High Court’s finding of fact that he was negligent in carrying out the sinus surgery was “plainly wrong”. Along with failing to provide any evidence nor solid proof that the sinus surgery had materially contributed to the deceased’s death. The appellant had also notably asserted that the second defendant owed a non‑delegable duty of care to the deceased, and therefore could not seek indemnity or contribution from him. Finally, the appellant contended that the High Court had erred in awarding the damages and interest.6 

– The Second Appellant’s Arguments 

The second appellant (The Hospital) maintained the claim of the first appellant being an independent contractor, not an employee, thus the hospital could not be vicariously liable for his negligence. The appellant also argued that the late disclosure of the ICU chart did not directly nor materially contribute to the deceased’s death. As well as submitting that the duty of care to advise the deceased’s parents about treatment and consent lay with the first appellant, not the hospital themselves. The appellant further contended that the hospital did not owe a non‑delegable duty of care, as the fifth element in the case Woodland v Swimming Teachers Association [2014] AC 5377 was not satisfied. Lastly, the second appellant had claimed entitlement to the order of 100% indemnity from the first defendant if liability was imposed.8 

2. The Respondent’s Arguments 

The respondent, Gan See Joe acting as administrator of the estate of Gan Hong Wee, argued that the first appellant was negligent in both advising the deceased’s parents and performing the sinus surgery, particularly by rushing the operation without allowing antibiotics time to take effect. He contended that this negligence was a material contributing cause of the deceased’s death, and that but for the breach, the death could have been avoided. The respondent further maintained that the second defendant, the hospital, was liable because it owed a non‑delegable statutory duty of care under healthcare regulations, and its late disclosure of the ICU chart reinforced the estate’s claim. He pressed for the full range of damages sought, including medical expenses, funeral and prayer‑ceremony costs, pain and suffering, and loss of dependency, insisting the High Court’s awards were justified. Finally, he opposed the hospital’s attempt to secure full indemnity from the first appellant, arguing that the hospital should remain accountable for its statutory obligations alongside the doctor’s negligence.9 

Court’s Reasoning and Analysis 

The Court of Appeal’s reasoning in this case balances both the doctor’s conduct and the hospital’s responsibilities. The Court of Appeal’s judges found that the first appellant had breached his duty of care by rushing into a sinus surgery without waiting for antibiotics to take effect. As well as finding that his actions were motivated by financial gain, after referring to s.8(1) of The Evidence Act 195010 and taking into account the first appellant’s guarantee letter request form for surgery, that was concealed from the deceased’s parents at the meeting. Which continued to undermine his credibility throughout the hearing. To elaborate, expert medical evidence confirmed that proper practice required waiting at least 24 hours, and failure to do so materially contributed to the deceased’s death. In addition, the court highlighted that the advice that was given to the deceased’s mother was in the context of the doctor’s private practice, where performing the surgery would have generated fees. His insistence on proceeding quickly, contrary to accepted standards, was interpreted as being driven by financial gain rather than medical necessity.11 

On causation, the court held that but for the negligent advice and surgery, the mother of the deceased would not have consented, and thus the death could have been avoided. Not to mention, the court had also found the death could have been easily avoided if the first appellant had only consulted with either Dr Raihanah or Dr Meena, before rushing into surgery.12 

As for the hospital (second appellant), the court ruled they were not vicariously liable because the first appellant was an independent contractor. Nevertheless, they did owe a non‑delegable statutory duty of care under s.31(1)(d) of the Private Healthcare Facilities and Services Act 199813, read along with reg 47(1) and (2)(b) of the Private Healthcare Facilities and Services (Private Hospitals and other Private Healthcare Facilities) Regulations 200614. That ensures obtaining valid consent is an absolute must. Delegating this duty to the first appellant did not absolve the second appellant of liability.15 The late disclosure of the ICU chart was deemed to have no causal link to the death, hence liability could not rest on that ground.16 

On damages, following s.7(3) of the Civil Law Act 195617 the court upheld most of the High Court’s awards, including the medical, funeral, and prayer expenses. However, setting aside aggravated damages against the hospital and reduced interest on general damages from 8% to 5%.18 Finally above all else, the court held that the first appellant must indemnify the hospital 100%, since the negligent decision to operate was solely his responsibility.19 

Judgement and Ratio Decidendi 

– Judgment 

The Court of Appeal delivered its judgment on 19 May 2025, dismissing the first appellant’s appeal and allowing the second appellant’s appeal in part. It held that the first appellant was negligent in advising the deceased’s parents and in performing the sinus surgery, and that this negligence materially contributed to the deceased’s death.20 The hospital, however, was not vicariously liable because the doctor was an independent contractor, but it did owe a non‑delegable statutory duty of care under the Private Healthcare Facilities and Services Act 1998,21 which had been breached.22 The late disclosure of the ICU chart was found not to have materially contributed to the death, therefore liability could not rest on that ground specifically.23 Furthermore, the damages awarded by the High Court were largely upheld, though aggravated damages against the hospital were set aside and interest on general damages was reduced from 8% to 5%. Lastly, the court held that the first appellant was 100% liable to indemnify the hospital for its liability to the estate.24 

– Ratio Decidendi 

The Court of Appeal found that the first appellant’s breach of duty of care was not only done on a whim but was motivated by financial gain. As well as being widely contrary to the accepted medical practice, it was held to be a material contributing cause of the deceased’s death.25 Establishing negligence and causation. The hospital, while not vicariously liable, still remained responsible under its non‑delegable statutory duty to ensure valid consent and proper care, meaning liability could attach despite delegation to an independent contractor. This reasoning clarified the scope of medical negligence, alongside causation, and hospital liability in confusing and contradictory cases that involve independent consultants. 

Critical Analysis 

– Significance of the Decision 

This case is deemed significant because it clarifies the boundaries of liability in medical negligence involving independent contractors in private hospitals. The Court of Appeal affirmed that doctors cannot escape personal liability for negligent acts, while hospitals, even when engaging with consultants, remain bound by non‑delegable statutory duties of care under the Private Healthcare Facilities and Services Act 1998.26 The ruling reinforces the principle that statutory obligations cannot be outsourced, ensuring patient protection even in complex contractual arrangements.27 

– Implications and Impact 

The decision has broad implications for healthcare governance. For medical practitioners, it highlights the importance of staying obedient to the accepted standards of care and the risks of financial motives influencing clinical judgment. Whilst for hospitals, it showcases how liability extends beyond employment relationships, as statutory duties impose direct accountability regardless of contractor status. This case also impacts litigation strategy, for example, plaintiffs can pursue hospitals for breaches of non‑delegable duties, while hospitals may seek indemnity from negligent consultants. The reduction of interest rates and removal of aggravated damages against the hospital further signal judicial caution against over‑penalising institutions where aggravating circumstances are absent. This is so that cases in which all blame is placed on a single party, is avoided.28 

– Critical Evaluation 

While the judgment strikes a balance between individual accountability and institutional responsibility, it also may as well raise questions about fairness in indemnity. By requiring the doctor to indemnify the hospital 100%, the court placed the entire financial burden on the practitioner, even though the hospital’s systemic duty was in fact breached. This may deter independent consultants from working with private hospitals unless indemnity arrangements are carefully structured.29 Nonetheless, the reasoning strengthens patient rights by ensuring hospitals cannot evade statutory duties, while also deterring negligent medical practices. The case thus advances Malaysian jurisprudence on medical negligence, causation, and hospital liability, aligning with international principles such as those in Woodland v Swimming Teachers Association [2014] AC 537.30 

Conclusion 

The Court of Appeal’s decision in this case showcases Malaysia’s commitment to ensuring justice in medical negligence cases, particularly by holding individual practitioners accountable while affirming hospitals’ statutory duties of care. The ruling highlights that negligence motivated by financial gain will not be tolerated, and that causation principles will be applied strictly to protect harmed patients. The judgment also clarifies that hospitals cannot evade responsibility through delegation, as non‑delegable statutory duties remain binding. 

Nevertheless, by requiring the doctor to indemnify the hospital fully, the court sought to balance fairness between institutions and practitioners. Overall, this case demonstrates Malaysia’s evolving medical law framework, which still prioritizes patient protection but continues to grapple with achieving a fully balanced approach that is fair to all parties involved. 

Reference(S):

Evidence Act 1950 

Private Healthcare Facilities and Services Act 1998 

Private Healthcare Facilities and Services (Private Hospitals and other Private Healthcare Facilities) Regulations 2006 

Civil Law Act 1956 

Woodland V Swimming Teachers Association [2014] AC 537 

Dr. Chandran A/L Gnanappah V Gan See Joe (suing as the administrator of the estate of Gan Hong Wee, the deceased) & Anor and another appeal, [2025] 5 MLJ 216, 

Tettenborn, A. (Ed.). (2023). Clerk & Lindsell on torts (24th ed.). Sweet & Maxwell. 

Murphy, J. (Ed.). (2023). Charlesworth & Percy on negligence (15th ed.). Sweet & Maxwell.

1 Dr. Chandran A/L Gnanappah V Gan See Joe (suing as the administrator of the estate of Gan Hong Wee, the deceased) & Anor and another appeal, [2025] 5 MLJ 216, page 

2Ibid, page 1 and 2.

3Ibid, page 2. 

4Ibid, page 2. 

5Ibid, page 2. 

6Ibid, page 2.

7 Woodland v Swimming Teachers Association [2014] AC 537 

8Ibid, page 2 and 3. 

9Ibid, para 52-58. 

10 Section 8 (1) of The Evidence Act, 1950.

11Ibid, para 32. 

12 Ibid, para 41-42. 

13 Section 31(1)(d) of the Private Healthcare Facilities and Services Act, 1998. 

14 Regulation 47(1) and (2)(b) of the Private Healthcare Facilities and Services (Private Hospitals and other Private Healthcare Facilities) Regulations, 2006. 

15 Ibid, paras 36, 38–39 . 

16 Ibid, para 57. 

17 Section 7(3) of the Civil Law Act, 1956. 

18 Ibid, para 77–78. 

19 Ibid, para 82. 

20 Ibid, para 32.

21 Private Healthcare Facilities and Services Act, 1998. 

22 Ibid, para 43-44. 

23 Ibid, para 22. 

24 Ibid, para 22. 

25 Ibid, para 32. 

26 Private Healthcare Facilities and Services Act, 1998. 

27 Richard Kidner, Clerk & Lindsell on Torts (24th edn, Sweet & Maxwell 2023) ch 10. 

28 Richard Kidner, Clerk & Lindsell on Torts (24th edn, Sweet & Maxwell 2023) ch 10.

29 John Murphy, Charlesworth & Percy on Negligence (15th edn, Sweet & Maxwell 2023) ch 12.

30 Woodland v Swimming Teachers Association [2014] AC 537