Commercial law of Malaysia

Dr. Ira, a dermatologist, promised to treat for Mek Sya’s skin problem until cured. Mek Sya did not give any consideration but Mek Sya’s daughter, Mek Con had given a diamond necklace to Dr. Ira. Mek Con had asked Dr. Ira to fulfil her promise to Mek Sya. However, Dr. Ira failed to do so. Can Mek Sya enforce Dr. Ira’s promise? Discuss by referring to the law of contract. 

CASE STUDY:

Jolinda Hobble had a history of her left knee slipping out of joint since 1998.  She went to see Dr.  Ralph J. Verygood, an orthopedic surgeon who recommended corrective surgery after Jolinda had  a major dislocation of the left kneecap in July of 2000.  As a result of this surgery, Jolinda suffers from  palsy of her left foot, a condition evidenced by numbness in her big toe and three adjoining toes, the numbness extending about half way up her foot on both the top and the bottom.  Jolinda was advised that she might still experience postsurgical knee problems, including inability to walk altogether.  She also says that she was not specifically warned about possible postsurgical numbness to either her left leg or foot. Dr.Verygood says that he did indeed warn Jolinda about this possibility.

The surgery was performed July 31, 2000.  Jolinda was placed under general anesthetic and remained unconscious throughout the operation.  Dr. Verygood performed a surgical procedure which has the effect of realigning the entire mechanism controlling the kneecap in order to correct the knee dislocation.  During the operation a pneumatic tourniquet was applied to Jolinda's leg to help the operation procedure by cutting off the blood supply to the leg to create a dry (bloodless) surgical field.  Following surgery Jolinda's leg was wrapped by Nurse Vicky with a padded dressing consisting of expandable bandage extending from the toes to the top of her leg.  Nurse Vicky is an employee of the hospital. 

Dr. Verygood was scheduled to take a few days vacation after the operation, but he nevertheless checked on Jolinda in the recovery room within one hour of the surgery. He also wrote detailed orders to be followed during his absence.

Jolinda says that she first awakened around dinner time on the day surgery was performed, but that she did not regain full consciousness until the following morning.  At that time she became aware of a throbbing pain in her left leg which was concentrated on the knee and foot. Jolinda first complained about the pain to the hospital nurse, Nicky the morning after surgery. Nothing was done about the pain, however, until she was checked by Dr. Greatman, Dr. Verygood's partner, on the second postoperative day.  Following Dr. Greatman's visit, Jolinda's bandages were cut off in the foot area giving her some relief and after which she experienced a tingling sensation throughout the whole foot.

Jolinda received follow up care from Dr. Verygood after  surgery for about one year and during this time period Jolinda's complaints of pain and numbness in her left foot continued.

1. Here is some more information to consider:  You end up hiring for your expert, Dr. Richard Cutgood, a board certified orthopedic surgeon, who had performed literally thousands of knee surgeries in his medical career.  Dr. Cutgood is of the opinion that the risk of the type of injuries Jolida has following this type of surgery was statistically nonexistent.

   Dr. Cutgood  concluded that the most probable cause of plaintiff's injury was external pressure either from the tourniquet used during surgery or from the application of tight bandages after the operation.  He considered the probability of nerve damage during the actual surgical procedure to be small because the surgical knife "isn't long enough to reach over and cut that nerve."   Regarding the tourniquet, from his experience tourniquet pressure ordinarily does not result damage to the nerves unless "it is incorrectly applied or it is applied over a bony prominence or the tourniquet itself is defective."

   Dr. Cutgood stated that while nothing in the record indicated that defendant did anything wrong during the surgery, he was of the opinion defendant was "below the usual and customary standard of care" as such result "does not generally occur without some untoward action of the surgeon."

   Does the doctrine of Res Ipsa Loquitor apply to this case?  What does this legal term mean?  What are the conditions that need to be present for this doctrine to apply?