Consent Is Not a Form: Surgeon and Hospital Liable After Fatal Sinus Surgery

A signature on a consent form proves that a form was signed. It does not prove that the patient, or the family deciding for the patient, understood the choice being made. In Dr Chandran a/l Gnanappah v Gan See Joe & Anor and another appeal [2025] 5 MLJ 216, the Court of Appeal dismissed an ENT surgeon’s appeal in a claim arising from fatal sinus surgery, and allowed the private hospital’s appeal only in part. According to published commentary on the judgment, the court held that the hospital carried its own duty to ensure that valid consent was obtained.

What happened before and after the operation

The account here is drawn from a published law-firm analysis of the judgment. In late March 2014 the patient was admitted to a private hospital with neurological symptoms, and a CT scan showed pansinusitis, an inflammation of all the sinuses. That evening, before speaking to the family, the ENT surgeon sent the patient’s insurer a request for a guarantee letter recommending functional endoscopic sinus surgery.

After a brief discussion with the family the next day, surgery went ahead that afternoon, reportedly about 17 hours after antibiotics had been started, when the expert evidence favoured waiting at least 24 hours. The patient became delirious, was intubated and was admitted to intensive care. He was later transferred to a public hospital, and an MRI scan confirmed severe meningoencephalitis, an inflammation of the brain and its lining. He died at the end of April 2014.

The administrator of his estate sued. The High Court found both the surgeon and the hospital liable. The award was reported as about RM1.24 million in damages and costs, with the hospital entitled to recover 80 per cent from the surgeon.

Three questions on appeal

Was the family’s consent valid? If not, did that failure cause the death? And could the hospital be liable when the surgeon was not its employee but an independent contractor under a written consultancy agreement?

Consent found invalid, and the hospital’s own duty

Consent. As reported, the court found that the surgeon had decided on surgery before consulting the family. He did not explain that the operation was elective, that it carried significant risks, or that continuing conservative treatment with antibiotics was a safer alternative. The family’s consent was therefore not informed and not valid. The governing rule comes from Foo Fio Na v Dr Soo Fook Mun & Anor [2007] 1 MLJ 593: the court, not the profession alone, decides whether material risks were disclosed.

Causation. The court is reported to have applied the but-for test, which asks whether the harm would have happened without the breach. Properly advised, the family would not have consented, and the death could have been avoided.

The hospital. Vicarious liability, an employer’s liability for an employee’s wrong, was reportedly rejected because the agreement made the surgeon an independent contractor responsible for his own negligence and insurance. The hospital was nevertheless held liable under a non-delegable duty, a duty that stays with the hospital even when the work is entrusted to someone else. The Federal Court accepted that doctrine in Dr Kok Choong Seng & Anor v Soo Cheng Lin and another appeal [2018] 1 MLJ 685. In Siow Ching Yee v Columbia Asia Sdn Bhd [2024] 3 MLJ 66, a 4 to 1 majority held that the Private Healthcare Facilities and Services Act 1998 shows that private hospitals remain responsible for patient care regardless of whom they engage.

Applying those cases, the Court of Appeal is reported to have found that the Act and its 2006 Regulations place on the hospital itself a duty to ensure valid consent. The patient was vulnerable and in its care, the task was left to the surgeon, and the surgeon performed it negligently.

Indemnity. The hospital’s partial success concerned contribution. Its indemnity against the surgeon was reportedly raised from 80 to 100 per cent under the Civil Law Act 1956, on the basis that the surgeon had procured the consent by misrepresentation without the hospital’s knowledge.

Analysis: consent as a process the hospital must own

The decision takes Siow Ching Yee, an emergency-department case, into consent for elective surgery. On this reasoning a hospital cannot contract out of responsibility for the consent process, although a well-drafted consultant agreement may still secure a full indemnity.

The courts also treat disclosure as specific, not generic. In Tan Sri Datuk Seri Mohd Hussein bin Abd Hamid v Gleneagles Hospital (Kuala Lumpur) Sdn Bhd, the Court of Appeal held that a general warning of bleeding did not cover the distinct risk of injury to the popliteal artery during knee arthroscopy, a risk that was material despite its rarity.

Practical takeaways for the ward and the boardroom

• Patients and families: ask whether the procedure is urgent or elective, what the specific risks are, and what happens with no surgery. Consent sought after the decision is already made may not be valid consent.

• Doctors: timing and records matter. Here, a request to the insurer that pre-dated the family discussion was damaging evidence. Warn of specific risks and record the alternatives discussed.

• Aesthetic practitioners: almost all aesthetic work is elective, so the option of no treatment always exists and should be part of the discussion.

• Hospitals: the consent process is reported to be a statutory responsibility that cannot be delegated away. Audit how consent is taken, and review consultant agreements for indemnity and insurance terms.

Status

The sources reviewed do not give the exact date of the decision or say whether any party has sought leave to appeal to the Federal Court.

Authorities and sources

• 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 [2025] 5 MLJ 216 (CA; Supang Lian, Wong Kian Kheong and Faizah Jamaludin JJCA)

• Siow Ching Yee v Columbia Asia Sdn Bhd [2024] 3 MLJ 66 (FC); Dr Kok Choong Seng & Anor v Soo Cheng Lin and another appeal [2018] 1 MLJ 685 (FC); Foo Fio Na v Dr Soo Fook Mun & Anor [2007] 1 MLJ 593 (FC)

• Tan Sri Datuk Seri Mohd Hussein bin Abd Hamid v Gleneagles Hospital (Kuala Lumpur) Sdn Bhd (CA)

• Private Healthcare Facilities and Services Act 1998, s 31(1)(d), and the 2006 Regulations made under it, reg 47; Civil Law Act 1956, s 10 (provisions as identified in published commentary)

• LexisNexis MLJ Alerts, August 2025; Mah Weng Kwai, 23 July 2025; Shearn Delamore & Co, 30 January 2026

This article is general legal information only and is current as at 19 September 2026. It is not legal advice and does not create a solicitor-client relationship. Court decisions may be appealed and the law may change; please seek advice on your own circumstances. — Chris & Partners, Advocates & Solicitors