Shazwani binti Azami v Kerajaan Malaysia (WA-24NCvC-3324-09/2024)

(2)(G) AKTA KEMUDAHAN PERKHIDMATAN JAGAAN KESIHATAN 1998 PERATURAN 44 (2) PERATURAN-PERATURAN KEMUDAHAN PERKHIDMATAN JAGAAN KESIHATAN (HOSPITAL LAIN-LAIN KEMUDAHAN JAGAAN KESIHATAN SWASTA) 2006 GARIS PANDUAN MAJLIS PERUBATAN MALAYSIA; DALAM PERKARA ATURAN 24 KAEDAH 7A KAEDAH-KAEDAH MAHKAMAH 2012, SEKSYEN 25(2) DAN PERKARA 14 JADUAL KEPADA AKTA MAHKAMAH KEHAKIMAN 1964; DALAM PERKARA SHAZWANI BINTI AZAMI DAN MARYAM BINTI MOHD FAJARI ANTARA

1.

MARYAM BINTI MOHD FAJARI 22/01/2025 16:35:47 WA-24NCvC-3324-09/2024 Kand. 28 S/N oc1fleY//kCzZBaW5vrxXQ (SEORANG KANAK-KANAK YANG MENDAKWA MELALUI IBU DAN WAKIL LITIGASINYA, SHAZWANI BINTI AZAMI) ….PLAINTIF-PLAINTIF DAN 1.

RAWANG SPECIALIST HOSPITAL SDN BHD

INSTITUT JANTUNG NEGARA SDN BHD (NO SYARIKAT: 245794-V ...DEFENDAN-DEFENDAN JUDGEMENT Introduction 1. The Plaintiffs applied for discovery of documents from the 3 Defendants named by virtue of Order 24 7A of the Rules of Court 2012 (“the Rules”)

Order 24 Rule 7A of the Rules stipulates as follows:

Discovery against other person (O. 24 r. 7A)

An application for an order for the discovery of documents before the commencement of proceedings shall be made by originating summons and the person S/N oc1fleY//kCzZBaW5vrxXQ against whom the order is sought shall be made defendant to the originating summons.

An application after the commencement of proceedings for an order for the discovery of documents by a person who is not a party to the proceedings shall be made by a notice of application, which shall be served on that person personally and on every party to the proceedings.

An originating summons under paragraph (1) or a notice of application under paragraph (2) shall be supported by an affidavit which shall-

in the case of an originating summons under paragraph (1), state the grounds for the application, the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court; and

in any case, specify or describe the documents in respect of which the order is sought and show, if practicable by reference to any pleading served or intended to be served in the proceedings, that the documents are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings, or both, and that the person against whom the order is sought is likely S/N oc1fleY//kCzZBaW5vrxXQ to have or have had them in his possession, custody or power.

A copy of the supporting affidavit shall be served with the originating summons or the notice of application on every person on whom the originating summons or the notice of application is required to be served.

An order for the discovery of documents before the commencement of proceedings or for the discovery of documents by a person who is not a party to the proceedings may be made by the Court for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order, and on such terms as it thinks just.

An order for the discovery of documents may-

be made conditional on the applicant giving security for the costs of the person against whom it is made or on such other terms, if any, as the Court thinks just; and

require the person against whom the order is made to make an affidavit stating whether the documents specified or described in the order are, or at any time have been, in his possession, custody or power and, if not then in his possession, custody S/N oc1fleY//kCzZBaW5vrxXQ or power, when he parted with them and what has become of them.

A person shall not be compelled by such an order to produce any document which he could not be compelled to produce-

in the case of an originating summons under paragraph (1), if the subsequent proceedings had already been commenced; or

in the case of a notice of application under paragraph

(2), if he had been served with a subpoena to produce documents at the trial.

For the purposes of rules 10 and 11, an application for an order under this rule shall be treated as a cause or matter between the applicant and the person against whom the order is sought.

Unless the Court orders otherwise, where an application is made in accordance with this rule for an order, the person against whom the order is sought shall be entitled to his costs of the application, and of complying with any order made thereon on an indemnity basis. S/N oc1fleY//kCzZBaW5vrxXQ The grounds of the application 3. The main ground for the application is that the Plaintiff being a patient at the various hospitals and being treated at those hospitals entitled her to the medical records kept at these hospitals.

The Plaintiffs are contemplating taking legal proceedings against the Defendants and therefore require these records to obtain legal advice and thereafter file legal proceedings against the Defendants.

The application for discovery against the 1st Defendant the Government of Malaysia is for the medical records kept at the Ampang Hospital, Ampang, Selangor; the Hospital Tunku Azizah Kuala Lumpur and Hospital Selayang, Selangor.

The application against the 2nd Defendant which is the Rawang Specialist Hospital Sdn Bhd is for records kept in KPJ Damansara Specialist Hospital, Selangor.

The application against the 3rd Defendant the Institute Jantung Negara for the records kept with it.

Order 24 Rule 7A (“Rule 7A’) allows for discovery of documents before the commencement of any proceeding in court with a view to file such a proceeding. S/N oc1fleY//kCzZBaW5vrxXQ

A requirement under Rule 7A (3)(a) is a) in the case of an originating summons under paragraph (1), state the grounds for the application, the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court; and 10. In the affidavit in support in paragraphs 3, 4 and 5 the facts that are stated is that the 1st Plaintiff gave birth to the 2nd Plaintiff on 22/3/2021 in Hospital Ampang. After a few months the 1st Plaintiff noticed that the 2nd Plaintiff suffered heart complication and referred the 2nd Plaintiff to the 3rd Defendant where a surgery was carried out.

The 2nd Plaintiff was then brought to Hospital Ampang for further treatment as a result of complication of the surgery. The 2nd Plaintiff was further brought to Selayang Hospital and KPJ Damansara Specialist Hospital for neurology examination to and for scanning.

It is clear from the reading the affidavit in support the Plaintiff has failed to state the relevant facts pertaining to the intended proceeding apart from stating that there were complications. The Plaintiff has not attributed this complications of being caused by the hospitals concerned.

There is also no mention what has led to the complications. Were the complications caused by any action or omission by any of the S/N oc1fleY//kCzZBaW5vrxXQ hospital personnel tending to her? Even the identity of the medical personnel who tended to the Plaintiff are mentioned in the affidavit.

The Court notes that under Rule 7A (5) the Court has a discretion of allowing the application” for the purpose of or with a view to identifying possible parties to any proceedings in such circumstances where the Court thinks it just to make such an order, and on such terms as it thinks just.”

The Court is of the view that the discretion in the above provision can only be exercised if there is an attempt by the hospitals to conceal the identities of the medical personnel involved. In this case there is no such evidence of concealment. The identities of the medical personnel would have been known to the Plaintiff if she had acted diligently. The Court notes that all medical personnel are required to wear name tags.

Another requirement under this provision is (b) in any case, specify or describe the documents in respect of which the order is sought and show, if practicable by reference to any pleading served or intended to be served in the proceedings, that the documents are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings, or both, and that the person against whom the order is sought is likely to have or have had them in his possession, custody or power. S/N oc1fleY//kCzZBaW5vrxXQ

From this provision it is clear the applicant must specify or describe the documents required for the subsequent proceeding. In this case the Plaintiff merely states generally she requires all the medical reports without specifying the nature or identity of the documents required.

Another requirement under Rule 7A is that the Plaintiff must show the party from the documents are sought are in possession, custody or has power of the documents. It is clear there is nothing to indicate that the 1st Defendant being the Government of Malaysia has custody, possession or control of the documents of the hospitals where the Plaintiff was treated sought. Similarly there no indication the 2nd Defendant has custody, possession or control of the documents of Hospital Ampang. In fact the Court notes that there is no cause of action against either the 1st or 2nd Defendant. The cause of action only arises vicariously in the event negligence is proven against their employees. Conclusion 19. Based on the factors above the Court regards the Plaintiffs’ application nothing more than a fishing expedition and an attempt to finds faults on the medical condition suffered by the 2nd Plaintiff.

In the case of Dato Amar James Wong Kim Min & Anor V Pendaftar Pertubuhan [2004] 6 MLJ 235 the Court observed “To me the applicants must be specific to the documents they are requesting for disclosure. Otherwise, their application will S/N oc1fleY//kCzZBaW5vrxXQ turn out to be fishing expedition. This court is not going to issue the applicants the fishing license”

In the upshot the Court dismissed the Plaintiffs Originating Summons albeit with no order as to cost. Dated: 20.1.2025 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur S/N oc1fleY//kCzZBaW5vrxXQ PARTIES For the Plaintiff: Nama Peguamcara: Navpreet Kaur Tetuan P S Ranjan & CO. 17th Floor, Wisma Lee Rubber, No. 1, Jalan Melaka, 50100 Kuala Lumpur. For the Defendant: Nama Peguamcara: Nur Melati Diana binti Abd Wahab Jabatan Peguam Negara, Wilayah Persekutuan Kuala Lumpur Bahagian Sivil, No. 45 Persiaran Perdana, Presint 4, 62100 Putrajaya.

Dato Amar James Wong Kim Min & Anor V Pendaftar Pertubuhan [2004] 6 MLJ 235. S/N oc1fleY//kCzZBaW5vrxXQ