Azriatul Akma binti Taharim v 1. Dr Atish (PA-23NCvC-5-02/2019)

Dr Atish (yang beramal sebagai seorang pegawai perubatan di Klinik Perubatan Tanah Melayu)

Dr Sandeep Terkbinder Bhar (No. KP: 750606-07-5713) (yang beramal sebagai seorang pegawai perubatan di Klinik Perubatan Tanah Melayu)

Klinik Perubatan Tanah Melayu (No. Perakuan Pendaftaran: 230705-06382-11) … Defendan-Defendan Judgment Introduction [1] On 22.9.2021, I refused an application by the plaintiff to extend time until the disposal of this application to produce an expert’s report which was sought vide paragraph 4 in a notice of 2 application dated 2.2.2021 (enclosure 63). The application was made under O 26 r 1(1), O 34 r 2(2)(i) and/or O 92 of the Rules of Court 2012. [2] In this application I had allowed paragraph 1 wherein leave was sought to file this application, paragraph 2 for time to be extended to file this application and paragraph 3 to allow fresh evidence ie documentary evidence to be filed as a supplementary agreed bundle of documents. The fresh evidence was:

the charge sheet for Summons No. 63-32-4/2013 wherein the 2nd defendant was summoned for engaging one Muhammad Atif Sana Tarar who was not registered with the Malaysian Medical Council to treat patients in violation of the Private Healthcare Facilities and Services Act 1998;

(ii) the consent to prosecute the 2nd defendant for the said offence; 3

(iii) the facts of the case supporting the offence against the 2nd defendant prepared by Dr Lailatul Rizwanah bte Allaudin from the Unit Kawalan Amalan Perubataan Swasta, Pulau Pinang;

(iv) confirmation by the Ministry of Health that the 3rd defendant is registered with the Ministry of Health as a private healthcare facility and that the 2nd defendant is the person-in-charge of the 3rd defendant and holder of the certificate of registration;

police report dated 5.2.2013 by the officer who searched the premises of the 3rd defendant; and

(vi) the declaration of plea bargain of the 2nd defendant pursuant to section 172C(7) of the Criminal Procedure Code; [3] Since such order would require new witnesses in respect of the abovementioned documents I made an order that the time to file the witness statements for such witness. 4 [4] For ease of reference all rules referred to are to the Rules of Court 2012. [5] The plaintiff filed an appeal against my decision disallowing paragraph 4, to wit, an extension of time to produce an expert’s report which was based on the following ground reproduced in in the original language in verbatim: Memandangkan kepada bukti baru yang diterima, laporan Pakar berkaitan kecuaian defendan-defendan memerlukan masa untuk mereka mengkaji dan memberi satu laporan Perubatan yang adil dan saksama kerana kes tuntutan Plaintif mengenai isu perundangan atas kecuaian Defendan-Defendan merupakan amat berkomplikasi dan juga bahawa laporan perubatan Hospital Pulau Pinang tuduhan ke atas Defendan Kedua, fakta kes dan ketiadaan kelayakan dan/atau Pendaftaran sebagai Pengamal Perubatan dengan Majlis Perubatan Malaysia perlu dikaji dengan tertera untuk memberi satu pandangan perubatan yang betul demi kepentingan Kehakiman. 5 [6] My reasons for disallowing prayer 4 in enclosure 63 are as follows. Analysis and decision [7] The writ and statement of claim were only served on the 2nd and 3rd defendants. The writ was not be served on the 1st defendant and has since expired. I accordingly struck out the writ against the 1st defendant. Thus, the present action proceeds only against the 2nd and 3rd defendants. [8] The plaintiff’s case against the 1st defendant for negligently treating one Mohammad Rozi bin Ismail, the deceased on 8.12.2012 at Klinik Perubatan Tanah Melayu, the 3rd defendant. The particulars of the 1st defendant’s negligence set out the alleged negligent treatment. [9] The case against the 2nd defendant was for failing to advice and supervise the 1st defendant who was doing ‘locum’ at the said clinic. The particulars of the 2nd defendant’s negligence was also set out. 6 [10] Counsel submitted, in the written submissions, that the fresh ‘documentary’ evidence will show that:

the 1st defendant named in this suit as Dr Atish was engaged by the 2nd and 3rd defendants;

(ii) the real name of Dr Atish is Muhammad Atif Sana Tarar who had negligently treated the deceased;

(iii) Muhammad Atif Sana Tarar or Dr Atish is not registered with the Malaysian Medical Council to practice as a medical practitioner;

(iv) the 2nd defendant was charged for engaging Muhammad Atif Sana Tarar as ‘locum’ when he was not registered to practice as a medical practitioner; and

that the 2nd defendant was the 1st defendant’s employer and had pleaded guilty to the charge. [11] Suffice to say that I allowed the prayer to admit the fresh evidence and for the stipulated documents, which solely relate to 7 the charge against the 2nd defendant in the summons under the Private Healthcare Facilities and Services Act 1998, to be part of a supplementary agreed bundle of documents. [12] I found the prayer sought in paragraph 4 perplexing and ultimately decided that it was ‘frivolous and vexatious’ and/or an abuse of the process of court. The prayer is to file an expert’s report based on the documents admitted as fresh evidence concerning the negligence of the defendants. However, the fresh documentary evidence that was admitted concern the charge against the 2nd defendant under the Private Healthcare Facilities and Services Act 1998. The charge was that the 2nd defendant engaged the 1st defendant as ‘locum’ at the clinic when the 1st defendant was not registered with the Malaysian Medical Council as a person entitled to practice as a medical practitioner. An examination of the documents does not show a jot on any treatment given to the deceased by any person in particular the 2nd defendant. [13] No submissions were made on prayer 4 in the written submissions. The only statement made is the ground stated in paragraph [5] above. The statement is to the effect that the 8 charge against the 2nd defendant, the facts of the case and the fact of non-registration of the 1st defendant with the Malaysian Medical Council must be studied for a true medical opinion (untuk memberi satu pandangan perubatan yang betul) for the interest of justice. This reasoning is with the greatest of respect “absurd” or incomprehensible. The documents are self-explanatory. It is impossible to give an expert opinion on negligence when the documents do not speak of treatment or diagnosis or proper care to be given to a patient or to the deceased in this case. Conclusion [14] For the above reasons prayer 4 was dismissed. ………………Sgd….………….. Amarjeet Singh Serjit Singh Judicial Commissioner High Court of Malaya at Penang Dated: 22nd November 2021 9 Counsel for the Plaintiff: N AHILAN [ N. AHILAN & ASSOCIATES (PENANG)] Counsel for the Defendant: DATO' BRIJANDAN SINGH BHAR [BRIJNANDAN SINGH BHAR & CO.]