Basri Bin Husin v 1. ) Universiti Malaya (WA-22NCvC-741-11/2020)

1.

2.

3.

4.

5.

6.

DR. RAVINDRAN A/L KARUPPIAH 28/08/2024 15:41:14

8.

DR. FU MEI SIAN …DEFENDAN-DEFENDAN JUDGMENT Introduction 1. This is a medical negligence case filed by the Plaintiff against the University of Malaya as the 1st Defendant, the University of Malaya Medical Center as the 2nd Defendant (“the hospital”) for being vicariously liable for the negligence of 7 medical doctors working at the hospital, named as 3rd to 9th Defendants. Brief facts

A summary of the Plaintiff’s claim is that the 3rd to 9th Defendants were negligent at various times while treating him at the hospital.

The Plaintiff was admitted at the hospital on 12/11/2014 due to high fever. On being examined the 3rd and 4th Defendants advised him on 13/11/2014 to undergo a procedure called ‘Lumbar puncture’ . This lumbar puncture was carried out on 14/11/2014 by the 4th Defendant. The Plaintiff contends that insufficient information was given to him or his next of kin before carrying out the lumbar puncture procedure to give a proper consent to the procedure. The Plaintiff also contends that the 3rd and 4th Defendants were negligent in carrying out the procedure.

After the lumbar puncture procedure was done the Plaintiff suffered acute pain at the lumbar region and was given pain killer by a house officer. However the Plaintiff continued to suffer from various side effects of the procedure but was only attended to the next day at 12.15AM on 15/11/2014.

On 15/11/2014 the 5th Defendant after examining the Plaintiff assured him the pain was not due to the lumbar puncture procedure. On the same day the Plaintiff was examined by the 6th Defendant and referred the Plaintiff to the Neurosurgery department.

At the neurosurgery department the 7th Defendant examined him and decided that no surgery was necessary. On 17/11/2014 a surgery called Laminectomy was done by a Dr Vairavan.who removed a blood clot from the spine of the Plaintiff. The Plaintiff claims the blood clot was due to the Lumbar puncture procedure.

The Plaintiff further claims that since the further surgery done on 17/11/2014 he has lost any sensation to the lower part of the body and is now wheel chair bound. He was discharged from the hospital on 31/12/2014.

The next set of events occurred 3 years later on 25/10/2017 where he underwent ‘occupational therapy’. While undergoing therapy he developed high fever bleeding while passing motion and later he was diagnosed to be suffering from urinary tract infection.

To treat the urinary tract infection the 8th Defendant had forcefully inserted a urinary catheter of the wrong size leading to further complication in his private part. The Plaintiff claims that the 9th Defendant who had duty to supervise the 8th Defendant had failed to do so.

In the Statement of Claim further particularizes the particulars of negligence against each Defendant which is too lengthy to reproduce here. The Plaintiff also lists out the injuries suffered by him as a result of the negligence of the Defendants.

He now claims for special damages as well as general and aggravated damages for the injuries suffered by him. The Court’s directive 12. At a first glance it is obvious from the Statement of Claim that there is not only a misjoinder of issues but also misjoinder of parties as there seems to no nexus between the treatment of the various doctors apart from the fact that the whole episode seems to start from the Plaintiff undergoing the lumbar puncture procedure.

Taking heed of Order 15 Rule 6 of the Rules of Court 2012 (“the Rule”) the Court decided to proceed with the trial of the Plaintiff’s claim. Order15 rule 6 of the Rules states: 5 6. Misjoinder and non-joinder of parties (O. 15 r. 6)

A cause or matter shall not be defeated by reason of the misjoinder or non-joinder of any party, and the Court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.

On the Court’s directive the parties had filed a joint statement of the issues to be tried. One of the issues to be tried was whether the Plaintiff’s claim was time barred as the hospital and the Defendants were public authorities and the Public Authorities Protection Act 1948 specifies a time limit in which a claim is to be filed.

Using its powers under the Rules specifically Order 33, Order 14A and Order 34 the Court directed that the time limitation issue be determined first and directed the parties to file a written submissions on this issue.

The portion of provisions of the Rules that authorises the Court in determining a preliminary issue is are reproduced here for ease of reference.

Time of trial of questions or issues (O. 33 r. 2) The Court may order any question or issue arising in a cause or matter, whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or otherwise, to be tried before, at or after the trial of the cause or matter, and may give directions as to the manner in which the question or issue shall be stated.

Determination of questions of law or construction (O. 14A r. 1)

The Court may, upon the application of a party or of its own motion, determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the Court that-

such question is suitable for determination without the full trial of the action; and

such determination will finally determine the entire cause or matter or any claim or issue therein.

Orders and directions for just, expeditious and economical disposal of proceedings (O. 34 r. 1)

Notwithstanding anything in these Rules, the Court may, at any time after the commencement of proceedings, of its own motion, direct any party or parties to the proceedings to appear before the Court, in order that the Court may make such order or give such direction as it thinks fit so that-

all matters which must or can be dealt with on interlocutory applications and have not already been dealt with may so far as possible be dealt with; and

such directions may be given as to the future course of the action as appear best adapted to secure the just, expeditious and economical disposal thereof. Time limitation i) Rational 16. The rational for having time limitation was succinctly explained by Hashim Yeop A. Sani CJ in the case of Credit Corporation (M) Bhd V Fong Tak Sin [1991] 2 CLJ 871 as follows: “The doctrine of limitation is said to be based on two broad considerations. Firstly there is a presumption that a right not exercised for a long time is non-existent. The other consideration is that it is necessary that matters of right in general should not be left too long in a state of uncertainty or doubt or suspense. The limitation law is promulgated for the primary object of discouraging plaintiffs from sleeping on their actions and more importantly, to have a definite end to litigation. This is in accord with the maxim interest reipublicae ut sit finis litium that in the interest of the State there must be an end to litigation. The rationale of the limitation law should be appreciated and enforced by the Courts.” ii) The Defendants are a Public Authority 17. In this case it is an agreed fact that the 1st Defendant is a Public Authority set up under the Universities and University College Act 1971 (UUCA).

UUCA in section 24B provides expressly as follows: The Public Authorities Protection Act 1948 [Act 198] shall apply to any action, suit, prosecution or proceedings against the University, the Board, the Senate, any member of the Board or Senate, the Vice-Chancellor, the Deputy Vice-Chancellors, the officer or the employee of the University in respect of any act, neglect or default done or committed by it or him in such capacity.

Similarly the 2nd Defendant is a statutory body set up under the 1st Defendant and is also charged with public duties under the law and constitution it was set up. In the case of Merdeka University Berhad V Government of Malaysia [1982] 2 MLJ 243 the Federal Court distinguished a University from an entity incorporated under the Companies Act and concluded that “ In our judgement, a university is therefore a statutory authority exercising powers vested in it by federal law and therefore a public authority”

The 3rd to 9th Defendants being employees of the hospital are deemed to be public servants by virtue of section 24D of UUCA: All members of the Board and Senate, the Vice-Chancellor, Deputy Vice-Chancellors, officers and employees of the University while discharging their functions as such members, Vice-Chancellor, Deputy Vice-Chancellors, officers and employees, shall be deemed to be public servants within the meaning of the Penal Code [Act 574]. iii)

Section 2(a) stipulates the limitation period in claiming against a Public Authority as follows: Where, after the coming into force of this Act, any suit, action, prosecution or other proceeding is commenced in the Federation against any person for any act done in pursuance or execution or intended execution of any written law or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such written law, duty or authority the following provisions shall have effect-

the suit, action, prosecution or proceeding shall not lie or be instituted unless it is commenced within thirty-six months next after the act neglect or default complained of or, in the case of a continuance of injury or damage, within thirty-six months next after the ceasing thereof;

The Federal Court in the case of Selvaraju a/l Ponniah v Suruhanjaya Perhkhidmatan Awam Malaysia & Anor [2007] 7 MLJ 1 had ruled that section 2(a) of PAPA is mandatory in its terms and the period of 36 moths cannot be abridged. iv) Act of neglect 23. In calculating the commencement date of the 36 months the Court considered the words used in section 2(a) which is “ after the act neglect or complained of”.

Each case has to be looked on the basis of its own facts in determining the commencement of the time limitation. However before that can be done the Court must identify the act of neglect. In this case as has been stated earlier there seems to be a jumble of facts which indicates acts of negligence by different medical officers at different times.

Against the 3rd and 4th Defendant the act of negligence occurred on 14/11/2014 when the procedure of the Lumbar Puncture was undertaken leading to complications as well as allegation of non-disclosure of the risks involved.

The next set of dates is 15/11/2014 and 17/11/2014 when the Plaintiff contends that the 5th , 6th and 7th Defendants made a wrong diagnosis as well as were negligent in treating the complications.

Against all these Defendants the Plaintiff has clearly exceeded the time limitation of 36 months as the writ and statement of claim was filed only on 12/11/2020 some 72 months later. No explanation of the delay was forthcoming from the Plaintiff.

The next set of events occurred on 25/10/2017 where the Plaintiff alleges that the 8th and 9th Defendants were negligent in advising and carrying out the procedure for urinary tracts infection. Even if this date is taken as the date of the negligence the Plaintiff has still exceeded the time limitation by a period of 1 month.

In short the Plaintiff has exceeded the statutory requirements to file the claim against the Defendants within the period of 36 months with no reasons or explanations. PAPA as the name implies must be construed strictly in line with its objectives as stated in its preamble as “An Act relating to the protection of persons acting in the execution of statutory and other public duties. Conclusion 30. Due to the Plaintiff exceeding the time frame in which to file a claim of negligence the Plaintiff has no palpable claim against the Defendants. The Court using its powers Order 14A, 33 and 34 of the Rules Court dismissed the Plaintiff’s claim with a cost of RM20,000. Dated: 28.8.2024 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur

Credit Corporation (M) Bhd V Fong Tak Sin [1991] 2 CLJ 871;

Merdeka University Berhad V Government of Malaysia [1982] 2

Selvaraju a/l Ponniah v Suruhanjaya Perhkhidmatan Awam Malaysia & Anor [2007] 7 MLJ 1. PARTIES For the Plaintiff: Nama Peguamcara: Jecristirei Siose Tetuan Jec Siose & Co. D-4-5, Medan Connaught @ Centre Point, No. 1, Jalan 3/144A, 56000 Kuala Lumpur For the Respondant: Nama Peguamcara: Sharmini Navaratnam / Nabilah FarhanahRichard Kok / Lee Sher Zanne Tetuan Siva Dharma & Associates Unit No. A-21-16, Level 21 Menara UOA Bangsar, No. 5, Jalan Bangsar Utama 1, 59000 Kuala Lumpur.