Munir Bin Hashim v Dr Liew Nyoke San (WA-22NCvC-836-12/2020)

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UKM KESIHATAN SDN BHD (NO. SYARIKAT: 486198-W) …DEFENDAN-DEFENDAN 11/01/2024 11:10:07 WA-22NCvC-836-12/2020 Kand. 59 JUDGMENT Introduction 1. The Plaintiff’s claim against the Defendants was for medical negligence and breach of fiduciary duty. The 1st Defendant was a medical doctor practicing with the 2nd Defendant whereas the 3rd to 5th Defendants were medical doctors practicing with the 6th Defendant at the material time. The brief facts

The brief facts as pleaded in the Statement of Claim indicated that the Plaintiff was first treated by the 1st Defendant who was practicing with the 2nd Defendant for an injury on his right knee as a result of a fall. The 1st Defendant treated the Plaintiff from 2013 to 2017for the said injury.

Being dissatisfied with the treatment of the 1st Defendant as his injury did not heal satisfactorily the Plaintiff then sought treatment with the 6th Defendant where he was treated by 3 different doctors.

However, as his injury did not heal even after multiple treatment the Plaintiff filed this claim for medical negligence against the all the 4 doctors and breach of fiduciary duty against the 2nd and 6th Defendant.

The issue facing the Court at the case management stage was whether it was proper to join all the Defendants in 1 civil suit taking into considerations that all the doctors had treated the Plaintiff at different times and at 2 different hospitals which were in no way connected to each other. Order 34 of the Rules 6. The Court’s duties at the pre-trial case management stage under Order 34 of the Rules of Court 2012 (“the Rules”) are well defined. For purposes of clarity the relevant provision is reproduced in full:

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. (emphasis mine)

Under this provision it is clear that the Court is empowered to give direction that is best adapted to secure the just, expeditious and economical disposal of a case.

Further Order 18 Rule 19 of the Rules empowers the Court to strike out a claim in the following circumstances:

Striking out pleadings and endorsements (O. 18 r. 19)

The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that-

it discloses no reasonable cause of action or defence, as the case may be;

it is scandalous, frivolous or vexatious;

it may prejudice, embarrass or delay the fair trial of the action; or (emphasis mine)

it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be. Rules as to joinder of cause of actions and parties 9. The Rules also provides the circumstances under which cause of actions and parties may be joined. Order 15(1) stipulates as follows:

Joinder of causes of action (O. 15 r. 1)

Subject to rule 5(1), a plaintiff may in one action claim relief against the same defendant in respect of more than one cause of action-

if the plaintiff claims, and the defendant is alleged to be liable, in the same capacity in respect of all causes of action;

if the plaintiff claims or the defendant is alleged to be liable in the capacity of executor or administrator of an estate in respect of one or more of the causes of action and in his personal capacity but with reference to the same estate in respect of all the others; or

with the leave of the Court.

From the reading of this Rules, it is clear that the only joinder of more than 1 cause action allowed is against the same Defendant. In this case there are multiple cause of actions against different Defendants.

Further there is no nexus between the treatment given by the 1st Defendant which took place from 2013 to 2017 when practicing at the 2nd Defendant and the 3rd to 5th Defendants who treated the Plaintiff at different times within the same hospital.

Similarly, there is no nexus between the 2nd and 6th Defendants which are separate entities incorporated separately. Further, the Plaintiff’s allegation of misrepresentation and breach of fiduciary duties against this 2 Defendants is on the promotional materials issued by them which are dissimilar to each other.

This brings to fore another provision of the Rules

Joinder of parties (O. 15 r. 4)

Subject to rule 5(1), two or more persons may be joined together in one action as plaintiffs or as defendants with the leave of the Court or where-

if separate actions were brought by or against each of them, as the case may be, some common question of law or fact would arise in all the actions; and

all rights to relief claimed in the action (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions.

In this case there is no common question of facts between any of the Defendants. The facts surrounding the treatment between all the doctors are different and so are the facts in relation to the 2 hospitals. There are certainly no common question of law and fact between the Defendants neither the claim arises from the same transaction or series of transactions.

In short, the Court ruled in this case that there was a misjoinder of cause of action as well as misjoinder of parties. The powers of the Court on the face of this misjoinder are as stated as follows:

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.

Subject to this rule, at any stage of the proceedings in any cause or matter, the Court may on such terms as it thinks just and either of its own motion or on application-

order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party; (emphasis mine) Conclusion 16. Using the Court’s powers under Order 34, Order 18(19) and Order 15(6) the Court directed that the claims against the 3rd to 6th Defendants to be struck off with a liberty to file afresh. The Plaintiff’s claim against the 1st and 2nd Defendant could be proceeded with as there was a common question of fact or law between the 2 Defendants.

The Court in pursuance of this decision directed the Plaintiff to amend the Statement of Claim to reflect and limit the claim against the 1st and 2nd Defendant.

The Plaintiff however refused to abide by the Court’s direction to amend on the grounds that they have appealed the decision of the Court to strike out the Plaintiff’s claim against the 3rd Defendant to 6th Defendants to the Court of Appeal.

As an appeal does not act as an automatic stay and as the Plaintiff had intentionally refused to abide by the Court’s directive the Court also struck out the Plaintiff’s claim against the 1st and 2nd Defendants with a cost of RM5,000.

Further particulars mentioned in the Statement of Claim were that the 1st Defendant was a specialist orthopedic surgeon at the Hospital belonging to the second Defendant. The 3rd, 4th and 5th Defendants were medical doctors practicing at the Hospital belonging to the 5th Defendant.

The Statement of Claim then proceeded to particularize the 2nd and 6th Defendants’ vision and mission statement as well as the medical services provided by both the Hospitals.

The Plaintiff then alleges that both the Hospitals had misrepresented to the patients including the Plaintiffs as to their capabilities and services provided by the respective hospitals.

The Plaintiff then makes a sweeping statement that all doctors practicing in both the Hospitals have been specific targets to achieve in order to maintain their practices at the 2 Hospitals.

The Plaintiff then narrates an incident happening on 7th December 2013 whereby he injured his right knee. After suffering the injury the Plaintiff consulted the 1st Defendant who was practicing with the 2nd Defendant.

In a nutshell the allegations against the 1st and 2nd Defendants is for medical negligence on being unable to treat his injuries causing him other complications related to the treatment meted out by the 1st Defendant between the years 2014 until March 2017.

From March 2018 onwards the Plaintiff sought treatment with the 6th Defendant where he was treated by the 3rd, 4 and 5th Defendants for the continued pain on the right leg. The Plaintiff alleges further medical negligence against all the 3 doctors practicing with the 6th Defendant. Multiple cause of action 27. From reading the facts as stated in the Statement of Claim it clearly comes across to the Court that there are multiple cause of actions against the Defendants. Against the 2nd and 6 th Defendants the Plaintiff alleges breach of fiduciary duty. Dated: 11.1.2024 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur PARTIES For the Plaintiff: Nama Peguamcara: Pravin Kumar Tetuan P S Ranjan & Co. Tingkat 17, Wisma Lee Rubber No. 1, Jalan Melaka 50100 Kuala Lumpur For the Defendant: Nama Peguamcara: Shaline Rajan Tetuan Law Chambers Of Vin Sa & Ian Unit 205, Block B Pusat Dagangan Phileo Damansara 2 No. 15, Jalan 16/11 Off Jalam Damansara 46350 Petaling Jaya Selangor Nama Peguamcara: Yeow Tze Yi Tetuan Yeow, Yap & Co. B-25-2, Jalan C180/1 Dataran C180 43200 Cheras Selangor Nama Peguamcara: Lucy Lee Zhe Hui Tetuan Gan Ho & Razlan Hadri Suite K-3-10, Level 3 Blok K, Solaris Mont Kiara No. 2, Jalan Solaris 50480 Kuala Lumpur Nama Peguamcara: Tan Pui Yi Tetuan Azim, Tunku Farik & Wong Unit 5-03, 5th Floor Wisma Badan Peguam Malaysia 2 Leboh Pasar Besar 50050 Kuala Lumpur Nama Peguamcara: Sathisharajah Yuvarajah Tetuan Jayadeep Hari & Jamil Suite 2.03, Block A No. 45, Medan Setia Satu