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2011 MarsdenLR 3253
HIGH COURT MALAYA KUALA LUMPUR
DATO DR HENRY OOI KWEE LIM – Appellant
Versus
MAJLIS PERUBATAN MALAYSIA – Respondent
[Originating Motion No: R1(R2)-25-212 OF 2009]
Procedural unfairness due to excessive delay in disciplinary proceedings can adversely impact an individual's livelihood and rights, while the obligation for a doctor to respond to a house call is contingent on reasonable professional judgment.
Headnote:(A) Federal Constitution - Article 5 - Disciplinary proceedings - Delay of nearly 13 years in completing proceedings deemed a travesty of justice - Lack of procedural fairness due to the delay adversely affecting the appellant's livelihood rights. (Paras 1, 2)
(B) Medical Negligence - Professional judgment of doctor - The obligation to respond to a house call is not absolute; a doctor must assess the situation before deciding to attend - The omission to attend a call does not constitute infamous conduct when professional judgment is exercised appropriately. (Paras 3, 5, 7)
Facts of the case:
Appeal allowed against disciplinary action taken after a protracted investigation which delayed the process and ultimately prejudiced the appellant's ability to defend himself. The deceased was a patient and personal acquaintance of the appellant.
Findings of Court:
Proceedings were marred by procedural unfairness and lack of timely action; therefore, the disciplinary orders against the appellant were set aside.
Issues: The main issues were whether the delay constituted procedural unfairness and whether the doctor's response to the house call met professional standards.
Ratio Decidendi: The court held that the appellant's failure to make the house call was justified under the circumstances, emphasizing the importance of professional judgment.
Result: Appeal allowed with costs of RM25,000 awarded to the appellant.
| Table of Content |
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| 1. procedural fairness compromised by delay. (Para 2) |
| 2. professional judgment in medical practice. (Para 3) |
[1] Having considered the records of the appeal in the light of the submissions put forth by both learned counsel before this court, it is my considered view that this appeal ought to be, and is hereby allowed with costs of RM25,000.
[2] The longish period (nearly 13 years from the time the preliminary investigation committee was convened to completion) in which this disciplinary proceeding had taken to complete is itself a travesty of justice. The convening of the PIC to look into the complaint took more than five years after the complaint was lodged. Granted that the regulations did not provide for a time-frame within which to begin convene the PIC after a complaint was received by the MMC, the law does provide that it ought to be done within convenient speed. With all due respect, this court cannot accept the longish time taken to convene the PIC as following within the four walls of what is reasonably understood as convenient speed. There has been grave procedural unfairness caused by such delay. This complaint involved the issue of livelihood of the appellant and his constitutional right under art 5 of the Federal Constitution had been adversely affected. Coupled with the fact that material witness had become 'unavailable' had seriously prejudiced the appellant.
[3] Be that as it may, in this case, the house call is not a mandatory thing whereby a doctor must in all cases go to attend to the patient once he was called to do so. I agree with learned counsel for the appellant that this matter involved a professional judgement call on the part of the doctor, which he would have to exercise when he was required to go top visit his patient's call of 'distress'. The testy of that exercise of professional judgment on the part of the doctor is an objective one though the circumstances may be subjective. He must exercise reasonable care objectively when deciding whether to go to the patient's house or not based on the exigency of the situation as he then assessed to be the case. In this case, the appellant was charged with infamous conduct as per the charges that were preferred against him.
