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2023 MarsdenLR 2212
HIGH COURT MALAYA PULAU PINANG
PAUL RAJ SAMY RAJ – Appellant
Versus
PULAU PINANG CLINIC SDN BHD & ORS – Respondent
[Civil Suit No: PA-23NCVC-3-01/2021]
The limitation period for medical negligence claims begins at the date of negligence, not when the negligence is discovered.
Headnote:In this judgment, the application to strike out the Plaintiff’s claim on grounds of limitation is considered. The Plaintiff alleged misdiagnosis by the Defendants, claiming to have suffered emotional and psychological distress. The court found that time for filing a claim begins upon the initial negligence, contrary to the Plaintiff's assertion that it begins upon discovery of negligence. The ruling emphasizes that the Plaintiff's medical negligence claim is time-barred as the action was filed beyond the limitation period defined under Section 6(1) of the Limitation Act 1953. Consequently, both applications to strike out the claim were granted.
| Table of Content |
|---|
| 1. allegations of medical negligence claim due to misdiagnosis. (Para 1 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 17 , 18) |
| 2. establishing a chronology of relevant medical events. (Para 19) |
| 3. determining the appropriate start date for limitation period. (Para 22 , 23 , 24 , 25 , 26) |
| 4. court rationale that limitation begins at injury occurrence, not discovery. (Para 28 , 29 , 30 , 31 , 32 , 33) |
| 5. reasons why section 6a does not apply to medical negligence. (Para 41 , 42 , 43 , 46) |
| 6. personal injury includes mental distress, thus limiting applicability of s 6a. (Para 50 , 62 , 63 , 64 , 66) |
| 7. decision to strike out claim as it is time-barred. (Para 68 , 69) |
(Striking Out Claim For Limitation):
Prelusion
[1] The Plaintiff sues the doctors whom he alleges misdiagnosed and misadvised him. He also sues the clinic at which the doctors practise medicine.
[2] The doctors apply to strike out the Plaintiff's claim for being time-barred. Should the Plaintiff's claim be stuck out?
Preliminary Note
[3] The 2nd and 4th Defendants together filed an Application to strike out the Plaintiff's claim as against them. The 3rd Defendant files a separate Application to strike out the Plaintiff ' s claim. Their solicitors inform me that they file separate Applications to strike out because they have different indemnifiers (insurers).
[4] I will, however, deal with both Applications to strike out in this Judgment.
The Pertinent Pleaded Facts
[5] These are the Plaintiff's pertinent pleaded facts.
[6] In October 2014, the Plaintiff did a general medical check-up in India. From an Ultrasound, he was informed that there appeared to be a growth (a cyst) on his left kidney. He was advised to verify this information by doing a CT Scan, as it is more accurate.
[7] In November 2014 (on 10 November 2014), the Plaintiff went to the 1st Defendant hospital to get his left kidney CT-scanned. He consulted the 3rd Defendant (D3). D3 is a Nephrologist, a kidney specialist.
[8] D3 did an Ultrasound scan of the Plaintiff and found a mass on the Plaintiff's left kidney.
[9] D3 referred the Plaintiff to the 4th Defendant (D4) to do a CT scan. D4 did the CT scan and reported that the Plaintiff's left kidney had a mass, and that it was cancerous.
[10] With D4's report, D3 diagnosed that the Plaintiff had cancer of the left kidney. D3 advised an immediate nephrectomy to remove the kidney by surgery to avoid the spread of the cancer to other parts of the Plaintiff's body.
[11] As D3 did not perform surgeries, D3 referred the Plaintiff to consult the 2nd Defendant (D2), who is a Urologist, for D2 to perform the surgery.
[12] On the next day (11 November 2014), the Plaintiff consulted D2. D2 reinforced the advice to have the Plaintiff's left kidney immediately removed.
[13] I will refer to D2, D3 and D4 together as "D2D3D4".
[14] Over the next three years (from January 2015 to May 2018), the Plaintiff monitored his left kidney. He did six Ultrasound scans at an X-ray Specialist Centre. He also went to a Health Care Centre for alternative medicine treatment on eight occasions. And he did nine Ultrasound and CT scans at another hospital.
[15] Then in August 2019 (on 22 August 2019), he consulted Wong Kai Cheng, a Nephrologist. When Wong perused the CT scan produced by D4, Wong advised the Plaintiff that he was near-certain that the Plaintiff did not have cancer of the left kidney.
[16] Wong referred the Plaintiff to Dato' Adnan Ramli to do a CT urography, which analyses the kidneys. Dato' Adnan also opined that the Plaintiff did not have cancer of the left kidney.
[17] The Plaintiff asserts that D2D3D4 misdiagnosed and misadvised him, causing him mental and emotional suffering, psychological distress, hypertension and what he calls "restless syndrome ".
[18] The Plaintiff filed this suit in January 2021.
The Agreed Chronology
[19] The following dates and facts are extracted and deduced from the Common Chronology Of Facts, which were agreed to by the parties:
(1) 10 No
