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2023 MarsdenLR 858
HIGH COURT MALAYA PENANG
TAN JOO TUAN – Appellant
Versus
TEOH MEI SHI – Respondent
[Civil Suit No: PA-23NCvC-10-06/2022]
In negligence claims, the Plaintiff must establish duty of care, breach, and causation, while defamation requires proof of defamatory statements made with malice, which were not present in this case.
Headnote:(A) Tort Law - Negligence - Defamation - Plaintiff's claims of negligence against the Defendant were dismissed as the Plaintiff failed to prove the elements of duty of care, breach, and causation - The Defendant's documentation was consistent and corroborated by medical records - Defamation claims were also dismissed as the statements made were not defamatory and were made on a privileged occasion. (Paras 1-90)
(B) Duty of Care - In medical negligence claims, the Plaintiff must prove duty of care, breach of standard of care, and causation of damage. (Paras 11-12)
(C) Defamation - The burden lies on the Plaintiff to prove that the statements were defamatory, referred to her, and were published. (Paras 62-63)
(D) Qualified Privilege - Statements made in the course of fulfilling a duty of care are protected under qualified privilege. (Paras 76-81) (E) Damages - The Plaintiff failed to substantiate claims for damages, including general, aggravated, and exemplary damages. (Paras 82-90)
| Table of Content |
|---|
| 1. introduction of the case. (Para 1 , 2 , 3) |
| 2. background facts of the case. (Para 4 , 5) |
| 3. issues to be tried. (Para 6 , 7 , 8) |
| 4. elements of negligence. (Para 10 , 11 , 12 , 13 , 14 , 15 , 16) |
| 5. consultation details and duty of care. (Para 18 , 19 , 20 , 21 , 22) |
| 6. inconsistencies in plaintiff's testimony. (Para 23 , 24 , 25 , 26 , 27 , 28) |
| 7. contradictions in plaintiff's claims. (Para 29 , 30 , 31 , 32) |
| 8. testimony of other witnesses. (Para 33 , 34 , 35 , 36) |
| 9. defendant's adherence to medical practice. (Para 37 , 38 , 39 , 40) |
| 10. lack of evidence for damages. (Para 41 , 42 , 43 , 44 , 45) |
| 11. plaintiff's conduct affecting her claims. (Para 46 , 47 , 48 , 49 , 50 , 51 , 52 , 53 , 54) |
| 12. defamation claims and their merits. (Para 58 , 59 , 60 , 61 , 62 , 63 , 64 , 65) |
| 13. assessment of defamatory statements. (Para 66 , 67 , 68 , 69 , 70 , 71 , 72 , 73) |
| 14. defenses against defamation. (Para 74 , 75 , 76 , 77) |
| 15. conclusion on damages. (Para 78 , 79 , 80 , 81 , 82 , 83) |
| 16. final conclusion and order. (Para 89) |
Introduction
[1] This is a rather unique case where the Plaintiff is suing her doctor for negligence AND defamation.
[2] A full trial was conducted in February and early April 2023 where the Plaintiff had testified despite being quite ill with cancer at the material time. Unfortunately, the Plaintiff has since passed away on 21 April 2023. In light of this, I have subsequently allowed an application pursuant to O 15 r 7 of the Rules of Court 2012 to substitute the deceased Plaintiff with Tan Joo Tuan and proceed with the claim against the Defendant. Tan Joo Tuan had testified as PW4 at trial.
[3] I will set out hereinbelow the background facts, the rival contentions/ submissions and analyze the law as well as the evidence adduced to determine if the Plaintiff has succeeded in proving her claim on a balance of probabilities.
Background Facts
[4] The background facts are summarised as follows:
4.1. On 20 January 2020, the Plaintiff purchased a medical insurance policy from Lonpac Insurance Bhd.
4.2. It is the Plaintiff's case that on 13 October 2020, she visited one Dr Por Poe Loon at Union Clinic as she had noticed a lump in her right breast (hereinafter referred to as the "said lump").
4.3. On 14 October 2020, the Plaintiff then visited one Dr Lim Soo Soo (PW2) at KPJ Penang Specialist Hospital in relation to the said lump. After such consultation, Dr Lim Soo Soo issued a referral letter of even date referring the Plaintiff to the Defendant who is a Consultant Breast & Endocrine Surgeon at Loh Guan Lye Specialist Centre, Penang.
4.4. On 16 October 2020, the Plaintiff accompanied by her husband and brother-in-law, Tan Joo Tuan (PW4) consulted the Defendant in relation to the said lump.
4.5. During the course of the said consultation with the Defendant, the Defendant avers and alleges that she had inquired into the history of the Plaintiff's complaints of the said lump including the time when she first discovered any symptoms or noticed any early breast changes. According to the Defendant, the response from the Plaintiff was that the said lump was noticed about a year ago. The Defendant then recorded this in her Electronic Medical Record ("EMR"). I will at this juncture state that this fact of whether or not the Plaintiff had informed the Defendant during this consultation on 16 October 2020 that she had discovered the said lump about a year ago is one of the main disputes of fact in this case.
4.6. The Defendant had also on the same day conducted a physical examination on the Plaintiff whereby she was clinically diagnosed with a large breast mass of 12 cm which the Defendant suspected was malignant. The Defendant then explained the need for further tests as follows:
a. Blood test;
b. Repeat Breast Ultrasound;
c. Mammogram;
d. Core biopsy of the right breast mass; and
e. Staging CT/PET CT Scan.
4.7. The Plaintiff agreed to undergo the above tests and an appointment was scheduled for 21 October 2020.
4.8. In a
