Ijn Doctors Appeal Court S Variation Of Consent Order In Negligence Suit

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The National Heart Institute is appealing a High Court ruling in a medical negligence case varying a consent order to allow an underage boy to bring a fresh suit despite a settlement being reached. (Bernama pic)KUALA LUMPUR: The National Heart Institute (IJN) and two doctors are appealing to the Court of Appeal after the High Court here recalled a medical negligence suit to vary a consent order recorded to resolve the case.
Two years ago, a boy whose upper and lower limbs were amputated after complications arose following a surgery, filed a medical negligence suit against IJN and the doctors.
During a case management on July 5, judicial commissioner Su Tiang Joo allowed the boy, 10, acting through his legal representative, to withdraw the suit pursuant to the terms of settlement agreed between the parties and recorded in court.
The suit was withdrawn as the boy’s representative did not have the financial means to proceed with the case.
In accordance with the terms agreed, Su struck out the action with no order to costs and without liberty to file afresh.
Troubled by the reason given for the withdrawal, Su called the case up two days later and varied the terms of the order by removing the condition denying the plaintiff “liberty to file afresh”.
Su said he was able to do so as the order had not been “drawn up, passed, perfected and entered”.
In his written judgment released last week, Su said: “The reason for me to reconsider the ‘without liberty to file afresh’ is that while the settlement will see that the action is being disposed of expeditiously and economically at the stage of the proceeding, my conscience is troubled by whether it had been disposed of justly”.
He said the merits of the boy’s claim had not been adjudicated due to the representative’s impecuniosity.
“Besides his limbs having been amputated, are his legal rights to be prematurely cut off, too?” Su asked.
He said the order was made in the interest of justice, as denying the plaintiff the opportunity to commence a fresh action would have been unjust in the circumstances of the case.
Su also claimed that the order was premised on established principles of law.
Firstly, he said, there can be no wrong without a remedy at law. He also said that the court was under a duty to act “in loco parentis” for a child under disability.
He also said past impecuniosity does not in law bar a fresh suit from being filed, adding that the court has an overarching duty to do justice.
In the suit, the parents claimed they had not given informed consent to the hospital to carry out the several surgeries performed on their son.
The doctors had performed a corrective surgery, known as the Senning and Rastelli procedure, at IJN on Sept 12, 2018, but due to subsequent complications, the boy’s limbs had to be removed at Hospital Kuala Lumpur two months later.
Lawyers Komal Vijay Sheth appeared for the plaintiff in the High Court, while Latifa Haiqa Yusoff represented the doctors. Tan Pui Yi appeared for IJN. - FMT

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