PUNITHA A/P PADATHALY v 1. ) SALAM ALLIANCE SDN BHD 2. ) DR.MOHD IQBAL BIN MOHD ARBA

Case Significance

Illustrates that a medical-negligence and breach-of-confidentiality claim raising disputed facts — including whether a psychiatric referral was issued without examination or consent and wrongfully disclosed — will not be struck out under Order 18 rule 19, and that a concealment plea under section 29 of the Limitation Act 1950 raises a triable limitation issue.

This High Court decision at Shah Alam concerns two applications to strike out a medical-negligence and breach-of-confidentiality claim at the threshold, and it holds that the serious, fact-sensitive issues raised must go to trial. The plaintiff had been brought to a clinic operated by the first defendant after emotional distress, where she was examined by a doctor other than the second defendant, with no psychiatric diagnosis made at the time. Days later the second defendant, a medical practitioner, issued a psychiatric referral letter purporting to diagnose the plaintiff with bipolar disorder. Central to the plaintiff's case was her allegation that this letter was written without any consultation, examination or clinical assessment and without her knowledge or consent, and that it was improperly disclosed to her then-husband rather than to her, in breach of medical confidentiality. She said she only discovered the letter later, when her then-husband produced it in custody proceedings to challenge her fitness as a parent, to her detriment. The defendants applied under Order 18 rule 19 of the Rules of Court 2012 to strike out the action, raising limitation — the claim being filed one day late — met by the plaintiff's plea of concealment under section 29 of the Limitation Act 1950 based on her late discovery. The court held that neither defendant met the high threshold for striking out. Whether the referral letter was issued without examination or consent, why it was given to the husband, when the plaintiff first discovered it, the nature of the first defendant's relationship with the second defendant for vicarious liability, and whether confidentiality was breached, were all triable questions requiring oral and possibly expert evidence and cross-examination. The limitation defence, turning on section 29 concealment, could not be resolved summarily, the statement of claim disclosed actionable allegations of negligence, breach of confidentiality and wrongful disclosure, and there was no basis to treat the action as frivolous, vexatious or an abuse of process. Applying Bandar Builder, the court dismissed both striking-out applications, ordered the costs of the applications to be costs in the cause, and directed the matter to proceed to full trial.