New Zheng Lei v Pantai Medical Centre Sdn Bhd

Case Significance

Illustrates the conditions for pre-action discovery under Order 24 rule 7A and how a defendant's own acknowledgement of possible error can justify disclosure of internal investigation documents to a prospective medical negligence claimant.

This High Court decision at Kuala Lumpur concerns an application for pre-action discovery under Order 24 rule 7A of the Rules of Court 2012, brought by a prospective claimant against a hospital operator to obtain internal documents before deciding whether to sue for medical negligence. The applicant had been admitted to a hospital operated by the defendant over a period in June 2022 and alleged that the administration of the drug Acyclovir had caused him acute kidney injury. Before commencing any action he sought disclosure of the hospital's internal review and investigation documents, incident reports and relevant meeting minutes generated in relation to his treatment, explaining that his previous solicitors had written to the hospital for them without result and that they were needed to obtain medico-legal advice on whether there was a basis to bring a negligence claim. The court set out the conditions for pre-action discovery under Order 24 rule 7A: that there is an intention to commence proceedings; that the person from whom disclosure is sought is likely to be a party to those proceedings; that the documents sought are relevant and within that person's possession, custody or control; and that disclosure is necessary to enable the applicant to obtain legal advice. The court also addressed the concept of non-disclosable documents, being documents not liable to be produced to an opposing party in the ordinary discovery process. A pivotal finding was that a letter from the defendant amounted to an acknowledgement of the basic fact that a professional error might have occurred, which the court held opened the door to the issue of liability and made the internal documents, such as investigation reports, meeting minutes and incident reports, highly relevant to a prospective negligence claim. Because the defendant had itself opened up the question of liability, the applicant was entitled to examine the related documents through discovery, though the order was confined to documents concerning the incident and internal investigation relating to the specific injury already identified rather than an unlimited disclosure. The court allowed the application and ordered the hospital to deliver copies of the relevant review and investigation documents within thirty days, with costs of RM2,000.00. The judgment is a useful illustration of the conditions for pre-action discovery and of how a defendant's own acknowledgement of possible error can justify disclosure to a prospective medical negligence claimant.