As with all civil claims, medical negligence claims are subject to the defence of limitation. If a claim is filed in court after the limitation period has expired, the defendant may invoke this as a defence, which operates as an absolute defence; if successfully established, the claim will be struck out regardless of its merits.
The legal framework governing the limitation period for medical negligence claims in Malaysia is intricate. Several statutory provisions prescribe different limitation periods for civil claims, and determining the applicable limitation period for a medical negligence case depends on various factors, including the status of the injured patient (such as whether they are alive, deceased, or under a disability) the identity of the defendant(s), and where the cause of action arose.
At the risk of oversimplification, a brief overview can be seen as follows:
Private Hospitals And Private Practitioners
For medical negligence claims against private hospitals and doctors in private practice, the standard limitation period is 6 years pursuant to Section 6(1)(a) of the Limitation Act 1953 (Limitation Act). It is important to note that the 6 year limitation period provided under Section 6(1) does not apply to causes of action against private entities which arise in Sabah or Sarawak, as they are governed by the Limitation Ordinance (Sabah Cap 72) and the Limitation Ordinance (Sarawak Cap 49).
Government And Public University Hospitals
Section 2(a) of the Public Authorities Protection Act 1948 (PAPA) establishes a limitation period of 36 months for claims against public authorities, including the Government of Malaysia or any state government. Pursuant to Section 24B of the Universities and University Colleges Act 1971 (UUCA), this 36 month limitation period also applies to public universities established under that Act. Additionally, the same limitation period is applicable to doctors in respect of incidents arising from their duties within government hospitals or public university hospitals.
The Federal Court in Selvaraju a/l Ponniah v Suruhanjaya Perhkhidmatan Awam Malaysia & Anor [2007] 7 MLJ 1 ruled that Section 2(a) of PAPA is mandatory in its terms and the period of 36 months cannot be abridged.
PAPA as the name implies, must be construed strictly in line with its objectives as stated in its preamble as “An Act relating to the protection of persons acting in the execution of statutory and other public duties.”
When Does Time Start To Run?
Each case must be evaluated on its unique facts when establishing the commencement of the limitation period. The first question to ask when computing the limitation period is - on what date did time start to run on the plaintiff ’s medical negligence claim? The answer is that time started to run from the earliest date that the plaintiff could have filed the action (Nasri v Mesah [1970] 1LNS 85). In Nasri v Mesah, the Federal Court held that “ A "cause of action" is the entire set of facts that gives rise to an enforceable claim”.
The Malaysian Civil Procedure 2021 (Volume II) at F/6/7, under the heading ‘actions founded on a tort’, explained that the limitation period on actions founded on tort runs ‘on the commission of the wrong’, or ‘accrues when loss and damage occur’.
In Vista Specialist Eye Center Sdn Bhd v Dato’ Loo Son Yong and another appeal [2016] 5 MLJ 832, the primary issue was the correct computation of the limitation period. The Court of Appeal clarified that the applicable principle is that time begins to run from the date on which the cause of action arises - either when the alleged negligence occurred or when the damage (injury) was suffered.
Suing On Behalf Of A Deceased - Differences Between Section 7 and Section 8 Of The Civil Law Act 1956
Section 7 claims, also known as “dependency claims”, are brought in favour of the dependents of the deceased person. Section 8 claims on the other hand, often known as “estate claims”, are brought in favour of the estate of the deceased person.
Section 7(5) provides that every such action shall be brought within 3 years after the death of the deceased person. Section 7 only bites when the death of the deceased is caused by the wrongful act, neglect or default of a defendant (Joseph Anthony & Anor v Muhamad Arif Mohamad Rasat & Ors [2023] 8 CLJ 234).
Section 8 does not provide a limitation period. Therefore, the limitation period prescribed in Section 6 of the Limitation Act, Section 2(a) of PAPA or Section 24B of UUCA would apply to Section 8 claims, depending on whether the cause of action arose in the private sector or the public sector.
Extension Of Limitation Period In Cases Of Disability
Under Section 24 of the Limitation Act, the limitation period will be extended in cases where, on the date the cause of action accrued, the patient is under a disability. The limitation period will only start to run when the patient’s disability ceases.
A person under disability is defined by Section 2(2) of the Act as one who is either an infant or a person of unsound mind. According to the Interpretation Acts 1948 and 1967, in view of the fact that an infant is not defined in the Act, the word “infant” has the same meaning as “minor” which is further defined to mean: a person who has not attained the age of majority prescribed by the law applicable to him.
Age Of Majority
In the case of a minor, the commencement of the limitation period will be postponed until that person attains the age of majority, which under the Age of Majority Act 1971, is 18 years. A minor does not have the legal capacity to start legal proceedings on his own and has to do so through his litigation representative. Nevertheless, the plaintiff, while still a minor, is permitted at any time to bring legal proceedings on the right of action accrued to him through his litigation representative, pursuant to Section 24(4)(a). In this regard, there is no duty or requirement imposed on the parent or next friend of a minor to bring such an action within the time stipulated in Section 6(1).
Another example is a patient who falls in a coma as a result of negligent treatment; if in a private healthcare facility, the patient will have 6 years from the date they recover from the coma to sue for such negligent treatment. However, if a patient was not under a disability at the date of the injury, but subsequently become disabled, Section 24 will not operate.
How Long Should Private And Government Hospitals Keep Medical Records?
Medical records should be kept for as long as possible and for so long as they are necessary to support patient care in the treatment and management of cases.
As a general rule, in the case of private hospitals, medical records should be kept for 8 years after the date of the incident concerned. Where a claim against the government or a public university is expected, the medical records should be preserved for a period of at least 5 years from the date of the incident concerned or, in the case of a continuance of injury or damage, from the date of ceasing thereof.
For patients who are in a coma or suffer from severe brain damage rendering them incapable of making informed decisions, the law considers them to be of unsound mind. Medical records for such patients must be retained throughout the duration of their incapacity. Following the end of the period of unsoundness, the records should be kept for an additional 8 years in most cases, or 5 years for records held by government and university hospitals.
The Private Healthcare Facilities and Services Act 1998 and Regulations 2006 require private hospitals and healthcare professionals to retain medical records for the duration of the applicable limitation period. However, adhering to this requirement can be challenging, as those responsible for maintaining the records may not always be aware of all the factual circumstances necessary to determine the limitation period in a given case. Additionally, some cases may not be subject to any limitation period. Moreover, medical records may need to be preserved beyond the limitation period for non-legal purposes, such as continuity of care.
For minor patients, particularly in the context of medical negligence claims arising in obstetric and paediatric care within a private healthcare facility, medical records should generally be retained until the patient reaches at least 26 years of age. This retention period accounts for the standard limitation period, any extensions of the limitation period, and the time allowed for the service of a writ of summons (see Order 6 rule 7(2A) of the Rule of Court 2012). Thereafter, records may be destroyed if no claim has been made or is pending, subject to any ongoing requirements for patient care. In the case of government and university hospitals, medical records should typically be preserved until the patient attains the age of 23 years.
Conclusion
Understanding the complexities of limitation periods in medical negligence claims is essential for both legal practitioners and healthcare providers and practitioners. These periods not only determine the viability of a claim but also emphasise the importance of meticulous record-keeping in ensuring that necessary evidence is preserved. It is a crucial aspect of the legal framework that balances the rights of both plaintiffs and defendants. For plaintiffs, it highlights the importance of acting promptly to preserve their right to sue. For defendants, it provides certainty and protection against the indefinite threat of legal action.
The interplay of statutory provisions highlights the nuanced approach required in navigating medical negligence cases. Understanding the applicable limitation period requires careful analysis of the unique circumstances of each case, including the status of the injured patient, the identity of the defendant(s), and where the cause of action arose.
Ultimately, the law of limitation in medical negligence claims highlights the delicate balance between the rights of plaintiffs to seek redress and the need for legal finality to protect defendants. This equilibrium can only be maintained through a precise understanding of the legal framework and adherence to its requirements.
2 December 2024