Hospital Fire Victims’ Kin Sued Too Late, Government Tells Court

The government says the Sept 2020 lawsuits by the parents of three patients killed in the Oct 2016 fire at Sultanah Aminah Hospital were filed beyond the three-year time limit, but the plaintiffs argue they were denied all information about the incident within that period.

KUALA LUMPUR, Oct 11 — The government is fighting three negligence lawsuits over the deadly 2016 fire at Sultanah Aminah Johor Bahru Hospital (HSA) on grounds they were not filed in time.

The HSA director, Johor state health director, the Health director-general, and the government cited Section 2(a) of the Public Authorities Protection Act (PAPA) 1948 that imposes a three-year statute of limitations on lawsuits or prosecution of individuals executing public duties.

Johor senior federal counsel Jailani A. Rahman, in an August 3 written submission on the defendants’ argument to the High Court in Johor Baru pointed out that the last day for claims to be filed over the October 25, 2016 fire at HSA was October 24, 2019.

However, the parents of three patients killed in the HSA fire disaster — Logeswaran Krishnasamy, Choo Lin Fong, and Kaliama Muniandy — only filed their writ of summons in September 2020: September 2 for Logeswaran, and September 15 for both Choo and Kaliama.

“Besides that, we argue that Section 2(a) of the Public Authorities Protection Act 1948 is mandatory and this honourable court does not have the discretion not to comply, or to extend the limitation period,” Jailani said in the three cases, as the defendants applied to strike out the suits.

“Therefore, based on facts and application of the law…it is clear that the writ of summons and statement of claim filed — but are time barred — are frivolous, vexatious, and an abuse of process of the court, besides disturbing the process of justice.”

Section 2(a) of PAPA — which protects those acting in public duty — states that any “suit, action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within thirty-six months next after the act, neglect or default complained of or, in the case of a continuance of injury or damage, within thirty-six months next after the ceasing thereof”.

The plaintiffs in the three cases argued how they could have known about alleged negligence since the relevant government departments did not give them facts about the 2016 fire at the Ministry of Health (MOH) hospital within three years from the incident.

“Based on the defendants’ submission, the government can withhold the knowledge of the tort of negligence for three years and when it is discovered by the plaintiff after the three years’ period, then the claim will be statute barred.

“The Government Proceedings Act is not designed to be used to withhold evidence with the intention of defeating the claim,” the parents of Logeswaran, Choo, and Kaliama said in their written arguments last July 19, describing this as a breach of their right to equality under Article 8 of the Federal Constitution.

“Plaintiffs were not treated as equal citizen[s] by the defendants but as a piece of furniture to be used and discarded as and when they want.”

The plaintiffs in the three cases pointed out that they were not informed about the outcome of an independent inquiry into the fire disaster at the public hospital after the investigation headed by former Court of Appeal judge Mohd Hishamudin Yunus was complete.

“Even before that, the defendants had refused to provide the documents, such as the medical record and post-mortem report.

“The plaintiffs only came to know about the outcome of the investigation somewhere in March 2020 when the reports were leaked in the website (CodeBlue). By then the government declared Movement Control Order 1.0 on 18/3/2020,” they added, referring to CodeBlue’s reports on the independent committee’s findings about the HSA fire disaster.

The plaintiffs in the three cases also cited HSA director Dr Mohtar Pungut’s December 23 affidavits that documents like their children’s post-mortem and medical reports, as well the independent inquiry’s report, were classified as official secrets.

“Can the defendants now claim official secret on evidence of negligence by the first defendant and use it to prevent the plaintiff from having knowledge of it, enabling them to defeat the plaintiffs’ claim by claiming it being statute barred by limitation?” the victims’ parents argued.

They pointed out that they had gone to HSA several times to obtain their children’s post-mortem and medical reports, but were instead told to wait and that hospital authorities and other departments were investigating the fire.

“In short, they were not told of any facts of the fire, including any negligence of anybody. The plaintiffs had no power to investigate and so, like good Malaysians, they waited for the hospital authorities to tell them the results.”

In February 21 written submissions, the defendants in the three cases objected to the plaintiffs’ requests for their children’s post-mortem reports and medical records; names of the HSA director, the Johor state health director, and the Health director-general holding office in October 2016, as well as names of staff on duty at the south intensive care unit (ICU) of HSA when the fire broke out there; and investigation reports by the Fire and Rescue Department, police, and the independent committee.

“The defendants argue that these demands by the plaintiffs are a waste of time, in vain, and troublesome to the defendants and also the court because if the plaintiffs succeed in this application, the documents and details obtained will be used in an action that is time barred, as per Section 2(a) of the Public Authorities Protection Act 1948 [Act 198],” the senior federal counsel said in all three cases.

“The defendants wholly argue that Section 2(a) of Act 198 is applied to any action by the plaintiffs in future in this case.”

Dr Mohtar said in affidavits last April 11 in all three cases that no one in his department advised or instructed the plaintiffs to await the final outcome of investigations before filing a lawsuit.

“I have been advised by the senior federal counsel and I wholly believe that: the post-mortem report is not a precondition to file action against the defendants; the Movement Control Order is also not a reason for not following the time limit in claims against the defendants; circumstances beyond control or claims with merit are not a precondition to delay the time for action or to revive a time limit that has already expired.”

The three cases, which will be heard jointly, are scheduled for hearing in the High Court on November 3. Zaman & Associates, based in Johor Baru, is representing the plaintiffs in all three cases.

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