Court to resume medical negligence lawsuit

National 3 minutes, 7 seconds

BANDAR SERI BEGAWAN

A LAWSUIT against two doctors accused of negligence is set to resume after the High Court overturned the defendants’ application to dismiss the case because of a 13-year delay in the proceedings.

The plaintiff, Koh Bee Moi, underwent a surgical operation to remove her uterus and ovaries on April 27, 1999.

The operation was performed by senior surgeon Dr Daw Ni Ni Aung and surgeon Dr Hjh Roselina DP Hj Yaakub.

The plaintiff alleges that on May 2, 1999, her “abdomen opened up” and that it was later discovered she had a vesico-vaginal fistula – a hole in the posterior wall of the bladder and contiguous anterior wall of the vagina – that resulted in incontinence.

She alleges that these problems were the consequence of the operation and the surgeons’ negligence.

The defendants denied the charge of negligence. Instead, they said the plaintiff had had a heightened risk of these “complications”.

On November 18, 2013, the registrar allowed an application by the defendants to dismiss the plaintiff’s suit because of the inordinate and inexcusable delay in the proceedings.

In delivering his decision, Judicial Commissioner James Findlay stated that while the court did find that there had been “an inordinate and inexcusable” delay in the prosecution of the litigation, it did not mean that Koh had not intended to proceed with the case.

The court rejected the defendants’ argument that the plaintiff had demonstrated that she had no serious intention of prosecuting the case.

“Such a delay is not sufficient to justify dismissal of the action,” the judicial commissioner said.

The court said the defendants must show that, as a consequence of that delay, they had suffered prejudice in that there was a substantial risk that a fair trial was no longer possible.

Findlay rejected Dr Daw’s affidavit that stated she had suffered heart problems and renal failure following her return to Myanmar in 2008 when her contract expired and that it was therefore “uncertain” if she would be able to travel to Brunei for the trial.

“It is for the defendants to satisfy the court that there is substantial reason to believe that a fair trial is not possible. Saying that, seven years ago, Dr Daw was ill and may be unable to travel...,” Findlay said.

He went on to say that at the trial, it would be for the plaintiff to prove that her problems were caused by the defendants’ negligence rather than from complications that had arisen through no fault of the defendants.

In Dr Hjh Roselina’s affidavit, she stated that she no longer recalled the details of the operation because of the long delay in the proceedings.

“Even if it is so that the defendants will be unable to remember which of them did what, they will, I am sure, be able to say that they are experienced, specialist surgeons and are quite sure that they did the right thing for the patient,” Findlay said.

He said this situation was not uncommon in litigation and that the courts were accustomed to dealing with evidence of witnesses who were unable to recall the precise details of a particular case.

He went on to say that this was not a situation in which an operation had gone smoothly.

“Dismissing the plaintiff’s action is (a) draconian measure. The courts are always reluctant to close the court doors on a claimant. It was for the defendants to show the court that this course is justified in this case. I have to find that they have not done so,” Findlay said.

In concluding his judgment, the judicial commissioner said he refused the defendants’ application to dismiss the action.

Koh is represented by defence counsel Rudi Lee, while the doctors are represented by Messrs Elaiza Merican.

The Brunei Times