Legal Cauldron issue 1 of 2012

LEGAL CAULDRON Jayadeep Hari & Jamil

Advocates and Solicitors WE CARE

In this issue: Medical Records—Yours or mine? Enter at your own risk—Or is it really at my risk? Private Hospital Costs—Are you entitled? JHJ sponsors book prize for top LLB student. Feature Article by our At-tachment Students. Check out JHJ’s new ex-panded office The Cauldron Team: EDITOR: Andrew Chee DESIGN & LAYOUT: Andrew Chee CONTRIBUTORS: Eunice H.S. Ong Barvina Punnusamy G. Kumaresan

Our offices:

PETALING JAYA Unit 612, 6th Floor, Menara Mutiara Majestic, No. 15, Jalan Othman, 46000 PJ, Selangor. T: 03-7784 7255 F: 03-7781 7255

KOTA BHARU 1 2713, 1st Floor, Section 22, Batu 2, Jalan Kuala Krai, 15050 Kota Bharu, Kelantan. T: 09-741 2050 F: 09-741 2051

KOTA BHARU 2 Tingkat 2, Lot 11, Bangunan Tabung Haji, Kompleks Niaga, Jalan Dato Pati, 15000 Kota Bharu, Kelantan. T: 09-747 7782 F: 09-747 4733

No KDN: PP 15706/02/2011

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MELAKA No.54-1, Jalan TU 2, Taman Tasik Utama, 75450 Ayer Keroh, Melaka. T: 06-234 7330 F: 06-234 4800

KUALA LUMPUR Suite 2.03 (2nd Floor) Block A, No 45, Medan Setia Satu, Plaza Damansara, Bukit Damansara, 50490 Kuala Lumpur. T: 03-2096 1478 | F: 03-2096 1480 www.jhj.com.my

MESSAGE FROM THE EDITOR: Welcome once again to the first edition of the Legal Cauldron for the year 2012. We are proud to bring you more legal writings from the JHJ team. As always we do our best to keep our cli-ents abreast with pertinent legal and social issues and we hope you enjoy reading the articles as much as we enjoyed writing them. In the last couple of editions of the Cauldron we mentioned our JHJ 360o STUDENT AT-TACHMENT PROGRAMME and we are happy to announce that we have launched it and taken in the first batch of attachment students. The students currently come-in on a flexible basis to complete their assigned tasks under the guid-ance of a “convenor” in each department. We look forward to working with them and are ex-cited to see what these brilliant young minds have to offer. See what they have to say in our feature article. We would also like to inform our valued clients that JHJ has not only re-branded, but has also ex-panded! Our KL Branch in Bukit Damansara is still at the same location but we have increased our office space and equipped ourselves with better meeting rooms, bigger library space, a common room, and of course, more spacious office rooms and workstations. We cordially invite you, our esteemed clients to come and view our new office. We are glad to give you a tour and have a casual conversation over coffee just to catch up. Do check out the photos of our expanded office in this newsletter as well. We would like to emphasise that although we may have re-branded, became bigger, and have more staff, our commitment to our clients re-mains the same. Our warmth, personal attention, sincerity and genuine concern have not wavered and we remained steadfast to our We Care phi-losophy. We believe that being legal solution providers and consultants that really care for their clients sets us apart and we want to continue to care. We be-lieve as our clients grow in strength, so do we.

And with that in mind, we still do our best for our clients and do everything we can to ensure that they grow so that we may grow with them. We still want to be your “preferred legal part-ners” and support you in all that you do. As such, we do not simply throw you the solution you need like going to court and then forgetting all about it. Have a chat with us about your legal needs and we will give you every possible alterna-tive to your situation. At JHJ, we care for you and your wellbeing. Be it a corporate matter, a pending litigation, pur-chasing your first property or even a business ven-ture or idea you are merely thinking about trying out, talk to us! We like to share our experience in addition to our expertise and we never charge for a first meeting. You have nothing to lose and eve-rything to gain. Our guarantee is that you will feel more comfortable after meeting us. Here’s wishing you a prosperous 2012!

EDITOR Andrew Chee

Knowledge Dept [email protected] WE CARE

Legal Cauldron 1 of 2012 | 2

MEDICAL RECORDS - Yours or Mine?

By Eunice H.S. Ong

You’ve been discharged from a Hospital or a medical centre. You cannot help the feeling looming in your gut of something amiss in the management or maybe you just want an explanation of why a certain treatment was given as opposed to another. Where do you even start in getting your questions answered? Ordinarily, you would go on a combative mode and demand an answer or maybe even compensation from the sweet lady at the Hospital’s payment or dis-charge counter. She has probably been given a rigid script to tell you “I am sorry Sir, but these are the Hos-pital’s policies”. You go home, you meet friends and relatives who are incidentally doctors and lawyers. They would usually provoke the sparks to a burning fire which leads you to write a strongly worded letter (most likely to be the words of your lawyer) to the hospital demanding copies of the medical records and an explanation of your treatment. And you further push the limits by de-manding for an extravagant compensation. Only to add oil to your burning fury, you re-ceive a reply maybe 2 or 3 months later from the hospi-tal stating that your medical records belong to the hos-pital and a blanket denial of mismanagement. Before you go on a furious rampage of allega-tions and accusations against the hospital of being this corporate monster, the bad news is your very own medical record does in fact belong to the hospital. In the Private Healthcare Facilities and Services (Private Hospitals and Other private Healthcare Facilities) Regulations 2006, Regulation 44 (1) states:- “A patient’s medical record is the property of a private healthcare facility or service.”

In Regulation 44 (2) of the 2006 Regulations, it states further:- “No patient’s medical record shall be taken out from the private healthcare facility or service except under a court order…”

You might ask: - I only want to know what hap-pened and an explanation of the treatment given. Do I actually have to engage a lawyer just to get an order from the Court for the disclosure and access of my own medical records? To some, this may not make any prac-tical sense.

Going back to regulation 44 above and inter-preting it, the regulation only says, “The patient’s medi-cal record belongs to the Hospital,” there is no mention of copies of the records. However, if you demand from the Hospital that you are entitled to your own medical records, chances are that you will be shot down by again a rigid script which goes something like this:-“I understand your frus-tration Sir, but these are the hospital’s strict policies.” So this begs the question again: “medical re-cords, yours or mine?” Pursuant to the 2006 regulations, a private healthcare facility, hospital and/or a medical centre is required under Regulation 39(1) of the 2006 Regu-lations to provide a “Patient Grievance Mechanism Plan”.

This entails a patient relations officer to receive your complaints, facilitate investigations and provide resolution within 10 working days. The regulations also provide that if the patient is still dissatisfied with the reply given by the hospital, he or she may refer to the Director General. Furthermore in the 2006 regulations, the Ma-laysian Medical Council had compiled guidelines in regard to the dissemination of information by the medi-cal profession. And in page 14, paragraph 1.15, it pro-vides that:- “A patient may be entitled to access medical records as part of the contract between him/her and the medical practitio-ner, for various purposes, ranging from need to seek second opinion, to seek further treatment elsewhere, or for litiga-tion.” And further in the same paragraph:- “Medical practitioners and persons in charge of healthcare facilities and services are generally expected to cooperate and release all parts of the medical records.”


“A patient’s medical record is the property of a private healthcare facil-

ity or service…”

This means that pursuant to the guidelines, a medical practitioner or the hospital should cooperate in releasing medical records to the patient, when re-quested. But a guideline is nonetheless only a guideline and there is no obligation by the hospital except for a conscientious obligation to cooperate with you. Pursuant to the guidelines mentioned on page 17, paragraph 2.1, a medical practitioner is also obliged to provide a comprehensive medical report when re-quested by patients or by the next of kin, in the case of children or minors. It also goes on to explain as to the structure of the medical report, which is as follows:- • A brief statement of who the practitioner is and his specialty and appointment;

• Whether the practitioner has the authority to write

the report; • A statement of which medical reports were avail-

able when writing the report; and • Any special circumstances. The contents of the practitioner’s medical report are also provided, and it is as follows:- • Patient identification data;

• Dates and time of admission or treatment; • Brief history; • Significant examination findings; • Results of relevant investigations; • Diagnosis; • Treatment; and • Management plan.

Now this is an obligation on part of your medi-cal practitioner and the hospital to give a comprehen-sive medical report, which is almost everything you have undergone for treatment under their care and manage-ment. Summarizing all these legal jargon: no, you are not entitled to your own medical records as they are properties of the hospital/medical centre/private medi-cal facility. On the other hand, you are surely entitled to a medical report giving you an explanation of the treatment given to you, your current condition and al-

most everything that was done during the course of your treatment. Your medical records may not belong to you, but the information contained in the medical records are cer-tainly yours and only yours.

By Eunice H.S. Ong [email protected]


WE CARE

“… there is no obligation by the hos-pital except for a conscientious obli-

gation to cooperate…”

LIVERPOOL FC TOUR 2011 There are Liverpool fans, then there are JHJ Liverpool fans. When LFC came to Malaysia, to watch the match was do-or-die. The ecstatic JHJ LFC fans had the time of their lives while the JHJ MUFC fans stayed home.

EVENTS The JHJ Family goes for a holiday in Penang!

After going through a hectic first-half of 2011 and organizing charity and other events, the JHJ Family took a much deserved rest in our annual Office Trip, this time to Penang. As always, wherever JHJ goes, competition must ensue. A raucous game of charades saw us competing intensely to start off the holiday. We thereafter pro-ceeded to really enjoy our holiday on the beach and shopping in colourful and lovely state of Penang.


ENTER AT YOUR OWN RISK - or is it really at my risk?

By Barvina Punnusamy

Many of you are business owners and being busi-ness owners, you would have a place to run the business depending on the nature of your business. It could be an office, factory, retail outlet or even at the convenience of your home. On a daily basis, many people will enter into your place of business especially with the purpose of buying or engaging any services that you are offering to the public. You would think that if anything happened while they are in your place of business that you would not be responsible for it. After all, they were the ones who entered into your place of business. Take the following scenario for an example. Anna walks into your store to purchase a dress that you have on display and your employee has just mopped the floor but you did not place any warning signs to warn that the floor is wet and slippery. Anna, who did not notice the wet floor, slips and falls down. She has sustained injuries and her clothes are damaged. She is threatening to sue you if you don’t give her any compensation. What do you do? Are you responsible for her fall? Shouldn’t she have noticed the wet floor and be cautious when she is walking?

To answer the questions above, we will need to look into the branch of law known as occupier’s liability. Occupier’s liability means being the owners of a premises, you owe certain duties to the people who enter into your premises. Failure to exercise the duties imposed as an occu-pier amounts to negligence. An occupier is a person who has sufficient control over the premises that will put him under a duty of care towards those who come lawfully upon the premises as decided in China Insurance Co Ltd v Who Hup ( PTE) Ltd (1977) 2 MLJ 57. This means that if you operate a retail store and you had rented a store for that purpose, you are categorised as an occupier since you have sufficient control over the premises even though you may not legally own the store. So what is the nature of duty owed by an occupier to the various people who enter into their premises? It would depend on the categories of the entrants which are divided to contractual entrants meaning people who enter a premises by virtue of a contract; invitees meaning people who enter a premises on business of interest; licensees meaning people enter a premises with either express of implied permission of the occupier and lastly trespassers.

Thus, in this case, when Anna walked into your store to purchase a dress, she was entering into your store as an invitee since she had business of interest. Since Anna was an invitee when she entered into your store, you owed a duty towards her to ensure that the store was safe for the purposes for which they are meant to be used. You also owe a duty to prevent injury to Anna from unusual danger on the premises which you know or ought to know and which Anna does not know about as decided in Takong Tabari v Government of Sarawak & Ors [1996] 5 MLJ 435 and Sri Inai (Pulau Pinang) SdnBhd v Yong Yit Swee & Ors [2003] 1 MLJ 273 . Since Anna fell due to the wet floor, does that amount to unusual danger or risk that you as an occupier have a duty to prevent? Unusual risk or danger means one which is not found in carrying out the task which the invitee has in hand as defined in the case of Lee Lau & Sons Realty Sdn Bhd v Tan Yah & Ors [1983] 2 MLJ 51. What this means is that the premises was used to sell clothing items and surely Anna would not expect the floor to be wet and slippery. Therefore, the wet floor was unusual to Anna and unknown to her since there were no warning signs placed.

Since it was your employee who had mopped the floor and it was known to you that a wet floor can cause entrants to slip and fall, it was your duty as the occupier to inform the entrants of the danger. You should have placed warning signs so that Anna would have known that the floor was wet and slippery, and then she could have exercised caution when she was walking in your store. Failure to take reasonable measures to ensure that your premises was safe for the entrants amounts to negli-gence. So, this means that you would be responsible for Anna’s fall and you would have to pay her damages for the injuries she has sustained and any other damages that she has incurred. If you had placed a warning sign and taken rea-sonable steps to ensure that your premises was safe but Anna still falls down, then you would not be held responsi-ble since you have discharged your duty as an occupier. Therefore, before you open the door of your place of business to entrants, take all the steps to ensure that the premises is safe and there aren’t any defects that may cause harm to the entrants.


“… it was your duty as the occupier to inform entrants of the danger…”

“… being the owners of a premises, you owe certain duties to people who

enter your premises…”

You can also conduct inspection and maintenance of your place of business on a regular basis to ensure that your premises is safe. So, the next time someone walks into your place of business, be sure that you have taken reason-able steps to ensure that your place of business is safe and there are no dangers lurking around the corner waiting to pounce on unsuspecting entrants.

By Barvina Punnusamy [email protected]


WE CARE

NEWSFLASH As part of our Corporate Social Responsi-bility (CSR) efforts, we are proud to an-nounce that JHJ is has sponsored a book prize for the:

TOP STUDENT OF THE FINAL YEAR LLB DEGREE

(UNIVERSITY OF LONDON)

in Brickfields Asia College.

Together with the book prize, the winner is automatically qualified to participate in JHJ’s 360o STUDENT ATTACHMENT PROGRAMME. We are therefore happy to introduce to you, Mr Ng Chin Han, the 2011 winner of the JHJ Book Prize. Chin Han has recently joined us and is un-dergoing the Attachment Programme. We have committed ourselves to sponsor-ing the prize for the next 5 years and we would like to thank BAC for giving us the opportunity to participate in the moulding of young minds for the future.

JHJ Book Prize Winner & Top Student of UOL LLB Final Year—Ng Chin Han

Interesting cases: HTC Global Services MSC Sdn Bhd v Kom-pakar Ebiz Sdn Bhd [2011] 9 MLJ 572: If a party receives invoices from a supplier but fails to raise any objection to it, that party cannot later deny that it owes money under that invoice. Ang Yew Meng & Anor v Dr Sashikannan a/l Arunasalam [2011] 9 MLJ 153: A doctor owes no general duty to give any emergency treat-ment, but if he chooses to give treatment, even in an emer-gency situation, then he owes a duty of care to the patient. Maybank v Cheo Ai Mee & Anor [2011] 3 AMR 807: An employer has an implied right to transfer employees. An employee’s refusal to comply with a transfer is insubordina-tion and an employer is justified in dismissing such an em-ployee. Sherinna Nur Elena bt Abdullah v Kent Well Edar Sdn Bhd [2011] 1 AMCR 905 There is no invasion of privacy if someone uses a photo of you for commercial purposes if the photo was taken in a public area at a public event.. Tegas Baiduri Sdn Bhd v BIMB Trust Ltd & Ors [2011] 8 MLJ 210 An employer is liable for its employees’ representations, even fraudulent representations, to another party, if the employee had made such representations in the course of his/her employment.

Vijayandran 22 years old LLB University of London External Program 2011 I started my attachment with Jayadeep Hari & Jamil in October 2011 under the JHJ 360o program. This program was tailored for law graduates who are currently pursuing their Certificate in Legal Practice and was designed to teach and expose potential lawyers on the workings and skills re-quired in a law firm. The first day in office was more than sufficient for me to realize how different the working world was compared to studying. Nothing in class had prepared us to handle documents, draft letters,

draft notices and many more that are required in the legal field. Although the lawyers gave us fictional scenarios, the les-sons we learnt were very real. It is undeniable that it was intimidating working in a prestigious law firm at the start where I had no clue about anything. However, it wasn’t hard to fit in as everyone was very helpful and friendly right down from the Chambering students up to the Senior Partners. No one turned down a question regardless of how busy they were and they were always willing to help out. I’m very thankful that I was lucky to be selected for this JHJ 360o program and am given this amazing opportunity to learn and be exposed to the life of a lawyer. I know that at the end of this program, I would be ready to start my career in becoming a successful lawyer.


Fong Kai Mun 24 years old LLB University of London External Program 2011 When I first heard about this new attachment programme offered by JHJ, I was told that this pro-gramme is tailor made for students, is flexible and very practical and that it would provide an early exposure to the legal profession. I was skeptical as to whether it would be as good as it was de-scribed to be because I have heard stories about how some law firms which do not give their at-tachment students a chance to get in touch with real work of a lawyer. Furthermore I am a stu-dent, and I was worried that if I join this attachment programme, I would probably have to skip classes in order to finish the job.

Now, I am truly grateful that I was given a chance to join the firm as an attachment student. As an attachment student un-der the JHJ 360 I was given an opportunity to explore different areas of law. I am constantly learning new things, both prac-tical and vital for me to prepare myself for the job of a practicing lawyer; things that I can never learn from the textbooks. I enjoyed the fictional problems they posed to us and the useful practical lessons we learnt. The programme is flexible that it allows me to manage my time freely. I sincerely think that no other firm would be so generous to an attachment student. Above all, the people in JHJ, from the partners to the staff are all very friendly and they are really willing to teach. I believe I can never feel more comfortable asking questions anywhere else. Even when the lawyers are busy, they have never once stopped me from asking questions. I have even been given personal advice on how to strive towards success and what atti-tude I should possess in becoming a truly successful lawyer. I am also advised to take pride in what we do, these are invalu-able advice that I think would assist me greatly in the future. Lastly, I am thankful that JHJ chose me for the attachment programme. Although I think I’m not as good as I should be aca-demically, I intend to put all my effort into this attachment programme with a sense of gratitude towards the people who gave me a chance.

What they have to say so far:

After sifting through various applications and conducting numerous interviews, JHJ selected two young lads who dis-play potential, intelligence and most of all, a strong desire to succeed. We are happy to have them as part of our family and here is what they have to say after one month with us.

360o

JHJ STUDENT ATTACHMENT PROGRAMME

FEATURE ARTICLE

PRIVATE HOSPITAL COSTS - Are you entitled?

By G. Kumaresan

Nowadays many Malaysians choose to go to private hospitals rather than to government hospitals once they meet with an accident. We all know that gen-erally the costs in private hospitals are much more compared to government hospitals. The question then is – can the victim of the road accident claim from the wrongdoer for the entire sum they paid at the private hospital? Generally when the costs claimed is for costs incurred in a government hospital, the courts have no problem allowing for the full claim. But the problem arises when the courts have to decide on costs incurred at a private hospital for treatments after a road acci-dent. The general law is that if you meet with an acci-dent, the courts will allow the full medical costs in-curred in a government hospital. However if the costs was incurred in a private hospital then generally the courts will only allow 1/3 of what was expensed unless it was reasonable to incur the said costs. A few cases cited below show will illustrate the point made above. In the case of CHAI YEE CHONG v LEW THAI [2004] 2 MLJ 465, Abdul Hamid Mohamad FCJ , the Court held that whether the full cost for treatment in private hospital needs to be paid will de-pend on a few factors. If the treatment was sought at a government hospital, the full amount expended and paid by the person should be awarded. However, if the plaintiff had sought treatment at a private hospital, he had to first prove that he was justified in seeking treatment at the private hospital. In this regard, he must prove that:- • the particular treatment was not available at the

government hospital either due to the unavailability of the necessary equipment, qualified doctors or other sufficient reasons; or

• although the treatment was available at a general

hospital, it was not available within a reasonable period considering the urgency of the treatment; or

• the treatment at the government hospital, though

available, was grossly inadequate. If the court was not satisfied that the plaintiff was justified in seeking treatment at a private hospital,

then, more likely than not the court would award an amount not exceeding one-third of the expenses in-curred. This one-third amount was not fixed by any written law but was arrived at as a matter of practice. In the case of, Harcharan Singh a/l Saudagar Singh v Hassan bin Ariffin [1990] 2 CLJ 393, the plaintiff was admitted to Hospital Besar Ipoh with multi-ple fractures. A doctor told him that his leg might have to be amputated, whereupon his family transferred him to Fatimah Hospital for further treatment and manage-ment. Abdul Malek Ahmad J (as he then was) allowed the plaintiff's claim of RM6,711 being the medical ex-penses incurred at Fatimah Hospital, but in respect of two operations that were to be performed in the future at the estimated costs of RM2,500 and RM4,000 respec-tively, the learned judge, following allowed only 1 /3 of the amount.

In the case of Peraganathan a/l Karpaya v Choong Yuk Sang & Anor [1996] 1 CLJ 622 , the plaintiff claimed the sum of RM11,629.90 being medical expenses incurred by him at the Fatimah Hospital, Ipoh. The evidence showed that the plaintiff was admitted to the Teluk Intan District Hospital after an accident. While he was unconscious, his father transferred him to the Fatimah Hospital Ipoh for further treatment. Chin Fook Yen JC (as he then was) followed Tang Sia Bak and allowed only one third of the expenses claimed by the plaintiff (RM4,000). He further held as follows. “It is my opinion that when the court is called upon to determine whether or not the expenses in-curred in a private hospital should be allowed in such cases it should not rely on medical advice solely as such, but whether in this particular circumstances of the case, the hospital concerned is ready and able to provide ade-quate facilities, expertise and treatment to the patient.” Applying the above test, the learned judicial commissioner came to the conclusion that the plaintiff had not produced any evidence to satisfy him that the state of affairs that existed in the Teluk Intan District Hospital gave rise to any apprehension such as that treatment would not be given.


“… if the costs was incurred in a Pri-vate Hospital then generally the

courts will only allow 1/3…”

In the case of Chong Chee Khong & Anor v Ng Yeow Hin [1997] 5 MLJ 786, the reason the first plaintiff went to Tawakal Hospital where he expended a sum of RM15,429.00 was because University Hospital did not attend to an injury to his right leg. Yet, he did not provide any report or letter from Tawakal Hospital to show that such was indeed the case. A mere asser-tion without documentary evidence will result in the court rejecting this claim totally. In the case of Balbir Singh A/L Chanan Singh v Thirunaugarasu A/L Muthusamy and Anor, 2010 MLJU 530 the High Court held, it is be-yond comprehension that the appellant could expect to be awarded fully the total amount incurred for his treat-ment at Hospital Fatimah when his initial admission and subsequent treatment at Hospital Ipoh had involved the internal fixation of his fractures. On 20.9.1999 he dis-charged himself at his own risk after which he chose to be admitted to Hospital Fatimah where he was merely put on physiotherapy exercises to increase the range of movements in his knee joints. There was no record of any other medical treatment given to him at Hospital Fatimah. There was no evidence that the physiotherapy treatment at Hospital Fatimah was not available or ade-quate at Hospital Ipoh. The Sessions Court Judge had not erred in awarding 1/3 of the whole.

The above cases have clearly shown to us that if there is credible and reasonable grounds for a person to incur medical treatment at a private hospital, then the court will award the full amount of cost that was spent in private hospitals. Otherwise the court will only award 1/3 of the total costs of medical expenses spent in private hospitals.

By G. Kumaresan [email protected]


“A mere assertion without documen-tary evidence will result in the court

rejecting this claim totally…”

The JHJ Family posing for a group photo after receiving pre-sents from their secret Santas.

The look of sheer “joy” when receiving their gifts!

T’was also the season for birthdays.

MORE EVENTS Xmas Kringle

2011

WE CARE

JHJ’s Expanded Office


WE CARE Kuala Lumpur . Petaling Jaya . Kota Bharu . Melaka

This is a publication produced by the JHJ Knowledge Department. For any inquiries, please do not hesitate to contact us: T: 03-2096 1478 | F: 03-2096 1480 | E: [email protected] | W: www.jhj.com.my Publisher: Messrs Jayadeep Hari & Jamil, Suite 2.03 (2nd Floor), Block A, Plaza Damansara, Bukit Damansara, 50490 KL. Printers: Pressworks Enterprise, No 20, Jalan Usaha Satu 25/2A, 40400 Shah Alam.

Documents

Legal Cauldron issue 1 of 2012