CASE OF THE WEEK

The plaintiff was a consultant anesthetist. Pursuant to a consultant agreement dated 28 March 1995, the plaintiff joined the defendant which had just opened its hospital and signed a resident consultant's agreement governing the relationship between the parties. The plaintiff, during his tenure with the defendant, carried out duties and took on responsibilities that was testament to the defendant's confidence in the plaintiff's work. On 31 January 2012, the plaintiff was handed a letter from the Deputy Medical Director of the defendant, (`Dato Wahab') seeking an explanation of "alleged unusual procedure" in the operating theatres. It was alleged that the plaintiff had covered two operations at one time and the blood tests apparently relied on were inaccurate. On 16 February 2012, in a Medical Advisory Committee meeting, the plaintiff's matter was brought up in the presence of the plaintiff. The plaintiff contended that no notice of the same was given to him of this and Dato Wahab proceeded to question the plaintiff on the allegations against the plaintiff. Then on 8 March 2012, the plaintiff was handed a letter of suspension. The plaintiff consulted his peers who were on the Medical Advisory Committee and on 10 March 2012 they issued a letter to the defendant denying any conclusion of falsification of documents ie, blood reports on the plaintiff's part. The plaintiff wrote to the defendant on 14 March 2012, pointing out the irregularities in the meeting of the Medical Advisory Committee meeting. The Board of Management Committee met on 26 March 2012. The plaintiff alleged that he was not allowed to call witnesses nor was the plaintiff allowed representation. On 5 April 2012, the plaintiff was handed a letter of termination. The plaintiff then wrote to the defendant to have the matter referred to arbitration. The plaintiff also appealed to the Board of Directors. However, on 4 May 2012, the plaintiff was handed a letter rejecting the plaintiff's appeal and was given a fresh notice of termination. The issues that arose were (i) whether there were grounds in law/or in fact to substantiate the termination; (ii) whether there were specific breaches of the resident consultant agreement and the medical by laws; (iii) whether there was no proper inquiry or investigation by the defendant's Hospital Clinic Governance Committee as required by the medical by laws.

Held (allowing plaintiff's application):

(1) There was evidence to suggest that members of the Medical Advisory Committee did not conclude there was falsification of the records by the plaintiff. Further, the plaintiff's explanations seem to point to a shortcoming in the regime of blood tests being kept at the defendant's hospital which apparently went online after the incident. Surely all these facts would have to be investigated and evaluated fully before a finding could be reached as to whether the plaintiff was in breach of the resident's consultant agreement and medical by laws. The plaintiff had presented the facts that disclosed bona fide serious issues to be tried without going into the merits of the same. The serious issues were justiciable by way of arbitration. These were matters that the proposed arbitrator could deal with at the appropriate time (s. 18 of the Arbitration Act 2005). Therefore, the matter should be referred to arbitration. (paras 8-9 & 11)

(2) The order sought merely stays the effect of the notice of termination dated 4 May 2012 pending arbitration. As far as the defendant was concerned, it was just awaiting for the matter to be arbitrated. The plaintiff, on the other hand, was required to move his clinic out of the hospital under a shroud of serious allegations that touched upon the core of his professional integrity and competence as a specialist anesthetist. No amount of damages to be subsequently awarded, could remedy the irreparable damage to the reputation of the plaintiff, bearing in mind the lack of corroborative evidence on the part of the Medical Advisory Committee. (paras 13 & 14)

Case(s) referred to:

Fiona Trust & Holding Corporation & Others v. Privalov & Others [2007] UKHL 40 (refd)

Rimbunan Hijau Sdn Bhd v. Sarawak Plywood (M) Sdn Bhd [1985] 1 CLJ 424; [1985] CLJ (Rep) 275 FC (refd)

Thye Hin Enterprises Sdn Bhd v. Daimlerchrysler Malaysia Sdn Bhd [2004] 3 CLJ 591 CA (refd)

Legislation referred to:

Arbitration Act 2005, s. 18(1)

Other source(s) referred to:

Sundra Rajoo WSW Davidson, Arbitration Act 2005 UNCITRAL Model Law as applied in Malaysia, p 84-88

Counsel:

For the plaintiff - Darryl Goon (M Vinoben with him); M/s Raja Darryl & Loh

For the defendant - M Yonoesswary Singam (Jagjit Kaur Gill with him); M/s Zainal Abidin & Co

Reported by Suhainah Wahiduddin