Court allows negligence claims despite time bar

The husband and daughter of a teacher who died in 2007 while delivering her son, will have their day in court to seek dependency claims from her obstetrician and Thomson Medical Centre (TMC). This was allowed although their suit was filed past the three-year statutory limitation period.

The Court of Appeal yesterday ruled that father and daughter should be allowed to pursue their claims, overturning a lower court decision which had struck out their claims on the grounds that they were time-barred from suing.

The three-judge court said it seems that there was an arguable case that the late disclosure of a set of medical reports "might have resulted in the concealment of the cause of action and resulted in the late commencement of the suit".

The trial judge will have to decide if the defendants can be prevented from using the limitation defence on the grounds that they had acted fraudulently to conceal negligence, said the court.

The patient and her family cannot be named for legal reasons.

In September 2007, the woman, who was given oxytocin to induce labour, died during childbirth from acute amniotic fluid embolism. The baby, who suffered brain damage at birth, has severe disabilities.

In the months after her death, her husband asked her obstetrician, Dr Koh Cheng Huat, for a medical report and TMC for a copy of his wife's medical records.

His lawyer, Ms Kuah Boon Theng, argued that he was under the impression that the documents he got were complete and comprehensive.

Armed with the documents, he consulted medical experts, primarily to investigate his son's injuries as he accepted that the cause of his wife's death was an obstetric mortality risk. In 2011, an expert commented that the cardiotocography (CTG) reading, which monitors the foetal heartbeat and labour contractions, and is printed on a roll of paper, appeared incomplete.

When the husband checked with TMC, the hospital said the records it had provided were complete. In 2012, the man was told by an expert that inappropriate use of oxytocin can predispose a woman to develop acute amniotic fluid embolism.

In January 2014, more than six years after his wife's death, the man and his two children filed a negligence suit for damages, including dependency claims and claims for physical injury to the son.

Five months later, portions of the CTG records that had been previously omitted were finally provided to the husband. TMC's lawyers explained that the records were held by the police and were "recently obtained".

The defendants then succeeded before an assistant registrar in striking out the dependency claims on the basis that they were time-barred. The family appealed to the High Court and lost.

They then went to the Court of Appeal. At the hearing last week, Ms Kuah argued that the court should intervene to prevent the defendants from relying on the limitation defence as they had fraudulently concealed negligent acts by withholding medical records.

Ms Vanessa Lim and Ms Audrey Chiang, who act for the two defendants, argued that the time bar was absolute, and allegations of fraudulent concealment are baseless .

But the appeal court was not entirely convinced by the reasons given for the delay in the release of the second set of records. It said there may well be reasonable explanations for these lapses that eventually vindicate Dr Koh and TMC, but these matters should be tried.

The court allowed the husband's and daughter's appeal but not the son's as he was not named as a party on the notice of appeal. But he can still claim for personal injury.

A version of this article appeared in the print edition of The Straits Times on April 07, 2016, with the headline 'Court allows negligence claims despite time bar'. Print Edition | Subscribe