Pre-Action Discovery

原告在社交媒体看到被告的广告。被告声称自己是整形外科医生，专整眼睛、鼻子和除皱微整。
经过被告的建议，原告决定在被告的美容中心进行隆鼻手术。
微整手术的几天后，她的鼻子开始红肿和发炎。经过两次被告的医疗，原告的伤口并没有好转，反而鼻子开始流血。
被告于是再次对原告进行手术，取出之前所植入的假体和耳软骨。
原告投诉自己的鼻子留下伤痕，也留下难看的洞孔。
原告为了能够决定是否要对被告提出诉讼，在法庭作出这个申请: 原告要求被告交出与手术程序有关的医疗文件和资料以及被告助手身份的资料。
法庭表示在决定是否批准原告的申请，允许原告在诉讼前获得被告的的文件，原告需要证明：此举是节省诉讼时间和费用。另外获得该文件和资料可以让原告在诉讼前决定是否对被告提出诉讼。这种方法不仅公平，而且也可以避免不必要的诉讼。
对于原告来说，在拥有手术记录、医疗文件和资料的情况下，将使她能够获得更专业的医学建议，以了解被告是否在执行手术时犯下任何过失。
至于被告抗辩表示本身并非医生，因此没有任何医疗记录。她手上只有11张原告手术前后的照片，以及一份同意书。因此原告不能强迫她提供不存在的报告。
被告抗辩称原告此前已经签署了同意书，而其中一项条款指出，对于可能会发生的副作用或任何意想不到的事项，原告是不能对被告提出诉讼。对此，法庭表示原告目前的申请是要求被告在诉讼前披露医疗文件和资料，目前并不是在索赔诉讼阶段，所以此申请不适合讨论此条款的合法性。
至于原告要求一份关于被告助手身份资料的要求，法庭认为在这种情况下，涉及者的身份与所要求提供的文件一样重要。这是因为原告需要做出决定，是否只起诉一名被告，或将另一名做为共同被告。
法庭批准了原告的申请。

参考:

有合法微整执照的医生名单（值得一提的是，版主Wilson Kuek律师的大哥是一名拥有合法执照的微整医生)
有兴趣做合法微整手术的你，可以直接联系 Dr. Kuek 018-6699 298
How to tell the difference between Aesthetic Doctors, Dermatologists and Plastic Surgeons
Guidelines on Aesthetic Medical Practice by MOH

*详细的案情和判决，请阅读以下的英文版文章。

GROUNDS OF JUDGMENT

This is the Plaintiff’s application for a pre-action discovery pursuant to Order 24 rule 7A (1) of the Rules of Court 2012 against the Defendant seeking discovery of documents relating to surgery/treatment to the Plaintiff’s nose carried out at the Defendant’s aesthetic beauty centre in December 2018 and January 2019.
The prayers sought by the Plaintiff are stated in Enclosure 1 :

- The Defendant do provide clear and complete medical record including notes, photographs, sketches, drawings, report, forms and any other document pertaining to the treatment and surgery carried out on the Plaintiff; and
- The Defendant do affirm an affidavit stating whether the documents are, or at any time have been in her possession, custody or power and, if not then when she parted with them and what became of them and state clearly the identity of the assistant/employee involved.

This court allowed the Plaintiff’s application.

Background Facts

On 7.12.2018 the Plaintiff visited “LT Korea Aesthetic” for a consultation with the Defendant, Dr Leanne Tan. The Plaintiff chose to go to the Defendant’s centre as she had seen advertisements of the treatments offered by the centre in Facebook and Instagram. The Defendant advertised she is a “plastic surgeon” and “specialist in aesthetics for eyes, nose and facelift.” As a result of that consultation the Defendant advised the Plaintiff to undergo nose implant surgery.
On 11.12.2018 the Plaintiff underwent surgery under anaesthesia performed by the Defendant with her employee/assistant whereby a Silicone implant and ear cartilage graft were inserted into her nose. After the surgery was over, the Plaintiff paid the Defendant RM20,600 in cash and was allowed to go home.
The wound became infected a few days later and the Plaintiff’s nose became red and swollen with pus oozing out.
The Plaintiff returned to the Defendant on 21.12.2018 and 30.12.2018. The Defendant again used anaesthesia and repeatedly squeezed the pus out from the wound and sewed the wound back. Antibiotics were prescribed by the Defendant. However the Plaintiff’s condition worsened and her nose started to bleed.
On 7.1.2019 the Defendant and her assistant carried out a second surgery under anaesthesia on the Plaintiff’s nose whereby the silicone implant and ear cartilage graft that was inserted earlier were removed from the Plaintiff’s nose. The Plaintiff complained that her nose became scarred and she had an apparent and unsightly hole at her nose. The Plaintiff exhibited photographs of the condition of her nose.

The Plaintiff’s Submissions

The Plaintiff asserts that the documents and information sought in the application herein are necessary in order to enable her to decide whether she can commence an action against the Defendant for damages and loss. Before she can do so the Plaintiff wants to find out whether she has a good cause of action against the Defendant. To that end the Plaintiff wishes to obtain the records relating to the surgeries and treatment including any notes, picture, sketch, drawing, report, forma and documents. The records will reveal the procedure and manner in which the surgeries and treatment were done and the materials used therein. The documents will shed some light as to what went wrong and whether the Plaintiff has a viable claim. The Plaintiff also wants to find out the identity of the assistant/employee who assisted in the surgery.
The Plaintiff asserts that she has complied with all the requirements of Order 24 rule 7A (3) ROC and therefore the application should be allowed.

The Defendant’s Submissions

The Defendant is objecting to the application and contends that all is well with the Plaintiff’s nose, that the Plaintiff did not suffer any lasting damage. To support this the Defendant exhibited social media photos of the Plaintiff on Facebook and Instagram which showed the Plaintiff does not have any nose injuries as alleged by the Plaintiff. Therefore the Defendant believed the allegations as raised by the Plaintiff in the application are suspect.
The Defendant contended that she had at the earliest opportunity produced the following documents in his possession and custody even before this court could hear and grant the order as prayed for in the O.S:

– 11 photographs comprising of before and after nose implant surgery was carried out; and

– Consent Form dated 11.12.2018

The Defendant also affirmed that apart from the above documents, she does not have any other documents in her possession and custody and hence she could not be compelled to produce documents that she did not have.

Findings of the Court

The law applicable for pre-action discovery is encapsulated in Order 24 rule 7A (3) ROC 2012. (3) An originating summons under paragraph (1) or a notice of application under paragraph (2) shall be supported by an affidavit which shall –

(a) in the case of an originating summons under paragraph (1), state the grounds for the application, the material facts pertaining to the intended proceedings and whether the person against whom the order is sought is likely to be party to subsequent proceedings in Court; and

(b) in any case, specify or describe the documents in respect of which the Order is sought and show, if practicable by reference to any pleading served or intended to be served in the proceedings, that the documents are relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings or the identity of the likely parties to the proceedings, or both, and that the person against whom the order is sought is likely to have or have had them in his possession, custody or power.

Order 24 rule 7A(6) states :-

(6) An order for the discovery of documents may-

(a) be made conditional on the applicant giving security for costs of the person whom it is made upon such other terms, if any, as the Court thinks just; and

(b) require the person against whom the order is made to make an affidavit stating whether the documents specified or described in the order are, or at any time have been in is possession, custody or power and, if not then in his possession, custody or power, when he parted with them and what has become of them.

(7) A person shall not be compelled by such an order to produce any document which he could not be compelled to produce-

(a) in the case of an originating summons under paragraph (1), if the subsequent proceedings had already been commenced; or

(b) in the case of a notice of application under paragraph (2), if he had been served with a subpoena to produce documents at the trial.

The positions of the rules stated above are summarized in the following manner. They are :-

- Order 24 rule 7A is in relation to discovery of documents;
- (ii) The person against whom the order is sought is likely to have documents in his/her possession, custody or power; and
- (iii) The court will refuse the application if it is found that discovery is not necessary at this stage.

In the case of Infoline Sdn Bhd (sued as trustees of Tee Keong Family Trust) v Benjamin Lim Keong Hoe [2017] 6 MLJ 363, the Court of Appeal gave guidance to courts when faced with such an application. In delivering the judgement of the Court of Appeal her Ladyship Mary Lim JCA opined : “[42] Therefore, in exercising discretion whether to grant discovery of specified or described documents in the possession, custody or power of the appellant, the respondent must satisfy the court that discovery of the same before filing of action against the appellant is indeed necessary, necessary at the particular stage of the application, and that it is necessary because the order of discovery will allow for the fair disposal of the cause or matter or that it will lead to a saving of costs. The respondent must show that the discovery is necessarily required even before an action is initiated as it is precisely to enable the respondent to decide whether he can even commence action against the appellant in particular, to start with. And if the information revealed from that discovery can determine or assist in reaching an answer to that predicament, then the order ought to be made. Such an approach is not only fair but sensible and practical as it can obviously avoid unnecessary litigation thus saving costs and preventing wastage of time and resources which is what pre-action discovery seeks to achieve. Where the court is of the opinion that the applicant is unable to satisfy these conditions, certainly the court must dismiss the application as is apparent from the terms of r. 8.”
In the Singapore Court of Appeal case of Kuah Kok Kim v Ernst & Young [1996] 3 SLR 485 where it was held: “[31] It can be seen from the tenor of the cases that where pre-action discovery is sought, the plaintiff has a duty to set out the substance of his claim to enable a potential defendant to know what the essence of the complaint against him is. This is because in the nature of pre-action discovery, the plaintiff does not yet know whether he has a viable claim against the defendant, and the rule is there to assist him in his search for the answer. Thus the safeguards specified in the rules are to ensure that the plaintiff is not allowed to take advantage of the rules merely to enable him to go on a fishing expedition.”

Has the Plaintiff fulfilled all the conditions discussed in O. 24 r 7A as well as from the authorities cited earlier?

Firstly, there cannot be any disputed that in compliance with O. 24 r. 7(3)(a), the Plaintiff has stated that the Defendant is likely to be a party to the subsequent proceedings as the Plaintiff contemplates bringing an action against the Defendant.
24 r 7(3)(b) requires the Plaintiff to specify or describe the documents in respect of which the order is sought. On the present facts, I note that the Plaintiff has complied with the rule. The Plaintiff has clearly stated what is wanted from the Defendant.
Under O. 24 r. 7A(3)(b), the documents sought must be “relevant to an issue arising or likely to arise out of the claim made or likely to be made in the proceedings.” It is reasonable for the Plaintiff to ensure that she has a good cause of action and the only way for that is apply for pre-action discovery. Having sight and possession of the records especially if there are notes of the surgery and treatment done will enable the Plaintiff to obtain professional/medical advise as to whether she has a viable claim and whether there was negligence in the handling or carrying out of the surgery and treatment on the Plaintiff.
24 r. 7(3)(b) requires the Plaintiff to show that the Defendant is “likely to have or have had” the documents in her possession, custody or power.
Here the Defendant has consistently stated in her Affidavit in Reply that the medical record sought by the Plaintiff in the main prayer is non-existent. The Defendant has stated that all that is in her possession is the consent form dated 11.12.2018 and pictures of the Plaintiff before and after the surgery. The reason that has been given is that the Defendant is not a medical practitioner and did not carry out any health examination on the Plaintiff. She was merely carrying out a beauty centre business therefore she does not have medical records. It is the defendant’s contention that the Plaintiff cannot force the Defendant to provide non-existent document.
Certainly the Defendant would have kept notes of what treatment was carried out on each visit to the centre. The Defendant would have made annotations as to what type and description of antibiotics was given to combat the swelling and to reduce the redness of the nose.
In the pamphlet, the Defendant no less advertised herself as a “plastic surgeon” and “specialist in aesthetics for eyes, nose and facelift”. This is not an advertisement for a facial or a makeover but a reconstruction of the features of the face. The Defendant did not denigrate herself by calling herself a beauty consultant but made herself out to be “Dr. Leanne Tan”, indeed indicating someone with at least a basic medical degree under her belt. It would not be a stretch of the imagination that the Defendant would have kept some semblance of record of every act/treatment/surgery carried out, the history taken from the Plaintiff prior to the surgery, the recommendations given for the type of treatment to be undertaken. The Defendant would have logically kept a record of the name, type, quantity of anaesthesia used on the patient, the name, type of silicone implant, the ear cartilage graft and or other material used. There would have been medication records of the antibiotics used and the payment made by the Plaintiff.
Furthermore the Defendant other than saying the centre she operates is merely a beauty centre did not provide any explanation why she did not keep records yet was able to produce the consent form after the OS was served on her.
In this case it was stated that the Defendant did not respond to earlier requests made through solicitor for the records stated above. Only after the O.S was filed did the Defendant produce a consent form through her Affidavit in Reply. This gives the inference that the Defendant was deliberately being uncooperative because she did not respond to the requests made earlier by the Plaintiff’s solicitor before the O.S was filed. Only after the O.S was filed then did the Defendant produce the consent form and 11 photographs. The inference to be drawn from this is that the Defendant deliberately withheld documents she knew she had in her possession but had chosen to disclose it only after the Plaintiff filed the O.S.
I agree that it is quite impossible for the Defendant not to have records of the name, type and quantity of anaesthesia or records on the anaesthesia used and the needle, antibiotics prescribed and /or of the equipment used, the records/pictures of the silicone implant and ear cartilage graft or other material used by her to conduct the nose surgery. Certainly the Defendant cannot say she did not keep records of the payments received from the Plaintiff.
That being said the Defendant has the option of filing under O. 24 r. 7(6)(b) an affidavit answering the questions and stating whether the records asked for have been in her possession, custody or power and if not, when she parted with them and what has become of them.
An objection was raised by the defence that the prayers in the O.S should not be granted because the Plaintiff had signed the consent form in which one of the clauses state that no legal claim can be brought against LT Korea Aesthetic for “side effects, complications or unsatisfactory results that may occur.”
That argument has been considered in the case of Kuah Kok Kim.There the court held that pre-action discovery is not a claim and it was not the court’s function at this stage to dwell on the merits of the case and to determine, based on what little evidence, whether there is a good claim or not.
In this case the Defendant has contended that the Plaintiff has not suffered injuries to her nose. To support this contention the Defendant relied on recent photographs extracted from social media to show that the Plaintiff was fine and did not seem to have any significant injuries to her nose. It is notable that the photographs were included into an Affidavit Tambahan Defendant filed on 29.6.2020, just a few days before the hearing of the application. The Affidavit Tambahan Defendant was clearly filed out of time and the Plaintiff objected to it being used during the hearing of the application.
The Defendant filed this Affidavit Tambahan Defendant without leave of court and did not address the court on the matter or explain to the court as to the reasons for the late filing nor make the necessary application for extension of time. This court will not take into consideration the contents of the said affidavit.

The Plaintiff has also prayed for the identity of the assistant and employee of the Defendant to be disclosed.

It is noted that the Defendant has denied the existence of an assistant or employee and did not provided any explanation to substantiate that averment.
On the other hand, the Plaintiff exhibited posts by the Defendant in her Facebook page inviting the public to contact her or a person by the name of “Eno” for enquiry or appointment. There is also a Facebook page of “Eno” exhibited. It would appear that there is a person named “Eno” who is probably an employee or assistant to the Defendant. It is odd that the Defendant has merely denied the existence of an assistant or employee, when the Plaintiff has affirmatively averred that she had seen the assistant who was present at the time the Plaintiff underwent the surgery. The Defendant has not explained who “Eno” is and why her Facebook page refers to “Eno”.
Order 24 rule 7A includes any document that contain information on the identity of a person. In Stemlife Bhd v Bristol-Myers Squibb (M) Sdn Bhd [2008] 6 CLJ 200 the court held that it had the powers to order pre-action discovery “with a view to identifying possible parties to any proceedings” or wrongdoers with whom the Plaintiff has a cause of action in relation to the same wrong (Order 24 rule 7A(5)).
In this case the identity of the likely parties to the proceedings is just as important as the documents requested for as understandably the Plaintiff would have to make a decision to sue only one perpetrator or others as co-defendant.

Conclusion

I am of the view that the Plaintiff must be given the right to access to records and documents to enable her to assess the viability of her intended claim against the Defendant. This is a fit and proper case to order a pre-action discovery as it is necessary for the fair disposal of the cause or matter as provided under Order 24 rule 8 ROC and I daresay that it will save time, cost and resources if early discovery is ordered. The Plaintiff will not know if she has a worthwhile cause of action until and unless she sees the records or the documents. I agree with the Plaintiff’s contention that this is not a mere fishing exercise.
As all the requirements of Order 24 rule 7A ROC, 2012 has been fulfilled, the Plaintiff’s application is therefore allowed with costs.

Source: Lim Roei Fen v Tan Lai Yee [2020] MLJU 1688. HC Shah Alam. Julie Lack JC

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