Birth Injuries & Medical Negligence in Malaysia

Everything has a limit. This applies to a right to recover a remedy in Court. Ordinarily, no one is permitted to hold onto that right for an indefinite period. Malaysia has statutory frameworks for determining the limitation periods for different causes of action.

If you are a patient, it is crucial that if you suspect that you have been subject to medical malpractice, you need to consult a specialist medico-legal lawyer without delay. If you are a healthcare provider, limitation will be an effective shield and in most cases, a viable ground to have a claim summarily struck out at an early stage.

A medical malpractice lawyer will assist you in calculating the time left in the remaining limitation period. For patients, if your claim is time-barred or if the expiry of the limitation period too close, your brief may be declined.

In the medical negligence arena, there are different limitation periods. Below is a rough guide to know the amount of time you have left. Please however still consult a lawyer.

6 Years – Private Healthcare Setting

If you are an adult with mental competency, you will ordinarily have 6 years from the date the loss or injury was sustained (section 6 of the Limitation Act 1953).

3 Years – Government & Public University Healthcare Setting

If you are an adult with mental competency, you will ordinarily have 3 years from either the “act of neglect” or from “the ceasing of a continuance of injury or damage” (section 2 of the Public Authorities Protection Act 1948 & section 24B of the Universities and University Colleges Act 1971).

There can be confusion in determining when the limitation clock starts to run in this setting due to operative wording of the section 2(a) of the Public Authorities Protection Act 1948 above which differs from the Limitation Act 1953.

Do note that some public universities have a “private wing” of their healthcare centres. They are usually run by a private company. In this setting, the 6 year period under the Limitation Act 1953 will apply.

3 Years – Deceased Patients

For all cases involving a deceased patient, a claim on behalf of the dependants of the deceased must be brought within 3 years from the date of death of the deceased (section 7 of the Civil Law Act 1956).

If it is purely a claim for the benefit of the estate of the deceased under section 8 of the Civil Law Act 1956, it is arguable that the silence on a limitation period unlike its section 7 counterpart will mean that the 6 year limitation period under the Limitation Act 1953 will apply.

3 Years – Sabah & Sarawak

The states of Sabah and Sarawak have their own respective laws on limitation. The Limitation Act 1953 does not apply there. The Public Authorities Protection Act 1948 and Civil Law Act 1956 do apply there.

For the Federal Territory of Labuan, as of 27 October 2017, the same limitation laws in the Peninsula applies there (Federal Territory of Labuan (Extension and Modification of Limitation Act 1953) Order 2017).

In Sabah and Sarawak, you will ordinarily have 3 years from the date the injury or death occurred (Item 92 of the Schedule to the Sarawak Limitation Ordinance & Item 94A of the Schedule to the Sabah Limitation Ordinance).

Postponing the Limitation Period

The limitation period for medical negligence claims can be postponed in very limited circumstances. There are only two known circumstances which are: –

if the patient is under a legal disability – a minor (under 18) or under mental incapacity (section 24 of the Limitation Act 1953 & sections 6 of the Sabah & Sarawak’s respective Limitation Ordinances); or
if the right of action was concealed by fraud (section 29 of the Limitation Act 1953 & sections 18 of the Sabah & Sarawak’s respective Limitation Ordinances).

Patient Who is a Minor
In Malaysia, the age of majority is 18 (Age of Majority Act 1971). The legal disability ceases upon the patient turning 18.

If the patient is under the age of 18, they would ordinarily have 6 years (for private) and 3 years (for Government & public university) from their 18th birthday to initiate a claim.

The parent or legal guardian of a patient who is a minor may initiate a claim in Court on his behalf at any time before he turns 18.

Patient Under Mental Incapacity
For patients who are mentally incapacitated whether by significant cognitive impairment that they are incapable of rational thought and understanding and/or managing their own affairs, the limitation will not begin to run until the after such disability ceases.

If the mental disability ceases on a date beyond the applicable limitation period, a claim in Court must ordinarily be commenced within 6 years (for private) and 3 years (for Government and public university) from the date of cessation of the disability.

In cases where the patient is under permanent mental incapacity, there will practically be no limitation period.

Concealment of Right of Action by Fraud
If it is provable that the right to sue was fraudulently concealed from the patient, the limitation clock will only begin to run from the date the patient discovers the fraud.

The caveat is that if the right of action could have been discovered with “reasonable diligence”, limitation will not be postponed. Usually, once a tangible injury is suffered as is the usual case in medical malpractice claims, it is difficult to successfully argue that a right of action could not have been discovered with reasonable diligence.

Seeking Legal Guidance on the Limitation Period

There have been many meritorious claims that have regrettably been shut out because patients did not know about limitation. Save for the two circumstances above, the Court will not accept any other excuse to enlarge the limitation period.

There have been others who have unfortunately placed too much reliance on waiting for legal redress from avenues which do not need any financial commitment such as lodging police reports and filing formal complaints with the regulatory authorities or the healthcare centre itself. With no definitive timelines like a civil claim in Court, patients end up diverting too much time in the remaining limitation period. By the time they decide to seek legal assistance, it would already be too late.

Limitation is absolute. It does not matter if liability of the defendant is clear-cut. If a claim is initiated beyond the applicable limitation period, it can be summarily (without a full trial) struck out at the preliminary stage. Even if the patient gets his day in Court, he will still be shut out from receiving any remedies.

Such matters require careful evaluation of medical evidence, legal principles, and procedural considerations. Patients may benefit from seeking advice from lawyers for medical malpractice familiar with the intricacies of the law on limitation.

Written by: –

Evan Lee Sian Wen
Advocate & Solicitor (Malaya)
Principal of Evan Lee Advocates & Solicitors

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