4 days ago
'Pencil box lawyer' not liable in RM7.7mil Medi Circle case, court rules
rahmat@
SHAH ALAM: A High Court here has dismissed a lawsuit brought by a hospital operator against its former lawyers, who were accused of professional negligence in a separate medical negligence case.
The ruling means Medi Circle Sdn Bhd, which runs a hospital in Bangi, has failed in its bid to sue its former legal counsel.
Judge K. Muniandy ruled that the law firm Messrs A M Zaharil & Co, and its partner, Datuk Ahmad Zaharil Muhaiyar, had not breached their duty of care when representing the company.
The judge said Medi Circle failed to prove its claims of professional negligence.
The case was over a medical negligence claim where the company was ordered to pay RM7.7 million in damages.
Ahmad Zaharil is known as the "pencil box lawyer" for a story in which he represented a mother charged with shoplifting a pencil box for her son.
The son was later inspired by Ahmad Zaharil's compassion and became a lawyer himself.
Medi Circle, which was represented by Ahmad Zaharil in the original medical negligence suit, later filed a separate action claiming that the lawyer had failed to competently defend the company.
The hospital operator alleged that key witnesses were not called and that the cross-examination of the plaintiff's witnesses was inadequate.
The court, however, ruled that legal strategy decisions, including the conduct of cross-examination and the decision to rely on evidence tendered by co-defendants, fall within the purview of counsel and should not be judged with the benefit of hindsight.
"The defendants carried out their scope of duty as retained, and there is no conclusive evidence to show that the alleged professional negligence caused the adverse outcome in the medical negligence claim," the judge said in his 20-page written judgment dated Aug 5.
"The plaintiff failed to establish a direct causal link between the alleged negligence and the loss suffered, particularly given the affirmation of liability against the plaintiff by the appellate courts."
Muniandy said Medi Circle had the opportunity to raise concerns or appoint alternative counsel during the trial, but did not do so until a much later stage.
"Even then, the plaintiff could have taken steps to recall witnesses or adduce further evidence, but such steps were not taken," he said.
The court also found that the hospital had failed to provide its lawyers with crucial information and medical records needed to mount a proper defence.
The judge said the absence of these documents was cited by the appellate courts as a major factor in upholding the finding of negligence against the hospital.
Muniandy also dismissed the company's allegation that Ahmad Zaharil had fallen asleep during the trial, citing a lack of conclusive evidence.
"Based on the available evidence, this court finds no conclusive proof that the second defendant was in fact asleep," he said, adding that Ahmad Zaharil was also assisted by an associate who was present at the trial.
The court also awarded RM20,000 in costs to the defendants.
