Father Wins Bid To Appeal Dismissal Of Negligence Suit Over Son's Autopsy

PUTRAJAYA, Jan 8 (Bernama) — The Federal Court today granted a father leave to appeal the dismissal of his negligence lawsuit concerning the autopsy on his son, a medical doctor, who died in November 2010.

A three-member bench, comprising Court of Appeal President Datuk Abu Bakar Jais and Federal Court judges Tan Sri Nallini Pathmanathan and Datuk Azimah Omar, allowed the leave application filed by Joseph Anthony.

Joseph, 75, as the administrator of his son Sebastian’s estate, initiated the suit in 2018. The Court granted leave on a single question of law to be determined at the substantive appeal hearing. 

The question is whether a government medical officer performing a post-mortem under Section 331 of the Criminal Procedure Code owes a duty exclusively to the state, or also to private individuals such as the parents and next of kin of the deceased.

The defendants named in the original action are Dr Muhamad Arif Mohamad Rasat, the Langkawi Hospital director, Kedah State Health Department director, investigating officer Sgt Amran Ahamad Sirat, the Inspector-General of Police, and the Government of Malaysia.

In his statement of claim, Joseph contended that Dr Muhamad Arif breached his duty of care by conducting the initial autopsy negligently.

Joseph’s son, Dr Sebastian Joseph, a 30-year-old medical officer serving at Klinik Kesihatan Kuah in Langkawi, was found deceased in his government quarters on Nov 17, 2010.

A post-mortem was performed by Dr Muhamad Arif, after which Dr Sebastian’s remains were buried. The original autopsy report listed the cause of death as unascertained.

Dissatisfied with this finding, Joseph obtained an order from the Alor Setar High Court in 2015 to exhume his son's remains for a second post-mortem, which was conducted by a local forensic pathologist and a foreign pathology expert.

Joseph asserted that both independent pathologists concluded in their reports that the first post-mortem had been performed negligently and incompetently.

He is seeking general and special damages, as well as exemplary and aggravated damages.

In their defence, the respondents argued they owed no duty of care to the deceased, as Dr Sebastian was not a patient but a deceased person at the material time. They further denied any act of negligence.

The suit was initially dismissed by then Judicial Commissioner Leong Wai Hong on June 22, 2023, who ruled that Dr Muhamad Arif was acting within his legal authority.

Subsequently, the Court of Appeal upheld this decision, dismissing Joseph's appeal on Aug 26 last year.

At today's hearing, Joseph Anthony was represented by lawyers M Visvanathan, K Selva Kumaran, V Sanjay Nathan, and Pushan Qin Nathan.

Senior Federal Counsel Ahmad Hanir Hambaly @ Arwi, Zetty Zurina Kamaruddin and Shazreen Nadia Zulkipli appeared for the respondents.

— BERNAMA