Choosing the right expert in a medical negligence case
DE REBUS March 1st, 2012
‘How do you ensure that the opinion of your expert is favourably
considered?’
By
Maud Letzler
As the sun sets on personal injury law as we know it in South Africa due
to the demise of road accident claims, counsel and attorneys will be confronted
with an increase in medical malpractice matters.
Medical negligence claims have always been present in South Africa, but
in the past insurers were happy to settle most matters quickly and quietly to
avoid incurring unnecessary costs and to save the reputation of the doctor
concerned. As renewed financial pressure will be placed on the resources of
insurers, plaintiffs may find themselves having to fight harder to obtain a
settlement or a favourable outcome in court, and herein lies the crux of the
matter. No one can prove a medical negligence case, although some certainly try
to, without expert medical opinion. However, with the variety of fields that
may confront a legal practitioner, he may find himself swimming upstream.
Doctors in South Africa, as in other parts of the world, are notoriously
reluctant to testify against each other, and medico-legal experts often find
themselves on the outside of the fraternity being reviled for what is
essentially a necessary service to mankind.
The medical profession, like any other, should be subject to checks and
balances, and without doctors willing to give opinions in legal matters the
rights of parties may be severely prejudiced.
The most dangerous scenario for any doctor would be to come up against a
plaintiff who is litigating for the sake of it, that is, with his heart and not
his head.
It is essential for practitioners who plan on moving from motor vehicle
accident (MVA) work to medical malpractice to realise that the database of
experts they have built up over the years to assist them in fighting for
justice may now need to be revised. They will need an expert in almost every
field of practice and, as will be illustrated below, will require working
doctors and not academics in most cases.
Trying to find a suitable expert a couple of months before trial will be
fruitless as it will require much persuasion to convince a practising
specialist to give up his time to testify against a colleague, especially in a
field that may only have a handful of specialists.
It may be prudent to obtain not just the services of an expert in the
particular field, but also an opinion at the onset of the matter as it may save
everyone a lot of money.
Courts and expert opinion
South African courts apply a test identical to that applied in most
other common law jurisdictions to determine the weight to be attached to expert
evidence in cases involving medical negligence.
The test was formulated by the Supreme Court of Appeal (SCA) in Michael and Another v Linksfield Park
Clinic (Pty) Ltd and Another 2001 (3) SA 1188 (SCA) at para 34. The
court held:
‘In the course of the evidence counsel often asked the experts whether
they thought this or that conduct was reasonable or unreasonable, or even
negligent. The learned judge was not misled by this into abdicating his
decision-making duty. Nor, we are sure, did counsel intend that that should
happen. However, it is perhaps as well to re-emphasise that the question of
reasonableness and negligence is one for the court itself to determine on the
basis of the various, and often conflicting, expert opinions presented. As a
rule, that determination will not involve considerations of credibility but
rather the examination of the opinions and the analysis of their essential
reasoning, preparatory to the court’s reaching its own conclusion on the issues
raised.’
In this particular case the experts were not asked, nor purported, to
express a collective or representative view of what was or was not accepted as
reasonable in a South African specialist anesthetist practice in 1994. The
court expressed its frustration that the experts called did not have a ‘collective
or representative opinion’ to determine how a reasonable anesthetist would have
reacted in the same circumstances. It also expressed concern that the primary
function of the experts called was ‘to teach’.
It found that there was an ‘absence of evidence’ of what practice
prevailed in the particular field and ‘[t]hat being so, what is required in the
evaluation of such evidence is to determine whether and to what extent their
opinions advanced are founded on logical reasoning’. The court also referred to
the United Kingdom House of Lords decision in Bolitho v City and Hackney Health Authority [1998]
AC 232, in which the court stated: ‘[T]he court is not bound to hold that a
defendant doctor escapes liability for negligent treatment or diagnosis just
because he leads evidence from a number of medical experts who are genuinely of
opinion that the defendant’s treatment or diagnosis accorded with sound medical
practice.’ The court further held that it must be satisfied that such opinion
has a ‘logical basis’, in other words, that the expert has considered
comparative risks and benefits and has reached ‘a defensible conclusion’ (at
241G-242B).
It further went on to state that even in cases where the professional
opinion held that overlooking an obvious risk is not negligent, the defendant
can still be held liable (at 242H). The court further stated that courts have
to rely on expert opinion to make an assessment of medical risks and benefits
and, as such, the court would not be capable of making clinical judgments
without the assistance of medical experts. ‘It is only where a judge can be
satisfied that the body of expert opinion cannot be logically supported at all
that such opinion will not provide the benchmark by reference to which the
defendant’s conduct falls to be assessed’ (at 243A – E).
This essential difference between the scientific and the judicial
measure of proof was aptly highlighted by the House of Lords in the Scottish
case of Dingley v The Chief
Constable of Strathclyde Police 2000 SC (HL) 77, in which the
following warning was given:
‘One cannot entirely discount the risk that by immersing himself in
every detail and by looking deeply into the minds of the experts, a judge may
be seduced into a position where he applies to the expert evidence the
standards which the expert himself will apply to the question whether a
particular thesis has been proved or disproved – instead of assessing, as a
judge must do, where the balance of probabilities lies on a review of the whole
of the evidence.’
The Western Cape High Court judgment in Kosana v MEC for Health (WCC) (unreported case
no 9230/2005, 23-1-08) (Erasmus J) elaborated on this further. The court
referred to a passage from the Appellate Division judgment in Van Wyk v Lewis
1924 AD 438 at 444 and stated at para 36:
‘In estimating the level of skill and diligence possessed and exercised
at the time by members of the branch of the profession to which a specialist
belongs (the responsible body of medical men skilled in the particular art),
“the evidence of qualified surgeons or physicians is of the greatest
assistance”.’
The court then quoted from the following passage in Maynard v West Midlands Regional Health
Authority [1984] 1 WLR 634 at 639:
‘I have to say that a judge’s “preference” for one body of distinguished
professional opinion to another also professionally distinguished is not
sufficient to establish negligence in a practitioner whose actions have
received the seal of approval of those whose opinions, truthfully expressed,
honestly held, were not preferred. … For in the realm of diagnosis and
treatment negligence is not established by preferring one respectable body of
professional opinion to another. Failure to exercise the ordinary skill of a
doctor (in the appropriate speciality, if he be a specialist) is necessary.’
The court went on to quote from the judgment in the Bolitho case, where
it was held that:
‘The assessment of medical risks and benefits is a matter of clinical
judgment which a judge would not normally be able to make without expert
evidence. As the quotation from Lord Scarman makes clear, it would be wrong to
allow such assessment to deteriorate into seeking to persuade the judge to
prefer the one of two views, both of which is capable of being logically
supported. It is only where a judge can be satisfied that the body of expert
opinion cannot be logically supported at all that such opinion will not provide
the benchmark by reference to which the defendant’s conduct falls to be
assessed.’
In Honisz v Lothian
Health Board [2006] CSOH 24, at para 39, the Scottish court
explained, relying on the judgment in the Bolitho case, that:
‘[As] a general rule, where there are two opposing schools of thought
among the relevant group of responsible medical practitioners as to the
appropriateness of a particular practice, it is not the function of the court
to prefer one school over the other (Maynard
v West Midlands Regional Health Authority, Lord Scarman, p 639F-G).
Secondly, however, the court does not defer to the opinion of the relevant
professionals to the extent that, if a defender led evidence that other
responsible professionals among the relevant group of medical practitioners
would have done what the impugned medical practitioner did, the judge must in
all cases conclude that there has been no negligence. This is because, thirdly,
in exceptional cases the court may conclude that a practice which responsible
medical practitioners have perpetuated does not stand up to rational analysis (Bolitho v City and Hackney Health
Authority, Lord Browne-Wilkinson, pp 241G-242F, 243A-E). Where the
judge is satisfied that the body of professional opinion, on which a defender
relies, is not reasonable or responsible he may find the medical practitioner
guilty of negligence, despite that body of opinion sanctioning his conduct.’
Similarly, the Supreme Court of Singapore stated in JSI Shipping (S) Pte Ltd v
Teofoongwonglcloong (a firm) [2007] SGCA 40 at paras 51-53 that:
‘The Bolitho addendum merely affirms the supervisory judicial
responsibility to ensure, at a minimum, that the expert opinion is defensible
and grounded in logic and plain common sense. This non-delegable adjudicatory
mandate to assess the appropriate standard of care cannot be seriously denied.
In this context, we also find the observations of Moffitt J in Pacific Acceptance Corporation Ltd v
Forsyth (1970) 92 WN (NSW) 29 (Pacific Acceptance) at 75, cited by
Ang J in Gaelic Inns ([34] supra ) at [11], particularly pertinent:
“When the conduct of an auditor is in question in legal proceedings it
is not the province of the auditing profession itself to determine what is the
legal duty of auditors or to determine what reasonable skill and care requires
to be done in a particular case, although what others do or what is usually
done is relevant to the question of whether there had been a breach of duty.
It follows, if the auditing profession or most of them fail to adopt
some step, which despite their practice was reasonably required of them, such
failure does not cease to be a breach of duty because all or most of them did
the same.”
When assessing whether a professional has been negligent, courts will
normally use as their benchmark the common practice within the relevant
profession. However, notwithstanding that an expert witness may have
considerable professional experience and knowledge about the reasonableness of
prevailing standards, the court retains the supervisory responsibility to
condemn an unjustifiably lax, albeit common, practice as negligent: See Edward Wong Finance Co Ltd v Johnson
Stokes & Master [1984] AC 296.
In the light of the foregoing, even if the respondent’s expert’s
evidence of the respondent’s expert about prevailing standards is accepted, a
pertinent consideration is whether these standards fail the Bolitho addendum.’
In short, a faithful application of the Bolitho test, which has been
endorsed by the SCA, as well as courts in other jurisdictions, would mean that
a court must usually accept the views of a respected body of experts in cases
involving medical negligence. The House of Lords, in the Bolitho decision,
explained that there are only rare cases, that would be ‘very seldom’, where a
judge should reach a conclusion that the views genuinely held by a competent
expert are unreasonable and should be rejected.
Conclusion
The question for legal practitioners remains: How do you ensure that the
opinion of your expert is favourably considered? If one looks at the cases
above, it seems that legal practitioners may find themselves in an untenable
situation if their expert’s opinion is not seen to carry much weight and the
defendant, or the plaintiff for that matter, can be unsuccessful as a result.
It is thus imperative that medical experts are evaluated not just for
their theoretical knowledge in a particular area of speciality but also for any
hands-on experience they may have in practice.
It will be dangerous to use one expert for all matters. If a particular situation
requires knowledge of practice rather than theory, then using an academic may
prove fatal to the case.
Personal injury attorneys specialising in MVA matters have over the
years become well acquainted with experts in their field of speciality and would
be able to choose an expert in the particular area according to their needs.
Medical negligence is a whole new ball game as it deals with numerous
specialities and attorneys may find themselves confronted with the great
unknown when it comes to experts in a particular field.
If an attorney is serious about practising in this very challenging
field then he must make sure that his database of experts gets attention early
on. Attorneys should ensure that the nature of their relationships with their
experts is such that they will be willing and able to assist them should the
need arise.
Above all, attorneys should evaluate their claims early on to ensure
that only the most meritorious matters proceed to trial.
Maud
Letzler LLB (Unisa) is
an advocate in Johannesburg.
This
article was first published in De
Rebus in 2012 (March) DR 34.
