‘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.
