Expert Evidence In Medical Negligence
by Teh Ee Fey & Raqib B. Osman ~ 23 March 2024
Teh Ee Fey (Pupil) & Raqib B. Osman (Pupil)
Judges are trained in the law. However, they often have to determine complex issues outside their area of expertise.
Medical expert evidence is presented in a variety of cases; including criminal cases, personal injury cases, as well as medical negligence cases. This article will discuss how the Courts treat medical expert evidence in medical negligence cases.
General principles on using expert opinion evidence
Under s.45 Evidence Act 1950, when the Court has to form an opinion upon a point of science, then the opinions of persons skilled in the science is relevant to be considered.
In all medical negligence cases, a central issue is whether the doctor’s actions were acceptable by the standard of a reasonable body of medical opinion[1]. In other words, the medical fraternity itself will determine if such an action is acceptable.
Expert evidence assists the Court in forming an opinion on the science. That being said, when the subject matter requires special skills and qualifications, the Court must be satisfied that the expert has adequate knowledge to express an opinion on the matter on inquiry.[2]
Therefore, when presenting expert evidence in support of your case, always remember to provide credentials such as the curriculum vitae of the relevant expert.
Formal requirements in medical negligence suits
When a party wishes to adduce expert evidence, it is usually given by way of an affidavit. Under Order 40A, rule 3 Rules of Court 2012, the expert’s opinion evidence is to be given in a written report and exhibited in an affidavit sworn by him testifying that the report exhibited is his and that he accepts full responsibility for the report.
Order 40A, Rule 3(2) sets down the following requirements to be detailed in the expert report:
(2) An expert's report shall-
- give details of the expert's qualifications;
- give details of any literature or other material which the expert witness has relied on in making the report;
- contain a statement setting out the issues which he has been asked to consider and the basis upon which the evidence was given;
- if applicable, state the name and qualifications of the person who carried out any test or experiment which the expert has used for the report and whether or not such test or experiment has been carried out under the expert's supervision;
- where there is a range of opinion opinions on the matters dealt with in the report-
- summarise the range of opinion opinions; and
- give reasons for his the opinion;
- contain a summary of the conclusions reached;
- contain a statement of belief of the correctness of the expert's opinion; and
- contain a statement that the expert understands that in giving his report, his overriding duty is to the Court and that he complies with that duty.
The value of an expert’s opinion in determining medical negligence
In determining whether a doctor was negligent, one would need to evaluate whether the doctor has fallen below the standard required of him/her at the material time.
The development of the law is exemplified through landmark cases, with a starting point in the English case of Bolam. The case established that medical professional professionals are not in breach of their duty of care if their actions align with practices accepted as proper by a responsible body of other medical professionals with expertise in that particular area. Judges were constrained from questioning whether the opinion in use was valid or appropriate. In simple terms, the assessment of negligence in a medical practice should be undertaken by fellow medical practitioners, not by judges.
The principle of Bolam was extended further in Bolitho v City and Hackney Health Authority [1997] 4 All ER 771 (“Bolitho”) where the court held that a judge must ensure that medical experts “have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion.” Bolitho explicitly establishes the judge's authority to scrutinize medical opinions, comprehending the underlying reasoning of the expert opinions. Ultimately, the court bears the responsibility of determining the rationale behind maintaining this standard.
In the Australian case of Rogers v Whitaker [1993] 4 Med LR 79 (“Rogers v Whitaker”), the High Court made a specific distinction between treatment and diagnosis on the one hand and advice on risks on the other hand, emphasising that a doctor has a duty to disclose what the court called referred to as “duty to warn a patient of any material risks inherent in a proposed treatment”. The Court has defined risk as being material, if, “in the circumstances of a particular case and if warned of the risk, a reasonable person in the patient’s position, would be likely to attach significance to it or the risk is also deemed material if the medical practitioner is or should reasonably be aware that the particular patient would be likely to attach significance to it, had they been warned”.
The Federal Court's decision in Foo Fio Na v Dr Soo Fook Mun & Anor [2007] 1 MLJ 593 highlighted a departure from the Bolam test in a doctor's duty to advise, adopting the Rogers v Whitaker test.
In the case of Zulhasnimar bt Hasan Basri & Anor v Dr Kuppu Velumani P & Ors [2017] 5 MLJ 438, the Federal Court addressed the uncertainty surrounding the appropriate test for medical negligence claims. In essence, the Federal Court determined that the Bolam and Bolitho test is applicable applies to the standard of care for diagnosis and treatment. Meanwhile, the Rogers v Whitaker test is confined solely to the duty to advise on risks associated with any proposed treatment. This approach was later affirmed in Dr Hari Krishnan & Anor v Megat Noor Ishak bin Megat Ibrahim & Anor and another appeal [2018] 3 MLJ 281.
On the question of the courts' acceptance of expert evidence, it is recognised that expert evidence should be accepted as prima facie evidence unless the evidence is so inherently incredible that no reasonable person can believe it to be true. (See: Khoo Hi Chiang v PP [1994] 2 CLJ 151)
Rejecting an expert’s opinion
In Bolitho, the expert witness opinion was rejected on the ground that there was no logical basis for his opinion.
A medical expert must weigh risks and benefit benefits in order to reach a “defensible conclusion”. Failing which, the opinion can be rejected.
It is common that in cases involving expert opinion such as this, there may be two conflicting expert opinions. The Court is entitled to choose between the expert opinion and can reject an opinion which is “logically indefensible”.
A judge who is not an expert in the medical field will usually defer to the expert’s opinion unless that evidence is obviously indefensible and is not supported by the basic facts of the case. Where there are conflicting expert opinions, the judge is entitled to choose one over the other.
However, where there is only one expert opinion, the judge would not normally reject that opinion outright unless it is obviously indefensible and unsupported by the basic facts of the case.[3]
Does a Defendant need independent expert evidence too?
As It Is evident from the above discussion, expert evidence plays a crucial role in adjudicating medical negligence cases, particularly when addressing matters or issues necessitating the expertise of experts in terms of observation, examination, description and resolution.
This necessity extends to defendant doctors who are obligated to demonstrate that their actions are aligned with a 'responsible' body of medical opinion. Consequently, they too must enlist experts to provide evidence on their behalf. This raises the question: Can the defendant doctor testify himself that his actions were correct?
According to the guidelines by the Malaysian Medical Council (“MMC”), prior to admitting an expert witness and/or an expert’s report to an adjudicating body, the adjudicating body shall have to be satisfied that:
- he has the appropriate expertise and experience;
- he is familiar with the duties of an expert;
- there is no actual or potential conflict of interest
The guideline further emphasizes that, to prevent any conflict of interest, a Registered Medical Practitioner (RMP) involved in the management of the same patient, as the RMP in the legal proceedings or disciplinary inquiry, shall not appear as an expert witness in such legal proceedings or disciplinary inquiry. In other words, a patientʼs treating doctor cannot give expert evidence in that patients case.
An example of conflict of interest can be seen in the case of Dato’ Stanley Isaacs (suing by himself and as the administrator of the estate of To’ Puan Suzanne Thomas, deceased) v The Government of Malaysia & Ors [2019] 8 MLJ 331, where the High Court found that there was merit in the plaintiff’s contention that the defendants attempted to misuse the Bolam test by getting its two in-house experts to conclude that there was no negligence and held that:
“A responsible expert who understood his duties and obligations under the law would gather all the facts, consider the versions of both sides, address all issues which arose for determination, and provide an objective and truly independent report uninfluenced by the surrounding pressures of the disputing litigants”
The duty of the expert witness is to assist the adjudicating body on matters within their expertise while maintaining neutrality at all times. Therefore, an expert witness is bound to act independently and uphold qualities of honesty, trustworthiness, objectivity, and impartiality.
It is noted that the MMC guidelines do not apply to fac fact witnesses. Unlike expert witnesses, fact witnesses provide testimony based on factual information within their direct observation, and they do not offer medical opinions, distinguishing their role from the analytical and interpretative contributions provided by expert witnesses.
All in all, expert evidence stands as a cornerstone in adjudicating medical negligence cases, offering indispensable guidance and ensuring a thorough understanding of complex healthcare matters within legal contexts.