Doctors, or medical practitioners, are held in high regard, not only because their profession requires intellectual excellence, but also because they accept great responsibility. This means that their mistakes, should they occur, result in human discomfort, pain, or even death. However, not all mistakes equal negligence.
How would I know if a doctor was negligent?
The law does not expect doctors to practice with the highest degree of professional skill, but it does expect them to conduct their practices according to the standard of the reasonable doctor in that specific branch of medicine. In other words, we must ask whether the doctor acted with reasonable care and applied reasonable skill. When it is found that a doctor’s conduct falls short of this standard, they will have been negligent.
When negligence is suspected to have occurred, the next step would be to investigate the possible medical negligence and, if needed, approach the court through litigation to hold the doctor liable for falling short of the expected standard. However, this cannot be done without the guidance of experts.
What is expert evidence?
Attorneys representing either the Plaintiff or Defendant in a medical negligence matter provide medical practitioners with a brief containing the facts of the matter, including especially the hospital records and clinical records. If the medical practitioner is suitably qualified and willing to provide an opinion on matters falling within his or her field of expertise, he or she becomes an expert witness.
It is then required of these experts to provide the instructing attorney, and ultimately the court, with an objective and unbiased opinion of the facts before them, based on their expertise (whether gynaecology, ophthalmology, anaesthesiology, etc.).
Armed with these expert opinions, the Plaintiff can approach the court and state his or her case, based on the findings of the experts.
Why is there a need for expert witnesses?
Expert witnesses come to court to give the court the benefit of their expertise. This is necessary because the presiding officer or judge is normally not a doctor, and it can therefore not be expected of them to judge the medical facts without the guidance of medical experts.
For a court to be able to determine negligence it needs to establish whether the medical practitioner in question breached his or her duty to act with reasonable skill and care. And in determining reasonableness, courts need to be enlightened by an expert on the general level of skill and diligence possessed and exercised at the time by the members in the branch of expertise of the practitioner who committed the negligence.
What are the duties of an expert witness?
Expert witnesses are obliged to present expert evidence which is independent and uninfluenced by litigation; assist the court by way of objective and unbiased opinion relating to matters within its expertise; state the facts upon which his opinion is based; make it clear when a particular question falls outside of his expertise; state if sufficient research was not done, rendering his opinion provisional; and comment on the reasonable medical standards which had to be adhered to in the circumstances.
Does the Court accept all expert evidence before it?
Courts cannot merely accept the evidence of one expert over another based on the expert’s confidence in his or her opinion, or whether the court prefers the evidence of one of the experts.
The courts in South Africa and England have adopted an approach to test whether expert evidence can be accepted or not. This test requires the court to determine if the expert opinion is in accordance with the practice of a responsible, reasonable and respectable body of professional opinion, and if that is true, the court must determine if this opinion is based on logical reasoning.
Taking the above into account, the court still has the discretion to decide whether or not to accept an expert’s opinion, viewed in light of all the evidence presented in the matter. It is also required of the court to take into account the credibility of the witness before an expert opinion is accepted.
By Christopher Branders, attorney at Gert Nel Inc. Attorneys.
 Mitchell v Dixon 1924 AD 519.
 As above.
 Saner J Medical Malpractice in South Africa (2018) 2.1.
 Saner J Medical Malpractice in South Africa (2018) 14.3.
 Schneider NO v Aspeling 2010 (5) SA 203 (WCC) 211-214.
 Saner J Medical Malpractice in South Africa (2018) 14.4.
 Claassen and Verschoor (1992) 26.
 Van Wyk v Lewis 1924 EDL 37, as interpreted by Ndou MM “Assessment of Contested Expert Medical Evidence in Medical Negligence Cases: A Comparative Analysis of the Court’s Approach to Bolam/Bolitho test in England, South Africa and Singapore” 2019 Speculum Juris 56.
 Van Wyk v Lewis 444.
 National Justice Compania Navierasa v Prudential Assurance Co Limited 1993 (2) Lloyd’s Reports 68 at 81, as quoted by Ndou MM at 57.
 Loveday v Renton 1990 Med LR 125 as quoted by Ndou MM at 58.
 Bolam v Friern Hospital Management Committee 1957 1 WLR 582; Bolitho v City and Hackney Health Authority 1998 AC 232 (HL) (E); Michael v Linksfield Park Clinic (Pty) Ltd 2001 3 SA 1188 (SCA).
 Ndou MM at 68.