Uniform Court Rule 36(9) provides for parties to litigation to call any person as a witness to give evidence as an expert upon any matter.
In medical cases, a person qualifies as an expert witness if they possess specialized knowledge, skill, experience, or training in the medical field relevant to the case, enabling such a person to assist the court by providing the court with an opinion(s) that can assist the court in understanding complex medical issues. It is important that the expertise of the expert witness is directly relevant to the specific medical matters in issue. Therefore, an expert cannot give an opinion on a medical issue which falls outside of their scope of practice and or expertise.
The decision of National Justice Compania Naviera SA v Prudential Assurance Co Ltd: 2 Lloyd's Rep 68 Commercial Court; 1 Lloyd's Rep 455, CA “The Ikarian Reefer case”, is generally considered one of the leading judgments on the evaluation of expert testimony. Here, Creswell J emphasised that any expert testimony must be objective and unbiased.
The expert witness should not be influenced by the party that hired them, and they should not act as hired guns who provide opinions in favour of and for the purposes of advancing the case of the party who has requested their opinion. Expert witnesses should provide impartial assistance to the Court, not act as an advocate for one side.
The question then arises as to whether, in medico-legal litigation, a doctor who has treated the patient (claimant) could ever be sufficiently objective to act as an expert witness, whether on behalf of the claimant or the defendant doctor.
Rule 36(9) is silent on the persons who may act as expert witness, except for requiring that an opinion from an expert in the field is given. There is no prohibition on a doctor who has treated a party to the litigation, to act as an expert. However, in an unreported South African decision where a treating doctor was required to give expert evidence as a witness, the court was critical of the practice.
In this case, Daniels v Minister of Defence 2016 (6) SA 561 (WCC) the plaintiff, a corporal in the South African Airforce, claimed damages from the defendant, the Minister of Defence. The damages allegedly arose from treatment provided to the plaintiff at a military hospital. The state attorney, appointed to represent the defendant, called one of the treating doctors to give evidence as an expert witness at the trial.
The expert was responsible for the plaintiff’s care during admission at the military hospital, including making decisions regarding the plaintiff's diagnosis and treatment plan, as well as supervising other doctors who treated the plaintiff in the surgical ward. Overall, the expert had played a central and active role in the plaintiff's treatment and management. As the only expert witness called by the defendant at trial, the treating doctor testified about the plaintiff's symptoms, the diagnostic process, and the rationale behind the medical decisions made.
The trial court expressed its disquiet at the practice of calling the treating doctor to give evidence as both a treating doctor and expert witness. The trial court was satisfied that the treating doctor was sufficiently qualified and experienced to give expert evidence but said the following:
- His independence was compromised since he was the attending and supervising doctor involved in the plaintiff’s treatment and management, and this may have compromised the objectivity of his testimony as an expert witness; and
- There was an obvious conflict of interest as such a witness may feel compelled to justify his own conduct rather than provide an unbiased opinion. (Para 133, 176)
The court found that the defendant was liable for its employees’ negligent treatment of the plaintiff at the military hospital.
In this instance, the doctor was acting as an expert witness in support of the defendant, the employer of the various doctors who treated the patient.
It is unlikely that a treating doctor will be found to be able to expertly assess their own treatment and management of a patient with the degree of objective and unbiased detachment required from an expert witness. In any event, a court would be reluctant to attach any significant weight to such expert testimony.
In the United Kingdom, the leading case on medico-legal experts is that of General Medical Council v Professor Sir Roy Meadow [2006] EWCA Civ 1390. The doctor’s expert evidence in a murder prosecution was criticised and the GMC applied for his registration to be erased. On appeal, the court dealt with the role and responsibilities of expert witnesses and held that an expert must give evidence honestly and in good faith and must not mislead the court. The court also held that expert witnesses are under a duty to comply with any relevant professional codes of ethics. Although, in this instance, a treating doctor was not concerned, various professional bodies then drafted guidelines for medico-legal expert witnesses.
The British Medical Association provides a useful outline of what a medical practitioner would need to consider when working as an expert witness, such as;
- Possessing the relevant practical experience in the practice area;
- Impartiality;
- Clarity on the nature and extent of expertise required;
- Ability to provide concise and comprehensive reports;
- Having sufficient time to deal with the case properly; and
- Availability; to attend the court to give evidence.
The Health Professions Council of South Africa (HPCSA) does not have specific guidelines dedicated solely to expert evidence, as it does for other areas such as ethical conduct. However, ethical conduct and professional standards, as defined by the HPCSA, play a crucial role in how healthcare practitioners, including those acting as experts, should behave when providing evidence.
The HPCSA's core ethical values and standards for good practice are in keeping with the principles of the South African Constitution and the obligations imposed on health care practitioners by law. These core ethical values and standards include, inter alia, integrity, truthfulness, competence and justice which speak to the spirit and purport of the principle that expert witnesses need so as to provide the court with opinions that are independent, objective and impartial.
The discussion above serves to demonstrate the importance of expert witnesses providing independent, unbiased, well-reasoned opinions and the court's role in critically evaluating such expert evidence.
It is hard to conceive of circumstances where a treating doctor, however eminent or qualified or experienced she or he may be, will be able to fulfill the criteria of independence, objectivity and impartiality to act as an expert witness.
Our courts have said that it is undesirable for a treating doctor to be called as an expert witness in a case where such practitioner was involved in the treatment and management of the patient. This will be the case irrespective of the treating doctor being called as an expert witness by the plaintiff or a defendant. Treating doctors are not precluded from giving evidence as factual witnesses but they should not act as an expert witnessess in matters concerning their own patients.
