[law Of Evidence] Expert Opinion 6i4q57

EXAMINE THE APPROACH TAKEN BY THE COURTS WITH REGARD TO MEDICAL EXPERT OPINION IN MEDICAL NEGLIGENCE CASES By: Zaza Iszarul & Co.

INTRODUCTION Section 45 of the Evidence Act 1950 (“EA”) provides for the relevancy of expert opinion on a point of law, science or art, or as to identity or genuineness of handwriting and finger impressions. As this specific point requires specific skill, the court can only take into consideration the opinion by that of an expert in that specific field and not just by an ordinary man on the street. Our scope of discussion is narrowed to medical expert opinion in medical negligence. Under this scope, clearly when there is a want of opinion, it is a want of opinion upon a point of science, well encapsulated within Section 45 of the EA. In case of medical negligence, the tort system generally provides for compensation only when a doctor or any other medical personnel is negligent. In the article, “Does doctor always knows best? The recent trend in medical negligence”1, it was observed that; “Previously, in determining whether a doctor was negligent in diagnosis, treatment and advice, the court had shown a deferential attitude towards medical judgment. This is in contrast to the attitude of the court towards other professions such as engineers and architectures where the court does not hesitate in questioning the appropriateness and reasoning of the standard practice adopted by those professionals. However, this deferential attitude which is encapsulated in the phrase “a doctor knows best” is slowly dissipating” (emphasis added)

1

FS Shuaib and IL Shuaib, “Does doctor always knows best? The recent trend in medical negligence”, available at http://www.biij.org/2009/1/e12, accessed on 24 July 2010.

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Therefore, for the starting line of this discussion, we will first see the approach taken by the court to the effect that “a doctor knows best” and as we go along we will look into selected landmark cases enumerating the change in the court’s approach. Basically, in examining the approach taken by the courts with regard to medical expert opinion, we will look through several landmark cases and make out the approach taken in the different cases by asking these common questions when dealing with each and every case ;– •

Whether the court will generally accept and adopt an expert opinion without

much reservation, or; •

Whether the court will still retain their power to judge based on the standard

they ought to be reasonable, with expert opinion merely serve as assistance to the decision, or; •

Whether any balance was strike between the two.

BOLAM V FRIERN HOSPITAL (1957)2: A DOCTOR KNOWS BEST 3 The Bolam test has long been applied when a standard of care required by doctors had been of concern. In the period where the Bolam test was prevalently used, the judge will hardly interfere or impose any standard on medical profession. The negligence in the medical profession is not for the judges to determine, but by fellow medical practitioners. Accordingly, medical profession just as any other profession will have different body of opinion to what standard of care or treatment is appropriate for certain circumstances. As long as the doctor had followed one of the responsible body of opinion, a doctor cannot be held negligent. In the Bolam case, in the course of an electro-convulsive therapy, the patient was not istered with any relaxant drugs or any manual restraints except a the chin 2 3

We will be adopting the manner subheading are used in the article, “Does doctor always knows best? The recent trend in medical negligence”, for flow and easier understanding.

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and shoulder. Because of this, he suffered serious fractures. The 1:10,000 risk of fractures was also not informed to him. Throughout the proceeding, it occurs that there are two recognised school of thought on method of treatment, one favoured the use of relaxant drugs or manual control as a general practice, and the other, thinking that the use of these drugs was attended by mortality risks, confined the use of relaxant drugs only on particular cases. Similarly, there were two bodies of competent opinion on the question whether, if relaxant drugs were not used, manual control should be used. There were also different views among competent medical practitioners on the question whether a patient should be expressly warned about risk of fracture before being treated, or should be left to inquire what the risk was. The principle enunciated in the case is that, so long that the practice was ed by a body of competent medical opinion, it is not the business of the court to question its appropriateness. It will not be negligent for a practitioner to follow one in preference of the other. To answer the set of common questions we laid in the introduction part when dealing with each and every case, the approach taken by the court here in Bolam is more towards the court generally accepting and adopting an expert opinion without much reservation. It is the medical profession which will decide on the standard of treatment. ROGERS

V

WHITAKER

(1992)4:

A

JUDGE’S

RESPONSIBILITY

TO

DETERMINE A STANDARD We will then proceed to a case where the trend that ‘Doctor knows best’ is changing. In Rogers v Whitaker, it is no longer the concern on what a body of medical opinion ought to hold on to, but the focus was put on the patient to decide for himself, and that the court still has the responsibility to determine whether a standard conforms to the standard demanded by law. In this case, a woman with her right eye becoming almost blind, had consulted an ophthalmic surgeon. She was advised to undergo the operation which would probably restore her sight. Her sight was not improved and most unfortunate, she developed 4

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sympathetic ophthalmia in her left eye, causing her to lose all sight in the left eye. This recognised risk was not informed to her by her surgeon despite her inquiries to the side effect on her good eye. The issue is on the failure of the surgeon to inform her on the risk. There are different body of medical opinion on this matter, one ing and one against informing the risk on patient. Had the court apply Bolam, the doctor will not be found negligent for following one body of opinion over the other. However, in this case, the Court found the surgeon to be negligent in failing to inform the risk. The court stressed the importance of autonomous decision making of patients to decide on being informed of the risk. Departing from the Bolam test, the court has the ultimate responsibility to determine whether a practice conforms to the standard of reasonable care demanded by law. This responsibility should not simply be delegated to the profession. Merely following a body of opinion will not save a practitioner from being held negligent. This brings to the answer of the questions laid in the introduction, that in this case the approach is that the court will still retain their power to judge based on the standard they ought to be reasonable, with expert opinion merely serve as assistance to the decision. BOLITHO V CITY AND HACKNEY HEALTH AUTHORITY (1997)5: JUDGES ALSO CAN THINK The principle in Rogers and Whitaker above that the court still has the responsibility to determine the standard of practice, instead of simply delegating to the profession to create their own standard is repeated in the Bolitho case. In this case, a two year old boy, Patrick, having a past history of hospital treatment for croup (loud cough and breathing difficulty), was reitted to the hospital. In the hospital, he suffered few episodes of breathing difficulty. In spite of calls by the nurses, no doctors came to attend the boy. On one point of time, P suffered total respiratory failure and a cardiac arrest, resulting in severe brain damage. P subsequently died. The defendant health authority accepted that the doctors had acted in breach of her duty of

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care to the boy but contended that the cardiac arrest would not have been avoided if the boy had been attended earlier and intubated. An intubation so as to provide an airway would have ensured that respiratory failure did not lead to cardiac arrest and that such intubation would have had to have been carried out before the final episode. One of the questions that the court had to answer was: “Had the doctors come, should the doctors have intubated the patient which could have saved him?” There were conflicting expert opinions to this. It was argued that if the doctor had attended and not intubated, would have come up to a proper level of skill and competence according to the standard represented by Dr Dinwiddie's views (expert witness for defendant) and that it had not been proved that the itted breach of duty by the defendants had caused the injury which occurred to P. The trial judge stated that even if the view not to intubate was unreasonable and illogical, she could not substitute her own views for those of the medical experts ( in line with the Bolam’s test where a doctor is not negligent as long as there is a body of opinion which s his practice). However, the House of Lords, disagreed with the reservations to substitute trial judge’s opinion for those of the medical experts. It was held that a doctor could be liable for negligence in respect of diagnosis and treatment despite a body of professional opinion sanctioning his conduct where it had not been demonstrated to the judge's satisfaction that the body of opinion relied on was reasonable or responsible. Again, the standard here is not for the profession to determine, but what the judge is convinced that the standard conform to the standard demanded by law. An opinion of expert cannot be simply be substituted as a judge’s opinion. A judge ought to see the reasoning behind the standard argued by the expert. DR KHOO JAMES & ANOR V GUNAPATHY D/O MUNIANDY AND ANOTHER APPEAL (2002)6 : THE BOLAM TEST APPLIED In 1995, Gunapathy was diagnosed with a tumour in the left ventricle of her brain. She consulted DrKhoo, a neurosurgeon who then performed a craniotomy to resect the tumour in November 1995. Subsequent tests revealed that it was a neurocytoma with a 6

[2002] 2 SLR 414

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benign histology. From December 1995 to January 1996, Gunapathy received postoperative radiotherapy treatment by Dr Khor Tong Hong, a radiation oncologist, to eradicate any remnants of the tumour and to prevent its relapse. An MRI scan done in February 1996 by Dr Esther Tan, a radiologist, revealed a small nodule hanging from the roof of the left ventricle of her brain. Accordingly, Dr Khoo advised a ‘wait and see’ approach as it was uncertain if the nodule represented scar tissue or a tumour. The said nodule was still present in the next scan done on 27 December 1996 by Dr Esther Tan – measuring approximately 11 by 12 by 6 mm in size. Dr Tan took the view that it had not enlarged significantly and was more likely a scar than a tumour. Dr Khoo disagreed and thought it was likely to be a tumour. Gunapathy was then advised to undergo XKnife radiosurgery treatment. She sought a second opinion from Dr Ho Kee Pang, neurosurgeon, who likewise concluded that the nodule was a tumour. Dr Khoo, Dr Khor and Dr Ho claimed they had discussed the risks of radiosurgery with Gunapathy before she decided to undergo radiosurgery treatment on 31 January 1997. This radiosurgery led to the very serious side-effect of radionecrosis. Gunapathy then underwent a second craniotomy done by a neurosurgeon Dr Prem Pillay in March 1998 to remove the dead tissue and halt the radionecrosis. The operation was successful but she suffered permanent serious disabilities. Gunapathy sued her doctors and the clinic, Neurological Surgery Pte Ltd, alleging negligence in the process of diagnosis, treatment and advice. The High Court judge ruled that the defendant doctors were negligent. The trial judge disagreed with the unanimous view of the defendants’ experts that the nodule had grown and concluded that it was proper to find that the nodule was only scar tissue and not a tumour. He accordingly found the doctors liable in their diagnosis and reasoned that no responsible medical expert could have recommend radiosurgery for a non-existent tumour. The judge also found that the doctors had negligently used a too large collimator and had applied an excessive dosage of 20GY to the tumour. The trial judge also found that the doctors had given negligent advice to Gunapathy by failing to explain the inherent risks of radiosurgery or that its use on neurocytoma was experimental.

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The doctors and clinic appealed against the entirety of the judge’s decision on liability and the appellants contended that the trial judge had wrongly applied the Bolam test by relying on his own finding that the nodule was a scar in establishing liability. They sought to challenge the creditworthiness and skill of the medical experts testifying on the opposing side. The Court of Appeal overturned the High Court decision and the COA made some important observations on the meaning and application of Bolam. The issue in the Court of Appeal was whether the court was in a position to hold that injuries to Gunapathy were attributable to her doctors’ negligence or not. In determining whether a doctor has breached the duty of care owed to his patient, a judge will not find him negligent provided there is a respectable body of medical opinion, logically held, that s his actions. The Court of Appeal held that the testimony of the experts from both parties was on the whole competent and professional. The bottom of the case was whether the doctor’s diagnosis that the nodule was a tumour was founded on the basis of cogent logic. Taken in totality, the defence experts had satisfied the threshold test of logic under the Bolam test. The Court of Appeal also considered that the defence experts’ opinion that radiosurgery was a valid treatment option for neurocytoma was logically ed. Moreover, the doctors had already adopted a ‘wait and see’ approach for about a year. The treatment plan satisfied the Bolam threshold of logic. The Court of Appeal then held that the Bolam test is applicable to the giving of advice, and also emphasised that the medical standard of care relating to advice was to be determined by the medical profession, not the court as in the interest of the patient. However, it must be noted that the approval of the Bolam test, does not necessarily mean that there will be fewer medical negligence claims. On a proper application of the Bolam test, an expert view from a responsible body of medical opinion, must satisfy the threshold test of logic.

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THE POSITION IN MALAYSIA7: THE ADHERENCE AND THE DEPARTURE TO AND FROM THE BOLAM TEST. In Malaysia, the standard of care expected of doctors in their professional practice had traditionally been determined by the Bolam test. In establishing negligence in diagnosis or treatment on the part of a medical doctor, the Bolam test had been applied in the case of Chin Keow v Government of Malaysia and Another8 and Dr. Chin Yoon Hiap v NG Nen Khoon9. However, the departures from the Bolam test can be seen in the case of Kamalam a/p Raman and Others v Eastern Plantation Agency (Johore) Stn Bhg ULU Tiram Estate Ulu Tiram, Johore and Another10 and Hong Chuan Lay v Dr. Eddie Soo Fook Mun11 Bolam was not followed. In the last mentioned case, it was stated “thus in considering whether a doctor has breached his duty in respect of the provision on information and advice, the Court rather than a body of medical opinion shall be the judge of this issue”. We will look into the case of Foo Fio Na, a landmark decision in Malaysia, where the Bolam test was applied in the Court of Appeal level, while the decision in Federal Court had departed from the test and leaned towards the principle in Bolitho and Rogers v Whitaker. FOO FIO NA V DR. SOO FOOK MUN (2007): THE STANDARD IS NOT FOR THE PROFESSION TO DETERMINE. In this case, the appellant was a front seat enger in a car that crashed into a tree on the night of the 11th of July 1982. The accident happened near Assunta Hospital where the appellant was brought to and warded for several injuries. The most serious injury suffered by the appellant was a closed dislocation of C4 and C5 vertebrae with bilaterally locked facets. It caused the appellant to suffer pain to her neck each time she moved her head. The doctor on duty, Dr. Celine Pereira gave her initial treatment by placing a cervical 7

8 9 10 11

Denis A Cusack, “The Standard Of Care In Medical Practice And Disclosure Of Treatment Risk To Patients - An International Perspective”, available at http://mdm.org.my/s/cusack1 .pdf, accessed on 25 July 2010. (1967) 2 MLJ 45 (1998) 1 MLJ 57 (1996) 4 MLJ 674 (1998) 7 MLJ

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collar around it. After several initial treatments failed to reduce the dislocation of the cervical vertebrae, Dr. Soo Fook Mun, the first respondent performed the first operation to place the dislocated vertebrae into their original positions by inserting a loop of wire to stabilize the spinal cord after moving the dislocated vertebrae into the normal positions. Nevertheless, the operation failed and the appellant became paralysed. The first respondent called Dr. Mohandas, a neurosurgeon who confirmed that the loop of wire had put pressure on the spinal cord and is the cause of the paralysis. A second operation was performed by the first respondent to remove the wire loop but the appellant continued to be paralyzed until today. The appellant sued the respondents for medical negligence. The issue is whether the Bolam Test should apply in relation to all aspects of medical negligence? It was held in the Court of Appeal level that the Bolam test applied. However in the Federal Court level, it was held that The Bolam Test is not to be applied in cases of medical negligence but the Rogers v Whitaker test is the more appropriate test. The court also put an emphasis on the Bolitho case. [Para]As stated earlier, under the Bolam Test, a doctor is not guilty of negligence if he is acting according to the practice accepted by a responsible body of medical men skilled in that medical act. So, firstly, the doctor must exercise reasonable care in undertaking the task associated with his professional qualifications and secondly, the doctor will not be liable if he has complied with a responsible professional practice although there might be different opinions on how such practice is to be done While under the Rogers v Whitaker test, the standard of care is not solely determined by the practice of an ordinary skilled person exercising and professing to have that special skills. In other words, the opinion of a responsible body of opinion in the medical profession is not conclusive in determining the practice of a particular doctor. As such, this test provides that the court has to adjudicate on what is the appropriate standard of care after giving weight to the paramount consideration that a person is entitled to make his own decisions about his life. By applying the principle in Rogers v Whitakers and Bolitho, the court is not automatically bound by evidence as to the practice of the medical profession but the court can question the practitioner in order to scrutinize and ensure that the standard set by law is followed.

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LECHEMANAVASAGAR A/L S KARUPPIAH V DR THOMAS YAU PAK CHENK & ANOR (2008)12. In this case, the plaintiff accidentally swallowed a fish bone. He went to see the first defendant after being advised by a general practitioner. An operation to remove the fish bone was performed by the first defendant. The plaintiff then was itted and was supposedly put on Nil Orally after the operation. The plaintiff however was given tablets orally and a drink of Milo by the nursing staff of the hospital. Later it was discovered that the plaintiff had esophageal perforation on the upper part of his esophagus. His lung became infected due to the perforation. He suffered a serious complication that led to his right lung pleural thorax cavity almost collapsing. He was given conservative treatment for 8 days for the esophageal perforation. This treatment failed and an emergency chest operation was performed on the plaintiff to control the infection and to prevent total lung collapse. The plaintiff claimed general and special damages against the first defendant for causing the esophageal perforation followed by the infection of his lung. The plaintiff also claimed that the second defendant is vicariously liable. Through expert witnesses, there appears to be no alternative open to the plaintiff except to remove the fish bone by way of surgery. The expert witnesses also testified that the fish bone cannot be removed by medication as alleged by the plaintiff in the statement of claim. The plaintiff has failed to produce any evidence to such contention or to suggest that the operation conducted by the first defendant was unnecessary and alternative treatment was available. The standard of practice taken here is generally a well-worn standard by the medical practice. It was held that Dr Thomas Yau has not departed from the normal standard practice in adopting conservative treatment in this case. Following, the Bolitho test Dr Thomas Yau has treaded on the well-worn path and there is no evidence to suggest that he deviated from the accepted practice in giving the plaintiff a conservative treatment for his esophageal perforation. The test in Bolitho can be simply stated as this: a compliance 12

[2008] 1 MLJ 115

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with reasonable, respectable and responsible practice will more often than not absolve a doctor of liability. So long as the court is satisfied that the well-worn path is reasonable and conforms to the standard demanded by law. CONCLUSION The phrase ‘Doctors Knows Best’ is now a thing of the past. The standard is no longer for the medical profession to set. On setting the standard of reasonable care, the recent cases have made it clear that the court could substitute its judgment for those of medical experts if such expert opinions fail under the court’s logical analysis. Thus, simply producing an expert opinion that agrees with the practice in question may not be enough. However, the court should not be hasty in challenging opinions of distinguished experts. The court may have to assert that it has the ultimate responsibility in determining a reasonable standard only in rare cases where such expert opinions is unreasonable and fail under the court’s logical analysis. Expert opinion is still an important when the court has to decide on a point of science. But it is not conclusive opinion and be forced on the judges, but the judges will have the responsibility to look into the reasoning behind such standard and opinion before deciding to use that certain opinion to assist him in adopting the standard required. The responsibility to determine a standard is on the judge, but with the basis of assistance by reasonable body of medical opinion. The responsibility is not delegated to the profession, but the profession’s reasonable expert opinion will be the one setting the standard of medical care subject to the approval of the court, conforming the standard required by law.

REFERENCES 11

Denis A Cusack, “The Standard Of Care In Medical Practice And Disclosure Of Treatment

Risk

To

Patients

-

An

International

Perspective”,

available

at

http://mdm.org.my/s/cusack1 .pdf, accessed on 25 July 2010. FS Shuaib and IL Shuaib, “Does doctor always knows best? The recent trend in medical negligence”, available at http://www.biij.org/2009/1/e12, accessed on 24 July 2010.

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