Written By: Dr Kim Lamont-Mbawuli & Adv Dennis Chamisa

There is a reluctance of doctors to testify against each other, compromising the necessary checks and balances within the medical profession. As such, obtaining a comprehensive expert opinion is important to safeguard the rights of all parties involved in legal matters.

Medical negligence is a complex and sensitive area of law that involves cases where healthcare providers are alleged to have breached their duty of care, resulting in harm to patients. In such cases, legal practitioners often require the assistance of medical experts to establish whether negligence occurred. This is where the crucial role of medico-legal experts in providing a necessary service to society in the form of a medico legal opinion is indispensable

In this article, we will explore why legal practitioners need a medical legal opinion in potential medical negligence matters.

Interpretation of Medical Records

One of the primary reasons why legal practitioners require a medical legal opinion in medical negligence cases is the interpretation of medical records. Medical records are crucial evidence that can determine whether a healthcare provider deviated from the standard of care. However, these records are often filled with complex medical jargon and abbreviations that may be difficult for lawyers to understand fully.

A medical legal opinion from a qualified expert can bridge this gap. Medical experts can review and interpret medical records, ensuring that all relevant information is considered. They can identify discrepancies, omissions, or irregularities that may indicate negligence, providing invaluable assistance in building a strong legal case.

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Establishing Standard of Care

Medical negligence cases hinge on whether a healthcare provider breached the standard of care expected in a particular situation. Determining the standard of care requires specialized medical knowledge and experience. Legal practitioners often rely on medical experts to establish what a competent healthcare provider would have done under similar circumstances.

A medical legal opinion helps in defining and explaining the standard of care to the court and the jury. It allows legal practitioners to present a well-substantiated argument, demonstrating how the defendant’s actions or inactions deviated from accepted medical norms.

The Role of Expert Opinion in Courts

In medical negligence cases, expert witness testimony is often crucial. Legal practitioners need medical experts to testify about the standard of care, causation, and the extent of the patient’s injuries. These experts can provide objective, professional opinions that carry significant weight in court.

A medical legal opinion serves as the foundation for expert witness testimony. It allows the expert witness to provide a well-informed and credible account of the case, helping the judge and jury understand the medical complexities involved.

The test applied by South African courts to evaluate expert evidence in medical negligence cases.

South African courts employ a test akin to that utilized in numerous other common law jurisdictions to gauge the significance of expert testimony in medical negligence cases.

This test, as articulated by the Supreme Court of Appeal (SCA) in the case of Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another 2001 (3) SA 1188 (SCA) at paragraph 34, emphasizes the role of the court in evaluating expert opinions. The court held:

“In the course of the evidence, counsel often inquired of the experts whether certain conduct was reasonable, unreasonable, or negligent. The presiding judge was not swayed by this into relinquishing his decision-making responsibility. Nor, we believe, did counsel intend for that to happen. However, it is worth reiterating that the determination of reasonableness and negligence is the purview of the court itself, based on the array of sometimes conflicting expert opinions presented. Typically, this determination does not hinge on matters of credibility but rather necessitates scrutinizing the opinions and their underlying reasoning to facilitate the court’s formation of its own conclusions on the raised issues.”

In this specific case, experts were not solicited, nor did they endeavor, to express a collective or representative perspective regarding what constituted reasonable conduct for a South African specialist anesthetist in 1994. The court expressed its frustration at the experts called, asserting that they did not offer a ‘collective or representative opinion’ on how a reasonable anesthetist would have responded under identical circumstances. Furthermore, it raised concerns that the primary function of the experts summoned was more akin to ‘teaching.’

The court pointed out the ‘absence of evidence’ pertaining to customary practices within the specific field and underscored that the assessment of such evidence should revolve around the extent to which the opinions put forth are grounded in logical reasoning. The court also referenced the House of Lords ruling in Bolitho v City and Hackney Health Authority [1998] AC 232, stating that the court is not obligated to absolve a defendant doctor of liability for negligent treatment or diagnosis solely on the basis of the concurrence of multiple medical experts. Instead, the court must ensure that such opinions have a ‘logical basis,’ implying that the expert considered the relative risks and benefits and reached a ‘defensible conclusion’ (at 241G-242B).

The court went on to emphasize that even in instances where the professional opinion asserts that overlooking an apparent risk is not negligent, the defendant can still be held accountable (at 242H). Furthermore, the court contended that courts must rely on expert opinions to assess medical risks and benefits and that the court would be incapable of making clinical judgments without the guidance of medical experts. “It is only when a judge is convinced that the body of expert opinion lacks any logical support that such opinion will not serve as the benchmark against which the defendant’s conduct is to be assessed” (at 243A – E).

This fundamental distinction between the scientific and judicial standards of proof was eloquently underscored by the House of Lords in the Scottish case of Dingley v The Chief Constable of Strathclyde Police 2000 SC (HL) 77, which issued a caution:

“One cannot completely dismiss the risk that by immersing oneself in the minutiae and attempting to comprehend the thought processes of the experts, a judge may be drawn into a situation where he employs the standards the expert would use to determine whether a particular thesis has been proved or disproved – instead of conducting an assessment, as a judge must, of where the preponderance of evidence lies after considering the entire body of evidence.”

The Western Cape High Court judgment in Kosana v MEC for Health (WCC) (unreported case no 9230/2005, 23-1-08) (Erasmus J) further expanded on this concept. The court invoked a passage from the Appellate Division judgment in Van Wyk v Lewis 1924 AD 438 at 444 and expounded in paragraph 36:

“When appraising the level of skill and diligence possessed and exercised by members of a specialized profession (the responsible group of medical practitioners skilled in the particular field), ‘the evidence of qualified surgeons or physicians is of the greatest assistance.'”

The court then drew from the judgment in Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 at 639:

“I must emphasize that a judge’s ‘preference’ for one body of distinguished professional opinion over another, also professionally distinguished, does not suffice to establish negligence in a practitioner whose actions have garnered approval from those whose opinions, honestly expressed and genuinely held, were not favored. In the realm of diagnosis and treatment, negligence can only be established if there has been a failure to exercise the ordinary skill of a doctor (within the relevant specialty if they are a specialist).”

The court also cited the Bolitho case, in which it was declared:

“The evaluation of medical risks and benefits is a matter of clinical judgment that a judge typically cannot undertake without expert evidence. As Lord Scarman’s quote makes clear, it would be erroneous to allow such an evaluation to degrade into an attempt to persuade the judge to favor one of two views, both of which can be logically supported. Only when a judge is convinced that the body of expert opinion lacks any logical support will such opinion not serve as the benchmark against which the defendant’s conduct is to be assessed.”

In Honisz v Lothian Health Board [2006] CSOH 24, paragraph 39, the Scottish court, relying on the Bolitho case, elucidated:

“As a general rule, when there are two conflicting schools of thought within the relevant group of responsible medical practitioners regarding the appropriateness of a particular practice, it is not the role of the court to favor one school over the other (Maynard v West Midlands Regional Health Authority, Lord Scarman, p 639F-G). Nevertheless, the court does not unconditionally defer to the opinions of the relevant professionals to the extent that, if a defendant presents evidence that other responsible professionals within the relevant group of medical practitioners would have taken the same actions as the impugned medical practitioner, the judge must invariably conclude that there was no negligence. This is because, thirdly, in extraordinary cases, the court may conclude that a practice endorsed by responsible medical practitioners does not withstand rational scrutiny (Bolitho v City and Hackney Health Authority, Lord Browne-Wilkinson, pp 241G-242F, 243A-E). When the judge is satisfied that the body of professional opinion on which a defendant relies is unreasonable or irresponsible, he may find the medical practitioner guilty of negligence, despite the endorsement of his conduct by that body of opinion.”

In Conclusion

The evaluation of evidence based on expert-based knowledge is a catalyst for justice vis-a-vis the standard integrity, logic and comprehensive knowledge and experience in the area concerned. In the realm of medical negligence, legal practitioners rely on medical legal opinions to navigate the complex and intricate intersection of law and medicine. These opinions are invaluable for interpreting medical records, establishing the standard of care, assessing causation, and providing expert witness testimony. Whether the case goes to trial or is settled outside of court, a medical legal opinion is often the linchpin that determines the outcome. It ensures that justice is served by holding healthcare providers accountable for their actions and ensuring that patients receive fair compensation for their injuries.

Feel free to contact Dr Kim Lamont-Mbawuli at Kim@klmattorneys.co.za for your medical legal opinions

Deborah Bless, all known as Deborah Ogwuche, has made history today as one of the world’s first AI romance co-authors. The partnership between Deborah Bless and Chat GPT 3 to Co-author the book “Love Envoy” is among the first creative collaboration between an artificial intelligence and a human. The collaboration is unique because it explores boundless opportunities and how AI will shape  innovation in the writing profession.

According to Deborah Bless, the incorporation of AI in the writing of “Love Envoy” was like having a mentor to keep her focused and build a captivating piece that surpasses readers’ standards. In addition, she mentioned that the lucidity provided by AI in word selection and developing excitement was extraordinary and beyond her expectations.

Titled “Love Envoy,” the book tells the story of an immigrant Nigerian single mother on a journey of self-discovery and budding romance with an unlikely character. This book is expected to be the first of many AI co-authored works that will take the literary world by storm.

“Love Envoy” is launched today, April 1st, 2023 and will be made available to the public through Deborah Bless’s website, as well as notable book platforms. 

Deborah Bless expressed her excitement about the launch of “Love Envoy,” saying, “I am thrilled to have worked with OpenAI’s Chat GPT 3 on this groundbreaking project. I believe that this collaboration will inspire other writers to explore the possibilities that AI presents in co-authoring works of literature. I also cannot wait for readers to experience this captivating love story.”

For more information on “Love Envoy” and Deborah Bless’s works, visit her website and other leading book and social media platforms.

Marius Botha, Group CEO of aYo Holdings 

The past couple of years have been brutal for the African continent. We’ve been through Covid-19, and now we’re living through turbulent socio-economic times, with high inflation and rising prices causing untold consumer hardship in most countries. But despite this, the fintech industry is booming, thanks largely to exponential growth in mobile network coverage and smartphone use.

Indeed, Briter Bridges’ Africa Investment Report 2022 paints a picture of Africa as an increasingly viable investment destination, with growing numbers of major deals over the past 12 months alone. Needless to say, fintechs continue to dominate the market, grabbing up to 60% of all deals over the past half decade, including the highest value and highest profile deals.

As a result, African consumers are rapidly becoming more used to using digital financial products like Mobile Money (MoMo) and payments from the palm of their hand. And this is good for related industries like insurtech, which is surging as consumers transition to a world where financial services are easily accessible via mobile phone and transacted via apps and other channels.

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What’s particularly encouraging is the growth in early-stage support networks, which involve angel networks, seed funds and accelerator cohorts. Many promising start-ups, especially those in less glamorous parts of the fintech market, fail in their early stages precisely because of a lack of funding, and a greater appetite by funders to take on these risks can only benefit the continent’s fintech sector.

One of the major success stories for us has been the appetite for microinsurance in Africa, which has traditionally been the world’s most uninsured, and underinsured, continent. As its name suggests, microinsurance is small, rapidly underwritten financial protection that offers consumers financial protection against specific risks – like hospital cover for accidents, for example – for tiny premiums. Typically, policyholders can buy cover and claim directly from their mobile phones.

According to the IMARC Group’s latest report on global microinsurance trends, the market will grow to more than US$111 billion worldwide by 2027. A sizeable chunk of this growth will take place in Africa, where we’re only just scratching the surface of the demand for financial services products that make people’s lives easier and bring them into the financial mainstream.

What’s important about the growth of microinsurance is its impact not only on individuals and communities, but on entire economies. The impact of being insured is transformative: it not only drives greater financial inclusion, but it shields people with lower incomes from the economic shocks that would otherwise keep them locked into an endless cycle of poverty.

The kicker is that in spite of massive growth in investment into the continent in the past few years, all of Africa’s venture capital still only makes up around 1% of the world’s VC money. We’re still in our baby shoes. The phenomenal growth we’ve seen in fintech and start-ups in Africa in the past decade is only the beginning. We are still just exploring the potential of fintech and microinsurance to transform the lives of our people. 

Our continent is hungry for financial inclusion. We’re increasingly ready to take our place at the world’s top economic tables. In spite of the uncertain economic times we’re dealing with, the only way is up. It’s a great time to be in Africa.

By-lined by Marius Botha