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The Role Of Medical Legal Opinion In Potential Medical Negligence Matters
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.
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
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Deborah Bless, African storyteller and cook partners with Chat GPT 3 to launch “Love Envoy”
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.
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
Financial Realism in 2023 by Nchimunya Muvwende
It is the beginning of a new year, a fresh start that allows people to make resolutions and plans that can improve their lives. Many people’s lives have been ruined by a lack of realistic financial planning, which makes plans appear to be mere wishes. In our day, living beyond means has increasingly become a major cause of financial burdens that has affected individuals, marriages, businesses and countries. As you make your plans for this year, what factors should you put into consideration?
Societal pressure
Since we are all products of society, it stands to reason that the people we live with will have the biggest impact on how we choose to live. A lot of people have become indebted as a result of trying to appease society. Society will try to dictate what it views people should have or acquire but not provide the financial means for it. We find people hosting weddings beyond their financial means hence resorting to debt, people living in areas they can’t afford, buying cars which they can’t maintain, eating in expensive places and post on social media, all in a name of showing off that they too can afford.
In making 2023 plans, we should realize that living lives that aim to impress others but are beyond your financial means only serves to mess up your life. You should reflect how societal pressures has broken down marriages, depressed many and ruined the good plans that should have been implemented overtime. It is never a good idea to live above your means, get married on credit, rent a house that takes up practically all of your salary, or simply borrow for showoff. Remember that an expensive wedding is not a key to a successful marriage nor do expensive rentals guarantee good homes. The sad reality is that the lack of being real with ourselves has led people in a loop of debt that is increasing becoming impossible to escape and has in some unfortunate situations led to suicide cases.
Regardless of the pressure society exerts, if it is not supplying the resources, it should not promote notions that would only worsen people’s financial situations. As you plan your activities, realistically consider your financial situation, budget within your means and independently ensure that your future is not compromised by the desire to appease society. Do not buy things you do not need to impress people who may not even value you.
Life adjustment
According to the adage that life is full of ups and downs, there will be periods when things go as planned and when they don’t. Accepting that things have changed and the need for adjustment to a different environment has become a challenge, hence causing financial burdens. People are resisting adapting to changes in their circumstances. A person continues to live in an expensive rented home, drives an expensive car, maintains their children in an expensive school, and otherwise continues to lead a lavish lifestyle even after losing their job or having their business fail. Failure to adjust to circumstances and living a borrowed life only serves to create a stressful life.
To sustain a lifestyle after a reduction in income, borrowing of money becomes an alternative. A lesson can be learnt from chameleons, creatures that change their color to suit their environment and this serves to protect them from certain dangers. You need to understand that downgrading your expenditure when your income changes serves to protect you from further worse financial repercussions arising from maintaining the status quo. Surely, why should you continue accumulating rental arrears when you can shift to a cheaper house, why incur higher fuel expense when you can move to a more fuel efficient vehicle and why should you keep faking your life to appease people who won’t help improve your financial situation? It is time that you realize that life has its own twists and turns that require us to adjust as you figure out a way to come out even stronger.
As you plan for this year, live life according to your means, buy what you can afford and borrow only when necessary. Remember that life is not a race, it is thus important that you are realistic in your planning and execution of them. A borrowed life is both never good and is only a time bomb.
Prioritization
The money that we are able to generate limits the standard of life that we can comfortably afford. In this New Year, we all should evaluate how we have lived in the past, whether we are living a genuine life and what has caused financial constraints. We should prioritise our spending to areas that matter the most. Instead of borrowing for showoff, why don’t you use that car for business? Why not focus on reducing financial pressure in marriage by hosting a wedding that is within your means? Why not shift to a cheaper house, downgrade your car or phone and use that excess money for investment? Why should you continue holding on to debt, borrowing from whatever means you can and end up living a depressed life? In this New Year, let us all focus on what is important, postpone what can be done and prioritise what improves our welfare. Simple rule, if it’s not a necessity, don’t borrow to get it.
Since the New Year promises a fresh start, may this be the year that we are honest with ourselves by objectively assessing our financial condition and developing a budget-friendly strategy as we explore ways to increase our financial security. We should restructure our spending in 2023, only borrow when absolutely necessary, and instead save, invest, and generate wealth.
