Evidence - Expert Opinion

EXAMINE THE APPROACH TAKEN BY THE COURTS WITH REGARD TO MEDICAL EXPERT

OPINION IN MEDICAL NEGLIGENCE CASES

LAW 591 – EVIDENCE IIFatimah Zahirah Mohd DamanhuriIsabilla Najah ZainiKhairul Idzwan KamarudzamanSiti Nurzafirah Mohd PadzilSiti Safura Ab Rahman

OUTLINE

INTRODUCTION

THE BOLAM TEST

DEPARTURE FROM THE BOLAM TEST

POSITION IN MALAYSIA

MEDICAL EXPERT OPINION IN NEGLIGENCE CASE

CONCLUSION

INTRODUCTION

Section 45 of the EA 1950 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. Our scope : Medical Expert Opinion in Negligence case – point of science

2. RETENTION OF DISTINCTION OF LOE AND LOEC

While examining court’s approach in several landmark cases, ask these;– 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 hold to be reasonable, with expert opinion serving as assistance to the decision

INTRODUCTION

2. RETENTION OF DISTINCTION OF LOE AND LOEC

The trend in medical negligence; “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 … 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)”

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.

INTRODUCTION

FACTS: In the course of an electro-convulsive therapy, the patient was not administered with any relaxant drugs or any manual restraints except a support the chin and shoulder. Because of this, he suffered serious fractures - the 1:10,000 risk not being informed.

There were 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, confined the use of relaxant drugs only on particular cases. Similarly, there were two bodies of competent opinion on whether, if relaxant drugs were not used, manual control should be used. There were also different views whether a patient should be expressly warned about risk of fracture before being treated, or should be left to inquire what the risk was.

BOLAM V FRIERN HOSPITAL (1957): A DOCTOR KNOWS BEST

HELD: So long that the practice was supported 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.

***

Court hardly interfere and impose standard on medical profession. Court generally accept and adopt expert opinion without much reservation.

The negligence in the medical profession is not for the judges to determine, but by fellow medical practitioners. It is the medical profession which will decide on the standard of treatment.

BOLAM V FRIERN HOSPITAL (1957): A DOCTOR KNOWS BEST

FACTS: A woman with her right eye becoming almost blind, consulted an ophthalmic surgeon. She was advised to undergo the operation to restore her sight. Her sight was not improved and she developed sympathetic ophthalmia in her left eye, causing her to lose all sight. This recognised risk was not informed to her 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 supporting and one against informing the risk on patient.

ROGERS V WHITAKER (1992): A JUDGE’S RESPONSIBILITY TO DETERMINE A STANDARD

HELD: 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.

* * *

Had the court apply Bolam, the doctor will not be found negligent for following one body of opinion over the other.


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. The court will still retain their power to judge based on the standard they hold to be reasonable, with expert opinion serving as assistance to the decision.


The principle in Rogers v Whitaker repeated.

FACTS: A two year old boy, having a past history of hospital treatment for croup (loud cough and breathing difficulty), was readmitted 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 care to the boy but contended that the cardiac arrest would not have been avoided if the boy had been attended earlier and intubated.

BOLITHO V CITY AND HACKNEY HEALTH AUTHORITY (1997): JUDGES ALSO CAN THINK

An intubation 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 question the court had to answer: “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 admitted breach of duty by the defendants had caused the injury which occurred to P.


The trial judge stated - even if the view not to intubate was unreasonable and illogical, she souldn’t substitute her own views for those of the medical experts. The House of Lords disagreed with the reservations. It was HELD that a doctor could be liable for negligence 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. A judge ought to see the reasoning behind the standard argued by the expert.


FACTS: Gunapathy was diagnosed with a tumour in the left ventricle of her brain. craniotomy to resect the tumour was performed. Subsequent tests revealed that it was a neurocytoma with a benign histology.

She received postoperative radiotherapy treatment to eradicate any remnants of the tumour and to prevent its relapse. An MRI scan in February 1996 revealed a small nodule hanging from the roof of the left ventricle of her brain.

DR KHOO JAMES & ANOR V GUNAPATHY D/O MUNIANDY AND ANOTHER APPEAL (2002) : THE BOLAM TEST APPLIED

Doctor 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 December 1996. A view taken that it had not enlarged significantly and was more likely a scar than a tumour.

Another doctor 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 other doctor, who likewise concluded that the nodule was a tumour. the risks of radiosurgery was informed to Gunapathy before she undergo it on January 1997. This led to very serious side-effect of radionecrosis. Gunapathy then underwent a second craniotomy 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.


High Court Level : 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.


judge’s decision appealed on contention that the trial judge had wrongly applied the Bolam test by relying on his own finding 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 supports his actions.


The Court of Appeal held that the testimony of the experts from both parties was on the whole competent and professional. The case was whether the doctor’s diagnosis that the nodule was a tumour was founded on the basis of cogent logic. The defence experts had satisfied the threshold test of logic under the Bolam test.

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.


Application of Bolam test:

• Chin Keow v Government of Malaysia and Another (1967)

•Dr. Chin Yoon Hiap v NG Nen Khoon (1998)

THE POSITION IN MALAYSIA: THE ADHERENCE AND THE DEPARTURE TO AND FROM THE BOLAM TEST.

Departures from the Bolam test• Kamalam a/p Raman and Others v Eastern Plantation

Agency (Johore) Stn Bhg ULU Tiram Estate Ulu Tiram, Johore and Another(1996)

• Hong Chuan Lay v Dr. Eddie Soo Fook Mun (1998) “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”.

• Landmark case (FC) Foo Fio Na v Dr. Soo Fook Mun (2007)

THE POSITION IN MALAYSIA: THE ADHERENCE AND THE DEPARTURE TO AND FROM THE BOLAM TEST.

FACTS: the appellant was a front seat passenger in a car that crashed into a tree on a night. appellant was warded for several injuries. The most serious injury 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 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.

FOO FIO NA V DR. SOO FOOK MUN (2007): THE STANDARD IS NOT FOR THE PROFESSION TO DETERMINE.

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?


Court of Appeal applied Bolam test.

However at 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.

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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FACTS: plaintiff accidentally swallowed a fish bone. He went to see the first defendant and an operation to remove the fish bone was performed. The plaintiff then was admitted 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. He suffered serious complication 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.

LECHEMANAVASAGAR A/L S KARUPPIAH V DR THOMAS YAU PAK CHENK & ANOR (2008)

)

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 support 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.


)

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 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.


)

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.

CONCLUSION

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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 retain 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.

CONCLUSION

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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 a standard of medical care will be based on, subject to the approval of the court that it conforms to the standard required by law.

CONCLUSION

THANKFatimah Zahirah Mohd DamanhuriIsabilla Najah ZainiKhairul Idzwan KamarudzamanSiti Nurzafirah Mohd PadzilSiti Safura Ab Rahman

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Evidence - Expert Opinion