In the April 2020 case of MTV v MEC Health, the Pretoria High Court has once again placed the issue of expert evidence firmly in the judicial spotlight.  Focus was squarely placed on the requirement for expert witnesses to provide the court with as objective and unbiased opinion as possible, based on their expertise.

This matter confirmed the well-established legal principle of the reasonable person set out in Kruger v Coetzee [1966 (2) SA 428 (A) at 430E-H], more specifically to medical negligence matters, the standard of the reasonable doctor in the position of the defendant or their employees, acting in the course and scope of their employment.

The test asks if the reasonable doctor would have foreseen the possibility of the harm occurring and would have taken reasonable steps to prevent it.  If the doctor or other healthcare worker failed to take such reasonable steps, negligence is established.  

It is further trite law that the conduct of the defendant / employee must have caused the loss suffered by the plaintiff and the resultant harm must not be too remote.  In other words, was the negligent act or omission on the part of the defendant sufficiently closely linked to the harm to establish liability.

In dealing with the necessary evidence to discharge the onus, the court quoted the matter of National Employer’s General Insurance v Jagers [1984 (4) SA 437 € at 440 D-G], which stated:

“In deciding whether the evidence is true or not the court will weigh up and test the plaintiff’s allegations against the general probabilities.  The estimate of credibility of a witness will therefore be inextricably bound up with a consideration of the probabilities of the case and, if the balance of probabilities favours the plaintiff, then the Court will accept the version as being probably true.”

This then led to the main thrust of the judgement, namely the role of an expert witness in assisting the court to adjudicate on issues outside of its ordinary scope of expertise.

Quoting from both Lord Arbinger v Ashton [(1873) LR Eq 358 at 374] and Schneider NO and Others v AA and Another [2010 (5) SA 203 (WCC) at 211], the court re-iterated the position that, whilst there is no doubt some natural leaning on the part of an expert towards their paymasters, this does not in any way absolve the expert of the duty of impartiality and integrity.  The “hired gun”, so to speak……

In this matter, the court held that a medical expert for the defendant “advocated for the defendant without proper consideration of the content of the clinical records and without having done proper research himself.” 

 The court was highly critical of various uninformed assumptions made by the expert, as well as his equally ill-considered opinion on the C-Reactive protein count, which he ultimately conceded he did not properly research or consider.

The same expert, an obstetrician by discipline, further expressed a rather bizarre opinion on the plaintiff’s psychological state of mind, which can, at best, be considered to have been outside of the scope of his expertise.

The court, quite correctly, recorded that the test for negligence in medico-legal matters is “no more than a context specific application of the general test for negligence”, as set out earlier in this piece.  To this end, the court made it clear that the defendant’s expert was swayed towards those by whom he was appointed, and in so doing, failed in his obligation to provide the court with objective and unbiased assistance, as required of an expert.

The Court found his evidence to be “poor, biased and unreasonably inflexible”, and as a result, chose to disregard his evidence in its totality.  The inevitable, obvious result of such a litigation catastrophe for the defendant, was a judgement in favour of the plaintiff.

The Court held that the evidence of the plaintiff’s expert, being essentially uncontested in the absence of acceptable evidence to the contrary, was proof of substandard care being provided to the plaintiff and sufficient to discharge the onus.