Role of Medical Experts in Medical Negligence

Transcription

1 49 th Singapore-Malaysia Congress of Medicine (SMCM) 2 August 2015 Role of Medical Experts in Medical Negligence Dr Bertha Woon FRCSEd (Gen), JD, FAMS (General Surgery) Honorary Secretary, College of Surgeons, AMS General Surgeon, Gleneagles Medical Centre

2 Who is an Expert? (In Medical Negligence cases) Section 47(3) Evidence Act: An expert is a person with such scientific, technical or other specialised knowledge based on training, study or experience In this context, the expert impartially and objectively assists the court in a scientific, technical or specialised point that is in dispute by: Giving opinions and drawing conclusions Articulating the standard of care

3 When is a Medical Expert called upon? (Potential Scenarios) Request from one of your patients Coroner s Court through Academy of Medicine and College Colleague requests your help Lawyer requests your help for Court case SMC proceedings

4 Two types of Experts 1. Court expert 2. Party expert witness (engaged by one party) Note: A Court-Appointed assessor who is not a witness sits with the judge and assists him by advising on complex or technical issues which arise from the case.

5 1. Court expert (Order 40 of Rules of Court) Appointed by the Court Saves costs and expenses of engaging separate experts Resolve issues quicker and in a less costly manner Strictly independent Expert report to be sent to the Court May be cross-examined by either party s Counsel

6 2. Expert Witness or party s experts (Order 40A Rules of Court) Engaged by litigant for the purposes of civil litigation Give evidence by way of expert report May in addition attend Court to give oral testimony Duty to assist the Court regardless of who engaged him/ her

7 Why talk about the Role of Medical Experts? A trained medical expert has the skills, competence and training to assist the Court effectively so as to : Simplify dispute resolution, saving time and money Drawing appropriate conclusions Cases can be won or lost based on expert opinion SMA-MPS and SMA-AMS-Law Society-SAL have training courses

8 Doctors as Witnesses Witness of fact (professional) Expert witness

9 Expert reports Liability Breach of Duty (standard of care) Causation Condition and Prognosis NB Factual disputes

10 Accepting instructions Points to Consider i.e. The Brief Who is instructing me? In what capacity am I being asked to provide report? Am I the right person to do this report? Do I have the appropriate expertise? Is there a conflict of interest? Do I have the time to do the necessary research and examine all the information and documents provided? Can I commit time for attendance in Court?

11 Letter of Instruction what it should contain Brief facts Purpose of report Specific questions Timeframe Structure: form and content Documents Remuneration arrangements

12 Preparation How to do it

13 Expert Reports: Legal Provisions (See: Order 40A and Form 58 PD) Format and Content: Written, signed, sworn affidavit Qualifications, CV Instructions (Issues and summary of facts, documents relied on) Opinion Evidence (records, statements, also incl literature relied on) Conclusions Statement of belief*, duty to court**

14 *Statement of Belief I confirm that insofar as the facts stated in my report are within my own knowledge I have made clear that they are and I believe them to be correct, and that the opinions I have expressed represent my accurate and complete professional opinion.

15 **Statement re Duty to Court I also confirm that in preparing this report, I am aware that my primary duty is to the Court and not the person(s) from whom I have received my instructions or by whom I am paid.

16 Expert Reports: Code of Conduct (Order 40A, r2 and Form 58 PD) Duty to court Independent Confined to material issues Within expertise Whether opinion provisional or qualified Duty to communicate change of view in timely manner

17 LEGAL CONSIDERATIONS

18 Discussion between Experts Court-directed discussion to identify issues and reach agreement (where possible) Court-directed statement on issues disagreed and agreed on with reasons Content of discussions not referred to at trial without agreement of parties

19 Privilege and Disclosure Requirements for privilege regarding communications between expert and client or solicitors: Litigation contemplated (reasonable prospect) Dominant purpose of seeking legal advice in anticipation/contemplation of litigation Documents disclosed during court proceedings may only be used for the action Therefore Expert report produced for trial may not be used for other purposes

20 Accountability of experts Criminal: false declaration, fraud, perjury Disciplinary (SMC): misconduct Negligence: loss of expert immunity Other: wasted costs orders Public domain of court cases everything and anything you say can potentially be published.

21 Points to consider re: accountability As long as you have the expertise, consider being an expert witness to assist Your colleagues Your profession Patients Do not be afraid to give an honest, balanced opinion As long as you are fair, do not be afraid that it would offend anyone Your opinion may result in settlement, rather than litigation

22 Case examples

23 Chua Thong Jiang Andrew v Yue Wai Mun and another [2015] SGHC Expert witnesses Back pain 30 min loss of power and sensation of lower limbs zero power lower limbs and lax anal tone, decreased sensation below T11/T12 Accountability of what is said Always ascertain facts before committing to an opinion

24 Ang Pek San Lawrence v SMC [2014] SGHC Expert Witnesses Intrauterine sepsis case. Apgar 7 1, 7 5. Intrauterine pneumonia and sepsis. Conflicting expert opinions on whether a neonatologist should be on standby or required to be present. Opinions based on what was asked, in specific contexts. Always back up opinions.

25 Tong Seok May Joanne v Yau Hok Man Gordon [2012] SGHC 252 Multip. Para 6 Commenced legal proceedings just before it would have been time-barred Claimed anaesthetist s negligence caused injury to anterior longitudinal ligament of cervical spine leading to a constellation of symptoms Injury supposed to have occurred during emergency GA for crash caesarean section

26 Tong Seok May Joanne v Yau Hok Man Gordon [2012] SGHC (P) + 8(D) witnesses of fact

27 Questions?

28 THANK YOU! Dr Bertha Woon MBBS, MMed (Surgery), FRCSEd, FAMS (General Surgery), GDTI, JD Bertha Woon General and Breast Surgery Gleneagles Medical Centre 6 Napier Road #09-02/03 S Tel: Bertha.Woon@gmail.com Website: