Welcome to Scribd, the world's digital library. Read, publish, and share books and documents. See more
Download
Standard view
Full view
of .
Save to My Library
Look up keyword
Like this
4Activity
0 of .
Results for:
No results containing your search query
P. 1
[Law of Evidence] Expert Opinion

[Law of Evidence] Expert Opinion

Ratings: (0)|Views: 467 |Likes:
Published by Khairul Idzwan
My firm [group] submission on the issue of expert opinion in law of evidence
My firm [group] submission on the issue of expert opinion in law of evidence

More info:

Published by: Khairul Idzwan on Aug 07, 2010
Copyright:Attribution Non-commercial

Availability:

Read on Scribd mobile: iPhone, iPad and Android.
download as DOC, PDF, TXT or read online from Scribd
See more
See less

11/14/2012

pdf

text

original

 
EXAMINE THE APPROACH TAKEN BY THE COURTS WITH REGARD TOMEDICAL EXPERT OPINION IN MEDICAL NEGLIGENCE CASES
 By: Zaza Iszarul & Co.
INTRODUCTION
Section 45 of the Evidence Act 1950 (“EA”) provides for the relevancy of expert opinionon a point of law, science or art, or as to identity or genuineness of handwriting andfinger impressions. As this specific point requires specific skill, the court can only takeinto consideration the opinion by that of an expert in that specific field and not just by anordinary man on the street.Our scope of discussion is narrowed to medical expert opinion in medical negligence.Under this scope, clearly when there is a want of opinion, it is a want of opinion upon a point of science, well encapsulated within Section 45 of the EA.In case of medical negligence, the tort system generally provides for compensation onlywhen a doctor or any other medical personnel is negligent. In the article, “Does doctor always knows best? The recent trend in medical negligence”
1
, it was observed that;
Previously
, in determining whether a doctor was negligent in diagnosis,treatment and advice, the court had shown a
deferential attitude
towardsmedical judgment. This is in contrast to the attitude of the court towardsother professions such as engineers and architectures where the court doesnot hesitate in questioning the appropriateness and reasoning of the standard practice adopted by those professionals.
However, this deferential attitudewhich is encapsulated in the phrase “a doctor knows best” is slowlydissipating
” (
emphasis added)
1
FS Shuaib and IL Shuaib, “Does doctor always knows best? The recent trend in medicalnegligence”, available at http://www.biij.org/2009/1/e12, accessed on 24 July 2010.
1
 
Therefore, for the starting line of this discussion, we will first see the approach taken bythe court to the effect that “a doctor knows best” and as we go along we will look intoselected landmark cases enumerating the change in the court’s approach.Basically, in examining the approach taken by the courts with regard to medical expertopinion, we will look through several landmark cases and make out the approach taken inthe different cases by asking these common questions when dealing with each and everycase ;– 
Whether the court will generally accept and adopt an expert opinion withoutmuch reservation, or;
Whether the court will still retain their power to judge based on the standardthey ought to be reasonable, with expert opinion merely serve as assistance to thedecision, or;
Whether any balance was strike between the two.
BOLAM V FRIERN HOSPITAL (1957)
2
: A DOCTOR KNOWS BEST 
3
The Bolam test has long been applied when a standard of care required by doctors had been of concern. In the period where the Bolam test was prevalently used, the judge willhardly interfere or impose any standard on medical profession. The negligence in themedical profession is not for the judges to determine, but by fellow medical practitioners.Accordingly, medical profession just as any other profession will have different body of opinion to what standard of care or treatment is appropriate for certain circumstances. Aslong as the doctor had followed one of the responsible body of opinion, a doctor cannot be held negligent.In the Bolam case, in the course of an electro-convulsive therapy, the patient was notadministered with any relaxant drugs or any manual restraints except a support the chin
2
 
3
We will be adopting the manner subheading are used in the article, “Does doctor alwaysknows best? The recent trend in medical negligence”, for flow and easier understanding.
2
 
and shoulder. Because of this, he suffered serious fractures. The 1:10,000 risk of fractureswas also not informed to him. Throughout the proceeding, it occurs that there are tworecognised school of thought on method of treatment, one favoured the use of relaxantdrugs or manual control as a general practice, and the other, thinking that the use of thesedrugs was attended by mortality risks, confined the use of relaxant drugs only on particular cases. Similarly, there were two bodies of competent opinion on the questionwhether, if relaxant drugs were not used, manual control should be used. There were alsodifferent views among competent medical practitioners on the question whether a patientshould be expressly warned about risk of fracture before being treated, or should be leftto inquire what the risk was.The principle enunciated in the case is that, so long that the practice was supported by a body of competent medical opinion, it is not the business of the court to question itsappropriateness. It will not be negligent for a practitioner to follow one in preference of the other.To answer the set of common questions we laid in the introduction part when dealingwith each and every case, the approach taken by the court here in Bolam is more towardsthe court generally accepting and adopting an expert opinion without much reservation. Itis the medical profession which will decide on the standard of treatment.
ROGERS V WHITAKER (1992)
4
: A JUDGE’S RESPONSIBILITY TODETERMINE A STANDARD
We will then proceed to a case where the trend that ‘Doctor knows best’ is changing. InRogers v Whitaker, it is no longer the concern on what a body of medical opinion oughtto hold on to, but the focus was put on the patient to decide for himself, and that the courtstill has the responsibility to determine whether a standard conforms to the standarddemanded by law.In this case, a woman with her right eye becoming almost blind, had consulted anophthalmic surgeon. She was advised to undergo the operation which would probablyrestore her sight. Her sight was not improved and most unfortunate, she developed
4
 
3

Activity (4)

You've already reviewed this. Edit your review.
1 thousand reads
1 hundred reads
miszday liked this

You're Reading a Free Preview

Download
/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->