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The role of expert evidence in a trial


This blog was co-authored by: Nomonde Sithole, Trainee Associate and Julian Scholtz, Candidate Attorney

The opinions drawn by expert witnesses do not replace the task of civil courts to determine the issues in dispute on the balance of probabilities, and only serve as guidance for courts in determining the issues.  This was highlighted in an appeal against a medical negligence claim in the case of The Member of the Executive Council for Health, Eastern Cape v McAllister on behalf of ELM.

The claimant sued the MEC for Health Eastern Cape, for damages arising from a brain injury sustained by her child, ELM, after his birth at Frere Hospital in East London.  ELM was born on 18 October 2010 by way of an emergency caesarean section due to foetal distress, pelvic disproportion and a failed induction of labour.  Following his delivery, he was treated for mild respiratory disease and jaundice. Fresh whole blood was ordered from a blood bank in East London on 20 October 2010 as it became clear that ELM would require a blood transfusion.

At the trial, the parties agreed that the expert reports obtained by them would be placed into evidence, including the joint minute drawn up by two paediatricians.  According to the evidence of the MEC’s expert, the fresh whole blood which was requested was scheduled to arrive at 17:00 on 21 October 2010.  However, at the hospital’s request, ELM was transferred to a private hospital at midday on 21 October 2010.  So as to avoid a delay in obtaining the fresh whole blood, a referral letter was addressed to the private hospital noting that the blood had already been requested and same would arrive at 17:00.  The blood did not arrive at the private hospital at the stipulated time, and once it arrived (after 19:00), less than the requisite amount of blood was used for the transfusion.

A joint minute by the experts stated that the ordering of blood for the transfusion was unduly delayed.   Reliance was placed on the available medical records in terms of which entries were made on 21 October 2010 noting that blood had been ordered.  Based on this, the experts concluded that the blood had only been ordered on 21 October 2010, and noted that if the blood had been ordered on 20 October 2010, the transfusion could have been done on the same evening – this, according to the experts, was the best opportunity to prevent the development of bilirubin encephalopathy.

The court had to determine two issues: firstly, whether there was an unacceptable delay in the ordering of blood, and secondly, whether the delay was the cause of ELM’s brain injury.  The court highlighted the following principles in the assessment of evidence by expert witnesses:

  1. As a general rule, courts, not expert witnesses, must determine issues of fact.
  2. The purpose of expert evidence is to assist the court in determining issues in dispute where the determination requires knowledge or expertise in some or other subject or field usually of a technical or scientific nature.
  3. The function of an expert witness is to form views and draw inferences from the facts where a court is unable to do so reliably unless it receives assistance or guidance from someone with the relevant expertise.
  4. A distinction must be drawn between evidence of opinion and evidence of fact on which an opinion is based.  Expert evidence is by its nature an opinion premised on the drawing of inferences from established facts.
  5. Factual assumptions which expert witnesses rely on are inadmissible hearsay evidence, unless such facts are not in dispute or are proved by admissible evidence.
  6. As a point of departure, any aspect on which expert witnesses have reached agreement must of necessity be limited to the subject matter of their opinions and their field of expertise.

The court found that any inference sought to be drawn from documentary evidence with regards to what was a factual issue, was hearsay evidence and inadmissible. Further, any attempt to establish facts from documentary evidence was in the exclusive domain of the court.  The evidence the treating doctor regarding his treatment of ELM, and the instructions he had given to the Frere Hospital staff was direct evidence.  On the other hand, the two expert’s factual assumptions on which their joint minute was premised, had no evidentiary support.

The court found that ELM’s condition was kept stable throughout the time he was under the care of Frere Hospital. The claimant failed to prove on a balance of probabilities that the healthcare workers at Frere Hospital were negligent.  The court found that even if negligence had been proved on the part of Frere Hospital, the evidence did not establish that this caused or materially contributed to the brain injury sustained by ELM.  Further, there was no evidence to support the conclusion that if the blood had been requested on 20 October 2010, it would have arrived on the same day.  For example, there was no evidence about the availability of the blood at the blood bank and the time it would have taken for it to be dispatched.  In the circumstances, the conclusion of when the blood would have arrived if ordered on 20 October 2010 was tantamount to speculation.

Accordingly, the claim failed.



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