A M v MEC Health, Western Cape

Importantly the SCA has provided guidance and considered expert evidence and stressed that since 1963, when Rule 36(9) was changed,  there have been changes in how lawyers prepare expert summaries but often have only a tenuous grasp of the real issues in a case which  frequently creates problems and the Rules Board should reconsider the rule and require ‘the experts to prepare and deliver their reports in their own words and to include both a statement recognising that the report is furnished for the assistance of the court and a statement of truth’.

Essence

In a split decision the SCA considered expert evidence and how it should be obtained and presented in court and suggested to the Rules Board that changes be made.

Decision

(SCA1258/2018) [2020] ZASCA 89 (31 July 2020)

Order:

Disallowed the appeal from the judgmentof A Binns-Ward J.

 

Judges

MJD Wallis JA (Swain, Mokgohloa and Dlodlo JJA concurring and Molemela JA dissenting)

Heard: 10 March 2020

Delivered: 31 July 2020

 

Related books

Darcy du Toit et al Labour Relations Law: A Comprehensive Guide 6ed 925 pages (LexisNexis 2015) at

Darcy du Toit et al Labour Law Through The Cases – loose-leaf service updated 6 monthly (LexisNexis 2020)

Van Niekerk and Smit (Managing editors) et al [email protected] 5ed (LexisNexis 2019) at

Myburgh and Bosch Reviews in the Labour Courts 1ed (LexisNexis 2016) at 

Reasons

“[21] The opinions of expert witnesses involve the drawing of inferences from facts. The inferences must be reasonably capable of being drawn from those facts. If they are tenuous, or far-fetched, they cannot form the foundation for the court to make any finding of fact. Furthermore, in any process of reasoning the drawing of inferences from the facts must be based on admitted or proven facts and not matters of speculation.. . . . ” . . . .

[24] A proper use of the provisions of Uniform Rules 37 and 37A would have avoided many of these problems and enabled the trial to proceed and finish in the estimated three to four days instead of taking ten days spread over three months. The ten pre-trial meeting minutes, or progress certificates in relation to such meetings, show that the ‘meetings’ were conducted telephonically or by way of correspondence, without any engagement on the nature of the disputes between the parties or any real endeavour to clarify and limit the issues. The impression is overwhelming that these were seen as nothing more than a necessary formality in order to secure a trial date. What should have happened in an endeavour to narrow the issues was that witness statements should have been delivered from both Mr M and Dr Horn. Broadly speaking that is what Rule 37A(10)(e) contemplates. It is what is customary in many jurisdictions.” . . . 

[26] Following that course, as is required in many jurisdictions, especially when dealing with expert witnesses, would have brought greater clarity to the proceedings. While Rule 36(9) was innovative when introduced in 1963, times have moved on and the preparation of expert summaries by lawyers, who often have only a tenuous grasp of the real issues in a case, frequently give rise to problems of this type. It would be desirable for the Rules Board to reconsider the rule. A useful change would be to require the experts to prepare and deliver their reports in their own words and to include both a statement recognising that the report is furnished for the assistance of the court and a statement of truth. Having said that I turn to consider the three issues described earlier.”

Quotations from judgment

Note: Footnotes omitted and emphasis added

. . . . 

The issues and the approach to the appeal

[7] Whether the bump on J’s head was fluctuant or boggy was a factual question. In determining it the judge assessed the evidence and credibility of Dr Horn. She said that in the course of her examination she had felt the bump. While at the time of the trial, nearly seven years later, she did not have a specific recollection of how it felt, she believed that it was firm and not boggy. Otherwise she would not have described it in her notes as a bump and her usual practice in dealing with a head injury that felt boggy was to order a CT scan. Against that was the evidence of Dr Edeling, who said that given the nature of the underlying subgaleal haematoma it must inevitably have felt boggy on palpation. Professor Taylor disagreed for reasons that will be examined later

[8] The judge found Dr Horn to be a careful and credible witness. He said that her evidence on this point could not be rejected. That involved both findings of credibility and fact. It is trite that an appeal court is reluctant to disturb findings of that character by a trial judge, who was steeped in the atmosphere of a lengthy trial and had the advantage of seeing and hearing the witnesses. Such findings are only overturned if there is a clear misdirection or the trial court’s findings are clearly erroneous.

That has consistently been the approach of this court and the Constitutional Court as reflected recently in the following passage from ST v CT:

‘In Makate v Vodacom (Pty) Ltd the Constitutional Court, in reaffirming the trite principles outlined in Dhlumayo, quoted the following dictum of Lord Wright in Powell & Wife v Streatham Nursing Home:

“Not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judges, and unless it can be shown that he has failed to use or has palpably misused his advantage, the higher court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case.”’ (Citations omitted.)

[9] The appellants did not point to any misdirection by the judge in regard to this issue. Their task therefore was to demonstrate that his conclusion that he could not reject Dr Horn’s evidence was clearly erroneous and that he should have accepted Dr Edeling’s evidence that the bump inevitably had to have been fluctuant (boggy). Both conclusions were necessary in order to discharge the onus of proving negligence. That was a formidable task. It was made more formidable by the fact that Dr Horn’s evidence was direct evidence, whereas Dr Edeling’s was a reconstruction based on Dr Horn’s clinical notes and the information that became available the following day from the CT scan.

It has frequently been pointed out that direct and credible evidence of events usually carries greater weight than the opinion of an expert seeking to reconstruct those events afterwards, especially where the material on which that is based is scant.

[10] The alternative argument that Dr Horn should have kept J in the Trauma Unit for further observation falls in a different category.

  • The first underlying premise was that, notwithstanding Dr Horn’s conclusion after her examination of J that his injury was minor, she should not have discharged him because good practice required her to keep him in the unit for further observation for a period of time, suggested to be one hour.
  • The second premise was that had she done so J would, as he did in the car on his way home, have fallen asleep and this would have caused alarm bells to sound leading to further investigation, more particularly a CT scan.

[11] It was common cause that the decision to discharge J was a matter of clinical judgment. The only attack on the accuracy of her diagnosis was based on the contention that the bump must have been fluctuant or boggy. If that attack failed the further argument had to proceed on the basis that Dr Horn’s diagnosis that J had suffered a minor head injury was correct given her clinical observations. The question then was whether a reasonable medical practitioner applying the degree of professional skill and diligence of a member of the medical profession in charge of a trauma unit at a hospital, would not have discharged J but kept him at the unit for further observation. There was a dispute between the expert witnesses on that issue. It fell to be considered by the trial judge in terms of principles discussed in Michael v Linksfield Clinic and MediClinic v Vermeulen.

Provided Dr Horn’s decision to discharge J had the support of a reasonable and respectable body of medical opinion she was not negligent, even though other reasonable and respectable medical opinions might have held a different view.

[12] If the decision to discharge J was not negligent, the second argument fell to be rejected. If she was negligent there was the further issue of whether, had she kept him for observation for an hour, the course of events would probably have been different. That involved a consideration of the observation and treatment that J would have received had he not been discharged. The trial judge did not reach that point because he concluded that there was no negligence in the decision to discharge J.

[13] The third argument raised a number of factual issues.

  • The first was what Mr M was told when J was discharged into his care. It was common cause that he was handed a standard document prepared by the hospital and intended to be given to parents and guardians of children who had presented with head injuries and were being discharged. He conceded under cross-examination that Dr Horn had told him to monitor J’s condition. Whether her explanation went beyond that was disputed.
  • The judge held that it was not established that she had ‘failed to say enough’. The appellants contended that he should have found that Dr Horn did not give adequate instructions to Mr M on how to monitor J during the night and in particular should have instructed him to wake J at least every two hours to check for unusual drowsiness. This raised issues of credibility and a challenge to the judge’s factual findings similar to those that arose in relation to the first issue.

[14] As with the second issue, a finding in favour of the appellants would have raised the further question of whether Mr and Mrs M’s actions would have resulted in a different course of events had such instructions been given. To determine that required findings of fact as to

  • the probable steps they would have taken;
  • if and when they would have been alerted to the possibility that there was something seriously amiss;
  • what they would then have done; and
  • whether that would have resulted in the problem being surgically addressed and resolved before any harm was suffered.

In view of the grounds on which he decided the case the judge did not reach, or make any findings in regard to, these factual matters.

The evidence

[15] The only witnesses who gave evidence in regard to the events of 23 August 2011 were Mr M and Dr Horn. Even that was attenuated in that Mr M was not present at most of the events in regard to which he testified. Most importantly, he was not present when the accident happened or during Dr Horn’s examination of J as he had gone to fetch the hospital file. The correct approach to their evidence, especially where it was disputed, was to weigh it against the general probabilities in the light of any issues concerning their credibility or reliability.

[16] Three doctors testified as expert witnesses.

  • They were Dr Goosen, a general surgeon with experience of trauma surgery and the director of the Netcare Union Hospital Trauma Unit, Alberton.
  • The second was Dr H J Edeling, a qualified neuro-surgeon, who retired from surgical practice in 2008 and has since then spent almost 95 percent of his time in medico-legal practice. He has consulted as a professional witness and provided over 3000 medico-legal reports; attended over 1000 pre-trial expert meetings and given evidence in over 200 cases. Both he and Dr Goosen gave evidence on behalf of the appellants.
  • The third expert, called on behalf of the MEC, was Professor A Taylor, the clinical head of adult neurosurgery at Groote Schuur Hospital, an associate professor at the University of Cape Town. He was also at the time the president of the Society for Neurological Surgeons of South Africa; the president of the Federation of South African Surgical Societies and the incoming president of the World Federation of Interventional and Therapeutic Neuroradiology. He was still in active surgical practice operating usually on four or more days a week.

[17] Something needs to be said about the role of expert witnesses and the expert evidence in this case. The functions of an expert witness are threefold.

  1. First, where they have themselves observed relevant facts that evidence will be evidence of fact and admissible as such.
  2. Second, they provide the court with abstract or general knowledge concerning their discipline that is necessary to enable the court to understand the issues arising in the litigation. This includes evidence of the current state of knowledge and generally accepted practice in the field in question. Although such evidence can only be given by an expert qualified in the relevant field, it remains, at the end of the day, essentially evidence of fact on which the court will have to make factual findings. It is necessary to enable the court to assess the validity of opinions that they express.
  3. Third, they give evidence concerning their own inferences and opinions on the issues in the case and the grounds for drawing those inferences and expressing those conclusions.

[18] Before an expert witness may be called it is necessary to deliver a summary of the witness’s opinions and the reasons therefor in terms of Uniform Rule 36 (9)(b). This court held in Coopers that the summary must at least include:

‘… the facts or data on which the opinion is based. The facts or data would include those personally or directly known to or ascertained by the expert witness, e.g., from general scientific knowledge, experiments, or investigations conducted by him, or known to or ascertained by others of which he has been informed in order to formulate his opinions, e.g., experiments or investigations by others, or information from text-books, which are to be duly proved at the trial.’

[19] In the same case, Wessels JA said:

‘… an expert’s opinion represents his reasoned conclusion based on certain facts or data, which are either common cause, or established by his own evidence or that of some other competent witness. Except possibly where it is not controverted, an expert’s bald statement of his opinion is not of any real assistance. Proper evaluation of the opinion can only be undertaken if the process of reasoning which led to the conclusion, including the premises from which the reasoning proceeds, are disclosed by the expert.’

For those reasons the court said that

‘the summary must at least state the sum and substance of the facts and data which lead to the reasoned conclusion (i.e., the opinion)’

[20] The need for clarity as to the facts on which an expert’s opinion is based has been stressed in a number of cases. In PriceWaterhouseCoopers v National Potato Co-operative Ltd the following passage from a Canadian judgment was cited with approval:

‘[326] “Before any weight can be given to an expert’s opinion, the facts upon which the opinion is based must be found to exist”
[327] “As long as there is some admissible evidence on which the expert’s testimony is based it cannot be ignored; but it follows that the more an expert relies on facts not in evidence, the weight given to his opinion will diminish”.
[328] An opinion based on facts not in evidence has no value for the Court.’

[21] The opinions of expert witnesses involve the drawing of inferences from facts. The inferences must be reasonably capable of being drawn from those facts. If they are tenuous, or far-fetched, they cannot form the foundation for the court to make any finding of fact. Furthermore, in any process of reasoning the drawing of inferences from the facts must be based on admitted or proven facts and not matters of speculation.

As Lord Wright said in his speech in Caswell v Powell Duffryn Associated Collieries Ltd:

‘Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish … But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.’

[22] In my view these requirements were disregarded in this case. The experts instructed on behalf of the Ms were in certain respects not instructed on the basis of facts that could be, or were, proved at the trial in regard to the mechanics of J’s injury. There was no endeavour to clarify the facts known to Dr Horn, or the facts about her diagnosis and treatment of J. She was criticised in relation to matters that were known to be irrelevant, such as her failure to perform an otoscopy. Her notes and other documents were subjected to forensic scrutiny and criticism of a type one encounters with the most pedantic lawyers.

Conclusions contrary to her diagnosis were expressed on the basis that her notes were not as complete as Dr Goosen and Dr Edeling thought desirable. The medical literature was used selectively to bolster arguments and not for the purpose of informing the court of the current approach to the clinical assessment of head injuries in children and the range of accepted medical views. Instead it was directed at justifying exceptions to the established consensus. Initial theories, advanced to justify claims that a skull X-ray or CT scan should have been performed, were shown under cross-examination to be untenable and abandoned.

[23] In the result, the eventual argument that Dr Horn negligently diagnosed J with a minor injury proceeded on a basis that was

  • not pleaded;
  • was not reflected in the expert’s summaries;
  • was not debated at the pre-trial meetings between the experts;
  • was referred to in passing during counsel’s opening address; and
  • first emerged, fully formed, in Dr Edeling’s evidence on the fourth day of the trial.

All the other arguments directed at suggesting that Dr Horn was negligent in arriving at her diagnosis have been abandoned. This is an unsatisfactory state of affairs and resulted in a lengthy trial much of which was devoted to ploughing through the minutiae of academic articles.

[24] A proper use of the provisions of Uniform Rules 37 and 37A would have avoided many of these problems and enabled the trial to proceed and finish in the estimated three to four days instead of taking ten days spread over three months. The ten pre-trial meeting minutes, or progress certificates in relation to such meetings, show that the ‘meetings’ were conducted telephonically or by way of correspondence, without any engagement on the nature of the disputes between the parties or any real endeavour to clarify and limit the issues.

The impression is overwhelming that these were seen as nothing more than a necessary formality in order to secure a trial date. What should have happened in an endeavour to narrow the issues was that witness statements should have been delivered from both Mr M and Dr Horn. Broadly speaking that is what Rule 37A(10)(e) contemplates. It is what is customary in many jurisdictions.

[25] Turning to the experts the instructions given to them on the facts should have been disclosed. Where necessary, clarification should have been sought to enable proper instructions to be given. Instead opinions were expressed on the basis of conjecture and, in one instance, on a misreading of Dr Horn’s notes. An agreed bundle of academic articles should have been prepared together with an executive summary of their contents. That would have largely obviated the need to trawl through them, reading sections into the record disguised as questions. The issues at the trial should have been clearly defined in terms of Rule 37A(11)(c). Instead of refusing the particulars for trial requested in relation to the expert summaries of Drs Goosen and Edeling they should have been furnished.

[26] Following that course, as is required in many jurisdictions, especially when dealing with expert witnesses, would have brought greater clarity to the proceedings. While Rule 36(9) was innovative when introduced in 1963, times have moved on and the preparation of expert summaries by lawyers, who often have only a tenuous grasp of the real issues in a case, frequently give rise to problems of this type.

It would be desirable for the Rules Board to reconsider the rule. A useful change would be to require the experts to prepare and deliver their reports in their own words and to include both a statement recognising that the report is furnished for the assistance of the court and a statement of truth. Having said that I turn to consider the three issues described earlier.

. . . . .

Court summary

“Medical negligence – plaintiff’s case based on expert evidence – requirements for such evidence to be admitted – duties of expert witnesses – direct evidence preferable to reconstruction after the event – trial court’s findings of fact – not lightly disregarded – diagnosis and treatment of child presenting with head injury – instructions on discharge.”