Assessment of Contested Expert Medical Evidence in Medical Negligence Cases: A Comparative Analysis of the Court’s Approach to Bolam/Bolitho test in England, South Africa and Singapore
- Lecturer, Faculty of Law, University of Venda
There are matters which simply cannot be decided without expert guidance. Expert evidence is therefore readily received on issues relating to, for example, ballistics, engineering, chemistry, medicine, accounting and psychiatry. Expert evidence amounts to an opinion of the expert witness and it would be admissible in a trial if it is relevant and if facts on which the expert’s opinion is based are established. When evaluating the evidence, inferences may be drawn and probabilities may be considered and such inferences and probabilities must be distinguished from conjecture or speculation. There must be proven facts from which the inference can be drawn and there should not be speculation as to the possible existence of other facts. In medical negligence cases, the courts in England, South Africa and Singapore purport to apply the Bolam/Bolitho test when evaluating the evidence. This test requires that the court, when assessing the conflicting expert evidence to determine negligence, must allow for the difference in opinion between experts and that it is a sufficient defence that the conduct is in accordance with a practice accepted by a responsible body, regardless of the size of that body. The court must further determine whether the conduct is responsible or logical. The article will evaluate the approach of civil courts in evaluating conflicting expert medical evidence in medical negligence cases. The article will focus on the courts’ approach in England, South Africa and Singapore. This will be done to determine best practice.
Keywords: Medical negligence; expert evidence; conflicting expert opinion; Bolam test; Bolitho test.