Why Do I Need an Expert Opinion For My Medical Negligence Claim?

TGB medical negligence lawyer Mal Byrne outlines why it is essential to consult a medical expert before undertaking a medical negligence claim.

Unless for example you go into hospital to have an operation on your left arm and the doctor operates on your right arm instead, it is nigh impossible to settle or win a medical negligence case without at least one doctor in your corner criticising the standard of care provided by the doctor or hospital that you are suing.  The reason for this in South Australia is Sections 40, 41 of the Civil Liability Act which state as follows:

Section 40 – Standard of care to be expected of persons professing to have a particular skill

In a case involving an allegation of negligence against a person (the “defendant”) who holds himself or herself out as possessing a particular skill, the standard to be applied by a Court in determining whether the defendant acted with due care and skill is…to be determined by reference to –

1. What could reasonably be expected of a person professing that skill; and

2. The relevant circumstances as at the date of the alleged negligence and not a later date.

Section 41 – Standard of care for professionals

A person who provides a professional service incurs no liability in negligence arising from the service if it is established that the provider acted in a manner that (at the time the service was provided), was widely accepted in Australia by members of the same profession as competent professional practice;

However, professional opinion cannot be relied on for the purposes of this section if the Court considers that the opinion is irrational;

The fact that there are different professional opinions widely accepted in Australia by members of the same profession does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.

Professional opinion does not have to be universally accepted to be considered widely accepted.

This section does not apply to liability arising in connection with the giving of (or the failure to give) a warning, advice or other information in respect of a risk of death or injury associated with provision of a health care service.

*Section 5PB of the Civil Liability Act in Western Australia is almost identical to Section 41 above.

Hence, with the exception of failure to warn otherwise known as “informed consent” cases, a doctor cannot be liable in negligence if he or she acted in a manner that was widely accepted in Australia by members of the same profession as competent professional practice at the time the service was provided.  Regardless of their wisdom and experience, judges and magistrates are not in a position to form a judgment about what is widely accepted in Australia by members of the medical profession as competent professional practice without hearing and receiving evidence from doctors on that issue.  While a patient may have their own opinion whether the professional practice concerned was competent, a judge or magistrate is not going to find a doctor negligent unless he or she is convinced by evidence from a member or members of the same profession stating that the doctor did not act in a manner that was widely accepted by members of the profession as competent.

Therefore, when you instruct a solicitor in a medical negligence claim, your solicitor will obtain all of the relevant medical records and prepare a chronology of those records and a statement from yourself of your recollection of the facts.  The chronology and the records (but not the statement) will be sent to a suitably qualified expert to provide an opinion on the standard of care you received from the doctor or hospital concerned.  However, before obtaining anything in writing, your solicitor will probably speak with the expert concerned over the phone.  The reason for this is that the District Court Civil Rules require plaintiffs (people suing) to provide copies of all expert evidence in writing to the defendants whether the expert evidence is supportive or not.  This includes any notes made by the solicitor of any telephone conversation with the expert.  Hence, it is prudent practice for the plaintiff’s solicitor to talk with the expert over the phone to see what the opinion is going to be in advance before making an informed decision about whether or not to get that opinion in writing.

The new medical negligence protocols in South Australia introduced by the District Court Supplementary Civil Rules 2014 recognise the pivotal role of expert evidence in medical negligence claims by making the point at which the plaintiff obtains supportive expert evidence the point at which the plaintiff has to put the other side on notice of the claim.

However, getting a supportive expert medical opinion does not necessarily mean that your claim is “a winner”. Defendant’s solicitors once instructed will obtain their own expert opinions on behalf of the doctor that may contradict or at least not be in full agreement with the opinion of your doctor.  When a defendant’s solicitor receives an opinion supportive of the doctor’s claim, the defendant may then deny liability and the medical negligence claim can then become a battle of experts.  Hence, it is important to choose your expert wisely.  It is important that the expert is qualified in the field of medicine concerned.  It can help even further if the expert is particularly qualified in the procedure or treatment that it is the subject of the claim.  Some surgeons can be particularly qualified in specific types of surgery and recognised in that field.  Those experts will be the most widely sought.  It also helps if the expert has a track record of being recognised as an independent expert and has been accepted or even praised by judges in previous judgments in medical negligence claims.  While it is a legal requirement that an expert be independent, experts are human and some tend to be found on one side of the fence more often than the other.

Expert opinions in medical negligence cases can be expensive. The cost of a single opinion can be as much as $2,000.00 to $3,000.00 depending on the amount of reading material.  Many plaintiffs do not have that sort of money to spend.  However, help is at hand.  The Law Society of South Australia Litigation Assistance Fund has a scheme where they will pay for disbursements (out of pocket expenses) such as the opinions of medical experts.  The rules of the Fund are that if funding is provided and the plaintiff is successful, the Fund recovers twice the amount of money paid to the opinion from the plaintiff’s compensation.  If funding is provided and the plaintiff is unsuccessful, the monies are written off.  The process for making an application is that your solicitor will complete the application form with your assistance and send an application off with all of the relevant records and a covering letter to the Fund for assessment. A panel of three lawyers who volunteer to assist the Fund will meet monthly to assess the merits of the claim and application and whether funding should be provided.  The Panel in and of itself is handy in that you are effectively getting a free legal opinion on the merits of pursuing a claim at an early stage.  However, I should point out that I have filed applications where funding has been rejected and the plaintiff has provided the money his or herself for the expert opinion and has gone on to be successful.

Medical negligence law is a specialised area of practice and the solicitors who have practiced exclusively or almost exclusively in that area will have over the years accumulated a “stable” of experts of various specialties who they approach first when they are instructed in a new claim. Often, for obvious reasons, the expert approached lives and practices in another state and won’t know the doctor concerned.

A medical mishap or complication can be extremely distressing and sometimes life changing and I would always encourage the injured patient to at least get legal advice about whether they might have a claim despite the inherent difficulties.

Even if your claim does not proceed, an expert opinion that explains what went wrong and why may at least help you put the matter to bed and move on even if compensation is not an option.

For further information or assistance with your legal matter, contact your nearest TGB office.