Lessons from LLM v Minister of Health (2024) ZANWHC 247 (26 September 2024)
Litigants wishing to use expert testimony in legal proceedings are required to either formally appoint expert witnesses or obtain court approval or consent from all parties involved, as outlined in the rules of court.
Specifically, Rule 36(9)(a) of the Uniform Rules of Court mandates that parties intending to call an expert must provide notice of this intention. If the plaintiff intends to call an expert, this notice must be delivered within 30 days of the close of pleadings, whereas the defendant has up to 60 days. Rule 36(9)(b) further requires that a party relying on expert evidence must deliver the expert's report, including the expert's qualifications, opinions, and the basis for those opinions. The plaintiff must submit this report within 90 days of the close of pleadings, while the defendant has 120 days.
These provisions are designed to streamline the legal process, minimise surprises during trial, and ensure the integrity of expert testimony, ultimately promoting fairness in litigation.
The primary duty of an expert witness is to give the Court the benefit of his or her expertise, providing the Court with an objective, transparent and accurate report (Schneider NO and Others v Aspeling and Another (2010) ZAWCHC 3). The Court relies on expert opinion evidence when the Court can receive appreciable help from an expert witness by virtue of their special knowledge and skill, which makes them more qualified to draw inferences than the trier of fact (Price Waterhouse Coopers Inc and Others v National Potato Co-operative Ltd and Another (2015) ZASCA 2 at para [97]).
In the case of LLM v Minister of Health (2024) ZANWHC 247, the Court dismissed the Plaintiff's case despite the striking circumstances giving rise to the Plaintiff's claim, considering the uncontested, but alarmingly poor quality of the Plaintiff's expert report.
The Plaintiff instituted a claim for damages of R1.8 million against the Minister of Health arising from an incident of an alleged medical negligence which occurred during her admission from 05 to 07 April 2018 at Zeerust Hospital.
The Plaintiff, whilst pregnant with twins, started experiencing abdominal pains and vaginal bleeding. She first attended at Gopane Clinic, where she was referred to Lehurutshe Hospital and eventually transferred to Zeerust hospital. Unfortunately, the Plaintiff sustained a miscarriage at Zeerust Hospital and was subsequently discharged on 07 April 2018, in spite of her complaints of continuous severe abdominal pains.
A month later the plaintiff felt severe abdominal pains and attended at Dinokana Clinic where she spontaneously delivered a dead foetus twin which had remained from the previous incomplete miscarriage in April at Zeerust Hospital.
The Plaintiff filed an expert report of the specialist obstetrician and gynaecologist, which remained uncontested as no expert evidence was adduced on behalf of the Defendant.
The Court found that the Plaintiff's expert report was minimal, of poor quality and basically amounted to the Plaintiff's say-so. The Court stated that Plaintiff's expert report did not contain research which could assist the court with the medico-legal understanding of the complex medical issues relating to twin pregnancy, miscarriage, incomplete miscarriage or retained products of conception etc. Furthermore, the report didn't adequately reference the sources on which the opinion was based. The Court remarked as strikingly odd that the expert report did not stipulate the personal qualifications and experience of the expert.
The Court found that although uncontested, the Plaintiff's expert report failed to pass the muster of an expert report that could assist the Court or advance the Plaintiff's case in any way, unless the expert could lead oral evidence that would answer all the grey areas in his report.
The Court emphasised the value of expert witnesses, and reiterated the threefold functions of an expert witness as stated in the case of AM and Another v MEC for Health, Western Cape (2020) ZASCA 89, namely, 1) experts observe relevant facts which is admissible as evidence of fact; 2) experts provide the court with abstract or general knowledge pertaining to the specific discipline; 3) experts give evidence concerning their own inferences and the grounds for drawing those inferences.
The Court rejected the unsubstantiated opinion of the Plaintiff's expert especially considering that the expert failed to give oral evidence and technically left the court with no appreciable assistance on the issues.
Another crucial factor leading to the court's dismissal of the Plaintiff's case was the lack of any clarity from the medical records from Zeerust hospital and/or witnesses who treated the Plaintiff during the relevant admission period.
The Court found that considering the lack of medical records, and well-reasoned expert opinion, the Court was left with insufficient the evidence to give rise to any delictual liability on the part of the Defendant.
In National Justice Compania Naviera SA v Prudential Assurance Co Ltd [1993] 2 Lloyd's Rep 68 at 81-82), the court provided the following guidelines, which are now regarded as the universally accepted code of conduct of experts:
- Expert evidence should be the independent product of an unbiased and uninfluenced expert.
- An expert should provide an objective opinion about matters within his expertise, an expert must not assume the role of an advocate.
- An expert must not omit material facts which could detract from the concluded opinion.
- If a particular issue falls beyond the scope of the expert's expertise, the expert and/or briefing attorneys must bring the court's attention to this.
- If the expert opinion was formed on the basis of insufficient data, the opinion should be expressed as a provisional opinion instead of conclusive.
The case of LLM v Minister of Health serves as yet another crucial reminder to all litigants of the importance of delivering expert reports which are well-reasoned, adequately sourced and appropriately framed to ensure that the merit of your case is not diminished by inadequate expert opinions.
Lessons from LLM v Minister of Health (2024) ZANWHC 247 (26 September 2024)
Litigants wishing to use expert testimony in legal proceedings are required to either formally appoint expert witnesses or obtain court approval or consent from all parties involved, as outlined in the rules of court.
Specifically, Rule 36(9)(a) of the Uniform Rules of Court mandates that parties intending to call an expert must provide notice of this intention. If the plaintiff intends to call an expert, this notice must be delivered within 30 days of the close of pleadings, whereas the defendant has up to 60 days. Rule 36(9)(b) further requires that a party relying on expert evidence must deliver the expert's report, including the expert's qualifications, opinions, and the basis for those opinions. The plaintiff must submit this report within 90 days of the close of pleadings, while the defendant has 120 days.
These provisions are designed to streamline the legal process, minimise surprises during trial, and ensure the integrity of expert testimony, ultimately promoting fairness in litigation.
The primary duty of an expert witness is to give the Court the benefit of his or her expertise, providing the Court with an objective, transparent and accurate report (Schneider NO and Others v Aspeling and Another (2010) ZAWCHC 3). The Court relies on expert opinion evidence when the Court can receive appreciable help from an expert witness by virtue of their special knowledge and skill, which makes them more qualified to draw inferences than the trier of fact (Price Waterhouse Coopers Inc and Others v National Potato Co-operative Ltd and Another (2015) ZASCA 2 at para [97]).
In the case of LLM v Minister of Health (2024) ZANWHC 247, the Court dismissed the Plaintiff's case despite the striking circumstances giving rise to the Plaintiff's claim, considering the uncontested, but alarmingly poor quality of the Plaintiff's expert report.
The Plaintiff instituted a claim for damages of R1.8 million against the Minister of Health arising from an incident of an alleged medical negligence which occurred during her admission from 05 to 07 April 2018 at Zeerust Hospital.
The Plaintiff, whilst pregnant with twins, started experiencing abdominal pains and vaginal bleeding. She first attended at Gopane Clinic, where she was referred to Lehurutshe Hospital and eventually transferred to Zeerust hospital. Unfortunately, the Plaintiff sustained a miscarriage at Zeerust Hospital and was subsequently discharged on 07 April 2018, in spite of her complaints of continuous severe abdominal pains.
A month later the plaintiff felt severe abdominal pains and attended at Dinokana Clinic where she spontaneously delivered a dead foetus twin which had remained from the previous incomplete miscarriage in April at Zeerust Hospital.
The Plaintiff filed an expert report of the specialist obstetrician and gynaecologist, which remained uncontested as no expert evidence was adduced on behalf of the Defendant.
The Court found that the Plaintiff's expert report was minimal, of poor quality and basically amounted to the Plaintiff's say-so. The Court stated that Plaintiff's expert report did not contain research which could assist the court with the medico-legal understanding of the complex medical issues relating to twin pregnancy, miscarriage, incomplete miscarriage or retained products of conception etc. Furthermore, the report didn't adequately reference the sources on which the opinion was based. The Court remarked as strikingly odd that the expert report did not stipulate the personal qualifications and experience of the expert.
The Court found that although uncontested, the Plaintiff's expert report failed to pass the muster of an expert report that could assist the Court or advance the Plaintiff's case in any way, unless the expert could lead oral evidence that would answer all the grey areas in his report.
The Court emphasised the value of expert witnesses, and reiterated the threefold functions of an expert witness as stated in the case of AM and Another v MEC for Health, Western Cape (2020) ZASCA 89, namely, 1) experts observe relevant facts which is admissible as evidence of fact; 2) experts provide the court with abstract or general knowledge pertaining to the specific discipline; 3) experts give evidence concerning their own inferences and the grounds for drawing those inferences.
The Court rejected the unsubstantiated opinion of the Plaintiff's expert especially considering that the expert failed to give oral evidence and technically left the court with no appreciable assistance on the issues.
Another crucial factor leading to the court's dismissal of the Plaintiff's case was the lack of any clarity from the medical records from Zeerust hospital and/or witnesses who treated the Plaintiff during the relevant admission period.
The Court found that considering the lack of medical records, and well-reasoned expert opinion, the Court was left with insufficient the evidence to give rise to any delictual liability on the part of the Defendant.
In National Justice Compania Naviera SA v Prudential Assurance Co Ltd [1993] 2 Lloyd's Rep 68 at 81-82), the court provided the following guidelines, which are now regarded as the universally accepted code of conduct of experts:
- Expert evidence should be the independent product of an unbiased and uninfluenced expert.
- An expert should provide an objective opinion about matters within his expertise, an expert must not assume the role of an advocate.
- An expert must not omit material facts which could detract from the concluded opinion.
- If a particular issue falls beyond the scope of the expert's expertise, the expert and/or briefing attorneys must bring the court's attention to this.
- If the expert opinion was formed on the basis of insufficient data, the opinion should be expressed as a provisional opinion instead of conclusive.
The case of LLM v Minister of Health serves as yet another crucial reminder to all litigants of the importance of delivering expert reports which are well-reasoned, adequately sourced and appropriately framed to ensure that the merit of your case is not diminished by inadequate expert opinions.
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