‘How do you ensure that the opinion of your expert is favourably considered?’

By Maud Letzler

As the sun sets on personal injury law as we know it in South Africa due to the demise of road accident claims, counsel and attorneys will be confronted with an increase in medical malpractice matters.

Medical negligence claims have always been present in South Africa, but in the past insurers were happy to settle most matters quickly and quietly to avoid incurring unnecessary costs and to save the reputation of the doctor concerned. As renewed financial pressure will be placed on the resources of insurers, plaintiffs may find themselves having to fight harder to obtain a settlement or a favourable outcome in court, and herein lies the crux of the matter. No one can prove a medical negligence case, although some certainly try to, without expert medical opinion. However, with the variety of fields that may confront a legal practitioner, he may find himself swimming upstream.

Doctors in South Africa, as in other parts of the world, are notoriously reluctant to testify against each other, and medico-legal experts often find themselves on the outside of the fraternity being reviled for what is essentially a necessary service to mankind.

The medical profession, like any other, should be subject to checks and balances, and without doctors willing to give opinions in legal matters the rights of parties may be severely prejudiced.

The most dangerous scenario for any doctor would be to come up against a plaintiff who is litigating for the sake of it, that is, with his heart and not his head.