Single joint expert in medical negligence cases
With the use of a single joint expert potentially being the new norm for adducing expert medical evidence in District Court personal injury cases rather than respective medical experts appointed by opposing parties, what are the possible implications to medical negligence cases.
In a very recent decision in the case of Rai Chandra Kala v La Creperie 8 Ltd and ECAFB, HH Judge Andrew Li of the District Court (Judge) has tightened control over adducing of expert medical evidence in personal injury (PI) cases, particularly those in the District Court. He observed that it was high time for the courts and practitioners not only to consider but to actually make wider use of a single joint expert (SJE) rather than respective medical experts appointed by opposing parties.
The Judge noted that medical experts engaged by the parties often gave polarised opinions on a plaintiff’s injuries, prognosis and impairment. He considered it undesirable and costly for practitioners to engage their respective experts to carry out a joint medical examination (JME) and prepare a joint medical report (JMR). Instead, if the Court agrees medical expert evidence should be adduced, the Court will promote, encourage and urge parties to appoint a SJE in appropriate cases, which he considers to be most of the cases in the District Court.
Having gone through the medical evidence of the case himself, instead of adopting all the opinions from one of the experts, the Judge found the Plaintiff’s injuries and resulting impact came somewhere between the two experts’ opinions. He considered having polarised expert opinions from two different experts on the same issue neither desirable nor cost effective. He said it was high time that directions should be given to engage a SJE by parties for most cases in the District Court, provided expert medical evidence is relevant, necessary and of probative value in the first place.
The Judge observed that not every PI case would require appointment of a medical expert, least two medical experts of the same discipline from opposing sides. For simple and straight forward cases, the medical records and notes from the government hospital/clinics would be sufficient to allow the Court to determine the cause of injury and long term impact from such injuries on the plaintiff’s daily activities and earning capacity.
The three most important factors in deciding whether to appoint a SJE or JME are (i) cost-effectiveness (ii) proportionality and (iii) facilitating settlement of disputes. Even if expert medical report would be necessary, the Court will promote use of a SJE and practitioners should start to get used to this new norm. He even set out a new mechanism and proposed “standard” directions for seeking leave to adduce expert medical evidence. If parties cannot agree on a SJE, the court will appoint one from the list of nominations identified by the parties. He did however stress that his proposed “standard” directions are designed for use in PI cases in the District Court only and they may not be suitable for cases in the High Court which often involve more complex medical issues and where more compensation is at stake.
Although this recent decision sets out the Court’s new norm for appointing a SJE if expert medical evidence on quantum is allowed to be adduced, it was emphasised that this approach would only be promoted by the Court in appropriate cases and the proposed “standard” directions are designed for use in PI cases in the District Court only and they may not be suitable for cases in the High Court. In the Court’s view, most PI cases in the District Court would fall within the category of appropriate cases. In particular, the smaller the claim and more simple and straight forward the injuries, the stronger the argument for the use of SJE for expert evidence on quantum.
Considering the above, the implication on medical negligence PI cases may not be as far reaching. Medical negligence cases often involve more complex medical issues and injuries together with larger claims for damages. Therefore, such cases may not fall under the category of appropriate cases where SJE would be promoted by the Court. Furthermore, since medical negligence cases usually involve a larger claim, they may also more likely be begun in the High Court. The Court stressed that the new proposed “standard” directions for SJE are designed for use in PI cases in the District Court only and they may not be suitable for cases in the High Court which often involve more complex medical issues and higher compensation.
Nevertheless, the use of a SJE for expert evidence on quantum in medical negligence cases should still be considered if the circumstances allow as it would lower costs all round which would be beneficial to defendants, indemnity providers and insurers. If the appointed expert adheres to the Code of Conduct for experts and their duty to the Court to give truly independent and unbiased opinions, we should hopefully see more realistic damages and speedier settlements.
Finally, another notable difference for medical negligence cases is that they will always involve expert evidence on liability. It should be noted that the Court’s recent decision deals with the promotion of SJE for expert evidence on quantum. Given the protocol for adducing expert evidence on liability in medical negligence cases and the complex medical issues involved, at this stage it is unlikely there will be any implications on liability expert evidence in medical negligence cases resulting from this decision.