The fastest growing field of law is undoubtedly that of Medical Law with the civil
and disciplinary cases flowing from it. Globalization, international communication,
development and evolution of Law as well as Medicine, cause this worldwide
rising medical litigation.
Humanitarian rights, post-modern scepticism and even iconoclastic attitudes
contribute to this phenomenon. Medico-legal litigation and disciplinary complaints
rise (in South Africa) up to 10 per cent per year.
To assist the courts and legal profession, in medico-legal issues, helping the
parties where the plaintiff has the burden of proof and the defendant for rebuttal, a
medical expert witness must be used.
The dilemmas and pitfalls arise, in that although knowledgeable medical experts
could be used to guide the courts to the correct decision, the lack of a legal mind
setting, court procedure and legal knowledge could affect the relevance, credibility
and reliability, making the medical evidence of poor quality.
The legal profession, deliberately, could “abuse” medical expert witnesses with
demanding and coercion of results, which have unrealistic and unreasonable
expectations. “Case building” occurs, especially in the adversarial systems of law,
making the medical expert vulnerable under cross-examination, when it is shown
that the witness has turned into a “hired gun” or is unfair. Thus, lacunae develop,
making reasonable cases difficult and a quagmire of facts have to be evaluated for
unreasonableness, credibility and appropriateness, compounded by the fact that
seldom, cases are comparable.
The danger is that the presiding officer could be misled and with limited medical
knowledge and misplaced values, could reach the wrong findings. Several cases
arguably show that this has led to wrongful outcomes and even unacceptable
jurisprudence.
The desire to “win” a case, can make a medical witness lose credibility and
reasonableness with loss of objectivity, realism and relevance. With personality
traits and subjectivity, the case becomes argumentative, obstinate and could even
lead to lies. The miasmatic, hostile witness emerges, leading to embarrassing,
unnecessary prolongation of court procedures.
The medical expert witness should be well guided by the legal profession and well
informed of the issues. Medical witnesses should have legal training and insight
into the legal and court procedures. At the time of discovery of documents, via
arbitration or mediation, medical experts should strive to reach consensus and
then present their unified finding, helping the parties fairly and expediting the legal
procedure and processes. / Private Law / LLM
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:unisa/oai:uir.unisa.ac.za:10500/14225 |
| Date | 06 1900 |
| Creators | Scharf, George Michael |
| Contributors | Slabbert, Melodie Nöthling |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Dissertation |
| Format | 1 online resource (xiii, 205 p.) |
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