Expert evidence plays a pivotal role in the adjudication of medical negligence cases. It is advisory in character and assists Consumer Commissions to prove whether the medical treatment administered or omitted to a patient is medical negligence. If proven, the Commission grants the civil remedy of compensation to the patient.
Expert evidence bears statutory and judicial recognition through the Consumer Protection Act, 2019 and the Supreme Court’s ruling in V. Kishan Rao vs. Nikhil Super Specialty Hospital (2005). Since proceedings before Commissions are summary, expert evidence is permitted in exceptional cases involving medical complexities. Once permitted, the Expert is legally bound to substantiate his or her opinion with scientific criteria because the opinion per se holds no value.
The author highlights from his professional experience two pertinent issues in the appreciation of expert evidence. Firstly, law mandates Experts to be independent and preferably from government hospitals. However, no embargo is placed on experts practicing privately from adducing evidence. Despite so, select Commissions have viewed private experts’ evidence in skepticism, merely due to possible bias against patients. Secondly, select Commissions have denied medical professionals an opportunity to adduce expert evidence because patients bear the burden to prove medical negligence. Consequently, opportunities are granted solely to patients for adducing expert evidence. Not only is this a flagrant legal misinterpretation, it impedes the medical professionals’ right to fair trial. The Author believes that it is imperative for Commissions to promote cross-examination of experts, objectively apply the law and pre-empt its misapplication.