Joint minutes in medical malpractice and personal injury claims: hard to shake, even by experts

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The Gauteng High Court Plenary Panel recently delivered judgment in the case of M on behalf of L, a child v Member of the Executive Board for Health: Gauteng Provincial Government [1], reiterating the basic principles of joint expert reports. The court underlined their importance and role in the proceedings, and how legal practitioners should go about repudiating the agreement initially reached between the experts when it becomes necessary.

In this article, we examine the role of joint expert minutes and what litigants need to do to deviate from the agreement reached by the experts.

The importance of common minutes

Joint minutes produced by expert witnesses are at the heart of many contentious cases. They detail the basis on which the experts agree (and disagree), and in doing so they refine the issues in dispute, which in turn limits the evidence that must be presented at trial. They also often rush the settlement or withdrawal of a case when an expert registers an agreement with his counterpart on a key issue.

Relevant questions

The issues initially brought before the trial court in this case were, first, whether L’s cerebral palsy was caused by hypoxia (causing brain damage) shortly before his birth and, second, whether this hypoxia was reasonably predictable and preventable by MEC employees. responsible for the delivery of L. The trial court held that, on a balance of probabilities, no negligence could be established and was therefore found for the MEC. M (L’s mother) appealed this decision to a full bench.

The merits of the case and the opinions of the experts

As in most cases of cerebral palsy, the merits hinged on whether or not MEC employees performed their duties by monitoring the progress of labor and the condition of the fetus in accordance with a standard of care. reasonable care. The facts surrounding the work were, for the most part, undisputed. The only factual issues in dispute were when L suffered his brain injury, its cause and consequences.

To decide these questions, the tribunal relied on the testimonies of the parties’ expert witnesses and on their respective joint minutes.

The radiologists agreed that the MRI showed a brain injury that had occurred at or around L’s birth. Obstetric experts agreed that CTG monitoring should have been done more regularly but disagreed on when the fetus’ condition began to deteriorate. Pediatric neurologists have agreed that L has cerebral palsy. On the one hand, M’s expert pediatric neurologist concluded that it was most likely the result of intrapartum hypoxia, and on the other hand, the MEC expert said that the MRI results did not agree. with peripartum hypoxia, deferring the conclusion to expert radiologists of the parties. (who in any event agreed that the brain injury had occurred during the peripartum).

The late introduction of new expert opinions

However, on the eve of the trial, the MEC sought to upset the joint record of the pediatric neurologists by introducing the testimony of another similar expert. This other expert contested almost all the important agreements that the other experts of the parties had reached before, and went so far as to conclude that there was no correlation between the clinical picture (i.e. paralysis brain of L) and the MRI results, stating that “[i]t cannot be dogmatically concluded that hypoxia due to poor perinatal care is the cause of [L’s] disability”.

The pediatric neurologists of the parties (now 3) filed a new joint minutes, supposed to replace all the previous ones. In addition, the original MEC expert was now seeking to withdraw from some of the previously concluded agreements.

As the trial court took into account and relied on this additional expert evidence submitted at the eleventh hour to rule in favor of the MEC, the full panel debated on appeal whether the trial court instance should have done it.

The entire panel concluded that the trial court erred in admitting and giving weight to this additional evidence, which, in effect, was intended to overturn the binding agreements previously made by the parties’ experts. .

The principles of the repudiation of a common minute

To reach its conclusion, the plenary reiterated the principle accepted by the SCA in Bee vs. RAF [2], that despite the agreement between the experts, the joint minutes are liable to repudiation, provided that the repudiation is: (1) clear and (2) timely, before a trial begins.

The entire bench considered that in this case:

  • the court of first instance seems to have tolerated the late filing of the expert’s additional evidence in the absence of the MEC having repudiated (or being authorized to repudiate) the agreements originally concluded;
  • even considering that it could be said that the MEC had repudiated the expertise when the tripartite common minute was filed on the 7th day of the trial, on the basis of the principle established in Bee, it was too late; and
  • the proof should also fail due to the late repudiation clarity required by court in Bee, despite Tripartite Joint Minutes supposed to supersede all previous Minutes.

In conclusion, the tribunal cautioned that given the essential role that expert agreements play in framing the real questions of determination, based on their specialist knowledge unknown to the tribunal, repudiation of such agreements may create challenges. substantial fairness issues and should therefore only be explored in rare circumstances, justified on request to the court of first instance and should only be granted for good reasons.

It is important to note that the entire judiciary completely ignored the testimony of the expert who joined late. The expert was criticized for expressing opinions beyond his expertise and for simply seeking to question the probabilities that had already been established by previously concluded expert agreements, instead of advancing competing explanations .

Lessons learned

  • The following guidelines for the repudiation of joint expert minutes were provided by the Court:
    • it is necessary to identify the specific agreements the repudiation of which is sought and the facts to which they relate;
    • one party must clearly and succinctly set out the new facts which it is sought to prove;
    • there must be an explanation why these facts are so important to the issues as to justify rescinding the agreements; and
    • the party requesting the repudiation of the expert’s agreement must demonstrate that the need to introduce these facts overcomes any prejudice caused by the annulment of agreements already made.
  • Practitioners should act without delay if they foresee the need to repudiate the agreement reached between experts in their joint minutes, and should do so only on rare, meritorious occasions.
  • Experts should be aware of the role they play as experts for the benefit of the tribunal and only comment in their area of ​​expertise.

A copy of the case can be viewed here.


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