EXPERT MEDICAL WITNESS Section 45 of the Evidence Ordinance of Sri Lanka states that when the court has to form an opinion as to foreign law, or of science, or art, or as to identify or genuineness of handwriting or finger impressions, palm impressions or foot impressions, the opinions upon that point of persons specially skilled in such matters are relevant facts. Such persons are called experts. In the eyes of law, a doctor who is called as an expert witness to give his opinion does not differ from any other expert witness. Professor Keith Mant, a reputed Forensic Pathologist in England in the last century under whom I trained at Guy’s Hospital Medical School, University of London, defined an expert witness as one who has a special knowledge in a specific field. This knowledge the expert possesses has been gained by personal experience based upon practice and research. Therefore, an expert witness is a witness, who gives evidence, - based on his knowledge and academic qualifications - professional experience and expertise The expert witness provides rational and scientific evidence (facts) and interpretation of that evidence (opinions) so that a judge or jury could come to a decision regarding the matter at hand. The expert witness has many functions that may include, - educating and advising counsel - evaluating and assisting in the development of the case - providing written and oral statements in more detail - testing or demonstrating evidence, and, - obtaining the services of other experts when required When an expert medical witness gives evidence, he must accept the facts as presented in evidence. However, the interpretation of the facts may differ. These differences of opinion also give rise to distrust of experts. An expert must present his opinion to the court in a manner that it is clearly understood by the jury and/or the Judge. An expert witness must be able to justify his opinion under cross examination. How the Court would consider expert medical evidence was clearly stated by Lord Justice Stuart-Smith in the Loveday v Renton and Wellcome Foundation Ltd. case. The plaintiffs case was that on a balance of probability whooping cough vaccine could, albeit rarely, cause permanent brain damage but only in children who were in some way vulnerable. The defendant (drug company), while accepting that this was a possibility that could not be disproved, contended that the plaintiffs case was not established. Referring to the expert medical evidence in this case, Lord Justice Stuart-Smith said: “I have derived assistance in greater or lesser degree from all the witnesses who may properly be described as eminent, if not pre-eminent in their fields of expertise. Where there is a fundamental divergence of view between the plaintiffs and defendants expert witnesses, the court must reach a decision. In reaching my decision a number of processes have to be undertaken. The mere expression of opinion or belief by a witness, however eminent, that the vaccine can or cannot cause brain damage, does not suffice.” Lord Justice Stuart-Smith further said that, The court has to evaluate the witness and the soundness of his opinion. Most importantly this involves an examination of the reasons given for his opinions and the extent to which they are supported by the evidence. The court has to decide what weight to attach to a witnesss opinion by - examining the internal consistency and logic of his evidence - the care with which he has considered the subject and presented his evidence - his precision and accuracy of thought as demonstrated by his answers - the way he responds to searching and informed cross examination and in particular the extent to which a witness faces up to and accepts the logic of a proposition put in cross-examination or is prepared to concede points that are seen to be correct - the extent to which a witness has conceived an opinion and is reluctant to re-examine it in the light of later evidence, or demonstrates a flexibility of mind which may involve changing or modifying opinions previously held - determining whether or not a witness is biased or lacks independence “There is one further aspect of a witnesss evidence that is often important: that is his demeanour in the witness-box. As in most cases where the court is evaluating expert evidence, I have placed less weight on this factor in reaching my assessment. But it is not wholly unimportant; and particularly in those instances where criticism has been made of a witness, on the grounds of bias or lack of independence, which in my view are not justified, the witnesss demeanour has been a factor that I have taken into account”. In some countries a second post mortem examination is performed by a pathologist in murder cases on behalf of the defendant. Although the first pathologist, who performs the post mortem does so on behalf of the state, he still is an independent, neutral expert. It is very rarely that the second pathologist disagrees with facts but he may have a different opinion. In cases where I was involved in defence postmortems both pathologists agreed with findings. An expert witness should not conceal facts which are materially relevant. Even when the opposing counsel is unable to comprehend or is ignorant to elicit specifically the fact, he should divulge same as it a fact may be of value to administer justice. - Professor Ravindra Fernando, Senior Professor of Forensic Medicine and Toxicology, University of Colombo
Posted on: Sat, 05 Apr 2014 06:07:51 +0000
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