La neurosis obsesiva

The following section of this chapter provides an effective procedural framework to facilitate a fair evaluation of expert medical opinion and ensure the speedy resolution of medical negligence litigation concerning issues of diagnosis and treatment. It argues that the current rules of the court on the use of expert evidence are ineffective in ensuring impartial expert medical opinion in the litigation process. It also contends that the procedural framework is one of the main factors contributing to the problem of inordinate delay in the resolution of medical negligence cases of diagnosis and treatment by Malaysian courts. It is proposed that Malaysia should adopt a system of a single agreed or a single court-appointed expert prior to the commencement of medical negligence litigation.

8.4.1 The problems

One of the problems with the system of expert evidence in Malaysia is that it does not provide sufficient safeguard to ensure independence of expert opinion in medical negligence litigation. The present procedural rules governing the use of expert evidence in all civil proceedings in Malaysian courts are provided for under the High Court Rules 1980 and

Subordinate Rules 1980 respectively. As far as the Malaysian High Court is concerned, Order 38 Rule 22 of the High Court Rules 1980 enables litigants in all legal proceedings to appoint expert witnesses at their own expense.19 There is, in addition, provision under Order 40 Rule 1 of the Rules of the High Court 1980 to confer upon judges the discretion to appoint court experts at any stage of legal proceedings to ‘inquire and report upon any question of fact or opinion not involving questions of law or of construction’.20

The exercise of this power, however, may only arise where there is an application by one or more litigants in a dispute. There are no statutory provisions under the rules which authorise the courts to appoint medical experts on their own initiative. The overall procedural framework enables litigants to

19

See also Subordinate Courts Rules 1980 (Malaysia) Order 25 Rule 20.

20 _{There is no corresponding provisions under the Subordinate Courts Rules 1980 (Malaysia) for the}

166 appoint their own medical experts to advance their case. This raises the strong likelihood that the testimonies of medical experts may be biased in favour of the parties who engage them.

There have been judicial observations in Malaysia that expert witnesses who have direct or indirect pecuniary interests in medical disputes are more likely to be biased. One example is in the High Court proceedings of Foo Fio Na. As noted in a previous chapter, the respondent doctor engaged a British expert to give expert opinion on his behalf. This British expert was a council member of the Medical Protection Society, of which the respondent doctor was also a member. One of the objectives of this organisation was to protect the interests of its members against medical negligence claims. The trial judge, Mokhtar Sidin J, rejected the opinion of this British expert on the grounds, among others, that his testimony was ‘self-serving’, aiming to favour the respondent doctor.21

Recently, the trial judge in the Malaysian High Court case of Sanmarkan a/l Ganapathy v Dr V Thuraisingham also commented that so long as the opinion of medical experts is ‘tainted with the probability of non-independence, it would be unsafe for the courts to rely on such evidence to ensure a fair trial’.22

This ‘probability of non-independence’, to use the words of the trial judge, arguably exists in all medical negligence litigation where litigants are allowed to engage their own medical experts.

In Australia and the United Kingdom, the issue of biased expert testimonies is a perennial problem and has been the subject of continual commentary by judges in these jurisdictions. In a study conducted in 1999, it was found that 65 per cent of the 244 judges and magistrates who responded to the survey stated they encountered biased testimony ‘occasionally’, whilst 26 per cent rated it ‘often’.23

Forty per cent of the respondents stated that partisanship in expert testimony ‘was a significant problem for the quality of fact finding in court’.24

Judges were also invited to make comments in the study. Sperling J, the New South Wales Supreme Court judge, gave the following critique:

21 _{The High Court proceedings in Foo Fio Na were examined in Section 7.2.1 of Chapter 7.}

22 _{[2012] 3 MLJ 817, 836-837 (Judicial Commissioner Chew Soo Ho, during argument).}

23 _{Ian Freckelton, Prasuna Reddy and Hugh Selby, ‘Australian Judicial Perspectives on Expert Evidence:}

An Empirical Study’ (Australian Institute of Judicial Administration Incorporated, 1999) 25 and Appendix B.

167 ‘In the ordinary run of personal injury work and to a lesser extent in other work, the expert witnesses are so partisan that their evidence is useless. Cases then have to be decided upon probabilities as best one can’.25

Judicial observation of a similar nature can be found in reported judgments in the United Kingdom.26

The other problem that may have been generated by the current system of expert evidence is the acute delay in the resolution of medical negligence litigation dealing with issues of diagnosis and treatment. An illustration of this problem is the Federal Court decision in Foo Fio Na, a case resolved 19 years after litigation commenced. Legal action in this case was filed in the High Court in 1987. The first instance court only handed down its judgment in 1999. It took a further 7 years for the Federal Court to finally decide on the case in 2006. The severity of the problem is also evident in the Court of Appeal case of Chin Yoon Hiap

which took a period of 16 years to complete. Litigation was initiated in the High Court in 1981, but the trial judge only delivered her judgment in 1995. By the time the case was concluded in the Court of Appeal in 1997, 16 years had passed.

There are various reasons why medical negligence litigation concerning issues of diagnosis and treatment has taken a prolonged period of time to complete. Some of these reasons are identifiable at different stages of the litigation process and may be beyond the control of the courts and the litigants: where litigants are waiting for documents and information from hospitals; during exchange and investigation of documents; and adjournments due to circumstances such as the illness of key witnesses.27

One of the main reasons for the delays in the resolution of medical negligence litigation in Malaysia may lie in the system of expert evidence. At present, Order 38 Rule 4 of the High Court Rules 1980 (Malaysia) authorises the courts to limit the number of ‘medical or

25 _{Justice Hal Sperling, ‘Expert Evidence: The Problem of Bias and Other Things’, (2000) 4 Judicial}

Review 429, 430. Similar comments have also been made in Australia by Justice of Appeal Geoffrey Davies, ‘The Reality of Civil Justice Reform: Why We Must Abandon the Essential Elements of Our System’ (Paper presented at the 20th _{AIJA Annual Conference, Brisbane, 12-14 July 2002).}

26 _{See Section 2.7.3 of Chapter 2 for an observation of the problem of biased expert testimony in the}

United Kingdom by Sir Thomas Bingham MR in the English Court of Appeal decision in Abbey National Mortgages v Key Surveyors Nationwide [1996] 3 All ER 184, 191.

27 _{Puteri Nemie Binti Jahn Kassim, ‘Mediating Medical Negligence Claims in Malaysia: An Option for}

168 other expert witnesses’ who may be called to testify.28

However, this provision is silent on its maximum threshold. More often than not, each litigant in medical negligence cases may call more than one medical expert witness, as evident in cases that were analysed in Chapter 6. The existence of a number of experts in litigation means that there is bound to be conflict of opinion. Inevitably, issues concerning medical diagnosis and treatment are often complex and technical. All of these make the task of resolving medical issues onerous for judges. Hence, judges may take more time to resolve medical negligence litigation concerning diagnosis and treatment.

In Malaysia, reforms to the use of expert witnesses in civil proceedings, or specifically medical negligence litigation, have yet to be introduced. Recently, the Malaysian judiciary adopted a series of measures to clear the backlog of civil litigation. Among the measures that have been implemented are: increasing the number of sittings in the Federal Court and Court of Appeal; setting a timeline for the disposal of civil cases: 6 months for the Magistrate’s Court and 9 months for Sessions Court; introducing a system of e-filing;29 introducing mediation as an alternative dispute resolution mechanism; setting up specialised courts dealing with admiralty and corruption cases; and providing continuing legal education for judges.30 These measures, however, do not address the substantive procedural rules relating to the use of expert witnesses in civil proceedings, particularly medical negligence cases concerning diagnosis and treatment.

In contrast, in the United Kingdom, the Australian Capital Territory, New South Wales and Queensland, legislators in these jurisdictions have acknowledged the problems of biased expert medical opinion and delay in the resolution of civil proceedings that may be generated by the existence of multiple experts in litigation. Hence, procedural rules have been implemented in these jurisdictions for the appointment of a single agreed31 or a single court- appointed expert whilst conferring upon the courts the authority to appoint additional experts should the need arise. This development is discussed in the following section of this chapter.

28 _{See also Subordinate Courts Rules 1980 (Malaysia) Order 25 Rule 4.}

29 _{E-filing is a facility which enables litigants to file cause papers online without the need to file hard}

copies. It means that a case may be filed anywhere in Malaysia without the need to be physically present in the courts in the state jurisdictions where the cause of actions arise.

30 _{See Chief Justice of Malaysia Tan Sri Arifin bin Zakaria, ‘Speech by The Honourable Justice Arifin bin}

Zakaria, Chief Justice of Malaysia, at the Opening of the Legal Year 2012’, [2012] 1 Malayan Law Journal cxxiv.

31 _{The term ‘a single agreed expert’ refers to an expert who is appointed by litigants in a medical dispute}

169