Saturday, 14 December 2013
Conflict of Interest of an Expert Witness: Revisiting FOO FIO NA V HOSPITAL ASSUNTA & ANOR (MALAYSIA)
FACTS OF THE CASE
In this case, the plaintiff was admitted to the hospital (first defendant) as a result of her involvement in an accident. At that material time, she can move all her limbs. The second defendant, a visiting consultant examined her and informed her she had dislocated two neck bones. Traction treatment for that purpose was carried out on plaintiff for two days as per recommendation from the second defendant, but he then discontinued the treatment and claim that it was unsuccessful hence, plaintiff must undergo surgery. Plaintiff consented the surgery and underwent the first operation which causes her to be unable to move her limbs. However, the second defendant assured that it was only temporary and plaintiff then underwent the second operation in which she then can only move her hands. She remained in the hospital for 11 months and unable to use her legs. After the discharge she consulted with one Dr. Mahondas which had done a myelogram test on her at the hospital before. He informed her that a piece of wire which was placed to correct the dislocation of her vertebrae during the first operation had pressurized her spinal cord thus causing the total paralysis. This was discovered after he conducted the myelogram test. As a result of that, the second operation was necessary to remove the wire pressuring the spinal cord. The second defendant however stated in evidence that the wire was not in the spinal cord and this was shown by an X-ray he had taken. The X-ray however was never produced in court despite requests being made by the plaintiff for it to be produced in court and no satisfactory explanation was given for its non-production.
CALLING OF EXPERT WITNESSES
Issue arising was whether the treatment and the first operation conducted by the second defendant the normal practice in treating the plaintiff? For this purpose, both plaintiff and defendant had brought their expert witnesses in adducing the situation and give their opinions.
Dr Arumugam which was brought by the plaintiff gave his statements that the traction treatment done was insufficient to determine whether the plaintiff reacts to it and it should have been prolonged. The second defendant brought in Dr Myles Gibson, a neurosurgeon from the United Kingdom to give evidence as an expert witness on his behalf and to contradict Dr. Arumugam’s testimony. In his evidence, Dr Myles Gibson described that the dislocation of the vertebrae with bilaterally locked facets as the whipping movements which resulted in the jumping of the facets one over the other and the forward movement of the upper vertebra upon the lower. He was of the opinion that if this was left untreated, the plaintiff would have developed progressive weakness of all four limbs and ultimately she would have sustained paralysis of all the limbs. However, he did not address the issue of when paralysis set in which is the main issue of the case. Apart from that he did not see or examine plaintiff himself. His expert opinion was based entirely on the case notes given to him by the second defendant which had been shown to be suspected. It was not proven in court that the case notes given to him was the one produced in court. The court commented that Malaysians are not living in the jungle anymore whereby an opinion by a white man is to be accepted as expert opinion and the only opinion to be accepted.
CONFLICT OF INTEREST
The opinions of Dr Myles Gibson were not only disqualified and being claim unreliable solely on the basis mentioned above. The main basis is due to conflict of interest he had whether to give a good opinion as any other prudent medical practitioner would or base on his interest in that case.
The plaintiff in this case had succeeded in proving that the opinions of Dr. Myles shall be regarded as unreliable as there exist conflict of interest. Plaintiff notedly had adduced evidence in court establishing that Dr. Gibson at the material time when he gave evidence in court was a council member of the Medical Protection Society. This members of this society for medical practitioners vowed to protect any undoing or negligence made by its members. It was then proven in court that the second defendant was a member of that society. Hence, being a member of the Society, Dr Gibson is obliged to protect the second defendant from suit of negligence and such. As such Dr Gibson’s evidence is self-serving on the society which has interest in the decision to favour the second defendant.
As per Lord Wilberforce in the case of Whitehouse v Jordan & Anor  1 All ER,
“While some degree of consultation between experts and legal advisers is entirely proper, it is necessary that expert evidence presented to the court should be, and should be seen to be the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation. To the extent that it is not, the evidence is likely to be not only incorrect but self defeating.”
Hence, due to conflict of interest and non- independency of his statement, his testimony shall be unreliable.