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 [1981] 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.
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