The South African Medico Legal Society

Dear Colleagues and Friends

It is really wonderful to experience the interest in the vast expanding fields of Medico-Legal science. Therefore it is a privilege that South Africa has its own Medico-Legal organisation in the South African Medico Legal Society. Possibly still a bit unexperienced, but nonetheless quickly gaining ground, the Society ensures the right links between the medical and legal fraternity. Not only are the seminars, organised by the SAMLS, the right forum to address problem areas, but the cyberspace as a means of communication is an ideal medium too. Place and time is no boundary any more to express thoughts, ideas and comments. Busy as usual, we often do not realise the big opportunities the e-mail way of communication offers. How easy it is to quickly e-mail to medlegcl@mweb.co.za a positive contribution to a common cause. Lets make even more use of it, as in the past, and let us have your contribution to improve our knowledge and advance the science of Medicine and Law.

As disability is a common ground for Medicine and Law, the Disability Medicine Journal, as an official publication of the American Board of Independent Medical Examiners is an interesting source of information. In its April - June 2002 issue an editorial of the Perils of Being an Independent Medical Examiner is published and I quote from this editorial:

Hostility exists in Worker's Compensation and in Litigation arenas where Independent Medical Evaluations are commonly used. This hostility is age old, and it is born naturally from a situation where a legal bias to represent one's client in the light most favourable to the client exists. This issue of Disability Medicine carries a letter from Mr Tom DiGrazia, Esq, underscoring this hostility. The review in this book Independent Medical Evaluations sheds light as well on the perspectives of plaintiff and defendant, i.e., on the bias itself.

Unfortunately, as part of the IME process, physicians are affected by this bias, and because of the hostility of this environment, this bias makes involvement in the IME process potentially dangerous for physicians. Parties who do not like the message of the opposing side's independent medical examiner, sometimes resort to tactics to harass and intimidate physicians who try to be intellectually honest, and who speak what they consider the truth. Particularly in cases involving controversial diagnoses, the risk of action against physicians is increasingly common; some have even called Independent Medical Evaluation a full contact sport. The goal of these militant actions against Independent Medical Evaluators is to discourage physicians - at best well meaning, good, and honest - on both sides from speaking their minds. One such tactic would be the filing of a complaint with a Medical Licensing Board; another would be legal manoeuvring that squanders a physician's time and money.

Most the jurisdictions have consistently held that Independent Medical Evaluators do not owe an examinee a duty of care, and more generally that a physician has no liability to an examinee for negligence or professional malpractice absent a physician-patient relationship, except for physical injuries incurred during the course of the examination. Arizona Supreme Court said it best. “If an IME practitioner's evaluations, opinions and reports could lead not only to vehement disagreement with and vigorous cross examination of the practitioner in the claims or litigation process, but also to his or her potential liability for negligence, the resulting chilling effect would be severe. To permit such an action by expanding the concept of duty in this type of case would be, at best, ill-advised.”

In a golden oldy booklet of Prof. G.T. du Toit, orthopaedic surgeon called Anatomy of Malpractice a true remark about such a conflict of peers was made: “Peer reviews of a doctor's deed are going to be progressively more difficult to achieve. If peers exercise judgement, who judges the peers selected? It sounds suspiciously like unstratified democracy in politics, where the illiterate attempts to exercise rights over the civilised elite. It is like ignorant laymen employing scientists!” and “ A committee of peers assessing a given action in a medical sense, may dependant upon backgrounds of medical training, possibly experienced and widely divergent schools. Such committees chosen on the basis of seniority, influence and experience, may not be predictable, but the degree of consensus achieved is greater than in many other committees. The weighting of a point of view is not necessarily predictable. The method of elections of members of Medical Council is however not based on contentious concepts, nor is the appointment of investigating Disciplinary Committees. One may safely say that they vary greatly in their potential towards maintaining standards. The weighing of evidence, assessment and judgement are very specialised activities, not necessarily within the scope and talents of a particular committee.”

It is one of the future roles of the SAMLS to become a body where mediators in peer review cases can be appointed on request. I, myself, recently have been approached about a spinal surgical procedure where everything was wrong from the start. No proper investigation pre-operatively, no informed consent, an operative procedure done in an unprofessional and negligent manner, no proper follow-up, no proper arrangement while going on holiday, etc, etc. Unfortunately our medico legal system does not provide for an intermediary between the two opposing parties. At the HPCSA the picking of the medical councillors is however still not transparent at all and often a case where one wonders how on earth they could have asked such an opinion.

Here enters the SAMLS, as a SA professional and independent body where Medicine and Law unites to serve the community. Our mission and objectives in our Constitution and Rules, as publicised on our website, www.samls.co.za is very clear about that. Therefore our society invites everybody who qualifies as members to join our society and by that join forces to change the medico legal face of South Africa. For sure a noble goal to strive for, but none the less a goal that can be reached within the foreseeable future. A natural extension of that will be our own Medico Legal Courts where a speedy solution of conflicts can be reached. Too farfetched? Maybe, but not impossible!

As our new Constitution provides in article 39 1 b and c for the interpretation of the Bill of Rights that international law must be considered and foreign law may be considered, foreign court cases become more and more important. An interesting verdict from the Hoge Raad of the Netherlands as given on 19/05/2000 and publicised in Tuchtrecht in de Gesondheidzorg. Here the Hoge Raad confirms a verdict of a lower court where a medical practitioner has been removed from the practitioners role because of “grove onkunde” (severe lack of knowledge) . The highest court of the Netherlands confirms that the verdict “severe lack of knowledge” is not only applicable in extreme cases of criminal liability with medical actions, but is in general applicable on the requirements of capability of doctors. On purpose no explicit standards are held out. Existing standards of practice are allowed to confine the limits. Expert opinion here is of the utmost importance and a statement of colleagues on account of complaints of patients is grounds for the verdict.

In our courts an opinion about expert witness and expert opinion has already been given as early as 1924 in the case of Van Wyk v Lewis 1924 AD 438. Chief Justice Innes declares, as a quote from his own judgement in Mitchell v Dickson 1914 AD 519: “A medical practitioner is not expected to bring to bear upon the case entrusted to him the highest possible degree of professional skill, but he is bound to employ a reasonable skill and care ... And in deciding what is reasonable the court will have regard to the general level of skill and diligence persists and exercises at the time by the members of the branch of the profession to which the practitioner belongs. The evidence of qualified surgeons and physicians is of the greatest assistance in estimating the general level.”

J.R. Midgley in his book about Lawyers' Professional Liability (Juta 1992 page 130) states that: the standard of care to be expected is a question of evidence and the onus of proof rests on the plaintiff. At issue is whether or not expert witness is required to ascertain, first, the level of competence which is expected of the professional and second, whether or not the professional has met the required standard of care. Expert evidence becomes particularly relevant when there is no general approved practise, or where a number of practises are followed. However, evidence of what in the expert's own conduct would have been under similar circumstances, is inadmissibly. The evidence should not reflect the witness’ own practice, but the general practice of the profession.

From all these it can be deducted what an interesting seminar about Expert Opinion and Expert Witness on 5 October 2002 it will be! Make sure you are there to broaden your knowledge about this important subject as a continued education the SAMLS is offering.

News about our society is that the special committee regarding medico legal reports and remuneration has started its work. The Exco is still in the progress of upgrading our website and every member is asked to make a contribution.

Our interesting logo is something to be proud of. The original idea was used in Prof Strauss's book about “Doctor, Patient and the Law”. Consent from the publisher to use this symbol was obtained and a graphic designer was asked to give it more meaning. The central theme is the scales of justice and the medical symbol of the snakes. Unison with a dove and bright light symbolises the unification of Medicine and Law and peace it creates. The yellow of the golden scales and green of the healing power of the snake's venom is embraced by an oval of maroon, colour of unification. Certainly a logo to be proud of.

Your president

DR. & ADV. ANTON H VAN DEN BOUT

EXCO MEMBERS:- Mr Jan van Rooyen - Vice President

Dr. Dave Barnes - Secretary

Dr. Henny Pienaar - Treasurer

Prof Pieter Carstens - Member