Expert medical witnesses are there to testify on the facts of a case, and they should not speculate, a judge said in turning down a R10-million damages claim against the Road Accident Fund after it was claimed that a child had suffered severe brain injuries following an accident.

In this case, the child, who was nine when a taxi collided with the car in which she was a passenger, was said to no longer be able to achieve her academic goals, including attending a tertiary institution after she had completed school.

A well-known neurosurgeon who was called as the main expert witness told the court that while the child – now 17 – started off with a mild brain injury, it has now escalated to a serious injury.

This was after the neurosurgeon looked at the incomplete hospital records when the child was admitted for a day and discharged the next day, and after one virtual consultation with her and her mother – about eight years after the accident.

Making matters worse is the fact that several other medical experts based their medical legal reports on that of the neurosurgeon, who had admitted to only virtually consulting the child once and using incomplete medical records to base his opinion on.

The RAF had already conceded the merits of the matter and paid (an undisclosed) amount in general damages towards the child. The only matter that was left for the court to now determine was the R10-million claim for loss of earnings.

The court was told that after she was discharged after spending a day in hospital, she was taken to an eye hospital for an examination. But she did not get any further medical attention as it appeared that she did not require it.

It was now claimed that she had suffered such a serious brain injury that it rendered the child unable to achieve university education and thus limited her future earning capacity.

This is on the basis that the experts have all based their reports on the primary report of the neurosurgeon, who based his report on the hospital records, which he admitted were incomplete, and the one virtual consultation with the child and her mother.

Judge Marcus Senyatsi remarked that the approach of our courts in consideration of the experts' reports is that while experts are entitled to make assumptions, they should avoid basing their opinions on conjecture or speculation.

Once they do so, they place their evidence at risk of being disallowed.

“Expert witnesses are required to lay a factual basis for their conclusions and explain their reasoning to the court. The court must satisfy itself as to the correctness of the expert’s reasoning.”

Judge Senyatsi said what is concerning to him about the neurosurgeon’s report and evidence is that he conceded that the hospital record was incomplete.

Having regard to the incomplete hospital records and the criticism the expert had regarding the records, the judge said it is difficult to fathom the basis of the expert's opinion that the child had suffered such a serious brain injury that she wouldn't be able to study further.

Judge Senyatsi said it is surprising that he could reach conclusions as he did based on this one virtual consultation and did not explain why he saw no need for further examination.

The judge rejected his medical report, along with that of several other medical experts which based their findings on that of the neurosurgeon.

Pretoria News

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