By
- Dr. (Prof.) Mahesh Baldwa, M.D, D.C.H, FIAP, MBA, LL.B, LL.M, PhD (law) SENIOR PEDIATRICIAN & MEDICOLEGAL ADVISOR
- Dr Sushila Baldwa, MBBS, MD,DGO, senior gynecologist, Baldwa Hospital, Sumer Nagar, S.V. Road, Borivali (West) Mumbai 400 092
- Dr Namita Padvi, MBBS, MD,DNB, PGDML, Fellowship in pediatric anesthesiology, Assistant Professor of Pediatric medical s at T.N. Pediatric medical College and Nair Hospital, Mumbai-400008
- Dr Varsha Gupta, MBBS, MD, PGDML, Medical officer in department of pathology, Bhagwati hospital, Mumbai
Medical Expert not defined in India
In India the term ‘expert’ or ‘expert opinion’ is not directly defined anywhere in the Indian Evidence Act or in any other Statute leave aside medical expert.
Judicial interpretation paved way for interpreting medical expert under s. 45
In 1959, as a stepping-stone, Patna High Court got an opportunity to interpret Section 45 of the Indian Evidence Act in Basudeo Gir v. State. The question before the court was whether footprint evidence could be made admissible under Section 45 of the Indian Evidence Act. In 1999, State of Himachal Pradesh v. Jailal followed Balakrishana Das v. Radha Devi and court made an attempt to spell out the characteristics of a person to be called as an expert according to law. They are summarized as follows
1. An expert is a person who has made the subject upon which he speaks a matter of particular study, practice or observation and thereby has a special knowledge of the subject;
2. He is not a witness of fact and his evidence is really of an advisory character.
3 He must have devoted sufficient time and study to the subject. In India, qualification is necessary to admit an expert’s evidence. A vague statement without any particulars of training or type of service does not make any person an expert. Law does not permit any assumption without evidence on material point of competence. Therefore, it is the burden of the expert to prove his competence. If the examination in chief clearly shows no competency the opinion given by the witness will be excluded. The regular practice is that the expert will be allowed to give his evidence and his competency can be challenged in cross-examination.
Thus now s. 45 to 51 are applicable to medical experts
Thus indirectly expert evidence is covered under Ss.45-51 of Indian Evidence Act. S.45 of the Indian Evidence Act allows that when the subject matter of enquiry partakes of medical science as to require the course of previous habit or study and in regard to which inexperienced persons are unlikely to form correct judgment. In India, there is no separate provision in the Indian Evidence Act regarding the admissibility of lay opinion testimony. In order to admit a particular piece of opinion, it should come under Section 45 of the Act. But from the language of Section 47 to 50. Lay opinion testimony relating to handwriting, existence of right or custom, usages, tenets and relationship may be admitted. In all other cases it should satisfy the requirements under Section 45. Section 45 specifically provides that in order to admit a particular piece of opinion, the person stating that opinion must prove that he is an expert. Section 47 of the Evidence Act reads as follows-When the court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact.
From the construction of the provision itself, it is clear that “any person” may give testimony regarding the handwriting or signature and it is not restricted to experts only
S. 46 of the Indian Evidence Act. Facts otherwise are not relevant and become are relevant if supported by expert witness.
S.47 of the Indian Evidence Act exclusively deals with the opinion as to the handwriting.
S. 48 of Indian Evidence Act accepts opinions in conformity and relation to customs and usage read with Section 13 of Indian Evidence Act and S.32 (4) Indian Evidence Act.
S.48 of the Indian Evidence Act deals with the evidence of a living witness, who stood before the Court sworn to depose and subject to cross examination. The only condition Courts insist is that while deposing about custom it is to be established by unambiguous evidence.
S.49 of Indian Evidence Act is about the opinions regarding tenets and S.50 is about the opinion on relationships read with S.32 (5) of Indian Evidence Act saying about the admissibility of opinions in relation to relationships.
This principle is envisaged in S. 51 of the Indian Evidence Act that mere opinions of the witnesses are entitled to little or no regard unless they are supported by good reasons.
History of medical Expert witness Testimony
The need for professionals to testify in medical litigation has its origins in English common law. In the 1767 English case of Slater v. Baker and Stapleton, the concept of professional standard was established; physicians and surgeons were to be judged by “the usage and law of surgeons at that time. The then rule was that profession as testified to by surgeons themselves”[Faden RR, Beauchamp TL, King NMP. A History and Theory of Informed Consent. New York, NY: Oxford University Press; 1986:116]
The Slater case involved the conduct of two physicians who were hired by a patient to remove bandages from his partially healed fracture. Instead, the physicians re-fractured the leg and placed it in an unorthodox device with the goal of achieving proper limb alignment. The patient sued, and in support of his case, produced expert testimony from other physician-witnesses who testified that the device used was inconsistent with standard medical practice.
The basic concept embodied in Slater, ie, that expert testimony can be admitted to support a claim against a professional, has been retained in English law as well as in the Indian Evidence act as section 45 to 51.
Witness is just an informant of facts
As a general rule, the opinions, inferences, beliefs and mere speculations of witnesses are inadmissible before a Court of law. It means that such types of evidence do not merit consideration. Hence they are excluded as inadmissible in the law of Evidence. Witnesses are considered as fact reporting agents of the legal machinery and their role in the adjudicating process is to inform the court of facts. ‘Facts’ means only facts and not opinions or inferences. Witness must testify only what he had perceived with one of his five senses. Therefore, it is worthwhile to know the meaning of opinion and its distinction from fact.
Distinction between fact and opinion
However, in some situations it will be difficult to distinguish between fact and opinion because there are borderline cases in which the evidence of fact is mingled with evidence of opinion. For example, statements relating to the alleged medical negligence related to diagnosis, investigations, treatment and complications causing death, disability or mental or physical trauma. In such cases, the law permits witnesses to state their opinion, without which the fact finder cannot come to a correct conclusion. In some other cases, the line, which differentiates facts from opinion, may be delicate. Ordinary lay witness cannot identify certain facts with his prudence. Such facts may be obscure or invisible to him. But a witness having a particular skill or training may be able to perceive such facts.
Testimony by Experts
The evolution of the concept of ‘expertise’ is one of the path-breaking achievements of the legal system. Expertisation involves an interaction between different subjects.” Through this interaction what law aims is to acquire Knowledge which is outside the ambit of non-expert fact finders. Courts are expected to hear and determine all the cases that come before them. They cannot escape from their duty by saying that the case cannot be disposed of due to the non-existence of judicial techniques Therefore, judges in their everyday life depend on expert’s testimony generally and more specifically. Moreover, as a consequence of advances in science and technology, there has been an increasing necessary for the courts of law to rely on expert testimony.
Expert provides relevancy of opinion by third persons or non parties to case
Sec. 45 to Sec.51 under Chapter-II of the Indian Evidence Act provide relevancy of opinion of third persons, which is commonly called in our day to day practice as expert’s opinion. These provisions are exceptional in nature to the general rule that evidence is to be given of the facts only which are within the knowledge of a witness. The exception is based on the principle that the court can’t form opinion on the matters, which are technically complicated and professionally sophisticated, without assistance of the persons who have acquired special knowledge and skill on those matters. Conditions for admitting an expert opinion are following:-
a) That the dispute can’t be resolved without expert opinion and
b) That the witness expressing the opinion is really an expert.
Why doctors are afraid of becoming expert witness role
In our practice it has been seen that the doctors are generally afraid to testify in the courts. This is mainly because of two reasons: one that they are not familiar of the legal procedures and two because they are afraid to be grilled in the court by the lawyers. As a result many a times the attitude of the doctor while testifying in the court is to finish the testimony and go back, irrespective of the outcome. The beneficiaries in such cases are the litigants who win in absence of properly recorded medical evidence coming out to understand the intricacies of case in light of knowledge, skill, education, experience and training of testifying doctor.
Scene in the court and repeated dates for hearing
Inside court room the presiding officer or the judge/s sit/s in high chair at a higher platform; besides him on his sides at a lower level were the reader and the clerk. There is square known as witness box. The court staff includes head clerk (mukhya sahaik), administrative clerk (nazir), readers (peshkars), stenographers (stenos), record keepers (almads) and orderlies (peons). Clients/litigants (muvakkils) are present with their lawyer (vakil) accompanied by his scribe (munshi) in the courts (kacheri). There is atmosphere of silence with chanting of my lord, mylordship, your honour. Mobiles are in switched off mode. There are police constables (Havaldars) seen lurking around. We doctors are not use to such set up and repeated dates for hearing and grilling on each adjournment. Expert or eye Witness (Gavah) accompanies litigants if called by court. Cases are called out loudly one by one heard briefly if lawyers and litigants present themselves and usually after exchange of papers or few sentences uttered by lawyers are more often than not given next dates. Entire team related to case viz; lawyers, litigants and their witnesses quietly leave court room bowing to judge saying obliged my lord.
Procedure of Presentation of evidence is time consuming and laborious to any commoner
After receiving summons or subpoena the expert witness must appear before the court at the appointed time with the relevant documents. The evidence is probed for areas of uncertainty, inconsistency or any factors which may make the evidence appear unreliable.
Evidence is presented in a systematic order
1. Oath administered (s. 51 Indian Penal Code)
2. Examination-in-chief (direct examination, no leading questions allowed, s. 137 Indian
Evidence Act)
3. Cross-examination (leading questions permitted, s. 141-146 Indian Evidence Act)
4. Re-examination (Re-direct examination, s. 138 Indian Evidence Act)
5. Court questions (questions by judge, s. 165, Indian Evidence Act, s. 311 Criminal Procedure Code)
Signing of evidence
The recorded deposition of witness is handed over for reading, which one carefully goes through, and signs at the bottom of each page, and on the last page immediately below the last paragraph; and initials any corrections (s. 278 Criminal Procedure Code). The witness shall not leave the court without the permission of the judge.
What is the law today related to expert witness ?
The Apex Court of India in Kishan Raov. Nikhil Super Speciality Hospital & Another,(SC) 2010 (2) RCR (Civil) 929 has held that ‘Medical Negligence Claim of petitioner cannot be rejected only on the ground that expert witness was not examined to prove negligence of Doctor. It is not required to have expert evidence in all cases of Medical negligence.’
This does not so far supersede substantive law s. 45 of Indian evidence act. Hence the importance of role of expert witness in medical negligence cases continues to still remain. Law of evidence allows any person – who is a witness to state the facts related to issue which are relevant fact, but not inference drawn by witness. It applies to both criminal law and civil law. But both eye and expert witness are crucial to criminal law.
Difference between evidence of an expert and evidence of an ordinary witness:-
| Evidence of an expert | Evidence of an ordinary witness |
| 1. Expert gives his opinion regarding handwriting, finger impression, nature of injury etc. 2. It is advisory in character. 3. Court can’t pass an order of conviction on the basis of expert opinion, as because it is not conclusive. 4. Expert gives his opinion on the basis of his experience, special knowledge or skill in the field. | 1. An ordinary witness states the fact relating to the incident. 2. Witness states the facts. Opinion of a witness is not admissible. 3. Court may pass an order of conviction on the basis of evidence of ocular witness (eye witness). 4. A witness gives actual facts connected with the incident what he had seen or heard or perceived. |
Medical expert opinion:-
The value of Medical evidence is only corroborative. A doctor acquires special knowledge of medicine and surgery and as such he is an expert. Opinions of a medical officer, physician or surgeon may be admitted in evidence to show-
- Medical negligence cases usually involve more complicated errors, such as misdiagnosis or prescribing incorrect treatments.
- Complications caused by drug, disease or surgery in case of medical negligence
- Cause of disability or death of a person due to medical negligence
- Nature and effect of the disease or injuries on body or mind in case of medical negligence
- Nature and effect of the disease with respect to complications in case of medical negligence
- Probable future consequences of bodily injury etc. in case of medical negligence.
