Expert Witness In Medical Negligence Claims

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In medical negligence claims, the plaintiff is generally required to prove that the doctor failed to meet the expected standard of care, which caused the plaintiff harm. Given that this issue falls predominantly within the domain of medical science, the court ordinarily would rely heavily on the evidence of medical experts appointed by the parties.

Section 45 of the Evidence Act 1950 (EA 1950) states:

“(1)       When the court has to form an opinion upon a point of foreign law or of science or art, or as to identity or genuineness of handwriting or finger impressions, the opinions upon that point of persons specially skilled in that foreign law, science or art, or in questions as to identity or genuineness of handwriting or finger impressions, are relevant facts.

(2)       Such persons are called experts.”

Meanwhile, Sections 8 and 9 of the Malaysian Medical Council’s Guidelines on Expert Witnesses state:

“8.        A RMP is qualified to testify as an expert witness if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.

9.          An expert witness' special knowledge, skill, experience, training, or education may be shown by any admissible evidence, including his own testimony."

Form And Content Of An Expert Report

The admissibility of evidence given by expert witnesses, the form and content of expert reports as well as the duties and obligations of an expert witness are largely governed by the EA 1950 and the Rules of Court 2012 (RHC 2012).

Order 40A Rule 2 of the RHC expressly provides that it is the duty of an expert to assist court on the matters within his expertise and that this duty overrides any obligation to the person from whom he has received instructions from or by whom he is paid by. This provision also states that an expert report shall include the following:

(a)  give details of the expert’s qualifications

(b) give details of any literature or other material which the expert witness has relied on in making the report

(c) contain a statement setting out the issues which he has been asked to consider and the basis upon which the evidence was given

(d) if applicable, state the name and qualifications of the person who carried out any test or experiment which the expert has used for the report and whether or not such test or experiment has been carried out under the expert's supervision

(e) where there is a range of opinion on the matters dealt with in the report:

      i.summarise the range of opinion; and

      ii.give reasons for his opinion

(f)  contain a summary of the conclusions reached

(g) contain a statement of belief of correctness of the expert’s opinion

(h)contain a statement that the expert understands that in giving his report, his overriding duty is to the Court and that he complies with that duty.

Assessment Of Expert Evidence

When assessing expert evidence, the court will take into account various factors, which are discussed below:

1.         Experts Qualification and Experience

In Abdul Ghafur bin Mohd Ibrahim v Pengarah, Hospital Kepala Batas & Anor [2010] 6 MLJ 181, the High Court considered the expert opinion of the plaintiff’s expert (SP2) and the defendant’s expert (SD8) and held that on a balance of probabilities, SD8’ views or opinions were to be preferred to the views or opinions of SP2:

“[45] As to the expertise of SP2, he admitted in cross-examination that for the last two years preceding this trial, he did not operate on patients; he merely did some minor procedure only. The defendants thus submitted that this does not make him a fit and proper person to give expert evidence on neurosurgery.

[46]…Experience or working experience is an important aspect of an expert which will lead to show whether he has sufficient knowledge and skill in the field he professes himself to be an expert. An expert witness is required to adduce evidence of his working experience besides his qualification and the fact whether he had testified in court before and whether if he did, his evidence had been accepted by the court…

SP2, however, is certainly less experienced and less exposed to hands on work in neurosurgery as compared to SD8 who is of vast working experience in the neurosurgery field and also as the Head of the Neurosurgery Department at the Sultanah Aminah Hospital Johore Bahru which is the main centre of neurosurgery in the country. After having seen and heard both SP2 and SD8, this court must say that SD8 is undoubtedly more qualified and comprehensive in term of practical experience as well as his knowledge in matters of neurosurgery than SP2.”

The court would be inclined to take a dim view of the experts who stray outside their area of expertise in their expert opinion and evidence. In Dr KS Sivananthan v the Government of Malaysia & Anor [2001] 1 MLJ 35, the High Court held:

“An expert should not give an opinion on matters outside his field of expertise. Clearly the evidence of the medical experts regarding handwriting and authenticity of the records were not admissible evidence and should not have been accepted by the trial judge. As such, the trial judge was in error in making the finding that the fasciotomy was done on 12 September 1983 and not on 5 September 1983”.

2.Opinion must be Independent, Objective and Unbiased

The duty of the expert witness is to assist the court on matters that are within his expertise, and he must maintain neutrality at all times. This duty is paramount and overrides any obligation of the expert to the person who has instructed him or by whom he is compensated. The expert’s opinion should be independent, providing objective and unbiased opinion on matters within his expertise.

Sections 12 to 14 of the Malaysian Medical Council’s Guidelines on Expert Witnesses state:

“12.        The duty of the expert witness is to assist the adjudicating body on matters that are within his expertise and he must maintain neutrality at all times. This means the expert witness has a duty to act independently and to be honest, trustworthy, objective and impartial.

13.               The expert witness must make sure that any report written, or evidence given, is accurate and not misleading. This means the expert witness must take reasonable steps to check the accuracy of any information given, and to make sure that all relevant information is included.

14.               If an expert witness changes his opinion at any time, such change(s) should be communicated immediately to the adjudicating body and the other parties in the proceedings.”

In Ku Jia Shiuen (an infant suing through her mother and next friend, Tay Pei Hoon) & Anor v Government of Malaysia & Ors [2013] 4 MLJ 108, the High Court held:

“It is the primary duty of an expert to assist the court in arriving at the right decision; even if he compromises the case of the party who called him and is paying for his services. It cannot be overemphasised that the duty to assist the court in arriving at a just decision is paramount. It overrides any obligation to the party from whom the expert has received instructions or by whom he is paid (see O 40A r 2 of the ROC 2012). Therefore, the evidence of an expert should not only be independent but should also be seen to be independent.”.

3. Credible Witness

In Abdul Ghafur bin Mohd Ibrahim v Pengarah, Hospital Kepala Batas & Anor [2010] 6 MLJ 181, the High Court held that that the fact that the witness had some past misconduct itself does not make him a non-credible witness. However, by being untruthful in his evidence as to his last designation in the government hospital and concerning the grade he held before he resigned, the plaintiff’s expert witness had showed he was not a reliable witness and as a matter of prudence, the court had to scrutinise his evidence with great care and suspicion.

4. Opinion supported by material facts and medical literature

In Zulhasnimar bt Hasan Basri & Anor v Dr. Kuppu Velumani P & Ors [2016] 3 MLJ 625, the Court of Appeal found no reason to interfere with the High Court’s conclusion, which was based on the expert evidence and medical literature relied on by both parties: 

 “[46] The learned judge devoted more than 30 paras in her judgment discussing the evidence by both sides on the issue. She had also considered the expert evidence of Dr Ong and Dr Raman together with the evidence of the first defendant. In addition, the learned judge had also reviewed the medical literature referred or cited to her on the issue of labour at near term or on full term pregnancy. Having done so she concluded that the first plaintiff was not in labour at the time of admission around 6.30am on that fateful morning or any time after that up to the time when the first plaintiff collapsed in the ward.

[84]  Perusing through all the publications cited on this issue plus the evidence of both medical witnesses and expert opinion by Dr Raman, I agree with the defendant that, on the facts of the present case there is no presence of labour in the first plaintiff. This is because there was no regular uterine contractions and dilation of her cervix, for any conclusive evidence that she was in labour.

[47] Having scrutinised the evidence and the reasoning by the learned judge we are of the view that her conclusion on the issue does not warrant our intervention. The opinions of the experts are a question of fact. We see nothing wrong in the learned judge’s preference of one expert opinion over the other if she can reasonably explain the preference (which in this instant we think the learned judge had done).”

Commentary

Expert evidence lies at the heart of medical negligence litigation. Given the technical and specialised nature of the subject matter, courts are heavily reliant on expert evidence to determine whether the standard of care was breached and whether that breach caused the plaintiff's harm.

Ultimately, the integrity of the medico-legal process depends on ensuring that expert witnesses do not merely lend their names, but provide independent, objective and evidence-based opinions that assist the court in reaching a just conclusion.

5 May 2025