A caution for medical experts

Although there are perceived financial incentives, being a medico-legal expert comes with other sacrifices, namely time away from work and other personal interests. An expert plays a crucial role, ensuring that reasonable standards are met, helping identify errors and defending good patient care. In doing so, experts need to be impartial, rigorous and ensure their opinion is grounded in current practices.

The recent NSW case of Busa[1] emphasises the key role of medical experts in helping Courts to reach fair and evidence-based decisions, as well as the importance of engaging well-known and reliable experts who are likely to give well-reasoned and balanced opinions.

Background Facts

The patient underwent a ‘tap and inject’ procedure on his left eye at Sydney Eye Hospital in 2015, for suspected endophthalmitis. He alleged excessive needle taps (up to eight times) by the registrar and a failure to properly document the procedure. The patient suffered vision loss in his left eye, ongoing pain and psychiatric injury.

Findings

The doctor gave evidence that he performed no more than three taps in line with training and usual practice, there were no medical records of the procedure and other medical records demonstrated that no structural trauma occurred due to the procedure.

The plaintiff relied upon the expert evidence of Italian ophthalmologist, Dr Pietro Morelli, whilst the defendant engaged vitreoretinal specialist, Dr Gurmit Uppal, and general ophthalmic surgeon, Dr Geoffrey Cohn. The Court found no breach of duty and held that the doctor did not perform more than three taps, favouring his reasoning over the account of the plaintiff and his sister, and that the procedure was carried out in a manner that was widely accepted in Australia as competent professional practice.

Even if breach had been established, the Court held that the patient would have failed to establish causation. Namely, vision loss was inevitable due to the severity of the patient’s pre-existing eye condition (advanced retinopathy and infection) at the time of the procedure. The Court gave limited weight to Dr Morelli’s evidence for the following reasons:

1. The Expert Witness Code was not acknowledged until Dr Morelli’s fourth report;
2. Dr Morelli failed to set out the assumptions, material facts and documents which he had relied on when preparing his report[2];
3. Dr Morelli changed his opinion on whether the plaintiff suffered from endophthalmitis, without identifying what documents he relied on to change his opinion; and crucially
4. Dr Morelli had never practiced as an ophthalmic surgeon in Australia, and therefore did not possess the necessary qualifications to opine on professional practice standards in Australia.

Key takeaways

The case of Busa highlights the importance of engaging experts that can comment on the standard of care expected in Australia, particularly in circumstances where there is a paucity of clinical records. Further, the case demonstrates the indispensable contributions medical experts can make in assisting Courts to deliver just outcomes.