Doctors Risk

Doctors Risk

Section 45 of The Indian Evidence Act

In today’s time the role of an expert has vital importance as it helps to connect the link that helps us understand the connection between the conduct of a case and the amount of harm that is suffered by the individuals. The physicians are called upon to give their opinion and care and then their judgement is recognized absolutely.

 

The vital role of the expert medical practitioner and the analysis given by them will have a major impact not only on the defendants but also the plaintiffs, the courts and legal system and most importantly the society at large. The reason for having an expert opinion is to resolve the judicial conflict over adjudication of any case or issue. Also in the litigation cases of the medical practitioners and doctors the adjudication if largely based on the opinion of the expert physician.

 

The Indian judicial system has also defined the term Expert under Section 45 of the Indian Evidence Act  states that “When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting [or finger impressions], the opinions upon that point of persons specially skilled in such foreign law, science or art, [or in questions as to identity of handwriting] [or finger impressions] are relevant facts. Such persons are called experts.”

 

Following are the few essential of a physician to be an expert:

  1.  He should have the necessary expertise and should be familiar with the issue.
  2. It is necessary that the physicians who have years of experience in the field provide the necessary opinion rather than the ones who have obtained a qualification in the same recently.
  3. It is vital that the person has the necessary experience a before being able to provide their opinion.
  4. The expert opinion must be given by a physician who is currently practising in the medical field and providing medical opinions rather than the one who has left the practice.
  5. It also happens that when a physician is called upon to give an opinion they are asked to for a group with a medico legal expert who has the right knowledge about report drafting and analyzing the medical, ethical and legal issues.

 

Role of Expert

The basic role of an expert is to make individuals aware about the utmost care taken during an ongoing case with regards to all the facts and and certain other variables that are related to the case as it forms the basis of the expert opinion. Therefore following are the roles of an Expert when called upon to give an opinion for a case:

  1. It is important that the opinion given by the expert should be independent and not influenced by any source or individual as this decision can change everything for the three that is the plaintiff and defendant, the court of justice and the society at large.
  2. The experts should also make sure that they provide fair and independent opinion to the court and also on the matters that lie within their expertise.
  3. While giving their opinion it is necessary that the expert states the basis of the facts and assumptions through which an opinion is given.
  4. Another role of the Expert is that in the making of such opinions it is vital to give utmost importance to all the possible facts, clues or leads. One cannot ignore any information while concluding the opinion.
  5. If the issue in question that is being dealt by the expert is out of his expertise then it is the duty of such experts to inform the court of law.
  6. During a few cases it may so happen that the information or the proofs and facts are not sufficient. Therefore, when inference is drawn from such available facts it is vital that the expert term this opinion to only be a provisional opinion and not a concrete opinion.
  7. While submitting the report the expert needs to assert that it contains the ultimate truth, and entire truth and nothing but just the truth only without certain qualification then the same should also be mentioned in the report submitted.
  8. Once the report is submitted there is a possibility that the opinion of the expert might change after looking at the material from the other party. Hence, when this happens it is necessary that such changes made are brought to the notice of the Legal Representatives of both sides and also to the court if essential.
  9. Another role of the expert is to provide the photographs, or any mathematical solution or analysis, measurements of provided material or reports that are referred to the opposite party along with the original report that contains the experts opinion.

The necessity of an expert was also stated through the case of V. Kishan Rao v. Nikhil Super Speciality Hospital a landmark judgement that an expert is essential in cases which have critical information and issues. This is because an expert can provide information through those facts which others may not be able to.

Wrapping it up

Expert evidence plays a very important role in defending any medico legal case. Since judges do not, and are not expected to have the knowledge of medical issues, they take help of experts in technical matters. However, very often the cases are lost because expert evidence is not produced before the court.

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