|MEDICO LEGAL ISSUES
|Year : 2011 | Volume
| Issue : 4 | Page : 421-422
Bhaskar Medical College, Andhra Pradesh, India
|Date of Web Publication||13-Sep-2011|
S C Parakh
Bhaskar Medical College, Andhra Pradesh
|How to cite this article:|
Parakh S C. Expert witness. Indian J Anaesth 2011;55:421-2
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. This is due to the ignorance of the fact that producing expert evidence is the right and privilege of both the parties to a suit. Most doctors think that it is the duty of the court to call an expert witness hence; they do not exercise their right. Though the court by itself can call an expert if the judge needs his help, but it is not bound to call an expert for opinion.
Any one who is qualified, skilled and experienced in the field of anaesthesia can give evidence in the court in a case of negligence during anaesthesia. We can select an expert of our own choice who is willing to tell the court that our line of action is the one accepted by the profession and no negligence is involved.
If we ask to produce an expert witness in our defense, court can not refuse. In one case Petitioner requested the registrar of National Consumer Dispute Redressal Commission to forward all relevant papers for the expert opinion. Some how, it was not done. Supreme Court referred the case back to National Commission with direction to seek the expert opinion and reconsider its judgment. 
Section 45 of the Evidence Act makes opinion of experts admissible.  It lays down, that, when the court has to form an opinion upon a point of science, the opinion upon that point of a person specially skilled in such science is a relevant fact. 
In order to bring the evidence of a witness as that of an expert, it has to be shown that he has made a special study of the subject or acquired a special experience therein. In other words that he is skilled and has adequate knowledge of the subject.
The court usually considers the reliability of the expert witness based on his education, training, experience (Nature and Scope of Practice), memberships, affiliations, publications, and believability (Reputation). 
However, the opinion of an expert is not binding on the court. It is stated in Titli v. Jones (AIR 1934 All 237) that the real function of the expert is to put before the court all the materials, together with reasons which induce him to come to the conclusion, so that the court, although not an expert, may form its own judgment by its own observation of those materials. 
An expert is not a witness of fact and his evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of these criteria.
The scientific opinion evidence, if intelligible, convincing and tested becomes a factor (and often an important factor) for consideration along with other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions. 
However, an expert witness is subject to examination and cross examination in the court. It has been laid down that without examining the expert as a witness in Court, no reliance can be placed on an opinion alone. 
The evidentiary value of the opinion of expert depends on the facts upon which it is based and also the validity of the process by which the conclusion is reached. Importance of an opinion is decided on the basis of the credibility of the expert and the relevant facts supporting the opinion so that its accuracy can be cross checked. Therefore, the emphasis has been on the data on basis of which opinion is formed. The same is clear from following inference: "Mere assertion without mentioning the data or basis is not evidence, even if it comes from expert. Where the experts give no real data in support of their opinion, the evidence even though admissible, may be excluded from consideration as affording no assistance in arriving at the correct value". 
If it is not convenient for the expert witness to be physically present in the court, his opinion can be taken by way of affidavit, written questionnaire, telephonic conversation or even video conferencing.
"The affidavits of the experts including the doctors can be taken as evidence. Thereafter, if cross-examination is sought for by the other side and the Commission finds it proper, it can easily evolve a procedure permitting the party who intends to cross-examine by putting certain questions in writing and those questions also could be replied by such experts including doctors on affidavits. In case where stakes are very high and still a party intends to cross-examine such doctors or experts, there can be video conferences or asking questions by arranging telephonic conference and at the initial stage this cost should be borne by the person who claims such video conference. Further, cross-examination can be taken by the Commissioner appointed by it at the working place of such experts at a fixed time". 
| References|| |
|1.||Supreme Court of India Civil Appeal No. 5991 OF 2002 Ramesh Chandra Agrawal Vs Regency Hospital Ltd. andamp; Ors. |
|2.||Section 45, Indian Evidence Act. |
|3.||State of H.P. v. Jai Lal and Ors., [(1999) 7 SCC 280]. |
|4.||Fredrick W, Cheney, Donald AK. (Chapter 2). In Clinical Anaesthesia by Barash PG, editor. London: J.B.Lippincott Company; 1989. p. 35. |
|5.||Titli v. Jones (AIR 1934 All 237). |
|6.||Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee and Others, supreme Court of India [Criminal Appeal Nos. 1191−1194 of 2005 alongwith Civil Appeal No. 1727 of 2007, decided on 7.8.2009. |
|7.||State of Maharashtra v. Damu s/o Gopinath Shinde and others., [AIR 2000 SC 1691 at page 1700]. |
|8.||ibid 1. |
|9.||Rule 4 in Order 18 CPC. |