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84 S. African L.J. 419 (1967)
The Physician's Liability for Malpractice: A Fair Solution to the Problem of Proof?

handle is hein.journals/soaf84 and id is 431 raw text is: THE PHYSICIAN'S LIABILITY FOR MALPRACTICE: A FAIR SOLUTION TO THE PROBLEM OF PROOF?* In countries where the adversary trial system of English origin is in sway a complaint is fairly frequently made by trial'lawyers acting on behalf of aggrieved patients who contemplate legal action against their doctors for alleged malpractice. They complain that it is extremely difficult, and sometimes impossible, to find an expert medical witness to testify for the prospective plaintiff. In this paper it is proposed to observe how this problem has been approached by lawyers and by courts, and to suggest a possible solution. From the outset it must be emphasized that the problem is viewed from the Anglo-American angle and that a solution is sought within the framework of the Anglo- American procedural system. At the root of the problem lies the fundamental principle of the adversary system-the principle that it is for the patties to lay evidence before the court and that the court will never take the initiative in investigating the facts at issue. The parties must therefore call witnesses, whether laymen or experts, and the court may not suo motu call any witness. A great deal has been said about the reasons for the difficulty in securing an expert medical witness to testify for the plaintiff. Lawyers are inclined to lay the blame squarely at the door of the .medical pro- fession. The most extreme view is that there is a 'conspiracy of silence' among medical men.' But this belief hardly deserves serious attention. It is manifestly unjust to the medical profession to brand'physicians as cold-blooded members of an esoteric brotherhood who are deliber- ately pledged to silence for their mutual benefit without the slightest regard for the interests of patients who suffer as a result of lack of skill or inadvertence on the part of their doctors. There is undoubtedly a spirit of camaraderie among physicians but to indicate this as the root of the trouble amounts to a gross over-simplification. It falls outside the scope of this paper to examine the various reasons for reluctance on the part of medical practitioners to testify against a defendant doctor in a malpractice case. Suffice it to say that the legal profession itself is not without blame. Lawyers are inclined to lose sight of the truth that, despite the spectacular development of medical science, the practice of medicine can in many respects not be described as an exact science. Knowledge of the human body as well as of disease and its causes and cures is imperfect, even in this age of intensive research and unprecedented progress. Quite apart from having feelings of * Paper read at the-First World Meeting on Medical Law, held at the University of Ghent, Belgium, in August, 1967. The author gratefully acknowledges the generous support of the Department of Education, Arts and Science (National Council for Social Research) and the University of South Africa, which enabled him to attend the Meeting. I M. M. Belli, Ready for the Plaintiff (1965), pp. Il ff., and in other writings, seems to tend towards the 'conspiratorial view'.

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