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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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