Joint minutes in medical malpractice and personal injury claims: hard to shake, even by experts

The full bench of the Gauteng High Court recently handed down judgment in the case of M on behalf of L, a child v Member of the Executive Council for Health: Gauteng Provincial Government [1], reiterating the basic principles behind joint minutes of experts. The court highlighted their importance and role in proceedings, and how legal practitioners should go about repudiating agreement originally reached between experts where this becomes necessary.

In this article, we consider the role of expert joint minutes and what litigants must do to deviate from the agreement reached by experts.  

The importance of joint minutes

Joint minutes produced by expert witnesses are central to many litigious matters. They detail the basis upon which experts agree (and disagree), and in doing so, they narrow the issues in dispute, which in turn limits the evidence that is required to be led at trial. They also often precipitate a matter’s settlement or withdrawal where one expert records an agreement with their counterpart on a key issue.

The relevant issues

The issues originally brought before the trial court in the present case were, firstly, whether L’s cerebral palsy was caused by hypoxia (causing brain injury) shortly before he was born and, secondly, whether that hypoxia was reasonably foreseeable and preventable by the MEC’s employees responsible for L’s delivery. The trial court held that on a balance of probabilities, no negligence could be established and so found for the MEC. M (L’s mother) appealed this decision to a full bench.

The merits of the case and the expert views

As with most cerebral palsy cases, the merits turned on whether or not the MEC’s employees attended to their duties in monitoring the progression of labour and status of the foetus in accordance with a reasonable standard of care. The facts surrounding the labour were, for the most part, uncontested. The only factual issues in dispute related to when L sustained his brain injury, what caused it, and what its consequences were.

In deciding these issues, the court turned to the evidence of the parties’ expert witnesses and their respective joint minutes.

The radiologists agreed that the MRI showed brain injury which occurred at or around L’s birth. The obstetric experts agreed that the CTG monitoring ought to have been performed more regularly but disagreed as to when the foetus’ condition started to deteriorate. The paediatric neurologists agreed that L suffers from cerebral palsy. On the one hand, M’s expert paediatric neurologist concluded that it most likely resulted from intrapartum hypoxia and, on the other hand, the MEC’s expert stated that the MRI findings were not in keeping with peripartum hypoxia, deferring the finding to the parties’ expert radiologists (who, in any event, agreed that the brain injury occurred peripartum).

The late introduction of new expert views

However, on the eve of the trial, the MEC sought to upset the joint minute of the paediatric neurologists by introducing the evidence of a further like expert. This further expert took issue with almost every material agreement that the parties’ other experts had previously reached, and went so far as to conclude that there was no correlation between the clinical picture (i.e. L’s cerebral palsy) and the MRI findings, stating that “[i]t cannot be dogmatically concluded that hypoxia due to poor perinatal care is the cause of [L’s] disability”.

The parties’ paediatric neurologists (now 3) proceeded to file a new joint minute, which purported to replace all previous minutes. In addition, the MEC’s original expert now sought to resile from some of the agreements previously reached.

As the trial court did have regard to and placed reliance on this further expert evidence submitted at the eleventh hour in ruling in favour of the MEC, the full bench grappled on appeal with whether the trial court ought to have done so.

The full bench concluded that the trial court erred in admitting and placing weight on this further evidence, which, in effect, sought to undo binding agreements previously reached by the parties’ experts.

The principles behind repudiating a joint minute

In reaching its conclusion, the full bench reiterated the principle accepted by the SCA in Bee v RAF [2], that despite agreement being reached between experts, joint minutes are capable of repudiation, so long as the repudiation is: (1) clear and (2) timeous, before a trial commences.

The full bench reasoned that in this instance:

• the trial court appears to have condoned the late filing of the further expert’s evidence in absence of the MEC having repudiated (or being permitted to repudiate) the agreements originally reached;
• even considering that the MEC could be said to have repudiated the expert agreement upon the filing of the tripartite joint minute on the 7th day of trial, based on the principle established in Bee, this was too late; and
• the evidence should also fail on account of the late repudiation lacking the clarity required by the court in Bee, despite the tripartite joint minute purporting to replace all previous minutes.

In conclusion, the court cautioned that given the critical role that expert agreements play in framing the true issues for determination, based on their specialist knowledge unknown to the court, repudiation of these agreements can create substantial problems of fairness and should therefore only be explored in rare circumstances, substantiated on application to the trial court and should only be granted on good cause shown.

It is important to note that the full bench completely disregarded the evidence of the late-joining expert. The expert was criticised for having expressed opinions beyond her expertise and for merely seeking to cast doubt on the probabilities that had already been established by the expert agreements previously reached, instead of advancing competing explanations.

The lessons learned

• The following guidelines for repudiation of expert joint minutes were provided by the Court:
  • it is necessary to identify the specific agreements sought to be repudiated and the facts to which they relate;
  • a party must set out clearly and succinctly the new facts sought to be proved;
  • there must be an explanation why those facts are so material to the issues that they justify the undoing of the agreements; and
  • the party seeking to repudiate the expert’s agreement must demonstrate that the need to introduce those facts overcomes any prejudice caused by setting aside agreements already reached.
• Practitioners need to act without delay should they foresee the need to repudiate agreement reached between experts in their joint minute, and should only do so on rare, deserving occasions.
• Experts should be mindful of the role they play as experts for the court’s benefit and comment only within their field of expertise.

A copy of the case can be accessed here. For more information, please contact Athol Gordon.

_{[1] M on behalf of L, a child v Member of the Executive Council for Health: Gauteng Provincial Government (A5015/2020) [2021] ZAGPJHC 501}

_{[2] 2018 (4) SA 366; recently endorsed in MEC for Health and Social Development, Gauteng v MM on behalf of OM [2021] ZASCA 128}