Experts | Medical experts must find a happy medium

In clinical negligence cases, the specific duty owed by the physician to the patient is defined by the profession itself. A member of the profession is needed to explain to the court, the judge in particular in civil litigation and the panel in a GMC type hearing. The expert will be illustrating what the defending physician should have done or not done under the particular circumstances, and whether such conduct constituted negligence by lowering the standards of care of the profession. ?In clinical negligence litigation then, expert witness evidence is nearly always necessary.

Medical experts usually find serving as an expert witness to be intellectually stimulating, interesting, rewarding and financially beneficial (especially those who have retired or are near retiring or have made a name for themselves). However, potential expert witnesses should be aware of the increased legal scrutiny being applied to expert witness evidence in clinical negligence litigation. This is already happening in America and will probably reach our shores in the not too distant future. In the past, expert witnesses received absolute immunity from civil litigation regarding their evidence or opinion. Perhaps they should make sure they have adequate insurance or indemnity. Expert witnesses may now also be subject to disciplinary sanctions from their own professional bodies and other health boards.

The rules for instructing experts are set out in the Code of Guidance on Expert Evidence and in CPR 35. They are seemingly straight forward, but as is often the case, in practice, they can give rise to more questions than they answer.

A solicitor's first question is invariably 'Is an expert needed?' CPR 16PD.4 assists with matters arising from personal injury. Paragraph 4.3 states, "where the claimant is relying on the evidence of a medical practitioner the claimant must attach to or serve with his particulars of claim a report from a medical practitioner about the personal injuries which he alleges in his claim." It will be a rare case in which medical evidence is not required, but the possibility is there. Its absence is not against the rules.

The next question is what type of expert should be used? In clinical negligence we will be using medical experts to establish if a breach of duty has occurred and what that breach has caused. This is not always the same expert. For example we may have a GP who did not refer his patient to an oncologist and subsequently passed away. We will need a GP expert to establish if the accused GP was negligent in not referring the patient earlier and if the patient was indeed referred earlier an oncologist is needed to establish if earlier referral would have resulted in a better outcome.

The general rule when establishing breach of duty is use like for like. This is not always possible; if you find a GP performing questionable circumcisions you may find yourself instructing an urologist.

Most clinical negligence practitioners usually work on the premise of ruling out the hardest element to prove. Using the above GP scenario it may well be that the oncology element is hardest to prove so it may be worth working backwards and obtaining a report on the rate of the cancer spreading and being curable etc.

The third element needed, especially if serving proceedings is the condition and prognosis of the claimant. This will of course be dependent on what the injuries are. In the example used above, the claimant may have cancer attacking his face which requires a plastic surgeon. Therefore the use of a plastic surgeon with an interest in oncology would be the preferred expert.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) which is now in force has changed the landscape for most other injury related litigation. However for clinical negligence its ambit is less far reaching. Section 46 deals with what is recoverable under insurance premiums by way of costs, i.e. what we know as ATE insurance. This is important as the usual premise of the loser pays the winners cost still stands if the claimant is successful. However if the case is abandoned or lost the ATE insurance will usually pay the experts fees.

The effect of section 46 is expert reports in respect of clinical negligence are recoverable. Section 46 does seem to restrict what is recoverable stating an insurance policy insuring against the risk of incurring a liability to pay for one or more expert reports in respect of clinical negligence can be taken out.

Clinical negligence is defined as a breach of a duty of care or trespass to the person committed in the course of the provision of clinical or medical services (including dental or nursing services). This definition seemingly excludes reports for condition and prognosis.

Once again we are in a position of uncertainty; a grey area has been created. Often in cases, breach of duty and condition and prognosis are dealt with at the same time or overlap somewhat. Dental cases are often dealt with in this manner, to deal with a periodontal disease case it is necessary to have the claimant examined in order to ascertain what his/her condition and prognosis is; which is inextricably linked to causation. One can say only by a thorough tooth by tooth examination the extent of causation and condition and prognosis will be established. There are many other types of cases which will fall into this bracket.

We now may find clinical negligence practitioners working in slightly different ways, perhaps being less precise in causation arguments and waiting for an admission of liability before delving deeper into causation, condition and prognosis. There will inevitably be one eye on the recoverability of reports resulting in a more cautious approach when instructing medical experts.

Historically many medical experts have been accustomed to receiving nice orderly paginated bundle of records with a helpful chronology and index. Given that the fees for this service were considerable and are no longer recoverable on most ATE insurances this way of instructing experts may be dwindling away as many firms are struggling to find way of continuing in ?this manner.

Finding a happy medium between lawyers and medical experts can be challenging. It can be said we are trained in diametrically opposed fashions. The whole rational that flows through medical negligence usually starts with "on the balance of probabilities", medical practitioners are uncomfortable with this concept, they have never heard of this phrase until they entered the medico ?legal world.
If you ask a doctor "what are my chances of dying on the operation table?" You would not hear "on the balance of probabilities… you will not". They are people of science used to dealing in absolutes, percentages and sometimes a range of opinion - typically backed by ?raw data.

The use of words is very important. To a lawyer certain words mean something else to medical practitioners, "probably" may have a lower threshold, it may mean 51 per cent to lawyers. Whereas a doctor may say you will probably be cured in x months meaning you have 80 per cent chance ?of surviving.

I expect in the near future at least there will not be a significant change in the way medical experts and lawyers interact and the issues discussed will be ironed out with things returning to mostly how they were. The current relationship remains interesting, necessary and enjoyable to ?both parties.