Experts at risk
By Richard Barr
Richard Barr reflects on the impact of the MMR and Meadow litigation
Three weeks ago, the Legal Services Commission decided to withdraw the remaining legal aid certificates in the measles-mumps-rubella (MMR) vaccine cases.
This follows their decision in August 2003 when legal aid funding for the bulk of the claims arising out of the MMR cases was withdrawn '“ six months before a trial was due to begin on whether the vaccine caused gastrointestinal and neurological (notably autistic spectrum) injuries to children.
A few families succeeded in getting legal aid reinstated for conditions other than autism, but even this has now been withdrawn. Thus, subject to appeals, and any cases where parents are brave enough to go it alone, the MMR litigation appears to be finally over.
When you are involved in such a large case, you cannot simply walk away from it, shrugging your shoulders and saying 'some you win, some you lose'. Even though I have not been officially involved since February 2004 (when I was made redundant by the firm that was running the cases), the ramifications continue '“ and the issues remain unresolved.
By the time it was over, more than 3,000 families had contacted solicitors and more than half obtained legal aid. The cases were supported by three QCs and nearly 30 experts who produced reports for the claimants.
We believed the parents and tried our hardest to prove the cases. It was always going to be an unequal struggle. We were up against the combined resources of three international pharmaceutical companies and their well resourced lawyers. At one hearing, there were over 50 defendant lawyers and only five of us.
Our experts waded through extensive amounts of medical and scientific literature. Medical records were checked and appropriate tests were recommended by our experts. But the Legal Services Commission did not feel that our evidence was strong enough.
Since then much of the focus has been on one of our experts Dr Andrew Wakefield, a gastroenterologist who published an article in The Lancet in 1998 which actually stated 'we did not prove an association between the MMR vaccine and the symptoms described' and concluded 'further investigations are needed to examine this syndrome and its possible relation to this vaccine'. At a press conference, he confirmed his belief that children should continue to be vaccinated, but that it might be sensible to use the single measles vaccine while the matter was investigated '“ advice that has resulted in him being blamed ever since for the poor uptake in measles vaccinations. In my opinion there were at least three other factors that are far more relevant:
- The sudden withdrawal in 1992 of two of the three brands of MMR vaccine because of a substantially increased risk of viral meningitis.
- The withdrawal by the government of the right to get the vaccines separately on the NHS.
- The failure of the Prime Minister to declare whether his son Leo has had the vaccine.
It smacks a little of: 'We haven't come up with anything yet, but if we dig for long enough we might find something.' In the meantime Wakefield and his family continue to wait. Little wonder that New Scientist (which has published several articles critical of Dr Wakefield), said in an editorial on 17 June: 'Wakefield may have been foolish to put his beliefs before the science, but he is not guilty of publishing inadequately founded research and he does not deserve this treatment. The notion that he should have kept quiet is ludicrous: there are too many cases where doctors' concerns have proved correct, such as their fears over the impact of antidepressant drugs on children. If the GMC proceeds, its message to doctors will be clear '“ keep your suspicions to yourself. Now that could seriously damage your health.'
The investigation of Wakefield, following as it does hard on the heels of the GMC decision to strike off Sir Roy Meadow for giving misleading evidence in the Sally Clark murder trial, must make many would-be experts stop and think whether they really want to risk their livelihoods for a legal case.
It was hard work getting experts to stick their necks out in the MMR litigation. Many told us that they would like to help, but did not wish to risk careers or jeopardise funding.
Even though the Meadow decision has been reversed, the GMC is appealing to the Court of Appeal and the hearing is to take place as this issue goes to press. If Wakefield (and two other doctors who also became involved in the MMR cases) and Meadow lose their careers, I predict there will be a dearth of experts. Already the Medical Protection Society has warned: 'A long-held principle is being chipped away at the edges, with far-reaching implications for the legal system and society at large. In light of several significant cases in the latter part of 2004, the protective cloak that covers experts testifying in criminal and civil proceedings is beginning to look decidedly threadbare.'
It will be even harder to get evidence in difficult cases. And it will be clients who suffer. But where have they been in the recent deliberations about MMR? Mostly ignored, or even vilified as they were in The Times recently as 'hysterical middle-class parents who, in the name of love, risk dragging Britain back to an era of high child mortality'.
The parents of the MMR cases, and the doctors who have tried to help them, deserve more respect than that.
Footnote: As I write this, news comes in from the US that under that country's vaccine damage scheme, an award of $43m was made to a child who contracted transverse myelitis as a result of receiving the MMR vaccine. His expert was Dr Marcel Kinsbourne, an eminent neurologist who was also an expert in our cases. Some UK cases also involved transverse myelitis, but it looks as though those children will be denied all chance of compensation.
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