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Ten Top Tips for Expert Witnesses in Clinical Negligence Matters

Medico Legal

 

by Heather Beckett, a Barrister, Registered Specialist in Restorative Dentistry and Expert Witness

 

The reason for including each of these “top tips” is because I have seen and continue to see all of the issues they address as a recurring theme, even from the most experienced experts. It’s always worth reviewing your established mode of working.

1. Know and keep in mind the appropriate legal test

for the matter in hand

Although as a clinical expert witness you are not expected to be a lawyer, it is important and necessary to know at least the main legal tests for the matter in hand. Failing to do that can mean that the solicitors relying on your report make an unrealistic assessment of the case and formulate an inappropriate pre- -action Letter of Claim, or worse still proceed further with the matter and issue proceedings based on an erroneous premise.

Example: Failure to complete appropriately detailed contemporaneous clinical records is a breach of the standard expected of a reasonable clinician. It is also, perhaps unsurprisingly, a breach of a specific standard expected by the various healthcare regulators. However, it does not, in and of itself clearly lead in causation to a patient suffering loss. The test for negligence has three basic stages:

 i. the alleged tortfeasor must owe a duty of care;

ii. they must have breached that duty of care;

iii. and (causation) this must have led to the loss alleged.

So suppose someone alleges that they suffered terrible pain following a procedure. They say that they were not told that they would need to take painkillers and given advice as to what they should take. Failing to write up the records does not necessarily mean that the person was not told, nor does it mean that even if they had been told they would not have suffered pain. You, the expert, were not there. You don’t know what was said. You do know what should be said and what a failure to give that advice could lead to. Failing to write up the records may not assist the treating practitioner in showing that appropriate advice was given but it doesn’t actually in and of itself constitute the cause of the pain.

2. Know the Guidance for Instruction of Experts in civil claims

This document, dated August 2014 and produced by the Civil Justice Council, should be familiar to all experts. It is really helpful, encapsulating and explaining as it does both CPR 35 and the associated Practice Direction. However, there is another reason why you should be aware of it: Practice Direction 35 at 3.2 (9) (b) makes it clear that an expert’s report must “contain a statement that the expert is aware of the requirements of Part 35, this practice direction and the Guidance for the Instruction of Experts in Civil Claims 2014”.

The use of the word “must” means just that, yet a surprising number of expert reports still don’t meet the requirement. Since the report has to contain that statement, it goes without saying that you should make sure you are actually aware of the requirements of Part 35 and the associated Practice Direction. There are stories of barristers cross- -examining experts on Part 35 in the light of the signed statement in their report.

3. Check and check again that you have the appropriate expertise

Remember, you may, just may, have to give oral evidence in court. It’s unusual in a clinical negligence case, but it happens. If you step outside your area of expertise you are likely to be found out in cross examination. There is also a risk that you may be reported to your regulator.

Example: An expert was being cross examined about the surgical aspects of dental implant placement. This expert was, indeed, an expert in respect of the restorative aspects of dental implant treatment, but did not personally undertake the surgical aspects of this treatment. His report talked about the surgical aspects. He gave oral evidence about the surgical aspects. The expert on the other side leaned forwards and passed a Post- -It note to the cross- -examining barrister. The next question was “How many implants have you personally placed?”. The expert’s answer was “Me?”. “Yes, you” came the response, sensing weakness. The expert’s answer: “None”.

He tried to repair the damage by explaining that he did a lot of planning and had seen a lot of implant surgery, but it was too late. His credibility was severely harmed and that undermined all the evidence that he was otherwise able to provide.

Far better to identify the problem yourself early on, tell those that instruct you, explain in your report why it is that you are expert. Your CV as part of your report is your opportunity to do this. Make sure it is appropriate for the task in hand.

 4. Don’t tickle it if you are not prepared to tackle it

They will come back to you and want more. They will want revisions of your report. The other side will ask Part 35 questions. Instructing solicitors may start to make grumbling noises about wasted costs through having to make applications to the court because of the imminent expiry of deadlines. There are serious sanctions which the court can apply if a party fails to complete an appropriate step on time, including striking out all or part of their case.

So make sure when accepting instructions that you have time to do the work and do it thoroughly and to a good standard. Always bear in mind that once you have started, you will have to stick with the case if it progresses. Occasionally cases take many years with a new task seemingly popping up out of the blue.

If you are going to have to take a bit longer than you thought to complete some work, let the instructing solicitors know. Asking for an extension of time before a deadline has expired is significantly more straightforward in the majority of circumstances than trying to do so retrospectively.

However, you may also have to be prepared to burn the midnight oil to get work done.

 5. Try to avoid using hyperbole

Example: “Mr X’s woefully inadequate management of Y”.

Judges can use hyperbole in their determinations. It adds colour and explanation for their reasoning. Solicitors use hyperbole when they are writing to the other side. It’s part of the adversarial nature of proceedings in this country.

 Experts should stick to the facts, the appropriate standard and whether the facts meet the standard. It assists in showing you are independent and measured,  someone whose opinion is to be taken seriously and relied on.

Example: “Mr X did not do Z. The appropriate standard which Y could have expected is Z because…Therefore in my opinion Mr X fell below the appropriate standard in his treatment of Y”.

Instead of: 

“Mr X’s entire attitude to Y’s treatment was appalling. I always do Z. Mr X’s treatment was woefully inadequate by my standards.”

 6. Be as definite as you can

Remember that the civil burden of proof is “the balance of probabilities”. Is it more likely than not? So the barrister in conference or preparing the pleadings really wants to know whether something is “probable” rather than that it is “possible”. It’s a subtle difference that makes all the difference in this context.

Example: The patient suffered toothache. The X- -ray shows that there were two very decayed teeth, one upper and one lower on that side of the mouth. The dentist took the upper tooth out. The patient went on suffering toothache until the lower tooth was taken out. The allegation is that the dentist misdiagnosed the cause of the toothache and so the patient suffered pain for longer than necessary. It is also alleged that the upper tooth was unnecessarily taken out and could have been saved by an ordinary filling. Is it possible, or probable that the upper tooth could have been saved by an ordinary filling? This may make the difference between the patient being compensated for loss of a tooth and any treatment required to replace it or not. So explain the possibilities and then explain why you think that one of these is more probable. If it is not possible to do this, say so and say why.

7. Explain why you are of your opinion

a. Set out the facts.

b. Set out the range of accepted reasonable opinions,as appropriate..

c. Explain the source of the range of opinions, for example, general undergraduate training at the appropriate time (not when you or the practitioner were undergraduates, but when the treatment under consideration took place), or relevant guidelines from reputable sources, or textbooks. Mainstream journal publications can be helpful. Obscure scientific papers are not particularly helpful if they would not easily be within the knowledge of a reasonable relevant practitioner. Also, beware of trying to find a published paper to support your opinion which does not stand up to reasonably robust critical appraisal. Your own experience is a reasonable resource on which to draw, but you need to explain that this is the source. It is usually better to have something in addition to your own experience, but of course it is not always possible.

 d. Explain why it is that having considered the facts and the range of reasonable opinions, you are of your own opinion.

Doing it this way does not guarantee that your opinion would be something that a judge would agree with at the end of the day in relation to the particular case under consideration, but if it is properly reasoned, they are unlikely to criticize you for holding it and they will still take notice of what you say. Failing to do it this way may mean that they don’t understand why they should agree, and also then disregard pretty much everything else you say.

 8. Be businesslike

It is always sensible to have clear arrangements in place regarding your terms. Solicitors sometimes send letters of instruction that confirm that they will be responsible for the expert’s “reasonable fee”. Do you really want to get into an argument with a solicitor about what is reasonable once you have done a whole lot of work? Do you want to have to give money back to the solicitor if a costs judge, at the end of the day, says that your bill was too high? Do you want solicitors to be telling colleagues that they would never instruct you again because you put in such an outrageously high bill? The overriding objective at CPR 1 requires all litigation to be proportionate. That is clear. However, it is really, really sensible to have agreed terms in place with the instructing solicitor before starting work. Keep a proper record of the time taken to do the work, even if you have agreed a fixed fee so that you can refer to the time taken not only in your feenote, but if someone challenges you on it later. And make sure you chase up payment within the time agreed. Often it is more fruitful to contact the finance department than the specific instructing fee- -earner themselves. Many Medical Reporting Agencies have “payment runs” at specific times of the month. If you leave chasing up an outstanding feenote, it can then, at best, be delayed for up to a month further. Keep on it.

 9. Get some exercise

When you have to go out to work, inevitably you do some exercise, however minimal, getting there. If you spend the majority of your time writing medico- -legal reports at home you will be surprised at how little exercise you actually do. There is an App on some phones which measures how many steps you take, without the trouble of having to buy a pedometer. Take it from me, whereas it’s pretty easy to get your 10,000 steps a day when walking around hospital corridors or to and from work even if it is really quite a modest distance away, a day spent writing reports often runs up less than 500 steps.

 If nothing else, you will risk putting on weight, never mind the effect on your overall health. You may also become less productive. Don’t let that happen.

10. Always remain independent

It is your duty as an expert if you are writing reports addressed to the court. You sign the Declaration and Statement of Truth at the end of your report. Everyone knows this. Yet unless you have been instructed as a single joint expert, you will have been instructed by solicitors representing one or other side. Almost “automatically” you will have become either the “Claimant’s expert” or the “Defendant’s expert”. But you are, in reality, neither. Never forget this.

If possible, when writing a report, or taking a view, ask yourself, “What would I be saying about this if I had been instructed by solicitors acting for the other party?” If you can honestly answer that you would say the same, that’s a good indicator of your independence.

It is also a good idea to make it a rule not to agree to carry out treatment for someone on whom you have written a report in a clinical negligence matter. It underlines your absolute independence. In my experience, people understand why you are declining to take on their case for treatment if you explain it to them and they respect you for it. Just as importantly, so does everybody else. 

Heather Beckett is a barrister at 1 Gray’s Inn Square, London with particular interest and expertise in dental negligence claims, underpinned by a long career in dentistry, including 16 years as an NHS Consultant and experience of NHS and private general and specialist referral practice and civil expert witness work.

 She can be contacted through the clerks at 1 Gray’s inn Square on 0207 405 0001 and is able to take instructions from solicitors and also under the Direct Public Access scheme.