Rapid Responses to:
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Rapid Responses: Rapid Responses published:
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![[Read Rapid Response]](/icons/misc/sectionDOWN.gif)
Medical apathy preserves dysfunctional legal aid system
- Anthony C Barton (6 December 2004)
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Controlling the quality of expert testimony
- Elliott Foucar (6 December 2004)
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Experts & Quality Control
- M E Jan Wise (6 December 2004)
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Outing the Unethical Expert
- Louise B Andrew MD JD (7 December 2004)
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Its not all the fault of the experts
- David Gill, Stevenage SG1 4AB (8 December 2004)
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Guidelines for Expert Witnesses
- John Vinen (8 December 2004)
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Re: Experts & Quality Control
- William G. Pickering (10 December 2004)
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Understanding what is required from Expert Witnesses
- Roy Gary Beran (16 December 2004)
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Registration of forensic medical practitioners
- Alan RC Kershaw (22 December 2004)
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The system is dangerous, incompetent, corrupt and inequitable
- Steven Ford (22 December 2004)
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Re: Registration of forensic medical practitioners
- John Stone (22 December 2004)
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Writing Medicolegal Reports.
- Frank A. Frizelle (28 December 2004)
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Re: Re: Registration of forensic medical practitioners
- John Stone (29 December 2004)
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Re: Registration of forensic medical practitioners: "Why disqualify the one who knows?"
- John Stone (31 December 2004)
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radical changes needed for experts
- Arthur E van Langenberg (7 January 2005)
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Medical Expert Witness
- Raymund Carroll, Richard Notley (20 January 2005)
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Anthony C Barton, Solicitor London N1
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Mr Bishop rightly reports that clinical negligence is in the "dark ages" but omits to mention the damaging effect of legal aid which funds most litigation. The role of experts he describes is merely symptomatic of a dysfunctional legal aid system which lacks independence, fairness and accountability. It is underwritten by the taxpayer. As lawyers get paid win or lose, the system provides perverse incentives to give over optimistic legal advice and to seek out expert opinion to sustain improbable cases. It is amply borne out by the dismal success rates in clinical negligence and pharmaceutical litigation. There is little reason for lawyers to reform a system that serves them so well. The apathy of the medical establishement helps preserve a process that diverts scarce funds from patient care to legal fees. Competing interests: solicitor specialising in clinical negligence and pharmaceutical litigation |
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Elliott Foucar, pathologist Albuquerque, New Mexico 87112
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Bishop’s Personal View about “negligent” medical experts reminds us that there are currently two different standards (clinical and legal) for medical opinions, but perhaps Bishop puts too much emphasis on the experts and not enough on the legal system in which these experts function. In fact, experts providing “negligent” testimony are simply responding to the expectations and oversight that they encounter when working in the adversarial legal setting. Because the performance expectations and oversight in a clinical care setting are markedly different from those encountered in a legal setting, it would be rather surprising if opinions offered in these two settings were the same. An opinion offered in an adversarial legal setting is about facilitating or interfering with the transfer of assets rather than about improving a clinical outcome. Physicians oversee the quality of medical opinions, but the legal system uses its rules and traditions to oversee the quality of opinions expressed in a legal setting. In the USA, judges can point to multiple safeguards designed to control the quality of expert testimony, but none of these safeguards synchronizes legal testimony with clinical practice, and therefore legal testimony frequently appears “negligent” to physicians. Bishop mentioned using physician peer review to influence the content of expert testimony, and this approach would be expected to narrow the gap that currently exists between clinical appropriate and legally appropriate medical opinions. In the USA there have been isolated examples of sanctions imposed on experts whose testimony fell below clinical standards, but the legal system has been very resistant to relinquishing its control over the quality of admissible expert testimony. Physician reviewers attempting to impose their standards on expert testimony find that the legal system has created a minefield of legal “causes of action” that can be used by experts to drag reviewers through prolonged and expensive litigation. Pointing out what doctors consider the negligence of the legal system does not address the pathogenesis of the double standard, which is that doctors are on the losing side of a political conflict over the relative power of doctors and lawyers in the courtroom. It is irrelevant to this conflict that physicians are able to convince themselves that their standards are superior to those of judges and lawyers. Calling attention to negligence can be useful as a political weapon, but power never shifts because a group shown to be negligent voluntarily decides to relinquish power. Competing interests: None declared |
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M E Jan Wise, Consultant Psychiatrist 13-15 Brondesbury Rd, London NW6 6HX
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Editor: Mr Bishop takes exception to the current standards of medical experts (1). Whilst, no doubt, there have been cases of evidence presented by those eminent in their field which has later been discounted, the majority of experts adhere to the Civil Procedures Rules (1998) Code of Conduct. A failure to adhere to these duties would result in censure (2) or referral to the GMC fitness to practice committee. It is a sad fact that funding for experts is limited and successful cross-examination can be difficult. With this in mind, with the interests of justice for claimants and defendants, the BMA has been in talks with the Civil Justice Council and the Legal Services Commission to address the issues of quality, proportionality, and accreditation. Medical practitioners have stated that quality must not be sacrificed on the alter of affordability. Concern has been expressed that doctors may not be adequately trained for expert work, or are not including it in revalidation. The GMC has been very clear on the consequences of failing to include all clinical practice in the annual appraisal process. Some Colleges concerned about recent criticism of practitioners in their field have contacted the Council for the Registration of Forensic Practitioners to set benchmarks. While medical experts act as interpreters between the medical and legal domains their duties are different to those of a treating doctor. Colleagues should take care to be aware of this and censure experts for inadequate conduct in the former rather than not being at the forefront of the latter. (1) MC Bishop. The Negligence of medical Experts. BMJ 329;1353. 4 December 2004. (2) Phillips & Others, Times, 5th November 2004. Competing interests: Chairman BMA Medico-Legal Committee |
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Louise B Andrew MD JD, President, www.ccemt.org New York NY 10016
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As the president of an organization devoted to these concerns, I led a panel discussion of expert medical witness issues with participants from the U.S., Canada, U.K. and Australia in June at the 10th International Conference on Emergency Medicine. While there are decided differences between the medical legal systems, Mr. Bishop has hit the universal nail on the head with respect to medical expert witnesses: "The public assumes that they are in the forefront of their specialty, giving up to date, balanced opinions that are based on their own practice—honed by continuing professional development—and a detailed knowledge of the literature on their subject, to which they are major contributors. They are also supposed to be unbiased." The public's reasonable and appropriate expectations are rarely met, and frequently turned on their heads by those who serve as medical experts. In all of our systems, the expert's role is to educate the judge and jury about issues beyond the usual competence of the layman, and NOT to advocate. Advocacy is the role of the lawyers. However, this distinction is frequently forgotten en route to and in the courtroom, where the truth is often stretched beyond belief. In legal parlance, this is not merely witness negligence, it can even amount to malfeasance. And why? In the U.S., enormous fees are paid to expert witnesses, far in excess of those available through clinical practice, and there are few consequences for those who misstate or mislead the jury about the prevailing standard of clinical practice. Because testimony occurs behind closed doors, peer review is infrequent, and when applied it is often met with countersuits by experts who have become far more comfortable in the courtroom than in the clinic. We would agree that "Governance, audit, appraisal, and peer review should penetrate this area of medical endeavor". Medical testimony has been deemed to constitute the practice of medicine by the American Medical Association and the U.S. Federation of State Medical Boards, and since publicized verdicts do set the standard of care for medical practice in most countries, subject to at least the same degree of scrutiny and regulation. Transparency of the process would also go a long way towards limiting egregious testimony. Nothing should ever be said in court which a medical expert would not be comfortable stating in grand rounds. Competing interests: CoFounder, Coalition and Center for Ethical Medical Testimony |
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David Gill, Consultant Psychiatrist Lister Hospital, Stevenage SG1 4AB
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MC Bishop is a little too hard on medical experts. Many of the problems he mentions are actually to do with the legal system more than individual doctors, for example that cases are frequently compromised without the issues being tested in court. But it is the system, not the doctors, who are doing the compromising. Regarding "recent criminal cases" where experts were criticised in the media, he might also point out problems at the trials when juries were allowed to convict on the basis of expert evidence alone. This has now been remedied, but clearly indicates that the court was also at fault in allowing excessive reliance to be placed upon expert testimony. The message may have been misguided, but shooting the messenger is not the answer- what about the system which read that message, and that message only? Competing interests: provides expert psychiatric reports to solicitors, insurers and others |
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John Vinen, Emergency Physician/Councillor Australian College of Legal Medicine RNSH Pacific Highway St Leonards NSW Australia 2065
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As an experienced expert witness working in a state where there are legislated requirements that all expert witnesses need to agree to prior to giving their opinion and where the expert is considered to be "The Courts Expert" it has always been my approach to give an opinion based on facts and supported where possible by the scientific literature [the literature used must be referenced in the report]. This requirement works well though it continues to surprise me that some experts still get away with their opinion with minimal and at times selective supporting evidence. Expert witness training is now available and should be compulsory for all experts.Such training will without question put pressure on those trained to follow acceptable practices when giving expert opinion and allow a better understanding of the value and role of the trained expert to the courts. Competing interests: None declared |
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William G. Pickering, Doctor 7 Moor Place, Gosforth, Newcastle upon Tyne, NE3 4AL
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Re: Experts & Quality Control As a model of bureaucratic correctness, Wise's letter, some may think, is exemplary. Its content, by contrast, only becomes explicable when the 'Competing interest' box is read: "Chairman BMA Medico-legal Committee" [1]. With a defensiveness rather typifying that found in clinical medicine, Wise opines with studied understatement: "Whilst, no doubt, there have been cases of evidence presented by those eminent in their field which has later been discounted …". Actually, there is no doubt at all. Just read the newspapers. And the law (and patients), through no fault of their own, took such 'discounted' eminencies in good faith. It was British medicine who uncritically made them 'eminent' - not the law or patients. "Medical experts' duties are different from those of a treating doctor" announces Wise. Are they? In both cases they have to define the problem, usually in jargon-free language, so that lay and professional alike can understand the issues. It is not the medical expert's job to deform clinical practice to fit legal tick-boxes or precedent. Many cases reaching the law and the court room would, amongst medical students and their teachers, be decided upon without demur or quibble in no time. Yet, for example, that a child with abdominal pain should have an examining medical hand laid on their abdomen and that catastrophe can ensue if this clinical rudiment is omitted can, unfortunately, take the law many expensive days and weeks to assimilate. Plaintiff and defence medical 'experts' would rapidly agree too about that medical hand — in a clinical setting: but not, perversely, in the legal one. Can the BMA tell us why this is? Anthony Barton lucidly sets out the downsides of legally aided medical litigation and its 'perverse incentives' [2]. The law is certainly an imperfect instrument for settling medical negligence. The legal definition of 'a standard of practice accepted as proper by a competent reasonable body of medical opinion' has, some may think, considerable weaknesses [3]. Does this mean that if enough doctors are practising wrongly, then legally it becomes acceptable? One thinks of the prescribing to thousands of addictive tranquillisers in the recent past, for example: and currently perhaps, of other fashionable widely prescribed drugs? 'Do a reasonable number of patients usually benefit from this clinical method or that medication?' would be an interesting legal question. It would be an interesting medical question come to that [4]. But we must desist. Doctors are not lawyers, and clinical medicine is designed for patients not the courts: at present at least. Though it would take some energy of thought, the BMA committee might like to discuss just that topic at their next meeting. Whilst the limitations of the law are evident and while medical committees spend time lamenting about 'funding .. interests of justice … benchmarks … training …. quality, proportionality, and accreditation' (of course), some might still see occasional value in the law, despite, alas, unquestionably imperfect and partial expert witnesses circulating [5]. It now and again flushes out bad practice. It now and again highlights simple, rudimentary medical errors. It sometimes defines what the patient has suffered at the hands of clinical negligence. It is, at least, a form of clinical accountability. At present the law is the only extant body in the United Kingdom which does this [6]. With regard to their chosen slogan "Quality control" the BMA have in daily clinical medicine plenty to keep them busy on that score. Were they apply themselves purposefully to that issue then perhaps the law would become increasingly unnecessary as an identifier of dubious clinical practice. Author: William G. Pickering Date: 9.12.04 Email: wgpi@hotmail.com 1. Wise M E Jan. Experts & Quality Control. http://bmj.com/cgi/eletters/329/7478/1353#88159, 6 Dec 2004 2. Barton A C. Medical apathy preserves dysfunctional legal aid system http://bmj.com/cgi/eletters/329/7478/1353#88089, 5 Dec 2004 3. McNair J (1957) 1 WLR p588. (Bolam case). 4. Pickering W G. Does medical treatment mean patient benefit? Lancet. 1996;347:379-380. 5. Bishop M C. The negligence of medical experts. BMJ 2004;329:1353 (4 December). 6. Pickering W.G. An independent medical inspectorate. In: Gladstone D, ed. Regulating doctors. London: Institute Competing interests: None declared |
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Roy Gary Beran, President, Australian College of Legal Medicine Sydney, Australia 2067
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Dear Sir or Madam, Re: “The negligence of medical experts” By Bishop M C 329 (7478):1353 – BMJ (4th December 2004) Dr Bishop raises serious concerns regarding the use and calibre of experts in medical negligence matters implying that the majority are out of date, poorly-read, hired guns who function for self-interest. There can be little doubt that there are such medical experts available for hire but it is hoped that moves currently afoot will limit their numbers. One of the aims of the Australian College of Legal Medicine is specifically to ensure that expert witnesses provide specialist opinions in their area of expertise. The College runs specific programs which are well attended and focus on what is required from the expert, be it from the perspective of the solicitor, barrister, judge or jury. It is recognised that each of these categories of participants, within the legal theatre, has different expectations from the expert. It is acknowledged that the expert should be there to assist the court. There is a false assumption that when going to the court the expert should not be biased. It is my considered opinion that if the expert does not carry bias, by the time they go to court, they have either not fulfilled the job for which they were employed or they lack the capacity to so fill it. The time for the expert to be unbiased is at the time of seeing the patient and forming an opinion which subsequently may be interpreted as bias. When first seeing the patient it is imperative that the expert is not biased, that the expert determines that the field under review mirrors the expertise which he or she holds. It is my approach to avoid reading any documentation, sent by the lawyers, until after the patient has been seen, a detailed history taken and an examination completed. By this stage the expert should have formed an opinion both as to the credibility of the person who has been interviewed and examined and the merits or otherwise of the case. Only once this has been completed is it appropriate to vet all the information provided and to see how this supports, or refutes, the opinion raised following direct patient contact. Only after this process is it appropriate to formulate a final opinion and that opinion should analyse all the material thus far to hand, respond to the questions raised and provide a considered opinion that should either support, or refute, the case proposed by the referring lawyer. By this stage in the analytical process, the expert should be biased and should be able to justify that bias from a strictly scientific and medical opinion. This should then be supplied to the legal firm, or the court, seeking the advice. Where the opinion is contrary to that proffered by the legal firm it is more than likely that the expert will not be called to testify in the court and hence it might appear that expert witnesses are biased. In fact, if the job is done appropriately, that which is termed “bias” is merely a properly constructed opinion which coincides with that which is expected by whichever side calls the witness to testify. Most recently I was involved in a very public case in which two neurologists, one appearing for the prosecution and one for the defence, gave virtually identical evidence irrespective of which side had called for the expertise. Within this context, the side not favoured by the evidence, accused the neurologist, called by the other side, as being biased and emotionally involved despite both witnesses giving virtually identical opinions. The issue under dispute is that of bias and it is often the legal profession which inappropriately claims bias if the opinion does not coincide with the posture being adopted by the offended lawyer. The Australian College of Legal Medicine believes that experts need to be educated in the process of being legal experts, made to recognise their own limitations and their specific areas of expertise and need to understand that whatever opinion is given must be based on a clear analysis of the facts provided and the circumstances surrounding the incident under review. We agree that it is insufficient for an expert to merely pay their dues to an appropriate body. The expert must hold both the expertise and understanding of what is required from them before they can truly function as valuable expert witnesses and thus friends of the court. Roy G Beran
Competing interests: None declared |
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Alan RC Kershaw, Chief Executive Council for the Registration of Forensic Practitioners, London WC1H 9HX
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Mr Bishop makes some trenchant points, with a few palpable hits. The Council for the Registration of Forensic Practitioners (CRFP), to which Dr Jan Wise referred in his response of 6 December, was established by the Government to build and maintain a register of currently competent practitioners in all the forensic specialties. We started with forensic scientists, scene examiners, fingerprint examiners and others who operate chiefly around the criminal justice system. More recently the register has expanded to cover forensic dentists, anthropologists, archaeologists and other important forensic groups. Recently we extended registration to cover forensic physicians - paediatricians practising in child protection and police surgeons - at least, those doing a substantial amount of court-going work and those providing expert testimony. We developed the assessment and registration scheme, as we have with all specialties, in consultation with lead bodies in the field - in this case, the Royal College of Paediatrics and Child Health and leading members of the Association of Forensic Physicians. As Dr Wise intimates, we are in discussion with other key organisations which have concerns about variable standards in court work - for example, the Royal College of Psychiatrists. It is readily apparent that the same professional and forensic skills are used, whether a practitioner is working in the criminal or the civil courts. Indeed, in places such as the family courts, where the proceedings frequently take place in private, the case for a central register as a basis for upholding standards is particularly strong. All applicants for registration with CRFP have their qualifications, experience and samples of recent, real life casework - not selected by themselves - scrutinised by a professional peer. Registration is granted to successful applicants for four years at a time, towards the end of which revalidation is required, again inolving scrutiny of recent casework. All registrants are subject to a code of conduct which spells out standards of ethics for forensic practitioners. Against this CRFP considers complaints or other information calling an individual's registration into question. Registration can be taken away. The scheme is voluntary but we hope the courts will come, over time, to see it as a definitive indicator of competence in forensic practice. Judges have shown great enthusiasm for the register because it offers them a ready way to assess the credentials of those whose evidence may come before them. And we believe it is a valuable tool for those - lawyers, the police, insurance companies and others - who habitually commission the services of a forensic practitioner. The Legal Services Commission have recently put out for consultation proposals to use the register increasingly as a measure of quality control in relation to the legal aid budget. Our website www.crfp.org provides full details and we are always pleased to deal with specific enquiries. Competing interests: Paid by CRFP to build and maintain its register |
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Steven Ford, GP Haydon & Allen Valleys Medical Practice. NE47 6LA
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Sir Bishop's article and the Rapid Responses contain much wisdom and are a sharp wake-up call to the profession. No matter what the outcome, the defence always loses heavily financially. Potentially clinically important issues are not resolved. Elements of the legal profession pocket massive profits from legal aid, without any discernible effective limit. The scales fell from my eyes when my barrister stated, without apparent irony or embarrassment, that prejudice in the judge could by no means be discounted. Yours sincerely Steven Ford Competing interests: Recently been through the legal mangle though never appeared in court. Editorial note
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John Stone, none London N22
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It is very questionable to raise this topic - not to say disturbing - without acknowledging the highly controversial issues associated with this subject. Readers of these columns will be all too aware, for instance, that it has already been made virtually impossible in this country to give evidence relating to vaccine damage, although the problem is acknowledged as real enough in other countries and no doubt silently by properly informed pediatricians in this country. An attempt to institutionally direct knowledge, or control what kind of evidence may be given, is ultimately a threat to justice and to science. It would be helpful if Dr Kershaw could clarify his views on this topic. Competing interests: Parent of an autistic child concerned about false accusations |
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Frank A. Frizelle, Professor of colorectal surgery Christchurch Hospital, New Zealand
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The points raised in this article are important and often ignored by doctors until it directly affects them. The New Zealand Medical Association has recently commented that in their view, “the medico-legal environment in New Zealand is a hostile one and constitutes a deterrent to good medical practice. The present “ blame and shame” culture acts as a disincentive to quality initiatives, early detection and reporting of medical error”. The changes in the medicolegal environment in New Zealand in recent years have occurred with the growth of the Health and Disability Commissioner (HDC), the changes in Injury, Rehabilitation, and Compensation Act 2001, and The Medical Practitioners Competence Assurance Bill. The aims of these changes are said to provide accountability within the medical profession. New Zealand has one of the highest numbers of lawyers per capita in the world. One has to wonder if in fact the aim is to increase the work and income of legal profession. Many surgeons are involved in writing medicolegal reports about other surgeons. These reports usually deal with a sentinel event in a surgeon’s practice, and take into account nothing good that has gone before or since. The event is judged alone. The event is considered regardless of resources, fatigue or other issues. The event is a numerator without a denominator, and the larger the practise the more chance it is to occur. It is important that medicolegal reports are fair to patients but also fair to doctors. These reports are the instruments that lawyers use to crucify surgeons., Wide consideration and discussion needs to be given to who should write, and what training should be given to those who do. I would make the following suggestions about report writing. 1. Medicolegal reports should be written by those in clinical practice. 2. The doctor writing the report should have been in clinical practice for a minimum of 10 years. 3. The doctor should have a similar practice as the person they are reporting on. 4. The doctor writing the report should be able to provide an experienced “ big picture” view of events. 5. Doctors writing these reports should have some training both in the legal aspects and in the understanding of data, as the interpretation of data on outcomes is very difficult. Some of the issues are as follows: a. What is the standard that one is commenting on? Should it be best practice, or the minimally accepted standard? b. The person writing the report must be aware that they should not to use too much retrospective analysis. Once one knows the outcome it is often easy to work out how one got there. In most cases as we all know it is possible to improve what we do in a case. Events need to be considered with the level of knowledge available to the doctor at the time of the event. c. An understanding of data and literature interpretation is important. The importance of this is seen in an article by Peter Sagar et al 1994 (1), who compared outcomes between two hospitals for patients undergoing colorectal resection. The authors showed that by adjusting for patient differences the initial results were reversed. d. Medical and legal communication is very different. Doctors write for meaning contained within the context they are writing , and are loose with individual words. There is reliance upon context, sentence and paragraph structure to provide the setting for meaning. Lawyers choose individual words very carefully, and are less concerned about flow and readability. The importance of these reports is not to be underestimated, however the quality of reports is uncertain. Clinical medical practice is aided by the use of evidence based medicine. The legal system has no such tool. A review of cases and expert opinion we would grade as level 4 and 5 evidence respectively, not something on which most of us would base or change our practise. The legal profession can only judge us by the quality of the information provided, if this information is inadequate then so will be their judgement 1.Sagar PM, Hartley MN, Mancey-Jones B, Sedman PC, May J, Macfie J. Comparative audit of colorectal resection with POSSUM scoring system. Br J Surg. 1994, 81, 1492-1494. Competing interests: None declared |
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John Stone, none London N22
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I should have thought that given the vast gap in credibility that has opened up in relation to forensic evidence in the pediatric area, Alan Kershaw could ill afford to neglect a field of well established medical knowedge. If the expertise of those that have written in these columns such as John Plunkett, J F Geddes, C Alan B Clemetson, Michael Innis, F Edward Yazbak, Mark Donohoe, Lisa Blakemore-Brown, Charles Pragnell etc. is to be excluded, we have to ask what lessons have been learned as a result of past mistakes. James Le Fanu (Daily Telegraph, Doctor's Diary, 21 December) reckoned the number of families destroyed in this country as the result of false accusations ran into the hundreds. We have to fear as well that families are often being asked to carry the can for medical negligence. If parents have been wrongly convicted greater understanding of what actually went wrong with the children is essential. http://bmj.bmjjournals.com/cgi/content/full/328/7442/719 http://bmj.bmjjournals.com/cgi/eletters/328/7451/1309 etc. Competing interests: Parent of an autistic child concerned about false accusation |
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John Stone, none London N22
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Relevant to note in this context the touching tribute of Prof Clemetson to Archie Kalokerinos "Why disqualify the one who knows?" in the correspondence of the latest issue of Journal of American Physicians and Surgeons (http://www.jpands.org/jpands0904.htm). Kalokerinos travelled from Australia to give evidence at the historic Yurko hearing in Florida but was excluded on the grounds that his views were not accepted by the majority of physicians in his own country. But as Prof Clemetson points out the majority did not have Kalokerinos's specialised experience of preventing fatalities amongst infants in a sickly, malnourished Aboriginal population surviving in insanitary conditions. Clemetson recalls how Kalokerinos, having witnessed a succession of deaths following vaccination amongst this vulnerable group instituted the practice of administering Vitamic C supplements at the time of innnoculation. After this the deaths ceased. Competing interests: Parent of an autistic child concerned about false accusation |
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Arthur E van Langenberg, medical superintendent Canossa Hospital Hong Kong
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Editor: MC Bishop reminds us how inequitable, and yes, corrupt, is the present system of legal experts. But he offers no solutions! Let us consider, firstly, how 'expert' are the experts? Here in Hong Kong, as everywhere, we find it an unpleasant task to deal in legal conundrums. Those really 'expert' are too busy to bother,so the lawyers then enlist those who are merely willing, and not necessarily expert. For example, there are many failed clinicians whose main occupation is dealing in medicolegal reports. Many of these have not dealt with patients in years and are most unfit to provide 'expert' evidence. The lawyers and judges don't really care and just want to get the job done and wages paid. Mind you, really 'expert' experts are available - at a price, the price of hired guns. Change must be radical. All registered specialists in a particular field should automatically be available for compulsory legal duty, chosen by an independent body. They should all be paid a standard fee. Level the playing field. This is the price the medical profession has to pay to prove our probity and to eradicate the present mess we find ourselves in. Competing interests: None declared |
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Raymund Carroll, Consultant Urological Surgeon The Beeches Consulting Centre, Mill Lane, Cheadle, Cheshire, SK8 2PY, Richard Notley
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Michael Bishop’s article on medical expert witnesses (BMJ 4 Dec 2004) cannot be allowed to pass unchallenged. Expert medical witnesses have had a bad press in recent months, but the majority follows the civil procedure rules (CPR), which came into effect on 26 April 1999 following the Inquiry conducted by Lord Woolf, Lord Chief Justice. No doubt there are so called experts, hired by both defendants and claimants who show as much imbalance as Michael Bishop does in his “Personal View” and who pursue “the hired gun” attitude to support both those who prosecute and those who defend allegations of substandard care. They are rare in our experience rather than being the rule that Michael Bishop seems to imply. Lord Woolf made it clear that all expert witnesses, whether medical or otherwise, have an absolute obligation to follow the CPR. His clear intention was to insure that the biased hired gun was a thing of the past. In our experience his efforts have been substantially successful. The function of the expert medical witness is to examine the evidence and then articulate an opinion on the propriety of the care and treatment provided. It may be worth considering exactly what Lord Woolf sets out in the current CPR. Part 35 is the relevant section. This makes clear that the expert has an overriding duty to help the court rather than support the party who has engaged the expert. This means that strict independence, impartiality and integrity should be transparent. Lord Woolf requires various undertakings from the expert. The facts used by the expert in the report should seek the truth. The opinions given by the expert must be reasonable and based upon clinical experience of the issue in question. Where there is a range of reasonable opinion the expert is obliged to consider the extent of that range in the report and to acknowledge any matters that might adversely affect the validity of the opinion provided. The expert is obliged to indicate the sources of all the information provided and not to include or exclude anything that has been suggested by others (in particular instructing lawyers) without forming an independent view. Finally, the expert is obliged to make it clear that the opinions expressed represent his or her true and complete professional opinion, underneath which a declaration is signed to that effect. This is a very clear mandate and it is our experience that the majority of reputable medical experts follow these injunctions to the letter. The medical expert witness must be an accredited doctor in the relevant field with sufficient clinical standing and experience to be able to assess the issues in question. He or she must be able to set out the various aspects of the problems in an impartial and informed fashion that can be understood by lawyers and the court. This requires professional training and understanding of how to explain the convolutions of medicine and surgery to lawyers. The various legalistic terms such as “breach of duty” and “causation”, (so derided by Michael Bishop), are necessary to communicate within the legal framework. Michael Bishop demonstrates a practical unawareness of the expert witness when he speaks of “negligence”. This is not, has never been and will never be the province of the expert witness - negligence is decided by the Court after balancing the opinions provided by expert witnesses appointed by the parties concerned. Contrary to Michael Bishop’s assertions, the Academy of Experts (A/E), the Association of Personal Injury Lawyers (APIL), Action Against Medical Accidents (AVMA), the Expert Witness Institute (EWI), the Law Society, the Medical Protection and Defence Organizations (MPDOs) and the NHS Litigation Authority (NHSLA) monitor experts’ conduct in report writing and behavior in medico - legal disputes using the data to maintain standards. By contrast, we agree that the General Medical Council (GMC), the professional medical bodies and the Royal Medical Colleges have displayed little interest in promoting the development of forensic expertise for medico – legal purposes. An expert report is the first necessary step in the commencement of the legal process. The report is prepared for the benefit of the Judiciary and once disclosed to the Court it exists in the public arena and thereby the process becomes transparent. The Court appoints the number and nature of experts used in disputes. Without the Court’s approval and authority the expert cannot take part in the legal process particularly in multi - complex cases. Bond Solon legal training consultancy might well be disappointed with Michael Bishop’s stance given that they announced at their Annual Conference (26th November 2004) that in the last 12 years they have trained over 100,000 witnesses, from various disciplines, in the legal process. At the Academy of Experts Annual Conference (London 24th June 2004) a secret ballot of the delegates resulted in 80% voting in favour of accreditation of experts. There are two accreditation bodies in the United Kingdom. The Home Office inaugurated the first, the Council for the Registration of Forensic Practitioners (CRFP), on 30th October 2000. This decision was consequent upon the Court of Appeal’s reversal of lower courts judgments as being unsound in civil and criminal cases because of concern about the quality of expert evidence. To date, the CRFP have accredited 1,600 experts in a wide variety of fields. In 2003 Cardiff University and Bond Solon (CUBS), was the second body to inaugurate a legal accreditation course involving tuition in report writing, courtroom skills and selected English Laws. Examination in these three disciplines was followed by the successful candidates being awarded a certificate – Cardiff University Expert Witness (CUEW) in their fields. Lawyers choose experts for various reasons. Some inexperienced lawyers may select experts because they charge less or they can provide a report quickly, rather than choose those with proven skill in the forensic art of assessing and explaining medical issues to lawyers and the Court. This can hardly be used as a criticism of the experts but rather is a criticism of the legal process itself. By contrast, knowledgeable lawyers use experts that they have learned will provide reliable impartial opinions. It is preferable to have an expert demolish a case at the start of the legal process rather than have it nullified because the original opinion was not impartial. Does Michael Bishop’s overt rebuke of medical expert witnesses not imply a veiled criticism of the conduct of the judiciary who are empowered by Lord Woolf, under CPR, to monitor, nay control, the behavior of such experts and their evidence? Pertinently, those experts who demonstrate the attributes of humility and gravitas weigh well in delivering oral evidence in Court. Richard Notley and Raymund Carroll
Competing interests: None declared |
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