Rapid Responses to:
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Rapid Responses: Rapid Responses published:
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![[Read Rapid Response]](/icons/misc/sectionDOWN.gif)
The expert in Pearce v Ove Arup Partnership Ltd [ 2002] IPD 25011
- Peter Gooderham (5 August 2005)
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Once again
- Giusto Giusti (6 August 2005)
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Roles and responsibilities of barristers
- John Hopkins (6 August 2005)
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Re: The expert in Pearce v Ove Arup Partnership Ltd [ 2002] IPD 25011
- Jay Ilangaratne (7 August 2005)
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Roles and responsibilities of medical expert witnesses and Health Impact Assessment
- John R Kemm (9 August 2005)
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Medical Expert Witness
- Kailash C Mohanty (10 August 2005)
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Civil Procedure Rules have not eliminated all the problems
- Charles Essex (14 August 2005)
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Medical expert witnesses and cot deaths
- Geoffrey P McMullin (27 August 2005)
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Re: Medical expert witnesses and cot deaths
- Jay Ilangaratne (28 August 2005)
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GMC and "reputation of profession"
- Anne F Travers (12 October 2005)
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Re: GMC and "reputation of profession"
- Jay Ilangaratne (13 October 2005)
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Peter Gooderham, Teaching Assistant Cardiff Law School
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In fairness to Michael Wilkey, the expert witness mentioned in reference 7 of this otherwise excellent article, it should be pointed out that he was NOT found to be at fault by his professional body. The decision of the Professional Conduct Committee of the Arcitects Registration Board is too long to reporoduce here but includes the following: "We think that, on reflection, the answers given by Mr Wilkey were not ones that he might have given had he had an opportunity to consider them, but the words, in our view, on the evidence that we have heard and we have read in the transcript, were put into his mouth - the words “perjury” and “lying” - and that they did not originate from him. They were the words of the Judge and of the opposing leading counsel, possibly, and, again with the benefit of hindsight, he might have found some other explanation or might more sensibly have said, “That is not a matter for me as an expert witness, I do not think that I should answer the question.” Certainly, on that issue we do not find evidence of serious professional incompetence. Having considered those individual criticisms which have been raised in the last few days, we do not consider that Mr Wilkey was guilty of any unacceptable professional conduct or serious professional misconduct, but, having looked at the individual items, we have then, as it were, stepped back and looked at all the evidence - that is his written reports and his oral evidence - and we have asked ourselves whether there is anything else in his reports or in his oral evidence that could support a charge of unacceptable professional conduct or serious professional misconduct. We have decided that there is not and, accordingly, we find Mr Wilkey not guilty of the charges." (1) Commentary on this decision includes the following: "The judge went on to make serious criticisms of Michael Wilkey's evidence in the judgment itself. The judge however broke new and worrying ground by suggesting in his judgment that Michael Wilkey should be referred to his professional regulatory body for a disciplinary investigation. Some 15 months later the Architects Registration Board completely exonerated him of all disciplinary charges both with regard to his professional opinion and his conduct as an expert witness (a decision which was incidentally consistent with the findings of two other expert architect witnesses). The Royal Institute of British Architects has recently confirmed in the light of the ARB decision, that it will not be taking any further action. Whilst Michael Wilkey is, of course, delighted at what has recently happened, he is left with a sense of injustice from the whole affair. During this period, Michael Wilkey has not only suffered damage to his reputation and loss of work as an expert witness but has incurred substantial costs in defending himself. All this has been on top of the anxiety and distress as a result of the judge's criticisms and the consequent disciplinary proceedings."(2) Medical observers may be interested in the balance implied by the Architects Registration Board's motto, on its website: "Protecting the consumer and safeguarding the reputation of architects." (1)http://www.arb.org.uk/regulation/pcc-decisions/wilkey.shtml Accessed 5 August 2005. (2) Carter, Melanie. Preventive Measures, New Law Journal 6 June 2003. NLJ 153.7083(865) Competing interests: None declared |
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Giusto Giusti, Professor of Legal Medicine, Rome 00133
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The theme afforded by Mr Friston is essential for a good administration of justice. To choose the official expert, when necessary, is the duty of the Court, while public prosecutor and defendants, or parts in a civil litigation, can choose their own experts. Rules are not very different for civil and criminal cases, but must be known. Typical errors are committed when a pathologist or a clinician, though well prepared and advanced in their profession, afford a medico-legal case without a sufficient knowledge of forensic pathology or of the clinical forensic medicine or of the judicial context in which they are working. I remember the case of a great pathologist, expert in histopathology of cancer, who accepted to examine a case of homicide: he was so poorly interested on the bullet, that the bullet, though retained, was never found. I remember also some great clinicians, who could not catch completely the difference between cases of civil responsibility and cases of workmen compensation. The problem, therefore, is how to choose a medico- legal expert. Before this, however, we should decide whether we need a really professional expert or an amateur who, now and then, accept a case as a divertissement. In my opinion, economic and social interests are so great that many cases cannot be examined by one person, especially cases of malpractice. Time has arrived to imagine new procedures to be developed in public district or regional medico- legal institutes. Competing interests: None declared |
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John Hopkins, GP DL5 4SE
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Dear Dr Godlee, If it wishes to address the problem of expert witnesses, the criminal justice system will need to do more than advise doctors to read the Ikarian Reefer case. Presumably, the audience to whom this article is addressed consists of practising doctors. Most of them will have no inclination whatsoever to get caught up in a system that is today even more of a minefield than their daily work. If they care about justice, Mr Friston and his colleagues would be wise to devote some of their time to establishing procedures that deliver safe and fair judgements without appearing to make scapegoats of those whom they have cross examined. If they fail to do that the responsibility will be entirely and unequivocally theirs. Yours sincerely, Dr John Hopkins Competing interests: None declared |
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Jay Ilangaratne, Founder Medical-Journals.com
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In his editorial[1], Mark Friston has simply stated "one trial judge referred a non-medical expert to his professional body for giving 'biased and irrational' evidence.7". That is a statement of fact. Further, Friston has not mentioned the name of the professional concerned.Nor has he suggested the person concerned was found guilty by his professional body.Hence, it is not clear why Gooderham felt,"In fairness" to the non- medical expert concerned, it was necessary to identify him by name and expose further details of his case.In fact, Friston has not shown any form of unfairness to the person he has referred to[1]. Gooderham also says "otherwise excellent article"; does he mean that Friston should have, or had an obligation to, state the details that Gooderham has produced in his rapid response? If so, why, given it is manifestly clear that Frsiton has not been unfair at all, to the person concerned; Friston has commented with due sensitivity by not identifying the expert by name. References [1]Mark Friston. Roles and responsibilities of medical expert witnesses BMJ 2005; 331: 305-306. Competing interests: None declared |
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John R Kemm, Public Health Physician Birmingham
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The editorial on roles and responsibilities of medical expert witnesses [1] should be required reading for those who undertake Health Impact Assessment (HIA). Though there is as yet no statutory basis for HIA many of its practitioners believe that there should be. This leader reminds us that a legal requirement for HIA would bring not only increased responsibility but also much greater accountability. In the meanwhile those who produce HIA would be well advised to study the guidance for joint expert witnesses. In particular they should note the need to provide an unbiased opinion, not to assume the role of advocate (not even an advocate for health), to make clear the underlying assumptions, not to omit material facts, to stay within the bounds of their expertise and to state where the data are inadequate. [1] Friston M BMJ 2005; 331, 305-306. Competing interests: I have undertan several HIA and am the joint editor of a book on this subject |
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Kailash C Mohanty, Consultant Physician Diana Prnicess of Wales Hospital, Grimsby DN33 2BA
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Medical Expert Witness EDITOR- The author of “ Roles and responsibilities of medical expert witnesses” (BMJ pages 305-306 Volume 331) argues four cardinal rules for the medical expert in light of striking off of Professor Sir Roy Meadow by the GMC on 15th July 2005. These were training, knowledge of rules, indemnity insurance and impartiality. I have been an expert witness since 1982. Since Bolam Test[1] in 1957 it has been very easy to give an expert opinion in a medical negligence cases without any training, knowledge on rules or procedures or even without being impartial. Doctors then saw their loyalty towards their parties who instructed them. In 1998 Lord Woolf, the present Lord Chief Justice, set out Civil Procedure Rules (CPR) which came into force in 1999. Part 35 of CPR is very important for the experts. However the training requirements of these doctors are not explained in the CPR. Because of this there are several experts until today do not understand their duty to the court and the nature of impartiality. In my opinion, the experts should not only be trained but also be registered appropriately. At present a doctor should send a CV on areas of expertise with two references from a Solicitor and/or a Barrister in order to be registered. I am a founder member of the Society of Expert Witnesses founded in 1996. Since then several other Expert Witnesses Registers have been open to the doctors. It has been argued that expert witness training should be compulsory for all experts.[2] On top a doctor should only write a report after 8-10 years’ of experience in the post.[3] Usually the courts ask questions relating to scientific research not usually found in the text books. One has to search the literature thoroughly to answer any doubts of the court and a doctor must be truthful if he/she does not know the answer. Therefore the reports are backed up be references like a research paper. The single joint expert (SJE) was recommended by Lord Woolf but unfortunately this has not been taken up by the courts as yet. In many cases the parties hold joint conferences or the experts from two sides (Crown Prosecution Service and the defence/ Plaintiff and the Respondent) meet to agree on a joint report before the hearing. If they do not agree then both side experts are called to give evidence. Finally it is very difficult to prove negligence of a medical expert. Most expert medical witnesses provide impartial and balanced opinions. Carroll and Notley say, “Negligence is not, has never been, and will never be the province of expert witness.” [4] Kailash C Mohanty
1. Bolam v Friern Hospital Management Committee [1957] 2 All ER 118- 28 2. Vinen J. Expert witness training should be compulsory for all experts. BMJ 2005;330:1027 3. Frizelle F. Issue in writing medico legal reports must be considered. BMJ 2005;330:1027 4. Carroll R, Notley RG. Negligence of medical experts BMJ 2005; 330: 1026 Competing interests: None declared |
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Charles Essex, Consultant Neurodevelopmental Paediatrician Child Development Unit, Gulson Hospital, Coventry CV1 2HR
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Friston describes the role of the expert witness in the light of the 1998 Civil Procedure Rules [CPR]. These were introduced to, amongst other things, eliminate the “hired gun” expert who would give a report influenced by whether he was instructed by the solicitor for the Claimant or the Defendant. However they have not affected three areas of expert witness work. Firstly, they have not eliminated the expert whose opinion is “predictable”. For example, the obstetric or midwifery expert who almost always reports that the management of labour was unsatisfactory and the baby with cerebral palsy should have been delivered earlier. Or the care expert who always recommends all-singing-all-dancing-24-hour-wall-to-wall- hot-and-cold-running-services. These experts would inevitably by instructed, in these examples, by the solicitor for the Claimant. Secondly, there appears to be little accountability of judges or barristers in terms of their responsibility towards experts. Experts are frequently instructed to attend Court on a particular date, on the instruction of the judge or Counsel for one side or the other who wants all the experts available for cross examination. Often the Counsel has not read all the expert reports for some time, having been involved with other cases in the interim. On re-reading the expert reports a day or two before the trial Counsel decides that certain experts need not attend Court as their evidence is not controversial. An expert may then be given 24 hours notice or less that they are not needed despite having made arrangements to attend. Counsel has no accountability for the cost or inconvenience. Thirdly, experts must have a duty to the Court rather than the instructing solicitor. However solicitors in medicolegal cases, who rightly have a duty to their clients, either represent Claimants or Defendants exclusively. If it is important that experts take instructions from both sides why are solicitors with expertise in clinical negligence not able to represent either party? Dr Charles Essex Consultant Neurodevelopmental Paediatrician Child Development Unit Gulson Hospital Coventry CV1 2HR Competing interests: I have acted as an expert witness. |
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Geoffrey P McMullin, Retired consultant paediatrician Yew Tree Plat, German Street, Winchelsea, TN36 4EN.
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Your leading article “Roles and responsibilities of medical expert witnesses” (6th August, p. 305) is a timely, succinct and highly pertinent summary of the duties of medical experts as witnesses in courts of law. What seems not to have attracted the comment it deserves in the case of Sir Roy Meadow is the forensic use of statistics and in particular the use of statistics in connection with a condition or situation which is by definition imponderable. It has long been a regrettable tendency of even eminent experts on the subject of sudden, unexpected and unexplained infant deaths death to speak and write as if all such deaths constituted a single disease entity. The single factor which is common to all such deaths is that the cause is unknown. “Cot death” or “Sudden infant death syndrome” is not a diagnosis; it is an admission of ignorance. Sudden unexplained death occurs at all ages. It is not unreasonable to suppose that in young children the spectrum of causes differs from that in adults or older children. Some such deaths may be murder. Some may be due to atypical reactions to infection. We may speculate endlessly, but in so far as these deaths remain classified as “cot deaths” we must remain in ignorance. To use statistical probabilities to convict someone of a crime may seem reasonable, since the jury’s verdict must rest on the balance of probabilities, something which statistics are eminently suited to calculate. But in the first place jury’s should be aware that statistical truths are not the same as factual truths. In the second place statistical statements about events or situations which are by definition imponderable are even less reliable guides to reality than in other cases. We do not know the causes of the deaths of Mrs Clark’s two children. In the absence of pathological or circumstantial or other factual evidence statistics are of little relevance. As for the justice or injustice of striking Sir Roy Meadow’s name off the Medical Register, singularly little comment has been made on this. It seems to me quite inappropriate that a lifetime of distinguished service to paediatrics, both in the clinical field and in the administrative, should weigh less than a single error of judgment in the scales of justice. I believe it is time for the medical profession to take up the cudgels against such an inappropriate decision on the part of the GMC. Competing interests: None declared |
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Jay Ilangaratne, Founder www.medical-journals.com
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Dr McMullin says "jury’s verdict must rest on the balance of probabilities". However, it is a well known fact that the standard of proof required in a criminal case is 'beyond reasonable doubt'. The civil standard of proof is 'on the balance of probabilities'. The simple message from Meadow-case is not to exaggerate evidence (whether statistical or otherwise) and not to venture beyond one's competence. It is further said "As for the justice or injustice of striking Sir Roy Meadow’s name off the Medical Register, singularly little comment has been made on this".From the title and content of Friston's editorial, it is manifestly clear that it was not an article designed only to address or analyse the saga involving Prof Meadow. The BMJ had already covered the Meadow-case in some detail elsewhere, and considerable online debate had already taken place. McMullin adds,"It seems to me quite inappropriate that a lifetime of distinguished service to paediatrics, both in the clinical field and in the administrative, should weigh less than a single error of judgment in the scales of justice.".Say for an example, one who had an unblemished character and held in high esteem,wholly unexpectedly commits an act of murder; should he be given a lesser sentence than life imprisonment because of his previous good record? Now well rehearsed words of Sir Thomas Bingham MR in Bolton v Law Society [1994] 1 WLR and adopted in Gupta v GMC [2001] UKPC 61 that "The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is part of the price." are best suited to be applied in the Meadow-case than any other recent case before the GMC. I think it is time for the medical profession to show humility rather than taking up cudgels.Maintaining public's confidence in the medical profession is the primary obligation.Lambasting the GMC will not bring justice to Prof Meadow if he had sufferred an injustice.No doubt, Prof Meadow is aware of the relevant forum to seek justice if he is unhappy with the GMC's decision. Competing interests: None declared |
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Anne F Travers, Retired public health physician Leeds LS8 4AD
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Advocates of a strict regime in the disciplinary role that the GMC exercises over medical practitioners often quote the judgement in the case of Bolton v Law Society. Sometimes I wonder if they have read the report of this case. The relevant profession (the importance of whose reputation was emphasised) was the legal one, in particular, the solicitors' profession. More importantly, judgement was unanimously given in favour of the plaintiff (Bolton), i.e. not in favour of his disciplinary body (Law Society). Competing interests: None declared |
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Jay Ilangaratne, Founder medical-journals.com
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Dr Travers seems to doubt whether "advocates" of the principle emanating from Bolton v Law Society have read the judgment. Perhaps, Dr Travers is under the impresssion that since Bolton is a non-medical case, the legal principles arising from the same should not be applied by the GMC.Similarly, it appears from Dr Travers' remarks that loser being the Law Society, one should not rely on the judicial comments in relation to the profession. The relevant passage in Bolton[1] is entirely consistent with straightforward logic and commonsense; thus, there is no proper reason why it should not be applied to other professionals, particularly doctors.In any event, the same has been relied upon and approved (or adopted) in Dr Gupta v GMC [2001] UKPC 61 by the judicial panel of the Privy Council.Hence,it is most difficult to properly sustain an argument against the GMC for its application including in the case involving Prof Meadow. Perhaps, a revised and modern version of the said 'Bolton principle' may develop in a future case involving a doctor, and that might also help alleviate any confusion. References [1]Bolton v Law Society [1994] 1 WLR;"The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is part of the price." Competing interests: Have written on the same subject matter before. |
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