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Rapid Responses: Rapid Responses published:
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Citation correct; text needs clarifaction
- Peter Gooderham (3 March 2006)
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The BMA’s "honest errors".
- William G. Pickering (5 March 2006)
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Let the Public Refer Bad Experts to GMC
- Jay Ilangaratne (7 March 2006)
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Experts witnesses essential for the administration of justice
- Mark Dudley (9 March 2006)
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Peter Gooderham, Tutor Cardiff Law School
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This article refers to the Court of Appeal as hearing Professor Meadow's appeal from the General Medical Council. As the citation indicates, it was heard in the High Court. If appealed further, it will go to the Court of Appeal next. 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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The BMA’s "honest errors". For his instant and topical editorial, Dr M E J Wise has already been brought to book on a legal issue [1]. There are other queries. The chair of the BMA medico-legal committee’s piece is marked with learned references. Perhaps due to inevitable haste certain areas are, notwithstanding, reference-free. What, for example, is "an honest error"? [2para3]. In particular what is the difference between "an honest error", a mistake, and medical negligence? Which of the three, for instance, would best describe an incident of a doctor who fails to take a decent medical history resulting in a dire outcome — an outcome which could have been avoided had a reasonably competent history been taken? When the BMA have addressed these matters, they may then like to explain their understanding of "in good faith" – a fashionable term in use by some doctors [2para6,3]. Does a mistake or medical negligence, if done "in good faith", then become "an honest error"? Tax evaders and owners of illegally parked vehicles, for example, may be as interested in the answer to this as medical students, doctors and patients. Issuing from the innovative BMA, Wise himself recently unleashed another new mind-set for doctors viz. "colleague censure". Exactly how this works also remains undefined, despite a request for clarification (4,5). It is thus more important than ever for all doctors (and the courts come to that) to know what an "honest error" is, lest they accidentally "censure" the wrong colleague. Or perhaps, if their evidence were to give the wrong impression about a hapless patient in court, they may hope to avoid "colleague censure" (and much else) by invoking "honest error". The BMA will surely heartily agree that neither equivocal medical jargon nor unintended obfuscation must ever stand in the way of medical accountability – in either the consulting room, the court, or in medical journals. William G. Pickering. wgpi@hotmail.com 4.3.06 References: 1. Gooderham P. Citation correct; text needs clarification http://bmj.com/cgi/eletters/332/7540/500#129334, 3 Mar 2006 2. Wise MEJ. Where expert witnesses fear to tread BMJ, Mar 2006; 332: 500 - 501 ; doi:10.1136/bmj.332.7540.500 3. Pickering W.G."In good faith" http://bmj.com/cgi/eletters/331/7510/177#112874, 23 Jul 2005 4. Wise MEJ. Negligence of medical experts. Quality control of medical experts is being considered. BMJ 2005;330:1026 (30 April). 5. Pickering W.G. BMA paraphernalia http://bmj.com/cgi/eletters/330/7498/1026-b#105670, 3 May 2005 Competing interests: None declared |
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Jay Ilangaratne, Founder medical-journals.com
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It is unfortunate that Wise had not provided any actual evidence to support his contention that "One result has been a haemorrhage of experts prepared to consider child protection issues"[1]. Guidance issued by the Civil Justice Council under its 'Protocol for the Instruction of Experts to give Evidence in Civil Claims'[2] last year, address some important issues in relation to experts. Particularly,sub para.4.3[2] stresses the importance of the level of independence required in the following way: "Experts should provide opinions which are independent, regardless of the pressures of litigation. In this context, a useful test of ‘independence’ is that the expert would express the same opinion if given the same instructions by an opposing party. Experts should not take it upon themselves to promote the point of view of the party instructing them or engage in the role of advocates." I wonder how many experts would actually pass the above 'independence' test if they were judged independently and impartially. It is very much doubtful that the recent High Court judgment in relation to Prof Meadow,guidance from the Civil Justice Council, or Civil Procedure Rules(Part 35,& Practice Dircetion thereto) were intended to shield those experts who make "honest" mistakes. Hence, it is unwise to suggest that the pendulum "has now returned much closer to equillibrium"[1].The facts invloved in Meadow-case are exceptional,thus it is best that experts are not overly assured as to its implications. Further, it is reasonably arguable that the public might be put at a substantial disadvanatge should the courts decide to stifle GMC's powers of censure based on a referral from the public. It is said in the box[1], "They must disclose all material they had access to".However, it is important to clarify that Part 35.10(3)&(4),CPR which deals with the issue of legal privilege says: "(3) The expert's report must state the substance of all material
instructions, whether written or oral, on the basis of which the report
was written.
Finally, as to the reference by Wise to "Court of Appeal" in relation to recent Meadow-judgment,appears to be nothing more than a honest slip. References [1]M E Jan Wise. Where expert witnesses fear to tread BMJ 2006; 332: 500-501. [2] Protocol for the Instruction of Experts to give Evidence in Civil Claims;Civil Justice Council:2005 (http://www.civiljusticecouncil.gov.uk/914.htm) [3]Part 35.10;Civil Procedure Rules:40th update. Competing interests: None declared |
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Mark Dudley, Senior Medico-legal Adviser Medical Protection Society, London W1G 0PS
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EDITOR - Dr Jan Wise’s editorial ‘Where expert witnesses fear to tread’(1)will be of considerable interest to the profession, not least to those undertaking work as expert witnesses. Unfortunately, I believe it contains an important error. He says of the judge in the High Court case Meadow v GMC(2): “he did not say there should be no sanction, rather that the sanction imposed by the GMC was excessive”. In fact the judge specifically found that the lapses in the case did not justify the finding of serious professional misconduct (SPM), and he allowed the appeal against that finding. He then went on to consider what would have been an appropriate sanction had there been a finding of SPM, and stated that he was “satisfied that no more than the imposition of a condition not to engage in medico-legal work would have been appropriate. In truth, the finding itself was sufficient”. Over and above these decisions, the judge also ruled that the Fitness to Practice Panel of the GMC should not even have considered the complaint. In effect, he decided to extend the immunity from civil action currently enjoyed by experts giving evidence in court to include protection from GMC sanctions (except where referral has been made by the judge). Such protection, for experts who have acted in good faith, is surely to be welcomed on public policy grounds. At the time of writing, it is understood that the GMC are to seek leave to appeal against this decision. It is important that the law is clear in this area, and that it reflects the vital role of professional experts in the administration of justice. 1 M E Jan Wise. Where expert witnesses fear to tread. BMJ 2006;332:500-1. 2 Meadow v General Medical Council [2006] EWHC 146 (Admin). Competing interests: None declared |
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