The negligence of medical expertsBMJ 2004; 329 doi: https://doi.org/10.1136/bmj.329.7478.1353 (Published 02 December 2004) Cite this as: BMJ 2004;329:1353
I have just participated in a medicolegal exchange whose outcome was thoroughly unsatisfactory. The questions of negligence and causation were not publicly debated, and the decision was not based on evidence but reflected emotional issues and everyone's desire to stay out of court.
Medical negligence absorbs victims—patients and doctors—and disgorges them years later, often damaged and disgruntled, while its functionaries benefit. Despite the move towards closer regulation of clinical practice, medical negligence remains firmly in the dark ages that existed before the Kennedy report and the Bristol debacle. It is mostly secretive, unaccountable, and unregulated by audit governance or revalidation. Scant interest has been shown in it by our governing bodies, the royal colleges, the General Medical Council, or organisations involved in patients' safety.
The central players are the 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. In a number of well publicised recent criminal cases experts have been challenged on the factual quality of their evidence and sometimes on an idée fixe, which may amount to an obsession, on which their eminence may have become established. Are these notorious cases the tip of an iceberg of unsatisfactory professional activity?
The quality of expert reports varies greatly
Most medical negligence work is handled in camera between the medical experts, the defence organisations, the NHS Litigation Authority, and a body of solicitors of varying expertise in the subspecialty. The litigant's case can be established at the outset only on the opinion of a medical expert. Therefore the object is more likely to be damage limitation and compromise rather than vigorous defence through a strong intellectual argument. This is understandable and even laudable when considerable expense can be expected in the uncertain process of judgment in court. Unfortunately court procedure provides the only opportunity for the experts to be challenged—and then only if a penetrating cross examination can be undertaken by a barrister who has some familiarity with complex medical issues and is prepared to put aside his deference for the opinion of a professional colleague. However, most cases never come to court, and the data are therefore unavailable for analysis. It is not surprising that there is little consistency in the settlement of similar mishaps, sometimes even dealt with by the same medicolegal team, but it is not in anyone's interest to use this knowledge to shorten the legal process.
Medical experts may be offered a case for comment by solicitors for a variety of reasons other than their perceived expertise, including a reputation for prompt delivery of reports, familiarity with the legal process, and a good bearing in court. They may be selected from a register of experts whose membership signifies nothing other than the ability to pay the annual premium.
The quality of expert reports varies greatly. Events may be minutely chronicled, with little effort at critical analysis. Some experts may not be at all familiar with majority opinion, particularly if they are retired or inactive. Quoted source material often amounts to a page or two from a very ancient textbook. This seems to be acceptable in the legal process; they would not dare to offer such inadequate references to support a clinical presentation to their medical colleagues.
The terms “negligence,” “breach of duty,” and even “causation” are arcane, legalistic, and pejorative. The distinction between probability and possibility is often ludicrous but still determines what is reasonable and what, on the other hand, is culpable.
Lawyers cannot be expected to remain informed on who is an expert when new techniques within the subspecialty develop quickly. However, they should set greater store on the quality of a report and its sources rather than quantity and presentation. The experts should surely exude the wholesome smell of the clinic rather than the conservative mustiness of the courtroom. Governance, audit, appraisal, and peer review should penetrate this area of medical endeavour. The process of medical negligence should be transparent, with all agreed settlements and their discussion published in the medical and legal literature. A nationally managed register of coded incidents and their outcome would be a great help in defence of claims and in the broader aim of learning from error.
It is unlikely that initiatives such as “no fault compensation” will replace the adversarial process that is based on the reports of medical experts working ostensibly for the court but in reality from a partisan standpoint. It is increasingly important that medical experts have real authority and expertise to retain the respect of their colleagues.
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