Negligence of medical experts
BMJ 2005; 330 doi: https://doi.org/10.1136/bmj.330.7498.1026-a (Published 28 April 2005) Cite this as: BMJ 2005;330:1026
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Negligence of Medical Experts.
Carroll and Notley (1) are right to point out that the duties of an
expert witness were made clear by Lord Woolf in the Civil Procedure Rules
(CPR) 1998, and have been strictly adhered to in this Country. They lay
out the duties, leaving no doubt as to how an expert is required to follow
them when writing a report or giving evidence in Court. The letters from
Vinen (2) and Frizelle (3) suggest that in Australia and New Zealand at
least, no such rules apply and reports and evidence still leave much to be
desired. In my experience and nearer home, a similar situation exists in
Northern Ireland and Eire.
Jan Wise (4) states that concern has been expressed in respect of
doctors being inadequately trained for expert work and training may not be
included in the revalidation process. Surely, training is a prerequisite
of revalidation if revalidation is to have any true meaning.
There is a difference, often unrecognised, between being an expert in
a subject and being an expert witness. Proficiency in in report writing,
conferences with with counsel and appearances in Court, all have to be
learnt before acting as an expert in the legal setting. The catch-22 for
many is that before receiving instructions from solicitors the expert is
expected to have the necessary experience, and without instructions,
experience is very difficult to come by.
Those in the medical profession wishing to become a recognised expert
witness are often too daunted by these restrictions to pursue the matter
further as a result of which the number of competent expert witnesses is
limited. Courses are open to the profession but are expensive. The Expert
Witness Institute (EWI) has attempted to overcome the difficulty by
accepting all applicants with accepted expertise as "Probationer Members",
during which time they are allotted to a Fellow of the Institute who acts
as their mentor for a period of three years: during this time, they are
encouraged and helped to gain the legal experience required and at the end
of which they will be expected to have reached the necessary standard for
full membership. This is acquired by obtaining three references from
lawyers with whom one has had professional contact, but no written or
oral exam is required.
A better recognition of the CPR by some instructing solicitors and
their strict adherence by the expert witness will help minimise the
shortcomings that are so avidly picked up, and too often misunderstood, by
the press.
Yours sincerely,
James Carne, general practitioner and expert medical witness
References:
(1). Carroll RC & Notley. BMJ 2005; 1026 (30th April)
(2). Vinen J. BMJ 2005; 1027: (30th April)
(3). Frizelle F. BMJ 2005; 1027: (30th April)
(4). Jan Wise ME; BMJ 2005; 1026: 30th April)
Competing interests:
JC is a Fellow of the Expert Witness Institute
Competing interests: No competing interests
Negligence & Medical Experts
Negligence and Medical Experts
Response to correspondence in BMJ, 2005, 330:1026-27
Carroll & Notley remind us that Lord Woolf’s Civil Procedure
Rules, 1998, formally put experts under obligation to be impartial,
truthful, detached from vested interests, and to acknowledge a range of
reasonable opinion. Whilst these rules undoubtedly represented an advance,
they are now surely outdates in this new age of evidence based medicine
and of guidelines directing optimal care pathways for investigation and
treatment. They do little to challenge the witness who works beyond the
limits of his or her expertise. A substandard expert can still proceed
with the fair certainty that an out of court settlement will usually be
negotiated as a damage limitation exercise and with little risk of public
exposure.
Dr Wise offers rather anodyne reassurance that quality of medico-
legal expertise will be maintained by the threat of censure by the GMC and
the processes of appraisal and re-validation. This is surely naïve. An
expert’s work is rarely subject to peer review and never discussed
critically as part of the appraisal process. Also, many retired experts
will tend to be isolated and outdated if not involved in regular clinical
practice including audit and clinical governance.
The majority of correspondents, some reporting practice in other
countries, seem to agree that the processes of selection of medical
experts and of assessing the quality of their contribution, need radical
overhaul. It is unlikely that the solution is membership of a list of self
-styled experts which merely serves as an advertisement. Obligatory
registration with an organisation such as the ‘Council for the
Registration of Forensic Practitioners’ might be beneficial provided it
has statutory power to set standards and periodically to check the
credentials of its members.
Compulsory training could be a solution but as it is undertaken by
lawyers it can only improve style and presentation. On the contrary,
lawyers should perhaps receive some instruction in the disciplines of
collection, analysis and application of scientific evidence.
It is time that the Royal Colleges became involved. They are all
committed to improving and maintaining quality and this should include
medico-legal practice. The terms of reference of such a committee could be
regulatory and include setting standards. It could also organise focus
groups of individuals known to be experts in their field. Their function
could be to discuss issues of negligence and causation in the recurring
set piece medico-legal scenarios identified from the records of a variety
of agencies including the NHSLA, the Medical Protection organisations and
lawyers specialising in medical negligence.
Competing interests:
None declared
Competing interests: No competing interests