Negligence of medical experts

BMJ 2005; 330 doi: http://dx.doi.org/10.1136/bmj.330.7498.1026-a (Published 28 April 2005)
Cite this as: BMJ 2005;330:1026.2

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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 Also, many retired experts will tend to be isolated and outdated if not involved in regular clinical practice including audit and clinical governance.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: None declared

MICHAEL CHARLES BISHOP, CONSULTANT UROLOGIST

NOTTINGHAM CITY HOSPITAL NG5 1PB

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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: None declared

James Carne, General Practitioner

7 Wood Lane, Highgate, London, N6 5UE

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