Prescription for medical experts

Peter Marquand says use of medical experts must be streamlined following Lord Woolf's reforms and increased demands. Dr Peter Marquand is a doctor and solicitor at Capsticks. In any medical negligence action expert witnesses play a key role because of the complex technical nature of the subject and the unpredictable response of the human body to treatment.

Although based on science, medicine is often referred to as an art, and the opinion of clinicians on the application of scientific research to their patients can be radically different and fiercely held.

Differences of medical opinion are allowed for in a medical negligence action as it is a defence if the medical practitioner's acts, or decisions not to act, are supported by a responsible body of expert opinion even if there is a contrary view.

Evidence of the responsible body of opinion is given by medical expert witnesses, but their views must withstand logical analysis by the court. In particular the judge must be satisfied that, in forming their views, the experts have considered the question of comparative risks and benefits and reached a defensible conclusion.

Lord Woolf had originally considered whether there should be a single medical expert for liability issues in medical negligence cases. However, this does not seem to be going ahead for liability issues, although there is a move to use a single expert for some quantum issues. This is not a revolutionary change, as in practices such as Capsticks it has been in use for some time where appropriate.

However, the Woolf reforms are likely to have an impact on the use of medical experts, largely as a consequence of the speeding up of the court process. In medical cases, this speeding up will come from the general changes in the process as it is unlikely that the specific 'fast track' procedures for cases up to £10,000 will be suitable, bearing in mind the complexity of medical negligence actions. For example, the factual matrix and issues arising in a stillbirth case (normally worth less than £10,000) may be almost identical to those for a child with cerebral palsy case (for which damages could be over £1,000,000).

The speeding up of the court process is likely to increase the workload of experts because of the requirement for a faster turnaround of reports. Medical experts whose opinions can be relied upon are in demand and usually have long waiting lists. The introduction of conditional fees means demands on those experts are also likely to increase as plaintiffs' solicitors may become more discerning about their choice of expert so as to be confident of the strength of their case at the outset.

The overall volume of instructions is also likely to increase as the shorter time scale once litigation has commenced means pre-action instruction of experts by defendants is going to become more widespread. This may also result in increased costs as no doubt some experts will need to be instructed in cases that are later abandoned before proceedings are issued.

Another change following Lord Woolf's report is that the courts are taking a more active role in managing litigation, including the use of experts. It is now standard in the High Court for expert meetings to be provided for in the order for directions. While the format of such meetings and whether legal representation should be present is under debate, they provide an opportunity for issues to be resolved before trial if the experts can agree.

It is clear that the increased demand for experts and the faster timescales will make the effective use of experts even more important. This will involve three key elements.

The first step is choosing a practitioner from the correct speciality to comment on the case. This is because a doctor should be judged by the standards of an expert from the same speciality. In medicine there is often an exception to a rule of which a doctor who does not practice in the relevant speciality may not be aware.

The medical profession has a large range of specialities and sub-specialities. It is not uncommon to find an inappropriate specialist has been instructed and made comments outside their area of expertise. Although a specialist's evidence should only be used on his own speciality, his comments upon the care given by someone in another field of expertise should still be followed up. It may reveal further issues and an expert in the other specialism can then be instructed if appropriate.

The second step is to ensure that the expert receives all relevant information on which to base his or her opinion.

Medical records may be central to the case as they provide a contemporary note of the events. However, they are not the only evidence to which experts will refer. In particular exchange of witness statements is deliberately made before exchange of expert evidence to allow experts to consider them.

Thirdly, the experts should be properly directed to the issues.

Firms may find benefits in having in-house doctors on the medical records and witness statements. This enables more directed questions to be put to the expert (and treating clinicians) in addition to seeking general comments on the standard of care.

Following the Woolf reforms, medical negligence cases are going to be dealt with on a shorter time scale. The consequence of this will mean more of the preparation being carried out at an earlier stage with the effective and efficient instruction of medical experts playing a key role in this process.