What is the role of the Medical Expert?
The medical expert is engaged to clarify, in lay terms the unique aspects of medical evidence in individual cases so that clients, whether plaintiff or defendant, their legal advisors and the Courts can make better informed decisions. The expert’s overriding duty is to the Court.
Experts must remain independent and neutral in their discussions. They are required to be aware of any biases or prejudices they may hold and give a fair and balanced view of the nature of the objective facts on matters which lie within their expertise. To that end they must be aware of, and clearly illustrate consideration of, alternative professional views offering a logical and reasonably held opinion on the management of a case.
Just having the relevant medical expertise and experience, does not necessary mean that someone will be a suitable expert for the Court. In addition to presentation skills, both orally and in writing, and a wide comprehension of relevant literature, experts must have a clear working knowledge of basic legal principles and legal tests which may be applied to any particular case.
Medical knowledge is rapidly evolving and current management practices may not be the same as those which were acceptable a decade or more ago. Indeed, current practices may well not be regarded as acceptable a decade or more in the future. Experts must therefore take into account, not just up to date evidence in relation to the management of a particular case, but views which would have been regarded as reasonable and reliable given the level of medical knowledge at the time the alleged negligence occurred, and be able to discuss case management in the context of circumstances at the time.
They must also be robust in arguing their stated, reasonably held opinions. A medical expert must fully consider opposing views put forward by other professional witnesses, applying rigour and logic to any new evidence presented and be prepared to alter their opinion and advice when it is logical to do so. To concede too easily to opposing views, or to be seen to be unreasonably swayed in their opinion by opposing arguments, may expose the expert to public criticism by the Courts and render them liable to civil prosecution as they do not enjoy immunity from suit under such circumstances. A great deal of care and consideration is therefore required in the initial preparation of Medico-Legal reports, so that the pertinent medico-legal issues are competently addressed and form a solid basis for future discussion.
In summary therefore, the expert must carefully renew all the available evidence and collate the findings in a coherent initial report and be prepared to justify their stated opinions.
MDU figures for 2016 show that less than one in six actions in medical negligence actually succeed with the vast majority failing on the grounds of causation. It must be remembered that subsequence is not the same as consequence.
Initial screening is therefore essential to manage client expectations at an early stage. This avoids unnecessary effort and costs for all concerned. Too many cases are taken to Court with no chance of success. This is stressful for both the client and their legal advisor and indeed for the medical personnel involved.
For fast and effective screening of all potential medical negligence cases contact
Peyton Medico Legal Services now on 028 87724177 or email rpeyton@rpeyton.com
