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It's Always Worth a Second Look

posted 2 years ago

In an earlier part of this series, the use of screening reports in medico-legal cases was examined.

In a recent case, experts for the plaintiff and defendant presented diametrically opposed views on the merits of a particular claim.

It was decided there should be an experts’ meeting to see if there was common ground between the opposing views, and to clearly delineate any outstanding areas of dispute. Unfortunately for the plaintiff, the expert engaged on his behalf, a well-known Infectious Disease Consultant, caved in completely to an expert from another discipline, namely haematology, and proceeded to sign off on a common report. 

The following day the plaintiff’s expert phoned the plaintiff’s solicitor and stated that they now wished to retract the statement he had signed, saying he had only done so because he felt under duress during the meeting.

Such a situation is not unique, and indeed the case of Keaney, where a Psychiatrist signed off under similar circumstances, was one of the driving forces behind the removal of immunity from expert witnesses. 

Evidence is normally shared before meetings of expert witnesses, and sometimes it is advisable for lawyers to engage another independent expert to review the opposing medical opinions, in order to highlight and clarify the precise issues involved. Had that been done in this case, clear discussions could have been had with their own “expert” prior to the meeting. Discrepancies could be dealt with, and the lawyers would not be put in a position whereby the carpet was pulled from under their feet by an expert who was unprepared for, and indeed unable to cope with, any potential opposition to their opinion.

There is, therefore, a clear role for a second-look screening opinion of medical evidence once it has been gathered, especially when a multitude of specialisms is involved. 

MDU figures for 2020 show that fewer 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 adviser, 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 +44 (0)28 87724177, or email [email protected]

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