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The Three Questions

posted 4 months ago

Today, we are comparing and contrasting two cases. Briefly, the first is of a patient with a VAC (vacuum) dressing onto an infected wound. These dressings require a base layer of foam to be placed in the wound, and sometimes this is not one sheet, but a number of smaller sheets. The wound was slow to heal, continued to discharge, and after several months was re-opened to find that a piece of the foam had been left behind.

The second case is of a patient who had a severe bout of cholecystitis. She was admitted to hospital, the problem diagnosed, and she was placed on antibiotics. She began to settle after three to four days and was then discharged to be followed up in six weeks with a view to cholecystectomy. Unfortunately, before that time, she developed further inflammation of the gallbladder, but now with a pancreatitis.

The three questions referred to are those that are frequently used initially in court by a defence barrister. They are:

  • Are you an expert in this field?
  • Do you understand your duty as an Expert Witness?
  • Is there a range of opinion?

The first question is obvious, and the expert needs to show that they indeed have expertise in the area under discussion.

The second question has been the subject of high-profile cases recently – for instance, the case of Jafir, where the Judge asked a Consultant Spinal Surgeon if he understood the duties of an expert witness. He could not state these in court and specifically did not seem to understand that his duty was to the court and not to his instructing party. This resulted in an order for costs of almost £90,000.

Question three has again been the subject of high-profile cases. An expert must give his view to the court, but also discuss any range of opinions that may be contrary to his view, and rationally argue why his version should be preferred.

In the cases above, the first case would not be subject to a range of medical opinion. A foreign body was left behind in the wound, and the responsibility of ensuring it was taken out was that of the nurse in this case who put it in. It should not have been left behind.

In the second case, there would be a range of opinion from some surgeons who would operate in an acute situation and remove the gallbladder on the first hospital attendance, and others who would prefer the inflammation to settle down and perform surgery after an interval. This would normally be as an elective procedure and could take place many months later. An individual expert may have their own particular bias in this situation, but must be able to point out the range of opinion and the justification for their stance.

This is back to the Bolam Test and where a reasonable, respectable body of medical opinion would have chosen to delay. Even if the expert thinks immediate surgery would be warranted, the court will normally find for the defence.

MDU figures for 2022 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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