Abstract
What a delight to have the opportunity to respond to Mr Simon St Clair Carter's and Dr Martin Mansell's article ‘Lawyers from hell? – the Expert's view’ published in the last edition of Clinical Risk. Reading the piece raised emotions including righteous indignation, faint amusement, and – dare we say it – fleeting agreement. What was lacking from the piece, for obvious reasons, was the lawyer's perspective and their dark moments. Lawyers from hell? Well, we can safely say that many medical experts are far from angels, and there are more than a fair share of bad guys. The combined experience of myself and my colleagues, Paul McNeil and Richard Vallance, amounts to a staggering 75 years and Paul and Richard share my musings on the earlier article and life as a medical negligence solicitor.
Working with good, efficient, and reliable experts is an absolute joy. It is not surprising that there is nothing more comforting than knowing that the case is in a safe pair of medical expert's hands. What is surprising is that, although there are some brilliant experts out there, there are many who do not fit the bill. The explanation may be simply one of supply and demand, in that there are still not many medical practitioners who do medical negligence work, so beggars can't be choosers, against a steady increase in the number of claims over the years.
One of the difficulties is that some experts do not seem to take the work sufficiently seriously, and may regard it as a very lucrative further income whilst not dedicating themselves adequately to the role. As indicated in the earlier article, an expert will be ‘busy and attentive to his practice and other medical duties’. Therein lies the problem. Whilst we accept fully that our experts' primary role is as practitioners, there is little worse than an expert who takes on a case but clearly does not have time to deal with it. It is infuriating when an expert gives a date by which they will provide a report, and we are left waiting, and waiting, and waiting … sometimes for many months after the deadline has passed. Often, the same happens when the expert is written to subsequently, making it impossibly difficult to progress the case.
Many experts do not seem to appreciate that their delay can both jeopardise the case and increase the litigation costs. It can jeopardise the case because the limitation period may be approaching or it may no longer be possible to comply with the court timetable. Experts will be aware that sometimes agreements to extend deadlines can be agreed with the opponent. However, these are usually only for fairly short periods and if the opponent does not agree to an extension, then an application to court has to be made. This increases legal fees and may involve a court fee. Importantly, the application may not be successful, which could have a devastating impact on the claim. The key is to be honest about deadlines, stick to them, and respond within a reasonable time to correspondence. Perhaps we should introduce a scheme in which solicitors have discretion to deduct the expert's fee by the amount of extra costs that have been incurred as a result of delay? Any takers?
The authors of the earlier article reported that they are given instructions which are sometimes unacceptably vague and brief. However, letters of instruction can result in difficulties from our side too. There have been many times when the expert has been sent a detailed letter of instruction, which includes a list of issues that need to be addressed in the report. Disappointingly, when the report arrives it is clear that the letter of instruction has not been read or it has been read but overlooked when the report is prepared. Whilst we do not expect to be able to identify all of the medical issues, the questions will have been asked for a reason and will need a response. The solicitor then has to write to the expert asking for the questions that have been missed to be addressed. What is surprising, is that the expert will often include a further fee-note for re-reading the records and responding, even though the missing questions should have been addressed when the report was prepared initially and were only not addressed because of the expert's oversight! When a letter saying ‘I apologise for the oversight ….’ is expected, one will arrive saying ‘I enclose a further fee note …’
This brings me to experts' fees in general. Bizarrely, there does not seem to be any correlation between quality and the fees charged by a medical expert. Indeed, and interestingly, it is some of the weaker experts who charge the highest fees, and most of the more talented experts charge reasonably. We may not be willing to instruct an expert if we think they are over-priced, out of principle and also because there may be difficulties in recovering the cost from the opponent. Experts also routinely charge for travel and cancellation fees if the case settles close to trial. These are, of course, legitimate charges but whilst many experts adopt a reasonable and sensitive approach to these, others clearly regard the litigation as a cash-cow. A good expert will try to keep costs down, and would not charge for travel time if they can spend that time working on another case on the train, for example; nor would they charge the often exorbitant cancellation fees if they are able to fill the time allocated for the trial with other paid work. Some experts claim cancellation fees even though the diary is full.
We do not believe it would be appropriate for experts to enter into CFAs, as there is concern that the concept of only being paid if the case succeeds, would damage their objectivity and duty to the Court.
The authors also complain that experts are sometimes put under pressure to find reasons to continue with a case long after it is sensible to do so, and that ‘those experts used to the simple arrangement of producing a report and having that opinion taken for granted will find their instructing solicitors even more irritating and unfriendly.’ Obviously, the expert may feel uncomfortable and hot-under-the-collar if put under such pressure, but they may be missing the point. Far from being irritating and unfriendly, this may be a necessary evil because it is crucial for the solicitor on behalf of her client to ensure that there really is no case to go forward. The injured patient will usually only have one bite at the cherry, and the solicitor must do what is necessary before deciding to abandon the case. This may entail detailed discussions with the expert or sometimes a conference with Counsel. Occasionally, these discussions do result in a surprise and the case proceeds – not for a frivolous or manufactured reason – but because something materialised during the discussion that genuinely changed matters in the client's favour. Further, when reporting especially on negligence and causation, it is unrealistic for experts to expect that there will not be questions and revisions to their reports at various points in the case. This is the norm.
The authors also describe how some solicitors provide them with unsorted medical records, and sometimes provide records on a disk with a request that the expert prints them out and sorts them. Well, medical records can be an utter pain for us too. We make the application for copies of the records in the appropriate way, and then wait sometimes months and months for these to arrive. Was there something somewhere about copies being provided within 40 days? Then, after the jubilation of having finally received copies, we realise that many are missing – sometimes the crucial ones. A chaser letter is written, and then the wait starts all over again. Efforts really do need to be made to provide copies of records promptly. But, we agree that there is no excuse for not sending orderly and paginated records.
One of the biggest, and fortunately rare, nightmares for us is an expert that back-tracks on his opinion. If the expert provides a positive opinion, the case will proceed on that basis. The litigation train is in motion and the case is up and running. Then, the expert changes his mind. This can be done at any time, usually after the defendant's report, or in conference, or even at trial. Much is said about how important it is for experts to have ‘the right’ to change their minds which is, of course, correct. But, there is often no apparent good reason for doing so, and the true underlying reason may be that the expert did not think the case through sufficiently well and should not have supported it at the outset. Of course, there may be unusual circumstances, such as the production of new documents or information which justifies the change of heart, but these are rare.
The impact of an expert who changes his mind is devastating, especially for the claimant who has been led to believe he has a case, then has to be told that the expert has decided that the defendant's expert was right after all. It is also devastating commercially for the solicitor who will not get paid at all if acting on a conditional fee agreement, and will usually only be paid (at best) nominally if the case was funded by legal aid or legal expenses insurance. Experts need to produce reports that they know they can stand by. They need to be reliable. An expert who changes his opinion without good reason, will not normally be instructed again.
The reliability of experts is going to become even more acute when the government implements the Jackson reforms. Currently, success fees can be claimed for up to 100% of fees and are paid for by the losing party. The principle behind allowing success fees is that the success fee recovered in successful claims will cover the losses incurred in the unsuccessful ones. Under the reforms, there is a ceiling of 25% on the success fee that can be claimed, and this has to be charged to the client. Accordingly, there will be serious financial pressure on firms to win cases as there will be less in the pot to cover those that do not succeed.
It was amusing to read: ‘… many lawyers remain terrified about leaving their experts alone for a joint discussion’ and later ‘… if the two experts are to really try and reach a joint conclusion it may mean one giving way …’ It is precisely the latter part of this quote which makes us terrified – and for good reason. The purpose of the experts meeting is not to reach a joint conclusion as such. It is not about trying to reach a mid-point and making concessions. It is not about making a compromise or negotiating. It is not about moving some way to the opponent's position. It is about finding areas of agreement and disagreement, and it is perfectly satisfactory to agree to disagree on everything. Some experts seem to misunderstand this, and can happily go through the meeting making concessions and negotiations, and steadily compromising the case. For the reasons set out above, there should not ordinarily be anything in the experts' meeting that causes the expert to change his opinion, if his opinion was justifiable and well prepared at the outset. Terrifyingly, some experts do not place importance on the exact use of English in Agreed Notes at the end of the experts' meeting, with devastating effect.
The authors of the previous article are concerned that the Supreme Court's majority decision in Jones v Kaney 2010, which saw the end of the expert witness' immunity from suit, will, inter alia, result in experts not wanting to put their head into the medico-legal noose. In my opinion, the decision was the right one. In addition, it is important for experts to keep this development in perspective and not to panic! All that is being said is that an expert who is negligent should no longer be able to get away with it, which surely is reasonable. Experts are appointed as professional advisors in our legal system and are highly-paid for their efforts. They should not be able to perform below a reasonable standard with impunity. Further, any decent and competent expert is unlikely, and should not, feel threatened by the ruling. They just have to take reasonable care in their role, which is something the good experts will be doing anyway. The work is not a gravy-train for experts who are not willing to take care. If the effect of the ruling is to weed out poor experts, then that will be a good thing. Finally, it is doubted whether the removal of immunity will result in a flurry of cases against experts. This is unlikely to happen. Cases usually fail simply because there is no case there in the first place – nothing to do with negligence by the expert. Equally, it does not mean that an expert can never change his mind, only that he must not do so as a result of negligence. This is not too much to ask.
There is one point with which we heartily agree – that the NHSLA continues sometimes to defend the indefensible. It is certainly true that in some cases an admission of liability will be made at an early stage, but other cases may be crying out for an early admission which just does not come, no matter how much we request, press and cajole for one. The costs steadily increase, unnecessarily, and we are left wondering why we always get all the bad press for high legal fees.
We all have considerable sympathy for experts who have to wait a long time to be paid, but wouldn't it be nice if they were as efficient in providing their reports and dealing with correspondence as they are in chasing an outstanding invoice? Let's not forget the patience we, as lawyers, are expected to show when waiting until a conditional fee agreement case concludes before being paid a penny – and even then, only if we win. Many firms do not charge the client an uplift for the delay in payment, so there is no benefit of the delay to us.
The authors' emphasis on the importance of experts understanding the law and legal process makes complete sense. It is surprising actually how many experts do not appear to understand the law, and can ‘blow a case out of the water’ seemingly without realising it, or batting an eyelid! All experts need to understand the meaning of negligence and relevance of Bolam; that causation includes consideration of what would have happened in any event; that we are talking probabilities only, not certainties; the pressures we are put under by the court timetable; and that in relation to condition and prognosis, costs of treatment privately need to be provided. The difference between a report from an expert who has this understanding, and one that does not, is huge. It is not acceptable for medical practitioners to jump on the band-wagon and have a go; they need to educate themselves in these respects.
We do not see experts becoming more participant in the legal process as such, as suggested by the authors, but make a plea to experts to acquaint themselves fully with the law and process so that they can contribute effectively to the legal process. In addition, as suggested by the authors, it is of course important for practitioners preparing reports to be up to date and it is not usually appropriate for a doctor to comment on breach of duty if he had retired at the time of the breach.
We would like to say a word about defensive medicine and the US. Quite often, especially outside the medico-legal arena, doctors and the public will refer to defensive medicine as being a necessary consequence of medical negligence claims. However, it seems highly unlikely that defensive medicine is practised within the NHS. Sometimes reference may be made to ‘defensive medicine’ when what is actually being described is nothing more than a beneficial improvement in standards as a result of the errors and failings that have been exposed through the litigation process. There is ample anecdotal evidence of medical negligence claims resulting in increased standards, and Steve Walker of the NHSLA has referred to learning lessons as a result of litigation.
Also, it must be remembered that our law is very different to the US, as we do not have punitive damages and our approach to damages is to put the person in the position s/he would have been in but for the negligence. We do not have a compensation culture in a negative sense. It is good that people are getting to know their rights; good that they do question when things go wrong; and good that victims of medical accidents are paid compensation. It is right and fair. However, our system is far from perfect. We were contacted recently by the brother of a forty-something woman who had died in hospital. She had no spouse or dependents. The hospital's own investigation revealed serious failings in her care, which probably caused her death. What can be claimed? Not much at all. In some respects, far from a compensation culture our law does not go far enough.
It is also right and fair for there to be transparency about the performance of different doctors and NHS Trusts, and for problems arising out of medical treatment to be raised in the public arena by the media - provided that both are always done responsibly and accurately.
The authors rightly indicate that the reduction of costs in the post-Jackson era may result in some quibbling about costs between lawyers and experts. What does not come across though, and we would not expect it to, is the very real threat to the ability of a victim of medical negligence to bring a claim due to lack of funding. As mentioned, the limit of a 25% success fee may not be sufficient to meet the costs of the cases that are taken on but fail, and it is vital that solicitors stick together and make sure that they do charge clients a success fee, even though doing so feels unpalatable as most solicitors would prefer to maximise the client's damages. However, it would be disastrous for the long-term profitability of this work if solicitors offer not to charge the client any success fee or only a nominal success fee to secure they are instructed in a case. There is also the perennial possibility of legal aid being withdrawn and in any event, as mentioned, sometimes the amount granted by the Legal Services Commission is barely sufficient to cover experts' and counsel's fees, leaving a pittance for the solicitors. It is also likely that the post-Jackson era will see a number of firms leave the market and others merge. This may be beneficial for experts generally, as law firms will become more and more refined.
It is hoped that the earlier article has not had the effect of deterring any budding new experts entering the medico-legal arena. Far from being a lion's den, good experts find the work extremely rewarding, challenging, and profitable. Learning from the mistakes of others informs and improves their own practices, and enables them to pass helpful information to their colleagues and trust managers. Any solicitor will welcome a good expert with open arms and, contrary to the suggestion in the earlier article, a lot of love.