MEDICO LEGAL M A G A Z I N E
FACTUAL WITNESSES AND EXPERT ADVISORS – LESSONS LEARNT FROM RECENT TRIAL WINS By Laura Scott, Solicitor and Chloe Davies, Senior Solicitor from Hempsons Solicitors, healthcare law experts, charity lawyers and specialist NHS lawyers with offices in Newcastle, Harrogate, Manchester and London
We all know the importance of testing your evidence throughout a claim, before deciding whether to progress to the next step. Robust factual and expert evidence is crucial for both Claimants and Defendants, and a failure to recognise, and address, any deficiencies in the evidence can have critical consequences. Even if you manage to gloss over a weakness in the written evidence, there is a significant risk it will come to light in expert discussions and next to no chance that it will not surface on cross-examination at Trial.
Witness Evidence It is obvious that, where expert opinion turns on a particular version of events – whether that be in respect of symptoms, events or conversations – clear and accurate witness evidence is crucial in assisting the judge in settling the factual discrepancy.
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For the Defendant, where breach of duty remains in issue, the evidence of those involved in the direct management of the Claimant is the foundation upon which a solid defence is built. Without a robust clinician, capable of providing clear, concise and coherent evidence, the challenges which we face at Trial are ever more difficult. So what makes a compelling defence witness? Clinicians do not need to recall everything that occurred during the attendance. Given the typical passage of time, it can raise suspicion if clinicians remember everything about attendances; particularly those where appointments are routine or injuries are generic, or where their recollection goes beyond what is recorded in the medical records. Where a clinician cannot recall the specifics, it is helpful for them to refer to their usual clinical practice or whether, for example, the factual
