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Factual Witnesses and Expert Advisors – Lessons Learnt from Recent Trial Wins Laura Scott and Chloe Davies
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. 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
circumstances being alleged are simply something that they would never do/say. Inferences can be drawn from usual practice and it can help to fill gaps in the contemporaneous medical records. Typically, reasons for a clinician usually saying/ doing something can be well explained and justified. In one trial, the Claimant alleged that the failure to record a test within the records indicated that it had not been performed. Notwithstanding the clinician’s inability to recall the attendance, the Court accepted that the test was one which he always performed. It is important to set out within a witness statement, a clinician’s background, training, experience, any supervisory roles or relevant research. This information cannot be ascertained from the medical records but goes a long way towards painting a picture of the overall standard of care provided. For example, in one of the trials, it assisted the Judge to provide the surgeon’s audit statistics as published by the Association of Coloproctology of Great Britain and Ireland. This demonstrated how many of these procedures the surgeon performed, their mortality rate, how they ranked amongst the surgeons at that Trust and that their statistics were better than the national average. Witnesses should direct responses to the judge and provide explanations in lay-man's terms, especially for complex medical issues. It is not the role of the witness to fight the case. A good witness sticks to the facts, answers the questions posed and provides honest, clear and reasoned responses, without exaggeration. They do not become defensive when challenged. One trial was discontinued following the Claimant’s evidence, with neither the Defendant’s factual or expert witnesses having been called. Whilst there were many factors that led to discontinuance, stating that the injured leg had swollen to five times the normal size from the ankle to the groin and an admission that the updated Schedule of Loss included a claim for past losses that had not been incurred, certainly did not help. In another, an overly defensive Claimant quickly lost the Judge’s sympathy.
Expert Evidence
Once witness evidence has been dealt with, the next challenge is expert evidence. So what makes a persuasive expert? Experts must maintain their independence; their duty is to the court and they are not a hired hand. Opinion that lacks justification but supports the case of their instructing solicitors is likely to cause a judge to consider the entirety of their evidence cautiously. Experts need to be relevant. In cases relating to NHS treatment, where liability is in issue, the expert should, ideally, have been in NHS practice at the time. Experts who, on their face, appear to be superstars in their game are not always the best experts. How can experts who have never worked in the NHS comment upon the options and timescales for treatment available in an NHS setting? No matter how much preparation such experts do before trial, they simply cannot create experience that they do not have.
Experts also need to consider breach of duty by applying the standard of care that was supported by a responsible body at the time. In one trial, an incredibly experienced and well respected expert surgeon, conceded that practices had changed since his day and whilst he would have done things differently “with the benefit of hindsight it was an error of judgement but it was not a breach of duty”. Which leads on to another point – opinions should be based on the information the clinician had at the time, not hindsight. Can the expert’s opinion be supported by literature? If so, has it been disclosed and is the information relied upon being applied in context and correctly interpreted? In one trial, the expert advised that there was literature in support of his opinion. When pressed for specific details and asked to adduce copies to the Court, he was unable to do so. Whilst the reasons for the successful defences were multifactorial, there is no doubt that factual and expert evidence played a significant part. The key lesson learnt was to test your evidence at every stage - any deficiencies will come out eventually!
MEDICOSpecialist info ad 2016:Layout 1 11/10/16 2:46 PM Page 1 LEGAL M A G A Z I N ECould your opinion be worth a million?
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