by Paul Sankey - Partner and Clinical Negligence solicitor acting for patients, an accredited expert in his field.
There is more to being a good medico-legal expert than being a good doctor. It is rare to win a clinical negligence case (and this is my field) without good experts. But sometimes cases go wrong because the expert lets a client down.
With the right expert evidence, people who should get damages win their cases but those who should not, do not pursue claims (and hopefully understand why). Costs are incurred on the right cases. My goal is for the right people to get damages and for the health service not to spend the minimum on costs in the process.
So after many years of running clinical negligence claims, here are 5 top tips on how to be a good medical expert. (In a follow-up article I will give 5 more - see http://bit.ly/2wthWvw)
1. Make sure you have the right expertise
Many years ago, an expert reported for me that a surgeon caused harm because used the wrong technique in carrying out an unusual procedure. (If you want to know it was a Lue procedure for Peyronie's Disease.) The claim was strongly defended. My expert produced weighty reports and explained his view convincingly in conference with counsel. But at a late stage, when the pressure was on, he confessed that he had never actually done the procedure. He thought he knew how to do it – but he was wrong. He led my client wrongly to believe he had a good claim. The result was not just disappointment but a lot of wasted money. I should never have instructed him and he should never have accepted instructions. I learned a lesson and now always check an expert's experience.
Judges, being wiser than I was then, will probably look carefully at an expert's cv at trial. See for instance how Mr Justice Foskett in a 2011 case worked his way through an impressive cv and commented that she was 'eminently well qualified to offer an opinion on relevant issues in this case'. In case you are daunted by the impressive cv I have quoted it him more widely but only in a footnote.
Don’t allow yourself to be trumped by someone who knows more than you do. If you are not the right expert, don’t put yourself forward.
But it is not always the most impressive cv that impresses the judge. Sometimes the court will prefer a less experienced expert if they spend more time at the coal-face. In one case the court preferred the evidence of 2 less experienced experts (although to be fair, they were still both professors). As the judge said, '…they had the advantage of being more in the front line of medical practice and did not spend an undue amount of time in medico-legal work' – which suggests a degree of suspicion of the 'professional expert'.
And there are occasions when an expert is too specialist. If the court is judging the standard of knee surgery by a general orthopaedic surgeon in district hospital, it is unlikely to want to hear from a specialist knee surgeon in a tertiary referral centre. There may be a suspicion that the specialist's standards are too high.
2. Try to be objective
The Civil Procedure Rules require an expert to be impartial. Your overriding duty is to the court. It may sound naïve to think that an expert will be totally impartial and it probably is. But that should be the aim. We all know of 'claimant experts' and 'defendant experts'. I do not want to instruct either. I want experts who give an honest and impartial view – not ones who tell me what I want to hear or undermine a legitimate claim. Experts who display obvious bias will undermine their own evidence.
In plenty of cases biased experts have been recognised for what they are.
Consider a recent commercial case where the judge said this about the defendant's expert: 'I formed the impression that he has…developed what might be regarded as an expertise in giving evidence. [He] was extremely careful in giving answers. I increasingly took the view that this was because his first priority was to avoid saying anything that might damage [the defendant's] case'. Ouch. Needless to say the judge was persuaded by the claimant's expert who 'gave clear and direct answers'.
In another very recent case, the judge said of one expert, 'I have to say that I found [his] evidence to be absurd…Had he made proper enquiries of his client…he would have been in a much informed position. But he did not do so'. Comments like this from a judge are likely to form an epitaph to a forensic career.
3. Avoid the temptation to be an advocate
One medical expert I instructed used to take over conferences with counsel with advice on the law and likely award at trial. Some have even re-qualified in law. In one recent case, although the judge accepted the expert's evidence he expressed concern that the (otherwise excellent) expert used words like 'submit' and referred to his 'argument'. I do not think this expert is anything other than highly professional and independent in his evidence. But the choice of his language was unfortunate. So avoid the temptation to plead a case. Stick to giving evidence.
4. Avoid prejudging the facts
What do you do when there is a conflict of evidence? The answer is that you give opinions based on both scenarios. You leave deciding which is correct to the judge. You do not base your view only on what the party who instructs you says.
If you do not follow this advice you risk:
Annoying the judge – who will not like you usurping his or her role;
Appearing biased – because you have worked on the basis of only one party's case; and
Failing to engage with the other side's case.
It is a constant frustration to be served with expert reports from experts who assume their client's account of the facts is correct and do not engage with the other possibility.
5. Put the work in and get it right first time
It is much better to consider your evidence carefully and carry out research before you set pen to paper (or finger to keyboard). There is nothing more annoying that a case collapsing at a late stage when an expert is forced into a change of view. I would not encourage experts to stick with a view in the face of clear evidence that they are wrong. The expert's whose evidence was criticised as 'absurd' was also criticised for failing to make reasonable concessions. In the judge's words, 'His evidence on a number of points was unsatisfactory and showed an unwillingness to concede anything'. But it is better to do your homework and get it right first time.
I am unlikely to instruct an expert again once they have let me down.
So these are 5 top tips for being a better medico-legal expert. They came out of a seminar I gave to experienced medical experts recently. If you find them helpful look out for my 5 further top tips – to follow shortly.
Paul Sankey is an experienced clinical negligence solicitor and partner at Enable Law, acting for patients. See www.enablelaw.com/team/paul-sankey/
Many thanks to Paul for permission to re-print this article
 The expert was Professor Kirkham. 'Her CV demonstrates that she is a highly qualified and highly distinguished paediatric neurologist who has been a Consultant for about 20 years with clinical experience at Great Ormond Street Hospital and Southampton General Hospital. She was a senior lecturer in Paediatric Neurology at the Institute of Child Health for approximately 16 years prior to her appointment as Professor of Paediatric Neurology at the Institute in October 2006. Her written contribution to medical literature, both in textbook form and article form, is very extensive and her particular research interest has been in the detection and prevention of brain damage in acutely sick children. Her recent Doctor of Medicine thesis at the University of Cambridge was entitled ‘Cerebral Haemodynamics in Normal Subjects and Children in Coma’. She was eminently well-qualified to offer an opinion on relevant issues in this case.' Morwenna Ganz v Dr Amanda Jillian Childs and others,  EWHC 13 (QB).
 Melhuish v Mid Glamorgan Health Authority  MLC 145
 Edward Lifesciences v Boston Scientific  EWHC 755 (Pat)
 BHL v Leumi ALB Limited [20170 EHWC 1871 (QB).
 Muller v Kings College Healthcare Foundation Trust  EWHC 128 (QB)
 BHL v Leumi ALB Limited [20170 EHWC 1871 (QB).