What Do Solicitors Look For in a Medical Expert Witness?

Few people are better placed to answer this question than Dr Jock Mackenzie, Partner at Anthony Gold Solicitors LLP.

A dual qualified doctor and clinical negligence solicitor, he has spent almost 30 years working alongside medical expert witnesses in complex litigation. In this exclusive article for The Ardent View, he shares the four key factors he considers when selecting an expert witness.

Why do some medical experts receive repeat instructions while others are rarely approached? It is a question I am often asked, and one for which there is no single answer. Clinical expertise is fundamental, but it is only one part of the picture. In my experience, the qualities I look for when selecting an expert witness can be grouped into four key categories.

Medicolegal Experience and Knowledge

This first main category may seem rather obvious, as it rather goes without saying that experts will – or should – have very significant knowledge within their chosen specialist area.

However, the reference goes more to the expert’s expertise in and experience of the subject matter of the case in question. For example, a claim about a particular surgical procedure will naturally ideally require an expert with extensive knowledge of that procedure, one who performs it on a regular basis and who has done so many times.

Present clinical activity is also important. Whilst experts who retire do not suddenly lose their value and relevance on retirement, with time they will increasingly become out of date, reducing their credibility.

There are exceptions: for example, a breach of duty opinion on a case from when the expert was still practising; or radiology interpretation, which may not change much over time.

A perhaps more controversial topic is that of NHS work versus private work. There are cases in which an expert working solely in one sector may not be suitable to opine on a case concerning the other: by way of example, whilst a surgical procedure technically may be identical in both sectors, the environment – the theatre, the equipment, the staff in support, etc. – may not be and an expert without recent experience of these latter matters may not be best placed to advise.

Medicolegal Experience and Knowledge

One of the most important aspects of this second category is the understanding of and compliance with an expert’s legal duties. Having been doing this work for nearly 30 years, my experience is that a not insignificant number of experts do not fully understand the nature and extent of their duties.

Training courses are all very well, but it is necessary for an expert to understand and implement not only their black letter duties and responsibilities but also the spirit of their role. Experts naturally have an overriding duty to the Court, but they also have a duty to their instructing solicitor and client to act with reasonable skill and care.

It is helpful if an expert has a proper understanding of the legal process, so they can appreciate where they fit into a case, from both substantive and procedural perspectives.

In choosing an expert, I also look at their claimant versus defendant ratio. The courts expect experts to be independent, impartial and unbiased. A step towards that end is a reasonable parity of claimant and defendant work: too much of one can risk appearing partisan.

Another potentially controversial topic is court judgments: I often look up potential experts to see if they have featured, positively or negatively, in judicial comment. I know that some experts subjected to judicial criticism will consider such criticism to have been unfair, but nevertheless a judge’s comments are very important.

Logistical and Practical

The third main category concerns the more practical matters of an expert’s instruction. Expert availability is important. Clinical negligence cases often take a long time and delays due to a lack of expert availability tend only to compound the issue. This does not just mean report preparation, but availability for conferences with Counsel and Trial. Fortunately, conferences tend to be a little easier these days with videolinking.

Time-keeping and maintaining deadlines is important: solicitors are often not in control of a court timetable and expert compliance with directions is essential to avoid potential problems.

An increasingly vexing practical issue is expert fees. Hourly rates, as with most things, have increased with the passage of time, but there is no doubt that in recent years they have increased at a greater rate, in some instances becoming very significant indeed and even prohibitively so. There is a wide variability in what experts charge, whether on an hourly rate basis or a one off estimate or quote for a report, but, as far as I can tell, there is no clear pattern as to why the rates vary so much.

Related to fees are Terms and Conditions (‘T&Cs’). Some experts, I am pleased to say a minority, have such onerous T&Cs that I would not be acting in my client’s interests if I instructed them, at least not without material amendment to certain terms. Declining to make reasonable amendments will obviate that instruction, although in my experience most experts are willing to make appropriate concessions to the retainer.

An expert should also be extremely wary of providing a formal opinion based on very limited information, for example in a ‘screening’ report, because there is a material risk of an error being made in the opinion when potentially key information is missing. Any such opinion will need to be so heavily caveated that, in my view, it will usually cease to be of much value.

I do like experts who invoice on time, as it enables me to keep track of disbursements and avoids the, fortunately rare, situation when an expert invoices after the case has closed, by which time it is too late and they will not be paid.

Professionalism

With respect to this final category, I prefer an expert who has a

genuine interest in the case, and who is engaged and committed to putting in the time and effort to perform to the very best of their ability. Approachability and pleasantness are important: they will facilitate a good working relationship, and potentially of course lead to repeat instructions.

Finally, a factor that is of particular importance to me – perhaps because of my medical background – is that I want an expert who is willing to accept challenge and firm questioning with good grace rather than defensiveness, so genuine debate can take place and an understanding reached where there may be differing opinions or analyses of a case. Whatever conclusion the expert reaches, I wish it to be reached rationally, reasonably, logically, consistently and in compliance with the expert’s duties: I could not fault such a conclusion.

In summary, selecting the right expert is as much of an art as it is a science. It is often a gamble trying a new expert and, sadly, in that vein I have had many major disappointments over the years. Given an expert may win or lose the case, choosing a suitable expert is crucial and requires very careful thought: the above four categories highlight some of the key factors that I have learned over the years to take into consideration.Three questions with

Three questions with Dr Jock Mackenzie

Drawing on his unique perspective as both a doctor and clinical negligence solicitor, we asked Jock to reflect on nearly 30 years of working with medical expert witnesses and share some of the lessons he has learned along the way.

1

As someone who has practised as both a doctor and a clinical negligence solicitor, how has your medical background influenced the way you assess expert witness evidence?

It has influenced my assessment of expert evidence hugely. Even in cases where the subject matter is not something I practised as a doctor, my medical education, training and experience enables me to identify relatively simply and quickly: whether the expert has taken into consideration all the medical evidence that they need to, including medical literature; whether their conclusion is balanced and they have considered an appropriate range of medical opinion; and/or whether there are, in particular, technical aspects of the expert’s opinion that need to be questioned or challenged. I can then raise detailed medical questions of the expert and converse with them at a reasonably high medical level. This process is often invaluable in ensuring that, in reaching their opinion, the expert has considered and addressed everything that they need to and my client can be confident in that opinion. I have had many cases over the years where experts have not taken everything into consideration in reaching their opinion: sometimes it is as simple as a trend in a blood result or it may be more complex guidelines or medical literature, etc.

I have had many other cases where the opinion is scientifically open to question or simply not medically logical. By way of example, I had a case where an expert initially reported negatively regarding a particular methodology for conscious sedation. I challenged the opinion, providing a number of contemporaneous medical literature studies that supported the methodology as unacceptable. The expert apologised, revised his opinion and liability was admitted on the basis of that revised opinion. It is my role to raise such concerns with the expert, and where necessary to challenge them, and ask them to review their opinion, as otherwise they will not be complying with their duties. I have no doubt that identifying and communicating these types of issues or concerns is much easier with a medical background.

2

Looking back over nearly 30 years of instructing expert witnesses, has your view of what makes an outstanding expert changed? If so, what qualities do you value most today?

I am not sure that what makes an outstanding expert has changed hugely but there is no doubt that there is considerably greater scrutiny of experts nowadays, with respect to both compliance with duties and analysis of opinions; in particular, in the last 10 years or so, the judiciary appears to have taken a keener interest in ensuring experts are properly compliant with their duties and responsibilities, rarely shying away from criticising experts in a judgment when they fall foul of those duties. Part of my Bond Solon clinical negligence seminar to experts contains horror stories from recent judgments as a warning to experts! For me, though, in addition to compliance with duties and responsibilities, the main qualities of an outstanding expert are: care, thoroughness and attention to detail; provision of an opinion that is carefully thought-out, well-reasoned, balanced and logical; and a willingness to accept queries and challenge with good grace.

3

If you could give every medical expert witness one piece of advice before accepting their next instruction, what would it be?

An expert’s reputation, and continued instruction, is ultimately dependent upon them consistently delivering high-quality work, so my advice would be that every expert should ensure that they have the time and inclination to be able to fulfil that requirement before agreeing to accept their next instruction.