Loyal followers of this blog (if any) must surely have given up hope of another entry after more than a year of silence. I have continued to be fully occupied with my medicolegal practice and sitting on mental health tribunals: today is one of those rare occasions when I have no urgent matters on my desk.
I would like to take the opportunity of discussing the independence of expert witnesses. Theoretically, as I expect most readers will already know, the Expert Witness is expected to provide an independent report for the Court, regardless of whether he or she is being instructed (read “paid”) by lawyers acting for the Claimant or for the Defendant. After 30 years of writing reports, and latterly doing little else, I remain unsure whether this expectation is realistic. For example: instructed by lawyers acting for a Claimant and looking at a bundle of clinical records for the first time, I am gently – or sometimes not so gently – steered by the instructions to identify specific failings or problems of management. So I find myself looking out for other failings and examples of substandard practice as if I were working for one side only. On the other hand, it is never easy to “shop” a colleague, particularly when I have been in a not-dissimilar position but without the catastrophic outcome. To provide a balanced opinion really requires an effort of will which is hard to come by.
For this reason I am quietly satisfied when I write a report finding that there has been no breach of duty of care. This is probably not what the instructing solicitor wants to hear, and certainly not what the claimant wants to hear, but it is better to hear it at this stage rather than in court tens of thousands of pounds later. And it reassures me that independence is not unattainable.
