The Potential for Conflict Between Counsel and Witness

Toby ruminates on the challenges of the medico-legal partnership.

The protocols between warring litigious parties are well established – Counsel represents their Client either acting for the Claimant versus the opposing defendant, practitioner or Health Authority, or for the Defendant in a claim for damages. The Expert acts for the Courts and must remain wholly non-partisan, a fact reiterated each time a report is formally addressed to the Court. But, however clearly drawn the battle lines, there are a several ways they can be so easily blurred…

Beware of any initial requests for a brief review of any case when only limited documentation has been made available as part of a scouting exercise. This usually means Counsel is trying to determine whether a case has a favourable chance of success without spending any more money than necessary. It’s effectively trying to do it on the cheap and it exposes the Expert if that opinion is not addressed to the Courts. If at a later date Counsel goes elsewhere for a more thorough report, the aforementioned Expert can find themselves with a claim against them if the later report contradicts your own. If any report is addressed to the Court, only the Court is able to act against the Expert.

Don’t compile reports unless you have sight of all the relevant original documentation. Summaries and transcriptions by legal and clerical staff are subject to typographical errors and omissions, not least because legal clerics don’t understand medical and dental terms, except at the most basic level.

Many cases are now finding their way to my desk following the outcome of a Conduct Committee hearing conducted by a professional body. This is invariably occurs when a case of Fitness to Practice has gone against the practitioner concerned. Although the Patient has had their day in Court, they still trot off to a Solicitor to sue for damages.What the patient may not appreciate is that Fitness to Practice charges are not the same as the Failure in Duty of Care that has led to quantifiable damages or Causation.

The doctor or dentist may have overlooked certain blood tests or diagnostic x-ray’s and is thus subject to criticism by the professional conduct committee, but unless this oversight has led to untoward consequences with subsequent harm or injury, there is no Causation and therefore no consequence of that omission.

It is also worth noting that although a professional body commissions an Expert for guidance, their Expert never examines the Claimant. In my experience this can lead to misguided decisions against practitioners. When I have disagreed with the conclusions of Conduct Committees I have often been told by instructing Counsel that I am not permitted to contradict their findings. A wholly misinformed assumption.

Many an Expert will find themselves instructed to provide only a Current Condition, Prognosis and Future Treatment Report after Counsel have previously obtained a favourable Breach of Duty and Causation Report. Watch out for this one. It is invariably made by an expert who has made conclusions based on the documentation alone without examining the patient. What Counsel do not understand is that the details of the clinical records will invariably influence prognosis. If I review the records and conclude after I have examined the patient that patient compliance is so poor that the previous practitioner was not to blame, then this will invariably influence my own treatment recommendations for that patient.

As an example, let’s take a patient who has been under the care of a general dentist for 20 years before they discover they have advanced periodontal disease with bone loss that will invariably lead to tooth loss. A review of their dental records shows limited documentation related to assessment of the gums, except intermittent advice to brush their teeth a bit more, and routine scaling every six months. When the patient attends another practitioner they suddenly feel shocked and aggrieved due the “failings” of their previous practitioner. Blame is apportioned and a visit to Counsel ensues. An initial

Breach of Duty Report follows after a review of the dental records where the omissions are serially pointed out by the Expert.

In the meantime, the patient (now Client) trots off to a periodontist who reinforces the terrible state of the gums and the enormous costs of complex implant dentistry that is required to put things right. Due to the complexity of the proposed treatment, the former Expert cannot provide an opinion as he/she is a general dentist with no specialist training. In addition, their report did not allow them to examine the patient.

I am then instructed to exam the Client to provide the Current Condition, Prognosis and Treatment options perhaps 18 months after they attended the periodontist. At the consultation the Client presents with ongoing severe active periodontal disease associated with abundant plaque deposits throughout. It is clear this patient has not taken a blind bit of notice despite repeated visits to the periodontist, and is quite ill- suited to expensive dental implants. Not only do I consider that he/she is a candidate for conventional dentures, but I consider that he shows such a disregard for his own responsibility for optimum oral health that in all probability he is behaving as he did with the Defendant, ignoring advice and failing to comply. In essence, the Client is wholly culpable for their own tooth loss.

It may not surprise the Reader that Counsel are often furious with my conclusions and imply that I have ventured beyond their instructions for the Condition and Prognosis Report. Not so, I point out. My duty is to the Court.Their error is to assume that a second Expert will always agree with the conclusions of a previous Breach of Duty Report. The only way to avoid contradictions between the two reports is to ensure only one Expert is engaged.In another case involving untreated periodontal disease I found in favour of the patient. Subsequent quantum of £3,600 was offered by the indemnity insurers which led me to file the records for archiving. Imagine my surprise when I received a demand for£30,000 from the patient’s agents three months later as a consequence of my failure in my duty!

It transpired that during previous meetings with Counsel, the Client’s solicitor had indicated that he could expect a pay out of £35,000. As a consequence, he issued instructions to the same solicitor who had instructed me to sue for the difference of what he expected and what he finally received. The Author invites the Reader to consider whether there is an integrity issue, and whether the solicitor should have referred the case to another firm.

This is not an isolated incident. Over the last 20 years I have received several instructions from one of the larger legal firms in my home city of Bath. They have a dedicated division handling medico-legal instructions. One bright morning my clinic doormat was graced with a letter from them representing one of my own patients pursuing compensation for treatment received. Not only did they not consider the possibility of any conflict, but the patient was a solicitor himself from Dorchester. The case was subsequently dropped. Needless to say, I have refused to accept any instructions from them since.

In my experience, the consequences of soured relations between Expert and Counsel are several:

  1. Deprivation

I have received no response after sending a report and the anticipated payment of my fee fails to arrive on time. Some firms have resisted paying my fees which invariably leads to a claim in the small claims county court and a complete breakdown in our relationship.

  1. Extension

One firm forwarded a list of 30+ questions which they stated were necessary because they considered my report failed to clarify certain issues. Furthermore, they did not expect to pay extra for the responses which took more two hours of my time. It was clear that from the questions provided indicated that the solicitor in question had awarded himself an honorary degree in dentistry.

  1. Procrastination

Firms have asked for a precise breakdown of time allocated for the report and then quibbled endlessly about minor typographical errors.

  1. Omission

Several firms have asked me to omit certain paragraphs that weaken their case. When I refused, they complained that I had sent the report in pdf format and asked me to re- send the report as a Word document!

  1. Disqualification

Some firms have tried accusing me of venturing outside and beyond my area of expertise. It is to be noted that, as a former hospital consultant and a Fellow of the Royal College of Surgeons, my understanding of general medical and surgical issues is likely to be a little more than the general dental practitioner. I have been responsible for patients undergoing critical care, victims of severe road traffic accidents, and head & neck oncology patients. But I am a dentist!

This old lag isn’t one to offer criticism without constructive advice.

  1. To avoid many pitfalls for the office of Counsel, I recommend due diligence is conducted by the solicitors’ office to ensure that the selected Expert can deliver the goods.
  2. If the case is simple and straightforward and thus wholly within the remit of a general practitioner, you can commission a general dental practitioner.
  3. But you may need a dental expert. Amaxillo-facial surgeon can give you a critical 
appraisal of a wholly surgical issue. He or she cannot give a dental opinion. If the problems relate to periodontal disease, find yourself a Periodontist. If the problems relate to failed root canal treatments, find yourself an Endodontist. Failed denture or crown and bridgework? Get yourself a Prosthodontist. Is the case multifactorial and covers a broad range of dental problems? Get yourself a Specialist in Restorative Dentistry. They are all dentists, BUT they’re all different creatures.
  4. Checkout whether the Expert is still active at the coalface.The author attended a professional meeting in London quite recently and met a colleague who is very proactive as an Expert Witness. He has just celebrated his 85th birthday having retired as a clinician 20 years ago. How on earth can Counsel expect him to be up to date? He will invariably find himself before a judge (in all probability and ironically of advanced years) giving evidence only to be publicly humiliated when asked the ultimate question by the opposing QC – when did you last undertake a similar procedure?

Finally, the Reader is reminded of the influence of the Wolfe Report a few years back. Partisan conduct whereby former practitioners would consider it their mission to protect colleagues has been stopped to reflect professional transparency and candour.Gone are the days whereby senior retired medical/dental colleagues can dabble in report writing for a bit of pocket money without finding themselves humiliated in Court, outed for being out of touch with current clinical practice. Court immunity has now become a thing of the past, resulting in a considerable reduction in our numbers. Professional training and registration of Expert Witnesses has culled the amateurs.

May they RIP.

All the views and opinions expressed by the author are personal but I would welcome public debate on all the issues included.


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