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January 2014
Number 2

Expert Evidence at a Premium

The birth of a new era?

The reforms to civil justice have meant that in whiplash cases expert evidence has come under close scrutiny. The Ministry of Justice is expected (as of mid-January 2014) to issue guidance shortly on reforming the use of medico-legal evidence in low value fast track claims. The initiative has been spear-headed by the Association of British Insurers who have argued, many would say in a self-serving manner, that doctors are all too willing to believe the claimant they examine – and not report suspicions that might benefit the insurance company. No actual evidence has been produced and the proposals have been delayed as Ministers reportedly come to terms with the fact that the expert’s first duty is to the Court, and not to the party who pays them. A lack of evidence and existing rules may or may not lead to change and the team at SpecialistInfo will monitor the situation with care over the next few months.

Whiplash claims are, ironically, reported to be falling over the last four years. In contrast those against NHS maternity services are rising. There is little doubt that many services provide good or acceptable outcomes with broadly positive experiences for most women, but there are significant and unexplained variations in performance around the country, according to a report from the National Audit Office (‘NAO’). This level of concern is reflected in many solicitors’ offices where clients complaining about sub-standard care are arriving at an ever increasing rate.

The NAO reports that performance of individual trusts in relation to rates of complication and medical intervention varies widely. Solicitors say that there is increasing evidence from expert witnesses of sub-standard care. Not surprisingly, litigation in maternity care is rising. Trusts paid £482 million for maternity clinical negligence insurance cover in 2013-14, equating to around a fifth of spending on maternity services. That is set to rise in 2014-15. It is more that £700 in insurance for every live birth in England.

Explanations vary - the number of midwives has increased but the NHS is not meeting a widely recognised benchmark of one midwife to 29.5 births. A lack of midwife cover, or adequately trained midwife input, is reported in many claims. The fault appears not to lie with the individual but with the level of staffing. A failure of system is, of course, every bit as actionable by way of a claim against a Trust as a failure by a midwife properly to read a trace, spot a dip, or palpate correctly. Expert witnesses know that the Trust is vicariously liable for the failures of staff and directly liable for the failure of system. It is a key part of their duty to consider both aspects of any claim.

Thousands more midwives are needed in England, the Director of the Royal College of Midwives (RCM) says: Jacque Gerrard told BBC Breakfast recently that the NAO suggested 2,300 shortfall was half of what the RCM estimates is required. From a wider perspective, it is feared that spending cuts have created a shortage of 20,000 NHS nurses. Freedom of Information requests submitted by the Royal College of Nursing (RCN) to dozens of NHS hospitals in England have reportedly exposed a “hidden workforce crisis” that has been missed by government statistics. This all goes to system and may well feature more in the reports of experts.

Whether, then, we are at the birth of a new era for expert witness evidence generally remains to be seen – but for those doing clinical negligence expert witness work (for which up to date specialist training is most certainly required), it will remain a growth area.

By Jonathan Dingle, Barrister-at-Law of 218 Strand and a leader on Specialist Info medico-legal courses.