Consultant obstetrician Declan Keane is adamant there is “expert shopping” in some medical negligence cases in the State, where solicitors keep looking for doctors’ opinions until they get the one they want.
In some cases over the years, the former master of the National Maternity Hospital has been politely told, after providing his expert opinion in some cases, that no further assistance from him is required.
‘My experience is there are hired guns who will say what the plaintiff wants them to say in reports and in court’
When asked by lawyers for plaintiffs or defendants for a report, he wants to be asked as an independent, not a partisan, expert, Keane says. “I find, especially when I’m asked by plaintiffs lawyers for an opinion, I send it on and then get a polite reply saying it’s not in favour of the case being made. Then they go and seek another one and keep going until they get what they want, generally from out of the country.”
“My experience is there are hired guns who will say what the plaintiff wants them to say in reports and in court.”
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Keane endorses criticism by the Court of Appeal of so-called “hired gun” experts. In a recent judgment, Mr Justice Seamus Noonan said that while an expert’s duty was to assist the court, it was “commonplace” for them to put the interests of their client first and the “hired-gun syndrome” was perhaps an inevitable by-product of adversarial litigation.
The criticism concerned evidence from a US expert for the defence in a personal injuries case, but the court’s support for legislation and tighter court rules concerning expert evidence, and its hint of possible adverse costs consequences for lawyers who do not properly vet their experts, apply to all litigation.
Following criticism over years about the quantity and quality of some expert evidence, a number of High and Supreme Court decisions set down markers governing such evidence, including a requirement of independence. These have been set out in the rules of the superior courts.
Despite that, many in the legal community agree, because experts are hired by one side, their evidence remains more likely to favour the person paying their fees.
Reluctant to testify
Expert evidence is critical in clinical negligence litigation, and many experts endeavour to be fair. While all sides agree using “hired guns” is undesirable, they each accuse the other of using them.
A number of plaintiff lawyers who spoke to The Irish Times say they regularly use experts from the UK for reasons including the level of expertise there and because Irish medics are reluctant to testify against colleagues.
Ernest Cantillon, whose highly regarded firm represents many plaintiffs in clinical negligence cases, says there has been criticism of expert evidence tendered for plaintiffs, but criticism can also be levelled at defendants’ experts.
He said he was aware of a number of cases where defence experts had provided exculpatory reports in relation to claims of negligence and breach of duty of care but the cases went on to settle for full value. “That suggests the defendants ignored their own experts’ advice.”
Cantillon’s position is: “You would never go to anyone who you know will tell you what you want to hear: that will be exposed and will cost a fortune.”
“You cannot get any expert here for medical negligence cases when you are trying to establish if there was a clinical misdiagnosis,” he says.
Cantillon regards as “pie in the sky” suggestions by judges that opposing sides might agree on a joint expert or, in the absence of that, the court would select one.
An existing rule that only one expert from a particular specialty may be called by each side is “strictly enforced”, he notes. A court-selected expert might, he fears, be drawn from a pool of defence doctors “who swear up minimalist explanations for every injury”.
Directory of experts
Solicitor Michael Boylan, who has represented many plaintiffs in medical negligence cases, says his firm has a directory of experts it has built up over years.
He is a member of the Action for Victims of Medical Accidents group in the UK, which gets feedback from lawyers about the effectiveness and efficiency of experts in cases.
“The experts we use are reputable practising medics with the UK NHS, they are not snake-oil salesmen or hired guns.”
Boylan is “very grateful” to have access to such experts “because it is extremely difficult to get Irish doctors to criticise their colleagues”.
“That’s human, there are probably only 100 obstetricians here in total and they all know each other.”
‘In my experience over the past decade, as lawyers and judges have gained more experience dealing with experts, the days of the hired gun are over. If they are put forward, they will be exposed’
He welcomes that some younger consultants here are willing to give opinions and “to call it as it is”, but says he still has to look abroad “to get the appropriate level of expertise in different specialties”.
The courts have emphasised that lawyers must have supportive medical evidence for their claims before proceeding with cases criticising doctors and hospitals, he notes.
“It’s unethical to do that if there is no supportive evidence, but there is always a rogue who may take a case without supportive evidence.”
“In my experience over the past decade, as lawyers and judges have gained more experience dealing with experts, the days of the hired gun are over. If they are put forward, they will be exposed.”
Personalised attacks
In relation to complaints by defendants’ lawyers of excessively personalised attacks on doctors and nurses during litigation and inquests, Boylan says: “It’s not part of my tactics but I can’t speak for others.”
Some plaintiffs are “so embittered and angry about what they perceive as negligent treatment and about anything that they consider is about defending the indefensible and they want to publicise that”.
“If a defendant feels there is anything libellous said, there is a remedy. I’d put the shoe on the other foot: there have been instances where there is very strong supportive medical evidence for a case which I believe would win if it went to trial but has settled for full value on condition there is no admission of liability. Defendants still insist in those circumstances nothing was done wrong.”
Some defendants, despite maintaining there was no negligence of breach of duty of care, settle cases because that may prove less costly than a High Court trial, he accepts. That also applies to plaintiffs who believe they would succeed at trial but settle because of the costs risk if they fail, he says.
Expert “shopping” in the UK by lawyers for Irish plaintiffs is common, according to a number of lawyers who have acted for defendants in medical negligence cases, who spoke to The Irish Times on condition of anonymity.
All sides, one lawyer says, need independent experts but the widespread view is that all experts are “a bit biased”. Some are “notorious for being totally one-sided” but most “will not put their reputation on the line by saying something stupid”.
Because both sides are required to disclose all expert reports to the other, including draft reports, defendants sometimes see that three to four reports can be jettisoned “because they did not say what the plaintiffs wanted them to say”.
Another lawyer agreed that it could be difficult for plaintiffs to get Irish experts to criticise colleagues here but said defendants also experienced difficulty getting reports from Irish experts for reasons including busy work schedules.
‘Deny and delay’
The HSE and hospitals are regularly accused of pursing a “delay and deny” strategy when, the lawyer says, the delay can be down to receiving plaintiffs’ expert reports late in the day.
The lawyers are concerned by what they regard as efforts by some plaintiffs’ experts and lawyers to focus criticism on individual doctors and nurses as opposed to hospitals or medical teams.
There was particular concern about criticism of individual medics at inquests, increasingly used as a dry run for litigation but which are not themselves concerned with liability, and after court cases settle without any admission of liability.
Doctors and nurses are working in a very tough environment and negligence cases can be “devastating” for them, the defence lawyers say.
“I’m not saying medics should not be accountable if there has been negligence,” one stressed. His concern was that some UK experts “overdo it when it comes to criticism”. Before that expert’s report, there could have been four to five reports differing in their conclusions about the alleged mistake subject of the case, but the treatment of some medics has been such they want to give up medicine, he said. “We need good medics here. Toning down the personal attacks might help. This behaviour by lawyers for some plaintiffs doesn’t help anyone and can make a family’s misery worse.”
Defendants are “always on the back foot” in medical negligence cases, he says. “It’s very difficult for a judge, for example, to dismiss a case over a catastrophic injury.”
‘I’ve seen the production of experts from the UK who are often retired several years and sometimes giving expert evidence in an area that is not their specialty’
There is sometimes unjustified criticism of defendants over not apologising to plaintiffs early or at all, he said. “The point is that there is only an apology if negligence is admitted or established. Cases are settled without admission of liability for various reasons. Statements of regret may be made over a family’s experience and upset about what they have gone through, but defendants can hardly apologise if there is no admission or finding of negligence or breach of duty. This distinction is often lost in media reports.”
Declan Keane disputes the claims of an “old boys’ network” here that closes ranks when it comes to giving evidence against colleagues. “It’s not a case of Irish doctors not doing it. I’ve seen the production of experts from the UK who are often retired several years and sometimes giving expert evidence in an area that is not their specialty.”
The Medical Protection Society in the UK is not supportive of the use of experts who are more than three years retired and it creates difficulties for lawyers and judges when presented with experts who are not up to date, he says.
‘Sword of Damocles’
Having impartial expert evidence and avoiding personalised attacks on individuals is important for reasons including the “massive” impact of being sued on doctors, nurses, midwives and entire medical teams. The NMH experience is that nurses and midwives in the labour ward who were subject to legal action, an inquest or a fitness-to-practise committee, move afterwards to a less stressful area. “We have lost quite a number of staff because of that.”
The NMH has asked junior doctors during training what they see as the principal barriers to a career in medicine and it is always two things, the number of hours they have to work and being sued, he says. “Legal action hangs like the sword of Damocles over many.”
“Most obstetricians I know have been sued two or three times, whether over minor or major incidents. I’m 61 now, I’ve worked in Ireland, the UK and the US. It still upsets me to receive a solicitor’s letter. We get very good support from the State Claims Agency and the defence legal teams, but while you’re always told not to take it personally, you never get used to it.”
A colleague was criticised several years ago for saying that, irrespective of the evidence, there was little chance a judge would find against a plaintiff suing over catastrophic birth injuries, Keane notes. There are “a lot of pro-plaintiff judges” and defendants know, when a case is called on before a particular judge, that it would be better to try and settle it even if the defence believe there was no negligence or breach of duty of care.
It is difficult for judges, he believes, to find against catastrophically injured plaintiffs because that raises issues about meeting the cost of the plaintiffs’ care needs.
He supports no-fault compensation in cerebral palsy cases, which would remove them from the courts altogether, but is aware that the State fears the possible costs implications of that, including that compensation may be pursued for any child with a disability. He believes there is “no appetite within the legal profession for reform, because that would impact their incomes”.
Reform in medico-legal practise, especially when it comes to cerebral palsy cases, is “long overdue”, Keane maintains. “Otherwise, the system will continue as it is and that is not good for plaintiffs, defendants, doctors, nurses or the public. The award sums will just continue to rise and continue to cost the taxpayer unless something is done.”
