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Rebuilding lives after brain injury: the role of the Court of Protection
Jemma Garside
Medical experts are key to success in any medical negligence case. Given their ability to make or break a case, what is it that we look for in an expert? I have set out below some of the qualities which we, at Kingsley Napley, look for and these qualities apply whatever type of case you have, from cerebral palsy to head injury to spinal injury, and to the many others in between.
- Authoritative. The expert must truly be “expert”. Not just someone practicing in the field. Their background, CV, reputation and experience, publications and standing in the profession will all testify to their level of expertise.
- Thorough and considered. The expert must give careful attention to his or her instructions, ensuring that he or she scrutinises all relevant medical records and witness statements. The expert must pay attention to detail and be capable of presenting a balanced but clear view.
- Decisive but not dogmatic. An expert must be capable of coming to an opinion, and understand fully the difference between the question, “what might a doctor do in this situation?” from “what ought a doctor to do in this situation?” It is the latter question with which the medical negligence solicitor is concerned.
- Flexible, but for the right reasons. Medical negligence claims tend to evolve over the course of investigation and litigation. It is very important that an expert is capable of taking account of what can be a shifting landscape, whilst at the same time retaining their authority and decisiveness. That said, an expert should try and avoid a late change of view, especially where there are no new facts to substantiate such a change. Thorough preparation at the outset will minimise the risk of this happening.
- A good explainer, both orally and in writing. An expert may be correct in his or her opinion, but unless that opinion is fully explained by reference to the facts and medical literature, then the opinion will be less convincing and consequently will likely carry less weight. The expert must address the “how” and the “why”, not just the “what”.
- Confident, but not over confident. The expert must have confidence in their own abilities and opinion, and this should be based on their authority and preparedness. This confidence will enable him or her to deal with challenges productively. An expert should be able to hold their own at experts’ meetings. For this, preparation and an understanding of the case and where their evidence fits in is essential. Equally it is vital that a solicitor practicing in the field of medical negligence has the confidence to engage fully with the experts, the medicine and the issues at hand, and to be unafraid to query or seek further explanation of a given view.
- Responsive. Whilst it is true to say that experts are there to assist the Court, the relationship between expert and the instructing solicitor is important and should be based on mutual respect and consideration.
Knowing how to work with medical experts and how to facilitate them to work to the best of their ability takes time and experience. It is also very rewarding, as settlement often flows from the well-written, carefully considered and researched report.
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