Nigel Morley is an experienced consultant pharmacist who provides expert witness in criminal, civil and commercial proceedings. He has contributed to a number of high-profile medical negligence cases, including the conviction of serial killer Harold Shipman.
A few years ago whilst I was exhibiting at The Pharmacy Show at the NEC, an intense young lady approached me, introducing herself as a newly qualified pharmacist. She kindly said, “Mr Morley I have heard so much about you. How do I become an Expert Witness like you?”
I flippantly replied: “Come back and see me in 20 years’ time.”
Not very kind but definitely right, as the ability to be an Expert Witness can only come by many years of professional experience.
An Expert Witness will have a sphere of competence in a limited range of professional knowledge topics – in my case, controlled drugs, medical and pharmaceutical negligence, pharmaceutical dispensing and income reimbursement, community pharmacy valuations and, most importantly, the Pharmaceutical Services Regulations. This list is not exhaustive and each case has to be taken on its merit, with an evaluation made as to whether it is within my sphere of competence as an Expert Witness.
An Expert Witness provides an expert opinion, as opposed to an actual witness as to fact. In the Shipman Judicial Inquiry, I was both an Expert Witness to opinion and a witness to fact, as Doctor Harold Shipman, or Fred as he was usually called, attended a post graduate lecture I gave in Thameside shortly before he was arrested. He sat in the front row and engaged me in conversation after my lecture, praising its content. Obviously, he was relieved that I had not adduced any examples of GPs murdering their patients with opiates. The chair of The Shipman Judicial Inquiry, Dame Janet Smith was gracious enough to write a very supportive forward for my textbook ‘Controlled Drugs, the Law, Probity and Good Practice in Primary Care’, which I wrote a few years after the conviction of Doctor Shipman.
As an Expert Witness, one is initially approached by a client wanting an Expert Witness report. My clients have included civil and criminal solicitors, pharmaceutical and medical liability insurers, the Department of Health and the Home Office, foreign governments, the police, accountants as well as direct instructions from pharmacies and medical practices. Once you have confirmed that the case appears to be in your sphere of competence, you are sent the papers on the case and a list of questions that you have been asked to answer. We then supply the clients with a time estimate to produce the Expert Witness report.
The questions that an Expert Witness in my sphere of competence could be asked may be used for very different purposes, but always so that a third party can make a decision. A major proportion of my Expert Witness cases relate to medical and pharmaceutical negligence. An Expert Witness needs to be totally impartial and point out both the merits and demerits of the alleged negligence. In order for a claim for negligence to succeed, there are the following tests to be applied.
1. That the defendant had a duty of care for the patient
It is unquestionable that a healthcare professional has a duty of care to a patient. There does not need to be a contractual or financial consideration for the healthcare professional to be liable for their actions or advice. The courts have held that even complimentary gratuitous advice makes the professional liable for negligence advice.
2. That the duty of care was breached
For claims of negligence for breach of duty of care, the proof of that breach is crucial. The actions of the professional will be compared to the reasonable expectations of good practice by the majority of similar professionals in equivalent circumstances. Therefore, the healthcare professional’s actions will be compared with those of their peers by asking whether the level of care provided equates to that to be expected from a reasonably competent professional. There is obviously an element of subjectivity, hence the need to obtain the Expert Witness to support that the standard of care received fell below that of a reasonably competent professional.
3. That the consequences of such a breach could be foreseen and underlined
The Expert Witness will need to cite evidence from the professional’s domain showing that the consequences alleged could have been reasonably foreseen by that professional.
4. The actual harm was incurred by the patient as a result of that breach
Causation of the damage incurred by the patient may need to be proven on the civilian test of balance of probabilities by a specialist alternate Expert Witness. For a claim for compensation for gross negligence against a healthcare professional, all the above tests must be satisfied. If anyone of the four tests fail, the claim for compensation will likely not succeed. In the majority of negligence of cases, the plaintiff solicitor will instruct more than one Expert Witness.