GP and medical expert witnesses play a crucial role in clinical negligence cases and are often asked to assess the chance of success before taking on a claim. Medical expert witnesses are well versed in quickly establishing the facts of the case to determine if there is a causal link between the alleged act of negligence and the harm caused to the claimant. With this information, a Solicitor can then decide whether to take on a claim and, if so, on what basis. In this article, we will review the judgement of a High Court case from 2021 as an illustration of why it is important to properly establish the facts of a clinical negligence claim and make a realistic assessment of the chance of success before proceeding.
Background to the High Court case
A High Court case in 2021 demonstrated what can happen when a claim for clinical negligence proceeds despite doubts being raised by a medical expert witness. In this case, the claimant entered into a conditional fee arrangement with a law firm to bring a claim for medical negligence. The claimant alleged that they had developed two medical conditions after being prescribed a drug in 2001. According to the details of the case, a hospital doctor had written to the client’s GP saying that he was to be given 600mg of the drug daily. Unfortunately, the GP prescribed “300mg 4 daily”, representing twice the correct dose. It was only after developing the two medical conditions that the client discovered the medication has been overprescribed.
Expert medical witness found no causal link
The claimant engaged the services of a law firm and took out ‘after the event’ insurance in order to bring a claim for medical negligence. At the outset, the law firm had incorrectly believed that the hospital doctor was at fault for the overprescribing error. The insurance company required that in order to bring a claim for clinical negligence, it would need to be satisfied that the client had at least a 51% chance of success. The claimant’s Solicitor sought an expert medical opinion from Professor Walley, a Clinical Pharmacologist and Consultant Physician. After assessing the details of the case, Professor Walley expressed doubts about the existence of a link between the over-prescription and the medical conditions (Postural Orthostatic Tachycardia and Primary Biliary Cirrhosis); he stated he had “been unable to confirm any association between Rifampicin or Isoniazid and Primary Biliary Cirrhosis”; similarly, he was “unable to find a relationship with the development of Postural Orthostatic Tachycardia Syndrome and Isoniazid”. Professor Walley, did, however, confirm that the claimant “was misprescribed an excessively high dose of Rifinah”.
The law firm acting for the claimant issued ‘protective proceedings’ against the hospital trust in February 2015. It was at this stage that the GP surgery confirmed it was the GP who had issued the prescription, not the hospital doctor. The firm sought further advice and subsequently recommended the client discontinue the claim.
The claimant then brought a claim in tort and contract for professional negligence against the law firm because of their handling of the matter; however, this was largely struck out by the High Court.
Importance of establishing the facts and the chance of success
While the professional negligence claim against the law firm was, in part, struck out by the High Court, this case highlights the importance of:
- Seeking early expert medical opinion when taking on medical negligence cases
- Relying on the medical expert to establish the proper facts of the case using medical/clinical notes, correspondence, prescriptions etc.
- Listening to the expert’s opinion on the chance of success.
The opinion of a GP or medical expert witness may be instrumental in determining whether to take on a case, thereby avoiding unnecessary costs and the potential for a claim of professional negligence. In the above case, while the drug in question had been overprescribed, the expert medical witness had made it clear that they could not see a causal link between the taking of the drug/s and the medical conditions mentioned in the claim.
Another key consideration when determining the chance of success of a clinical negligence claim is whether the time limit has been exceeded. Those harmed by clinical negligence typically have three years to bring a claim, either from the date of the act of negligence or when they became aware of the harm caused. In the above case, there was a great deal of conjecture and confusion regarding whether the claimant was out of time to bring a claim. Having established the facts of the case and found a causal link between the act of negligence and the harm caused, an expert witness can advise whether the client is ‘in-time’ to bring a claim before too much time and money is invested in the matter.
GP and medical expert witnesses are not just instrumental in helping Solicitors and their clients to win claims for clinical negligence, they can also steer the initial decision-making as to whether a valid claim exists. If a valid claim does not exist, a great deal of wasted time and cost can be avoided, and any other viable legal alternatives can be explained to the client.