Background

Discussions of the recent case of Dr Mercuire, who was required to pay costs after an aborted trial where his expert evidence was undermined, has rightly concentrated on the financial implications for experts.

However, the case also raises issues for both experts and their instructing parties in the selection of experts.

Dr Mercuire was a general dental practitioner or what most of us would recognise as a dentist. The patient who he prepared a report on was treated both by her dentist and by a hospital-based maxilla-facial surgical team, which included an operation under general anaesthetic.

Dr Mercuire was critical of this treatment and continued to maintain his position, despite being asked by the defendant’s solicitors to confirm if it was appropriate for him to comment on hospital care. The defendant had a report prepared by a maxillo-facial surgeon and while he had some criticism, particularly regarding the pre-operative assessment and consent, he considered that the treatment given was reasonable.

At trial under cross examination, Dr Mercuire admitted that he had no recent experience of treatment under anaesthetic or of being a practitioner who undertook hospital duties. The claimant then withdrew their claim.

Dr Mercuire is a General Dental Practitioner, similar to a GP, who sees a wide range of conditions but does not have the depth of knowledge in one or more specific areas. The same is true for my own speciality of emergency medicine where we have the skills and diagnostic abilities in acute care, but less so in long-term or continuing care.

All of these practitioners are generalists and have their place both in their own sphere of practice, and in the medico-legal environment.

Specialist physicians who are often termed “-ologists”, as many of their expertise is a body system and so their titles are cardiologist, gastroenterologist, or neurologist to name but a few, have deep knowledge in their area of expertise, but mainly rely on the generalists to refer patients to them for their advice. While some work in primary care, and one of the most common are diabetologists who supervise diabetic management, most work in the secondary care system in hospitals.

In the past, while there were specialist surgeons such as urologists, orthopaedic surgeons and neurosurgeons, there was a specialism of general surgery. However now, while many of these surgeons contribute to the on call surgical admissions, they also have narrow elective interests, such as gastrointestinal surgery, which can be further divided into upper and lower GI tract surgery, endocrine surgery, such as thyroid disease, and breast disease.

In most general hospitals, the management of children comes under the paediatric team, who have less specialised roles. But in tertiary referral, children’s hospital care is most often undertaken by specialists in paediatric conditions whose titles reflect those of similar adult medical and surgical specialists, for example paediatric cardiologist and paediatric neurosurgeons.

What does this case mean for expert witnesses and instructing solicitors?

For the expert, this case highlights the peril of going outside one’s own experience and expertise and continuing to do so even when challenged by the opposite party.

As Dr Mercuire found out, this may not only damage your reputation, but also your pocket.

There is sometimes – and this may become more apparent after the consultation on fixed recoverable costs reports – some pressure put on experts, as with lower value claims there is a limit on the number of experts. The consultation does state that if more than two liability experts are required, the case falls outside the fixed cost regime. As an expert, I could see this being challenged in order to limit the experts involved, with possible consequences for an expert who opines outside their own speciality.

For the instructing solicitor, it may require them to formulate exactly what expert they require. This can both be a problem when a generalist opines on specialist investigations or treatment, but also having a specialist expert, who sees a much more select population of patients, opine on what it was reasonable for a generalist practitioner to know or do.

Learning points

Supporting an opinion in an area outside of one’s experience and expertise may have both reputational and financial consequences.

When asked by an instructing party about such matters, express only general comments and advise them to seek a specialist opinion.

In extreme cases, it may be necessary to just say no to an instruction that asks you to deviate outside your expertise.

Knowing exactly who is required to give an opinion in a specific matter requires some knowledge of the medical career structure.

An expert declining to give an opinion may be a better expert for your case than one who gives opinions without qualification.

Colin Holburn is a consultant in emergency medicine and expert witness. He is a Fellow and a Governor of the Expert Witness Institute. He is instructed on clinical negligence matters and also provides expert evidence for inquests. Colin talks about matters of interest to both experts and solicitors on his website www.pedmore-medical.com and has presented to both clinicians and instructing parties on medical and medico-legal topics. He can be contacted on c.holburn@pedmore-medical.com.

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