The importance of choosing the “right” expert in birth injury litigation

Fletchers Solicitors are specialists in birth injury claims with one of the biggest teams of lawyers in the country investigating a large number of +£20 million pound cerebral palsy compensation claims and other birth injury cases.

Before you think about selecting the right medico-legal expert, you need to choose the right solicitor.  Experience is key.  Our advice is to find a medical negligence solicitor independently accredited and on the specialist charity Action Against Medical Accidents’ referral panel and the Law Society’s Clinical Negligence Accreditation Scheme. Sahida Patel and Trevor Ward are panel members of both schemes.  They also have vast experience of investigating and successfully resolving high value (+£15 million) birth injury cases. 

What is a medical legal expert and who do we use in birth injury cases?

An expert witness qualified in a particular area of medicine; for example, in birth injury claims we typically instruct midwives, obstetricians, paediatricians, neonatologists and neuroradiologists. 

What do medical legal experts do?

Independent medical legal experts are instructed by clinical negligence solicitors to give their opinions on the reasonableness of the standard of medical care provided (breach of duty) and whether any failings in treatment caused or contributed to a patient suffering an avoidable injury (causation).   We also instruct medical legal experts to help us assess how much compensation a claimant should receive when liability has been established (lawyers call this phase quantum).

What duties and responsibilities do medical legal experts have?

Cases turn on the opinions of these instructed experts.  Although the legal teams are responsible for obtaining and sending the expert the relevant background information (medical records and witness statements) the expert is entirely independent with a duty to the Court (rather than our client) to provide an impartial and reasoned opinion on breach of duty, causation or quantum issues.  An expert will set out their views in a report signed with a statement of truth.

What type of problems have medical legal experts encountered?

Judges have criticised medical legal experts for a range of different reasons.  For example:

• Providing an opinion outside of their area of expertise.
• Not reading and fully considering all the relevant background information.
• Not being impartial.
• Not being consistent.
• Not applying the correct legal tests.
• Not considering all the relevant medical literature. 

This criticism may ultimately result in a case winning or losing so the stakes are extremely high. 

How to choose the right expert?

Experienced and specialist medical negligence solicitors will have long standing relationships with a range of medical legal experts in different areas of medicine. Getting to know and meet experts, first hand, is key, especially when medical legal experts can demonstrate their competence and skill through training sessions, lectures and articles. 

Solicitors need to stay up to date and regularly check medical legal experts’ CVs and profiles for any adverse criticism from the judiciary or elsewhere (General Medical Practice investigations for instance) to make sure that the most appropriate expert is instructed to give clients the best possible chance of succeeding with their case.  

Why ongoing training and development is essential.

At Fletchers, we understand that the field of birth injury litigation is constantly evolving, with new medical techniques, technology and changes in case law.  As with our own legal teams, we expect the medical legal experts we work with to prioritise continuous professional development by staying up to date with the latest guidance, research, and training opportunities.  This ensures medical legal experts are fully up to speed with the latest medical and legal developments which, in turn, offers our clients the best possible chance of securing justice and resolution of their case.