Reforming procedures for expert evidence in clinical negligence claims


Stevens: Everything must be considered

Posted by Amanda Stevens, chief executive of Hudgell Solicitors

Outside of my role as chief executive of a law firm in which clinical negligence cases account for a large proportion of our legal work, I am a governor of the Expert Witness Institute (EWI).

EWI is an independent, not-for-profit organisation whose primary objective is the support of the proper administration of justice and the early resolution of disputes, principally through training and support of experts so they can provide fair and unbiased expert evidence.

I am therefore delighted, with my EWI hat on, to have been asked to sit on the core group of industry experts called together by the Civil Justice Council (CJC) to develop a bespoke process for clinical negligence claims where legal costs can be fixed, for damages claims up to a value of £25,000.

It is, of course, not going to be an easy process, but is certainly more achievable than the previous suggestion of Lord Justice Jackson that fixed costs could be applied to all claims up to a value of £250,000.

It is important to stress that, despite being one of only a handful of clinical negligence lawyers at the meetings, my role on this core group of industry ‘experts’ is not to shout out and protect the interests of claimant lawyers. I am only there jointly representing the EWI and the Academy of Experts, reflecting their members’ interests in the process.

In essence, it is my task to ensure the role of expert witnesses, who play such a crucial role in clinical negligence cases, is not compromised in the working group recommendations, such that they cannot properly fulfil their duties to the court in a bid to cut costs, whilst also constructively seeking ways to make the process more streamlined and efficient.

It was certainly interesting to sit around the table at my first meeting of the core group, alongside a small number of claimant and defendant legal representatives, NHS Resolution, the judiciary, counsel and other interested parties, to discuss ideas for the best way forward.

There have been many suggestions as to how we can move to a more cost-effective way of sending instructions to experts, removing the duplication of work that occurs at some stages in current process, and coping with frictional costs caused by missing deadlines. Everything must be considered.

I have put in hand a survey of members of the Institute and the Academy to gather their views on all aspects of expert engagement in the claims process, from initial sourcing of medical records through to final exchange of expert reports.

In a recent Department of Health consultation, it was mooted that there be greater consideration of the use of single joint experts as an option. At the start of the project all ideas are welcomed around streamlining and efficiency – something I hope that my survey of experts will inform us of more fully.

These things, of course, have been attempted before on a smaller scale, as people have long wished to improve on the speed and cost of resolving disputes.

Without CJC assistance in bringing all the relevant parties together on a large project basis, those attempts have not brought about the wider changes felt to be necessary. Now we have a collective opportunity to make a positive difference.

My overall feeling at this early stage is that there is the collective will to meet the challenges ahead, whilst ensuring we don’t conflict the thing that matters above all in this, justice continuing to be served for those who have genuinely suffered as a result of clinical negligence.

The role of impartial medical experts for both parties to assist with that process has never been more important.

The CJC working group has been asked to report with recommendations by the end of September 2018 so it will be a busy summer ahead.




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