How many neurologists, I wonder, recall stilted school careers guidance when aged 17 years? ‘You're likely to do well in your A-levels: you must read either medicine or law.’ ‘One or the other’, was the advice, as though they were so very readily comparable.

Wig or white coat?

Yet maybe that discourse was the closest proximity the two subjects ever achieved. After all, we chose medicine, not law. Not for us the long hours of poring over tomes of historical English (or even Scots) legal authorities, texts and terminology, nor the honing of skills of learned argument in the moot room. No, instead we settled on anatomy, physiology and biochemistry, brightened after a few years by a slide into the fascinating world of clinical medicine. Law, in all its rich complexity and intellectual magnificence, disappeared below the horizon. Never to re-emerge.

Never, that is, unless you found yourself asked to do medicolegal work following appointment as a consultant. Called upon, perhaps, to write a brief report on a man with whiplash following a rear-end shunt or the woman with a minor but painful injury after slipping on a snow-covered ungritted pavement. Or assisting with the case of someone wrongly or belatedly diagnosed with a neurological condition at ‘St Elsewhere's Hospital’ who would have fared oh-so-much better if only the doctors there had appreciated all the clues, and had made the correct diagnosis instead of the wrong one, or even just had elucidated the correct diagnosis a few months earlier.

They are all common scenarios. And we, with neurological skills and clinical expertise, can most certainly help our lawyer colleagues. The legal profession needs us to guide their thinking with regard to the rights and wrongs of the medical aspects of a case, the validity of a claimant's assertions, the gravity—or excusability—of diagnostic errors at another hospital. Was there negligence (which is inexcusable)? Or was it just incompetence (which sometimes may be forgiven)? An experienced neurologist can offer a wealth of medical skills and experience. Our lawyer colleagues will surely value and cherish our opinion.

Or will they?

‘Misunderstandings’

Nearly 20 years of medicolegal experience have taught me that at times there seems an enormous chasm of misunderstanding between the doctor and the lawyer. Neurologists live in a world of clinical science, reliant on an established evidence base, with our thinking coming either from careful testing of scientific hypotheses, or at least founded on a treasury of extensive personal clinical experience. When concrete evidence is lacking in a given clinical setting, we tend to ask: ‘Whom does this patient remind me of in terms of the range and nature of their symptoms?’ We then add: ‘And what was the diagnosis in the previous similar patient?’ We conclude that there will be a good chance that the new patient carries the same diagnosis as the previous similar one. It is a reasonable way to get to a ‘working diagnosis’.

We also know that patients are at times not straightforward, sometimes even fickle. We are acutely tuned to how stress, anxiety, and bizarre illness beliefs may all conspire to produce neurological impairment, and in turn give rise to disability, sometimes quite severe, that is not ‘organic’, or at least not in its entirety. For neurologists, the concepts of the functional hemiparesis, the non-epileptic pseudoseizure, and the stress-related ‘light-headed dizzy do’ are all second nature. It can be a challenge to explain these aspects of illness to patients and their relatives. And crucially, in the medicolegal world, how can we succinctly explain this aspect of medicine to barristers and judges, who may have no concept of a human body not working correctly purely due to ‘stress’, and whose world may revolve more comfortably around the simple idea that ‘since illness ‘B’ followed event ‘A’, then clearly ‘A’ must have caused ‘B’’? Sadly it is not true in very many instances. Sequence, m'Lud, does not mean consequence. But how to explain this in a court room? How should the mere physician, ensnared by the forensic dissection of legal argument, resist the onslaught of cross-examination when the inflamed barrister's financial well-being may depend on defeating the medical formulation? For yes, indeed, whereas the medical expert witness signs a disclaimer stating that their fee is in no way predicated on the outcome of the case, astonishingly the opposite may be true for the barrister, who—if engaged by solicitors acting on ‘no-win no-fee’—might find that his remuneration is no less than doubled if he can secure a victory.

So the worlds of medicine and law may at times collide, and we must consider the potential areas of conflict, before considering possible solutions. (figure 1)

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Figure 1

When worlds collide….

Basic concepts

The first issue is the total re-interpretation of the word ‘proof’ in the legal environment, compared with its medical use. To the pure scientist, and also to the scientifically-educated clinician, something is ‘proven’ if it is shown absolutely to be correct—100% right. That is the way it is. There is no alternative explanation. By contrast, in legal parlance something may be ‘proved’ if the judge, or occasionally the jury, determines it to be so. He (or she, though in general it is still usually ‘he’) listens to evidence for and against an assertion and determines which side of the argument he favours. It may be a borderline decision; even as close as 51% to 49% in terms of likelihood. But once he has decided his preference based on evidence he has heard, then he will find the issue ‘proven’. This startling difference in meaning may catch out the unwary scientific expert in the courtroom.

The vital nature of this ‘balance of probabilities’ versus ‘beyond reasonable doubt’ must be understood by a clinician embarking on medico-legal work. Civil cases are decided using the former test, criminal cases on the latter. This is the explanation why some high profile criminal trials result in a ‘not guilty’ verdict (ie, the evidence of guilt was not 99% certain), yet immediately afterwards aggrieved parties launch a second trial, seeking civil damages, often with a reasonable chance of success, since they know that they need only to show a 51% percent probability of wrong-doing to win. (figure 2)

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Figure 2

Scales of Justice on the Old Bailey.

What's in a word?

Medics have an analogy in misunderstood terminology: a word that we understand, yet people outside medicine may not. It is the word, ‘diagnosis’. Often we use ‘diagnosis’ as shorthand for ‘working diagnosis’. In other words, we make a best-bet diagnosis, referring to what we believe is the most probable explanation for a patient's symptoms, which we then test, using a battery of investigations, possibly supplemented by the opinion of other specialists, and frequently also simply by allowing the passage of time. The word diagnosis is not an absolute. Diagnoses change. With the arrival of investigation results, and sometimes with a natural history or progression of an illness deviating from the norm, we may be obliged to re-consider the diagnosis, and settle on a new one. For example, while we might well accept a normal inter-ictal EEG as consistent with a diagnosis of epilepsy (despite the outside world believing otherwise), we would struggle to accept an entirely normal high field strength contrast-enhanced MRI scan as being consistent with a working diagnosis of multiple cranial metastases. Such a result would force us to change the diagnosis. But would it mean that we had ‘got the diagnosis wrong’ and made some sort of medical error? My view is ‘no’, for the initial diagnosis may have been entirely reasonable the first time we assessed the patient, based on the clinical information available at that time. It was only with additional information that we could be clear that the initial diagnosis was unsustainable, and required a new diagnosis to explain the patient's symptoms.

This is an area which troubles barristers. Surely, if the first diagnosis was not the right one, somebody must have made a mistake. There must be some culpability. The claimant's lawyer may be reluctant to accept that the initial diagnosis was the best that could have been made at the time, with only the later arrival of definitive investigation results proving the first suggested diagnosis could not be correct. A change in the diagnostic label applied to a patient does not imply medical fault, yet numerous lawyers attempt to draw that inference, especially in cases of alleged medical negligence.

Hysteria, functional illness and malingering

There is great difficulty in introducing the non-medical world to the concept of functional illness and disability. Neurologists readily recognise that there are some true hysterics around. Perhaps in neurology we see more than in other specialities. Resistant blackouts, loss of limb function, or an apparently dense paraplegia may all be manifestations of hysteria. These patients are unaware that their disabling condition takes origin on a deep-seated psychological basis, and is not the result of organic damage to the nervous system. Of vital importance is the fact that they are not deliberately affecting symptoms for the purposes of personal or financial gain, that is, they are not malingering. Yet if the diagnosis is correctly spotted, then a wide range of potential treatments will be opened up, and in some cases a much better prognosis can be offered.

But this concept of functional illness may be extraordinarily difficult to impart to a courtroom. It is completely outside the day-to-day experience of most non-medical individuals. The barristers and judge, who inevitably see not just the patient, but also the wheelchair, may have considerable difficulty in accepting that this scenario could arise in the context of a nervous system which is—the medical expert asserts—entirely normal in its structure and integrity. ‘Are you seriously saying, doctor...’ the barrister will demand, generally with considerable incredulity,‘...that this man has relied on a wheelchair for the past 20 years, yet has the capacity to get up and walk if he simply wishes to do so?’ ‘No, that is not what I am saying’, the expert may reply, but how best then to continue the explanation beyond that point to ensure that all those present in the courtroom really understand this difficult aspect of medicine? We know that hysteria should be diagnosed on the strength of positive phenomena: Hoover's sign and the like, rather than settled on as a diagnosis simply because nothing else seems likely. We may be completely confident in our assertion, yet it is not easy to explain this concept of medicine to a lay audience when under pressure. The task is doubly difficult if there is a medical expert ‘on the other side’ who is equally insistent that the neurological deficit exhibited is indeed the legacy of the accident under legal discussion. The latter formulation is likely to be far more readily acceptable to the legal professionals, and may be ‘preferred’ by the judge simply because it is readily comprehensible, and the seemingly natural fit with the event under discussion.

There is also the ‘half-way house’ situation, where an initial organic injury and/or illness becomes perpetuated by psychological factors. We would hope that this concept would be understandable in the courtroom, yet skilled cross examination can make the very idea seem perverse. ‘So, doctor, you are saying that the claimant's symptoms were originally due to the accident, but now, 3 years on, you are suggesting that even though his symptoms remain entirely unchanged, the cause of those symptoms has somehow mysteriously altered from one thing to another?’ The questioning may continue: ‘So, please tell the court on which day this astonishing change took place. Last week? Last year? When?’ Not easy questions to deal with. Arguably, this issue matters rather less in legal terms, since if symptoms can be attributed to an index event, be it an accident or medical mishap, then the precise mechanism of the genesis, or perpetuation, of those symptoms is irrelevant. The court needs only to decide whether they are, or are not, more-than-likely due to the accident. In other words, the legal test of ‘balance of probability’ applies in a civil case like this, so if the court is satisfied that the claimant's symptoms are more likely than not to stem—somehow—from the initial event, then the judge will find in favour of the claimant.

If B follows A, then did A cause B?

The recurrent thorny issue of ‘sequence’ versus ‘consequence’ bedevils medicolegal proceedings. If we were to crash our car within a few miles of a black cat crossing the road in front of our vehicle, then unless we were extraordinarily superstitious, we probably would not blame the accident on the cat. (figure 3). But what if we sustained a whiplash injury in the accident, and at some point in the next 6 months began to drag one leg and developed urinary urgency? What if these symptoms proved to be the beginnings of multiple sclerosis (MS)? Human nature being what it is, we might start to wonder if the accident had somehow set in train the pathophysiological processes that ended in myelin damage. We would wonder if the forced hyperflexion and hyperextension to the neck somehow disrupted the integrity of the cervical spinal cord, and in turn would wonder if this had ‘set off’ our MS. After all, neither our general practitioner (GP) nor our personal neurologist can tell us the underlying cause of the MS, so the accident seems as good a bet as any. In other words, uncertainty breeds speculation, and it takes a highly informed and erudite patient with newly-diagnosed MS to study the literature in detail and to satisfy themselves (rightly) that developing MS so soon after the road accident represented no more than the play of chance. Several high profile court cases in England, Scotland and Ireland have considered this issue. One required adjudication in the House of Lords, with Their Lordships—thankfully correctly—determining that it was no more than coincidence.

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Figure 3

Black cat.

But what about other sequence and consequence issues? In the past two decades there has been enthusiasm in some quarters to suggest that exposure to organophosphates, sheep dip, for example, may yield a wealth of neurological illnesses. Also, exposure to other minor toxins, possibly even just paints if used in a confined environment. Peripheral neuropathy, myasthenic-like syndromes, and even motor neuron disease have been proposed as sequelae of low levels of exposure to these agents. To the disinterested observer, the assertions must seem to be vanishingly unlikely, since if these chemicals were indeed the explanation for this diverse range of conditions, then surely our basic understanding of the aetiology of these illnesses would be greatly improved. Courts, in general, have tended to agree that there is no link, but not always, and skilled advocacy on the part of enthusiastic barristers has, at times, won very substantial damages for their clients, to the amazement of the on-looking scientific community.

Misrepresentation by barristers

There is perhaps a final area in which would-be medicolegal experts must exercise great care. Yet this, to a great extent, is outside the control of the expert witness. Namely, the danger of being either misquoted or totally misrepresented in the summing up by a barrister. There are few medical experts who can offer the luxury of being present in court for the entirety of the case in which they are involved. Instead, solicitors will contact the expert witness once the scheduling of a case is known, and ask the expert to attend to give evidence on just 1 or 2 days of a case, which in total duration may run to several weeks. Thus the expert knows what they themselves have said in court, and may even have heard something that other related expert witnesses have said, but few will have heard the opening submissions of the barristers, and even fewer will have been present to hear the crucial ‘summing up’ statements made by the barristers on either side. These final submissions may be of vital importance; especially if some complex aspects of the medical issues were not fully taken on board by the court when initially delivered by the witness. The barrister will need to précis, and explain, while inevitably placing a ‘spin’ on what has been said, to maximise their own client's chance of success. This is entirely reasonable, since it is their duty to do so. However, just sometimes there may be errors at this stage. A well-intentioned barrister may misquote an expert witness, or may erroneously suggest, perhaps, that the stance taken on subject by a given medical witness has somehow changed between the present case and a previous similar case. This should not happen, but it is something to watch for.

Should we worry?

With all these background anxieties, a young consultant considering embarking on a medicolegal component to their career may recoil in horror, assuming barristers somehow to be ‘the enemy’. Of course they are not, they are professionals, like us, who simply have a task to complete, and above all, they must do the best for their client. Expert witnesses must understand this, since although the position of the doctor giving advice before a case begins may need to be closely aligned to the needs of the instructing party, that is, to advise the legal firm on the medical merits or otherwise of a potential claimant's case, that responsibility is not maintained once the case reaches court. From that moment, the sole duty of the doctor is to the court as a whole, in essence, to be an advisor to the judge on medical matters arising during the hearing. The doctor should be impartial, simply offering their professional opinion. Clearly, that opinion may strongly favour one or other side in the proceedings, but it must be a genuine, secure and evidence-based professional view. It will, after all, be tested under cross examination to check that it is truly robust.

By contrast, the barristers involved in a case will try their hardest to find flaws and weaknesses in the arguments proposed by their opponents. They will be partial in the extreme, apply ‘colour’ to what has been said, and will emphasise issues which to outsiders may seem trivial. And they are exceptionally good at it. That, after all, is their job.

So, the barrister may seem at times, to be an adversary of the expert witness: but they are not the enemy. Sadly, as they say in politics, your opponent may be opposite you, but your real enemy is to be found inside your own ranks….

The enemy within

Astonishing, I know, but the major challenge in performing medicolegal work is presented by other neurologists. Not by any means all, since frequently reports written by the expert ‘for one side’ tally almost word-for-word with the medical report written ‘for the other side’. If so, then the opposing firms of lawyers tend simply to ‘agree the medical evidence’ and neither expert is needed in the courtroom. But unfortunately this is not invariably the case. And grave errors can result, not from sparring with lawyers, but as a result of in-fighting between consultant colleagues.

In my experience, serious medicolegal difficulty can arise from colleagues who fall into three groups: first, the doctor who does not fully understand the role and responsibilities of a medical expert, secondly the maverick who holds passionate views on one subject area which are out of line with majority opinion, and thirdly the ‘ultra-expert’ who is so well-informed and engrossed in one small subject area that they find it inconceivable that all other doctors are not so knowledgeable. It is worth thinking about each of these in turn.

The first scenario is a case of civil litigation, that is, Mrs X suing Mr Y for injuries received in a car crash that Mr Y caused. In general, this is straightforward, since the doctor will interview and examine Mrs X, and will prepare a written report detailing her symptoms, the findings on examination, and most importantly, giving his or her opinion as to whether the symptoms and signs are consistent with the alleged injury. So the doctor—being an ‘expert’ witness—is absolutely permitted to give an ‘opinion’, in other words to drift away from fact, into ‘what the doctor thinks’. There may be differences of opinion between different doctors, and although English legal authorities have recently attempted to get both sides to settle on one expert to offer a report to be used by both sets of lawyers (the so-called ‘single joint expert’ proposed by Lord Woolf as part of the ‘Woolf Reforms’) frequently two experts are still instructed, one engaged by the solicitors acting for the claimant, and one by the firm acting for the defence. This is fine, but—as described above—although the doctor may indicate medical strengths and weaknesses of a case to the instructing party before the case comes to court, once in the courtroom the ‘overriding duty’ is to the court, that is, the role becomes simply that of an expert in neurology and related matters, who can advise the judge on the medical issues in the case. There should be no partiality, and those doctors who make reference from the witness box to ‘our case’, or ‘the other side's case’ are simply illustrating ignorance of their own role. Once in the courtroom there should be no ‘other side’ as far as the expert witness is concerned.

Negligence or not?

The second scenario is a case of alleged medical negligence. The definition of what constitutes medical negligence varies very slightly between the legal systems of England, Scotland and Ireland, and inevitably differs around the world, but in essence, doctors have been negligent if they did something (or failed to do something) which was so far out of line with normal medical care that no doctor (of that rank and level of experience) would have done—or failed to do—what they did. There are other legal caveats too: first, and obviously, some harm must have resulted from what was done or omitted, and secondly there should be a reasonable evidence base to show that the ‘correct way of doing something’ being put forward is the norm, with some grounding in fact. Thus, the bar over which a complainant has to jump to prove their case against a doctor whom they are accusing of negligence is set quite high.

Medical expert witnesses who are asked to comment on cases of potential negligence must understand this. What was the rank of the doctor who made the alleged error? A specialist registrar cannot be expected to have the same skills and level of knowledge of a consultant. What was the level of experience? A registrar in their first week cannot be expected to perform as well as an individual applying for a consultant post. And moreover, what was the area of expertise of the accused doctor? While it may be unreasonable for a senior specialist trainee in neurology to fail to spot a myasthenic crisis presenting acutely in casualty, could we really blame the emergency medicine registrar for failing to make the correct diagnosis? After all, the number of cases of myasthenia that they have seen can probably be counted on the fingers of one hand, and to ask them to spot the condition in a hyper-acute situation is asking a lot. Other emergency medicine registrars could readily make the same mistake. Therefore—not negligent.

But how often is this aspect of the law forgotten by senior neurologists? Many a medicolegal report is produced by a neurologist commenting that such behaviour on the part of the emergency medicine registrar is entirely unacceptable, and constitutes negligence. Yet they are wrong. Indeed they should not be commenting on the case in the first place. It is for specialists in emergency medicine to comment on the actions of these trainees. This argument also needs to be extended to the neurological commentaries that are all too often seen addressing the actions of a GP. GPs’ work should be assessed and criticised, or otherwise, only by other GPs. Neurologists are in no position to criticise medical practitioners whose field is largely unknown to them. We forget this at our peril, since the solicitors who instruct us may, perhaps surprisingly, not be aware of the huge diversity in skills and knowledge of different types of doctors. They may—erroneously—seek comments and opinion from neurologists, on the work of doctors in far-removed specialities. And an ill-judged medical report, assigning negligence where in fact there was none, may result in not just months, but sometimes years, of anguish to an innocent doctor until that point in the future at which a court—hopefully—realises that the critical medical report is completely invalid because of the inappropriateness of the expert who wrote it.

Medical experts invited to comment on cases of alleged negligence also have a curious penchant for reading sets of case notes backwards. They receive a letter from an instructing firm of solicitors, which inevitably summarises the allegation of what has gone wrong. The expert then looks at the medical documentation, starting at the back, and reading the pages in reverse order, noting the bad outcome, and making mental notes while flicking back in time in the case records: ‘Ah yes, this is where they missed the obvious clue’, and ‘Oh, but they should have done such and such a test here, and then they would have got the right diagnosis’, and so on. The result is an expert report confirming the opinion of negligence. But how different the expert opinion might be if the case notes were read the correct way, that is, starting at the beginning. Here is a patient with problem X. ‘What would I do?’ The expert can then follow the flow of new information and investigation results as they were received by the responsible team. Usually turning a page in the notes elicits a ‘Crikey, that's not what I would have expected!’ moment. The result is then usually a report pointing out that there was no negligence, since the expert commentator realises that they might well have made the same mistake or omission themselves. Medical experts should read case notes from the beginning to the end, not the other way round.

Maverick experts

What of the maverick? They abound in medicolegal work. At first, the newcomer might be surprised by their high prevalence, but if a solicitor needs an expert to support an unorthodox argument, there will inevitably be a small cohort of individuals who can be called upon, and so the same faces will crop up again and again in the court room. These people are well meaning, and express passionately held views, often based on a lifetime of research. But their opinions may no longer be in line with mainstream thinking. They may present numerous publications to the court to back up their opinions. But barristers and judges are not well versed in the relevance of journal ‘impact factors’, nor can they weigh up the relative merits of a paper published in, for example, the Postgraduate Medical Journal, in comparison with a paper published in Brain or Annals. Rather the tendency is to look for any printed work to back up the maverick expert's position on a given topic. When that paper is found, the barrister for that side will submit that it should be accepted by the court, as though it were a ‘legal authority’. There is often little attention paid to the opposing medical expert politely suggesting that the paper ‘is of questionable validity’, since the view of the court may be that a learned publication in the journals—any journal—must be scientific fact. Issues of trial blinding, selection bias, dubious statistical analysis and so on, seldom carry much weight.

One word of caution is needed here though, in that medical experts must remember that their legal instructions almost certainly will have required them to identify published work that supports or detracts from their opinion. Barristers may seize upon a failure to identify significant published papers with which the expert disagrees, and this can be a trap for the unwary expert witness.

The combination of an enthusiastic, well-meaning medical maverick, a fist full of dubious publications, and a skilful barrister may result in completely bizarre propositions being accepted by the court: for example, that Lyme disease can be diagnosed on a snipping of hair, the future risk to children of MS sufferers can be determined by studying lymphocyte motility down a microscope, or that Parkinson's disease and related akinetic-rigid disorders can be acquired solely due to low-level exposure to everyday household toxins. Mavericks can be difficult to challenge in court; their enthusiasm for their subject carries them far, and may find favour with a judge. Suggesting that their opinion is ‘way out of line with general neurological opinion’ carries little sway, and is difficult to support without rallying a squad of other more balanced neurologists to express the majority viewpoint. Readers who doubt this point should think back to the MMR (measles, mumps, rubella) vaccine scandal of a few years ago. One major newspaper ran a highly informative opinion poll, not asking ‘Do you think the MMR vaccine carries a risk of autism?’, but instead they asked the general public ‘Do you think doctors in Britain are roughly divided 50-50 on the fact that the MMR vaccine gives rise to autism?’ The rather alarming response was a huge majority said ‘yes’ to this, when in reality the percentage of the British medical profession supportive of a link between the MMR vaccine and the risk of autism was tiny, probably just 1–2%. But the public thought that professional opinion was more-or-less equally divided, and courts are at risk of making the same mistake with medicolegal issues, when one side fields an evangelical, and probably very persuasive, maverick expert.

The ‘superspecialist’ expert

Finally, what of the ‘ultra-expert’ medicolegal neurologist? If, in a negligence case, the area of suspected medical error relates, for example, to an alleged misdiagnosis of epilepsy by a neurologist at another centre, then who could be a more desirable expert witness than a Professor of Epileptology? Certainly, to the legal teams involved, this seems an excellent choice. However, my view is the opposite. If the expert witness is there to determine whether or not there has been fault on the part of a neurologist treating a patient, then we must remember the legal test: were the actions reasonable, bearing in mind the level of experience and expertise of the doctor being criticised? If the accused neurologist were a ‘general jobbing neurologist’, then we cannot expect that individual to have the same detailed level of knowledge of epilepsy and related disorders as that possessed by a neurologist who has studied nothing but epilepsy from registrar level. So the professor of epilepsy is a poor choice as a medical expert witness. They will inevitably have supreme insight into those aspects of an individual's medical history which should alert the skilled practitioner to a diagnosis of, for example, long QT syndrome instead of epilepsy, but should it be this ultra-expert who makes the determination of whether or not the ‘jobbing’ clinician was negligent? Is that super-specialist in a position to decide whether what the accused clinician did was so far out-of-line that ‘no general neurologist acting with reasonable care and skill would have made the same diagnostic error’? I think not. Generalists should judge generalists, and the ultra-experts should know that, and should point this fact out to their instructing solicitors, before accepting medicolegal instructions.

Making things better

So, how best to improve this unhappy romance between medicine and the law? How can we reduce the occurrence of the undesirable scenarios described above? Perhaps the first way would be for the two professions to listen to each other more. Doctors who agree to take on medicolegal work should surely be clear that they understand their roles and responsibilities before they embark on the task. Above all, if they are about to suggest that a colleague has been negligent in their clinical practice, then the expert must be in no doubt regarding the legal interpretation of the word ‘negligence’. It is no good deciding that what was done was just somehow ‘not ideal’ or ‘substandard’. Poor form, maybe, but that is not negligence, and they should not assign that label to it, since for the instructing lawyers it has very specific meaning.

Doctors could help more in guiding the legal firms who instruct them. It may be eminently clear on the first reading of case records that additional experts in, for example, ENT or psychiatry will be needed in the case, so why not alert the instructing lawyers to this at an early stage? Maybe the clinical issues under debate could be resolved by further imaging or neurophysiology studies? So why not let the instructing legal firm know this, and offer to organise these additional investigations? The legal firms will, in general, gladly pay, and both sides involved in the dispute are likely to appreciate objective clarification of medical issues well in advance of going to court. In contrast, the expert witness who suggests only from the witness box that the contentious clinical issue could be resolved with further scanning will not endear himself to the court at that eleventh hour. (figure 4)

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Figure 4

Royal Courts of Justice.

Finally for the medics, they must make themselves available, and engage fully with the lawyers before going to court. In advance of the hearing there may be conferences with solicitors and barristers with the aim of assisting legal teams with their understanding of medical issues. There may be requests to study reports from the expert ‘on the other side’ which have been ‘disclosed’, and perhaps to meet other experts to agree a joint statement highlighting those areas of agreement and the remaining areas of disagreement. On the court day itself, the expert must arrive early, and not disappear without permission, since it is highly likely that the legal team will wish for on-going discussion of medical evidence delivered by others before or after each day's hearing.

And how might our legal colleagues offer greater help to the medical practitioners whom they instruct in legal work? In general, most legal firms are excellent, and provide the medical expert with clear and detailed letters of instruction, accompanied by a complete set of well-presented and paginated relevant medical records. Scans and CDs containing images are also often provided. But others offer a less polished service, with vast sheaves of randomly organised papers appearing in the post, accompanied by somewhat bland letters of instruction identical from one case to the next, and which fail to highlight specific issues and queries. Occasionally, the expert may be left feeling that he or she is the first individual to cast eyes on the medical documentation surrounding a case, and that he alone is responsible for putting it into some kind of order. If lawyers can foresee particular medical issues arising in court, then this should be pointed out to the medical expert long in advance of the formal proceedings, and an opportunity given for the expert to analyse carefully those issues expected to be very contentious.

Additionally, lawyers should perhaps take time to listen to their own expert's opinion on how the case may be run ‘by the other side’. It might be perceived that this would represent a medical professional losing their impartiality, or trying to usurp the functions of the barrister, but for some types of cases, especially when a given expert has offered evidence on a number of previous occasions, that medical expert might quickly see the medical arguments that will be put forward by others, and can be of great assistance to legal firms in helping them anticipate problems which will arise, for example recognising that a consultant colleague with unorthodox views—the maverick, perhaps—may be called to appear in the case. Remember that in advance of court proceedings, the expert has a duty to the instructing legal firm to guide them on the merits or otherwise of their client's case. Or a medical expert may appreciate that issues relating to the incidence and prevalence of a given disease will be of such crucial importance in a case that the instructing lawyers must instruct an expert in clinical epidemiology to become involved. This is never more important than in those cases where clustering of a disease in a given location, workplace or factory, has given rise to the assertion that a local toxin has caused the condition, whereas in fact careful scrutiny of epidemiological data may reveal that such an apparent cluster represents no more than coincidence. And finally, of course, lawyers must not forget that doctors are simply medical practitioners, and are not actuaries. Unlike our portrayal in film and television drama, we are not consistently adept at telling someone ‘how long they've got’. Yet frequently before, and during, court proceedings we are invited to speak with assumed authority on an individual's life expectancy, or even more problematically, an individual's life expectancy ‘were it not for event X which has befallen them’. Not easy, and not really our field either, and lawyers should accept that. (figure 5)

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Figure 5

Supreme Court of the UK.