Expert commentary: Costs, experts, myths and legends: a sequel

The argument about legal costs in clinical negligence (and personal injury) litigation cycles back around in ever decreasing circles, depressingly without any real nuance in the arguments at each repetition. Although it has been sadly overlooked in recent days, things are changing. However, in the face of lurid headlines and eye-watering figures, there is an apparently irresistible urge to retreat to the trenches that were dug during the Review of Civil Litigation Costs, and indeed even before that.

Slay the tropes

In response to concerns about claimant solicitor fees, the most often repeated trope (heard many times recently) is that medical defence organisations, insurers and their panel solicitors deliberately seek to delay settlement and withhold proper admissions until the door of court. Amid the synthetic rage, none of the commentators expounding this theory is yet to explain what could possibly be gained by such a tactic. The number of cases that might be discontinued as a result of the mere passage of time (if any) is vanishingly small, and positions tend to harden over the course of litigation making cases harder to resolve. All defendant insurers and practitioners know that delay increases costs, with an exponential curve as trial approaches, and that early settlements are always to be preferred. Most defendant practitioners are audited on the shelf life of cases, with medical defence organisations and insurers positively enforcing the need for early resolution. The ‘deliberate delay’ argument is nothing short of nonsense and if we could finally put it out of its misery the debate would be all the better for it.

The role of experts

There are reasons why cases are robustly pursued, by claimants and defendants, only to be ultimately settled. The most significant of those is the adversarial approach to expert evidence in our civil litigation processes.

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Just obtaining an expert report in highly specialised areas such as paediatric neurology and neonatology can take nine to 12 months. In other specialities reports are rarely available in much less than three months. Subject to limitation issues, claimants do not have prescribed investigation periods with which to comply so they can gather their evidence over years in some cases. However, the Pre-action Protocol for the Resolution of Clinical Disputes allows four months for the preparation of a letter of response, and there is an expectation that this will be prepared with the benefit of independent expert evidence. The problem is not subtle: undertaking a full investigation requires expert evidence, which requires time and very often extensions of time, which are not infrequently refused. Cue the calls of ‘delay’.

Cases where the experts agree, will be promptly resolved. The issue to consider is in the cases where the experts disagree, even on what we might anticipate would be uncontroversial matters. For example, it is far from unusual to see radiologists disagreeing about the interpretation of imaging, to an extent that would baffle and terrify a patient. The point is, if we accept that experts are acting independently, the truth must be that there are simply many grey areas in medicine.

The problem this poses for the parties is that they can only rely upon the independent medical evidence that they have commissioned (barring some obvious error). Frequently then both parties are locked onto a course that they are not qualified to contradict. Ultimately a court may find (and not without a struggle) that one expert is wrong. Well, that is a luxury of being on the bench.

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There are steps in the ordinary course of litigation when the opinions of experts are challenged, particularly during directed discussions between experts for the purposes of producing a joint statement. However, by the time the experts discuss the case it is not unusual to have a trial date already listed (and perhaps imminently). If an expert concedes a previously unrealised weakness in their position, one party may discontinue or settle. This gives the illusion of delay, but how was it reasonably avoidable?

The early disclosure of evidence is a possibility with potential. There is still no good argument to explain why claimants should not be required to disclose their expert evidence on liability with the letter of claim. The defendant would then be obliged to disclose their corresponding evidence with the letter of response. We could perhaps have the experts meet at this stage to discuss the matter and, if not reaching full agreement, they might at least agree upon any determinative factual evidence that was necessary for their purposes.
A more radical approach might see the adoption of joint experts on liability, or even ‘independent expert adjudication’ of expert evidence. There may well be difficulties in agreeing experts, but again, this is rarely insurmountable.
Ultimately the point is that there are levers within the litigation process that could be pulled to reduce costs and time to resolution. However, they can only be pulled by claimant and defendant representatives cooperatively. It is time to hear some genuine ideas about improving processes, because this debate is not going away.

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