It surprises me that expert witnesses feel that it is necessary to comment on a doctor’s competence, when asked to give an opinion on whether the actions of a doctor were negligent.
I was asked to assist the MDU in a case where the Defendant doctor had not detected a breast cancer.
The Claimant attended the GP saying that she could feel a lump in her breast, The GP examined her, and could not. The GP asked her to return in one month if she still thought it was there.
By coincidence, the Claimant attended an out patient clinic the very next day, when she was assessed for breast reduction surgery. She was listed for an operation. A few weeks later, a breast cancer was found at breast reduction surgery.
The allegation of negligence by the GP was supported by an expert who opined that “…the GP was negligent, because any reasonably competent doctor would have detected the breast [tumour]”
This argument is deficient on several grounds. Firstly, it is by no means clear that a “competent” doctor would have done so – after all ,this claimant was examined by breast surgeons on two occasions in the ensuing weeks, and the tumour was not detected by them.
Secondly, on what evidence does the expert rely to assess the Defendant’s competence? Did he observe the Defendant examining the Claimant? The only reason that the expert has labelled the Defendant as incompetent is because the Defendant did not detect the tumour on examination. This is a circular argument.
Thirdly, and most damning, is that the Bolam test does not depend upon an assessment of competence. It would be the case that an incompetent doctor is more likely to be negligent, but it does not follow that all negligence derives from incompetence (far from it), or that all poor clinical outcomes are the result of poor performance. After all, even objective investigations such as laboratory tests, or imaging, can fail to detect important pathologies.
Expert witnesses should restrict themselves to applying the appropriate legal test when asked for their opinion. When I pointed out that the Defendant’s action would be supported by a reasonable body of opinion, given that the history and examination were well documented, the allegation was swiftly dropped.
But not after substantial time and resources had been wasted because of an unsustainable opinion that inappropriately encouraged the Claimant and her legal advisers to pursue a claim.