By Legal Futures Associate ARAG
The importance of specialist legal representation in clinical negligence claims is widely appreciated, but cases can often be won or lost on the quality and experience of the expert witnesses. Lisa Abrahams, ATE Account Manager, looks at a recent example in which the medical evidence was critical.
Proving that a client has been the victim of clinical negligence can be a long and complex task that would often be unaffordable to pursue without the benefit of after the event insurance.
One such case, recently won by Ashtons Legal, demonstrates not just the expertise and tenacity that our partner firms must show to bring about a successful resolution for a client, but also the importance and cost of having the best medical experts to prove that clinical malpractice caused the harm that the person has suffered.
The claim originally dates back to 2015, when the client suffered a transient ischaemic attack, sometimes referred to as a ‘mini stroke’. While doctors correctly identified the cause of her symptoms, she was discharged without further treatment because the symptoms had passed, with advice to follow-up with her GP within a week.
Unfortunately, the client suffered a much more serious stroke within three days of being discharged, which left her with significant disabilities that will require lifelong, round-the-clock care.
The legal case rested on the A&E department’s failure to administer Heparin, an anti-coagulant, that would have prevented the second, catastrophic stroke.
Early in the four-day trial at the Royal Courts of Justice, the trust defending the case admitted a failure in its duty of care in discharging the client without first administering Heparin. However, it was still necessary to prove that treatment with Heparin would probably have averted a further stroke. It was here that the quality of medical expertise made all the difference.
In the absence of any conclusive empirical evidence, such as clinical trial data, the court looked to the testimony of medical experts, to reach its judgment. The presiding judge, Mr Justice Ritchie, found the evidence presented for the claimant to be more convincing and concluded that, on the balance of probabilities, the client would not have suffered a further stroke had she been treated with Heparin.
While the case has been won, the work of Ashtons Legal Partner, Ben Ward and his team is not complete. Further medical expertise is required to assess the client’s future needs, to ensure that the compensation she receives will enable her to live as full and independent a life as she can, with the disabilities that she must now bear.
The cost of enlisting expert medical witnesses to pursue a case like this is significant. It is not simply a matter of finding a single, relevant expert to take the stand and offer their considered, clinical opinion.
Clinical negligence cases often call for multiple experts with different areas of medical expertise to prove both the cause and extent of the harm that a client has endured. Some may need to conduct extensive research and preparation for a trial and might be working on a case over several years.
Further experts are often then required to assess the compensation that will be needed to provide care and adapt homes and day-to-day living arrangements to overcome, as far as possible, any lasting injuries.
This underlines the importance of after-the-event insurance in delivering access to justice in clinical negligence cases. As in you would find in any field, the very best expert medical witnesses are inevitably more expensive.
Quite aside from any other costs and court fees, the expense of recruiting experienced medical experts will quickly stretch beyond the means of all but the very wealthiest of clients. Most victims of medical negligence simply could not afford to risk pursuing their claim without the benefit of insuring the legal costs, and cutting costs on expert witnesses is likely to jeopardise a case.
