We recently sat down with Karen Stott, Principal at ADR & Mediation Services, to discuss her upcoming presentations at two of our seminars. Karen shares her knowledge what to consider when preparing medical negligence claims and joint expert reports.
Current Concerns in Medical Negligence
What’s a common mistake you see legal practitioners make when preparing a medical negligence claim?
Answering this question with respect to plaintiff lawyers, whose role it is to particularise the claim and seek supportive expert evidence which the defence then responds to, the most common and also most costly mistake, is the failure to prepare the case comprehensively from the outset. This includes,
- taking comprehensive client instructions;
- gathering all of the relevant medical records;
- preparing a chronology of material events;
- cross checking the facts that have been ascertained from the clinical records, with the client’s instructions;
- finalising the client’s instructions regarding any factual assumptions that need to be made.
This is a lot of work and it is very important that all this occurs before an expert witness is briefed, so that the expert is able to provide an opinion that is robust and reliable, based on the comprehensive background records. To the extent that an expert opinion is reliant on any factual assumptions put, it is crucial that such assumptions have been vetted so that they can withstand the necessary scrutiny and objection that can be anticipated as the litigation unfolds.
‘How to’ Skills for Litigators
What is a joint expert report and when might a Court direct one to be prepared?
The purpose of joint conferences of expert witnesses is to narrow the issues in dispute between the parties. The joint conference, and the joint report produced from the conference, will focus on those narrowed issues, and generally speaking, experts will either agree or disagree with the reasons on those narrowed issues. It is standard procedure for the Court to direct a joint conference of the same types of expert witnesses, before a matter is allocated a hearing date. The joint report/s arising from joint conferences often lead to settlement negotiations.
Joint conferences of expert witnesses also have the effect of shortening the length of a hearing. Take the example of 4 cardiothoracic experts coming to give evidence in a hearing individually, 2 for the plaintiff and 2 for the defendant. In the absence of expert witness joint conferences, arranging the diaries of 4 eminent cardiothoracic surgeons might be difficult, as might getting them to the hearing individually. Further, the cross-examination of each of the surgeons, which was traditionally solely the domain of a barrister without any intervention from a judge, could take a great deal of time.
The contemporary situation, with expert witness joint conferences, is that all 4 cardiothoracic surgeons would be gathered together at once, usually for a limited amount of time, for example, a day, and, depending on the judge, cross-examination of the expert witnesses is usually inevitably, much shorter, as the judge will focus on the issues in dispute, because the judge will have read not only the joint reports produced from the joint conferences, but also the reports leading up to them.
What is the role of a facilitator?
The reason behind a facilitator in an expert witness joint conference is because a room full of experts can often use some guidance in a legal situation, when their expertise is other than legal. It is hard to imagine an expert witness joint conference that would not benefit from having a facilitator, as in most cases, it would be very difficult for the experts to work through the questions and come up with a joint report without a facilitator’s assistance.
Facilitators generally always have a role to play, even in the most collegiate of expert witness joint conferences. This is partly because facilitators are usually legally trained, which is important when dealing with a legal process. For example, if there is a joint conference of neonatologists, there is often a clash between medicine, the neonatologists’ area of specialty, and the law. Facilitators know what the court wants them to achieve through the process of having a joint conference and the production of a joint report, something which is not always so obvious to an expert witness medical practitioner, for example, however qualified, erudite, and urbane they might be. There are ongoing clashes between law and medicine, law and architecture, law and actuarial science, law and engineering, etc, and the presence of facilitators in joint conferences of expert witnesses can help navigate through these conflicts.
What are a few things to keep in mind when considering using a facilitator?
Facilitators are also a means of providing support to, and showing respect for, the expert witnesses who have put aside their time and come together to meet to work through the relevant questions and come up with a joint report.
Further, there may be situations where experts without a facilitator, one of which experts is prepared to act as scribe, may prepare a draft report in advance, something which may not necessarily be desirable, as it allows one expert to, in a way, drive the conference. While this may be very diligent on the part of the scribe expert on the one hand, on the other, it may lead to the creation of a power imbalance and not allow for all of the experts’ voices to be heard. A facilitator would be instrumental in managing this power imbalance and enabling all of the experts to feel as though they have had a chance to be heard. This is particularly important in conferences where there is an expert with a powerful, overbearing personality, who, by reason of this, might often get the most “air time”, so to speak; though the reasoning and expertise of another expert/s participating in the process may be better considered but expressed with brevity, thereby risking the appearance (on paper), of being less persuasive.
What are your top 3 tips for legal practitioners when it comes to joint expert reports? What are some of the trends and developments you see ahead in getting a better joint expert report in the claims area?
- The questions are everything! Give thorough consideration to them and involve your experts in the preparation process.
- It is sensible for parties to confer with their expert witness from the outset about the questions that should be put to them, so that the risk of any unexpected capitulations is minimized. Likewise: the importance of minimizing the risk of the experts volunteering any additional opinions not previously expressed, (eg outside the scope of what is pleaded) and which may compromise the claim. It is important to obtain the experts’ input on the particular wording of the question; eg the use of specific terminology, which can be extremely important, especially in medico-legal cases.
- Get the briefs, questions and assumptions to the facilitator and to your experts in plenty of time – the Supreme Court Practice Note stipulates 2 weeks.
- Brief the experts with plenty of time for them to review the documentation, questions and assumptions in advance of the conclave. I have observed that when experts are not briefed sufficiently in advance, they are more likely to add further information and opinion evidence to the draft joint report after the conclave, or to change their opinions altogether; ie after they have had sufficient time to properly consider the issues and their respective conclusive opinions. This then means that the changes to the draft joint report need to be considered by the rest of the experts, with an opportunity to respond. Additional material and changed opinions after the joint conclave makes the process of producing a joint report cumbersome and more expensive and can be rather counter-productive to the purpose of the joint conclave itself. The parties won’t necessarily see this because what happens before the joint report is produced, is confidential. For a robust, reliable and cost effective joint report: it is imperative that the experts be briefed well in advance.
- Don’t under-estimate the amount of time it can take for the joint expert report to be produced.
- Do not underestimate how long the expert witness joint conference, and finalisation of the report, may take, and to allow a sufficient amount of time for both of these, taking into account the date of the hearing.
Karen Stott, Principal at ADR & Mediation Services, has practised full time as a Mediator since 2016. She has been included by Doyle’s Guide to the Australian Legal Profession in its inaugural list of Leading Mediators in NSW, 2018 and 2019. Karen has a keen interest in observing and understanding the elements that comprise a successful outcome with respect to mediations and expert conclaves. With respect to conclaves, a “successful outcome” to Karen means a report produced in a timely and cost effective manner, which addresses all questions put and achieves consensus where appropriate, as a result of careful consideration and robust discussion. The main challenge in achieving this is when the experts are not briefed in a timely and comprehensive manner. Simple – yet so much turns on it! Karen hopes that by sharing her observations and examples, practitioners will better understand how thoughtful preparation can achieve the best results. You may connect with Karen by email firstname.lastname@example.org or on LinkedIn
For more information about ADR & Mediation Services, visit the website: https://adrmediation.com.au/