I am also interested in this discussion regarding liability of EBM
particularly as Tobly Lipman refers to an example of the
interpretation of radiological findings. Recently attempts have been
made to define and establish what is an acceptable standard by which
to judge the performance of others when interpreting plain films. This
has been done so in the context of potential cases of litigation
against a professional who has "incorrectly" interpreted a film. A
recent paper by Robinson et al (1999) in the BJR demonstrated that
when 3 "expert" consultant radiologsists reported on a sample of
musculoskeletal, chest and abdominal plain films there was
approximately 30-50% discordance between the observers. This conforms
with 50 years of research into observer error and variation.
Therefore, it seems ludicrous that one expert witness should be used
to judge that "a patient would have developed neck pain within 5 years
anyway". It would also be interesting to know exactly what
information this witness had available to them before they had access to the
radiological findings as this would bias and thus invalidate their
interpretation of the findings. Furthermore, inconsistency in clincal
judgement is well documented. So i agree that it appears as if the
existing system is flawed as an expert witness is the approach that is
used to provide evidence for a plaintiff....of course this is only
my "opinion"!
Stephen Brealey
Department of Health Sciences
And Clinical Evaluation
University of York
On Sun, 18 Jul 1999, Toby Lipman 7, Collingwood Terrace, Jesmond, Newcastle upon Tyne. Tel 0191-2811060 (home), 0191-2869178 (surgery) wrote:
> Kieran, I agree with you. I'm married to a solicitor and have often been
> surprised by the apparently arbitrary way expert witnesses make their
> pronouncements. My wife would say, for instance "so and so says that my
> client's neck pain following an RTA was only partly caused by the RTA
> and she would have developed neck pain within 5 years anyway because of
> constitutional predisposition which is demonstrated by the radiological
> findings". In my naivety I would ask what was the evidence for
> radiological findings as prognosis for development of neck pain
> (thinking, this would be great to know about!), and she would look blank
> and say it was all down to the witness's experience.
>
> Several times, mainly for my own curiosity, I have searched for evidence
> to back up or refute some of these "expert witness" assertions, but have
> never been able to find any (at least not in support). I've even
> suggested that it might be useful for her to present the results of
> these searches in court. However it appears that the courts would
> generally prefer the "evidence" of an expert (say an orthopaedic
> surgeon) to critically appraised evidence found by a GP. In other words,
> the weight given to evidence in court depends upon the status of the
> witness, rather than on the validity of the evidence as we would
> understand it.
>
> I'm curious to see how the Woolf reforms and other changes affect the
> legal definition and interpretation of scientific evidence. There is no
> doubt in my mind that the present system is deeply flawed, and I must
> say that I have been more than a little shocked at the cavalier attitude
> to truth displayed by established expert witnesses.
>
> Toby
>
>
> In message <[log in to unmask]>, Kieran Walshe
> <[log in to unmask]> writes
> >This is an issue I've been interested in for a while.
> >
> >In the UK, for many years the question of what the acceptable
> >standard of care is has turned on the "Bolam test" (named after a
> >celebrated case) - which is that if the practice under question is
> >supported by a body of medical opinion, then its OK. The courts
> >tended to shy away from making any judgement about the facts/evidence
> >of effectiveness, and to rely on the views of expert witnesses.
>
> >However, a recent House of Lords judgement in Bolitho v City and
> >Hackney HA (1998 I think) changed the Bolam test - to include a
> >requirement that the practice should not only be supported by a body
> >of medical opinion but also that it should be of demonstrable
> >reasonableness - in other words, that the facts/evidence of
> >effectiveness should hang together. For the first time, courts are
> >showing more willingness to question expert witnesses on the
> >rationale for their opinion. In addition, legal changes in the UK
> >(the so called Woolf reforms) mean that in future most clinical
> >negligence actions will have a single set of expert witnesses, who
> >are jointly instructed by both the defence and plaintiff, to avoid
> >the problems outlined above.
> >
> >
> >I think that evidence-based legal action - patients suing because
> >practitioners have stuck to tradition/precedent instead of using
> >interventions of proven effectiveness - could have a lot to
> >contribute to the progress of ebh.
> >
> --
> Toby Lipman
> General practitioner, Newcastle upon Tyne
> Northern and Yorkshire research training fellow
>
> Tel 0191-2811060 (home), 0191-2437000 (surgery)
>
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