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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