Evidence-based medicine and the medical expert: a medical expert opinion that is evidence-based is more valid than one that is not

Abstract

The landmark Bolam case of 1957 conjures up an image, among others, of a row of venerable Harley Street physicians, sitting on the benches of the High Court of Justice in the Strand, ~ dressed in black jackets and pin stripe trousers and constituting a 'respectable body of medical opinion') Much has changed since then and the image portrayed has changed greatly. Experts are often, but not always, younger NHS consultants at the peak of their careers. With the exception of those few cases in which quantum is very high, there may well be just one expert advising each side. Moreover, because the great majority of cases are settled out of court there is a very great onus on the medical expert to provide advice which is accurate, balanced and fair. Medical experts should be independent and are not commissioned to follow the line of the instructing solicitors whether they be acting for the defence or the plaintiff. In theory, a medical expert's report should be the same whichever side is instructing him or her. Many medical experts prefer to develop a forensic practice that straddles the litigation divide. Barristers, but not usually solicitors, often adopt the same practice. Two recent events have served to focus attention on the medical expert. The first of these is the Lord Chancellor's declared intent to disallow legal aid in civil litigation, thus opening up the way for 'no win no fee' litigation. The second is a recent House of Lords decision concerning the merits of expert witness opinion. No win no fee litigation will place an added onus on the medical expert. Potential litigants will usually need to take out an insurance policy to protect them