Sin bin for rogue witnesses
January 10, 2006 A SPORT-STYLE system of red and yellow cards is being
considered to deal with rogue expert witnesses whose eccentric or irrational
views are skewing medical negligence cases. Their role has been mired in renewed controversy after an Australian study
suggested last week that some obstetricians were being unfairly blamed for cases
of cerebral palsy - a condition behind 60 per cent ofnegligence payouts in
obstetric cases.
The research found that some cases of cerebral palsy could be caused by a
virus shortly before or after birth. Traditionally, oxygen starvation during
birth was thought to be the main culprit.
Alastair MacLennan, leader of the South Australian Cerebral Palsy Research
Group, which published the findings in the British Medical Journal, blamed the
courts' willingness to find doctors at fault for cerebral palsy partly on
"hired-gun expert witnesses" prepared to make groundless claims that the injury
could have been avoided.
He has proposed the red-card scheme as a way to bring errant experts to heel.
Under the plan, the Royal Australian and New Zealand College of Obstetricians
and Gynaecologists would audit and train expert witnesses, and monitor their
opinions for statements deemed impractical, dangerous or extreme.
Those giving evidence without being registered, or giving opinions not backed
by the college, would receive a warning, and a steeper penalty such as loss of
college membership on a repeat offence.
"Several of the American colleges have this red card, yellow card system, and
anecdotally I am told this is reining in some of the more rogue expert
witnesses," Professor MacLennan said.
"In Australia at the moment, they can say what the hell they like, which is a
real worry. It's fairly easy to fool a judge who's never judged a cerebral palsy
case before."
The chairman of the RANZCOG's medico-legal committee, Robert Lyneham, said
the college was considering the plan, and was developing its own proposals to
allow obstetricians to register as expert witnesses and receive training.
Professor MacLennan said fewer than 1 per cent of cerebral palsy cases were
caused during birth.
Two international expert panels had agreed that proving the cause was a
sudden deprivation of oxygen during labour - something that could be blamed on
an obstetrician - would require nine specific pieces of evidence, but rogue
experts ignored these, he said.
"There's no policing of medico-legal opinion - people in their retirement can
sit and give outrageous opinions without peer review, and do," he said. "They're
often quite out of touch, and in particular in cerebral palsy they almost never
mention the modern literature.
"What we're looking for is nine pieces of objective evidence, not somebody
saying, 'Oh, this baby was crook at delivery, it must be due to a bad delivery
and in my opinion it would not have had cerebral palsy half an hour
beforehand'."
Another prominent obstetrician, David Molloy, said there was "a very
difficult group of known rogue expert witnesses" who could not currently be
dealt with any other way than to discredit their views in court.
"There's a very substantial amount of money being made by a small group of
doctors, when, in many cases, it's been a decade since they laid hands on a
patient," he said. |
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