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At Medical Protection, we have been advocating for the introduction of pre-action protocols and case management. Case management would help reduce the length of time some claims can take and provide for parties to exchange information further in advance of a trial date.
As part of case management, we advocate for the use of joint expert meetings. In practice what that means in a medical negligence claim is that the liability expert for the plaintiff speaks to the liability expert for the defendant using a pre-prepared agenda of questions which they have been asked to discuss.
There is only one agenda of questions and that will have been prepared and agreed by each side’s legal representatives in advance of the joint expert meeting. The experts are asked to discuss the agenda items and thereafter to jointly prepare and agree a statement of areas of agreement as well as any areas of dispute.
There are no lawyers from either side present during the joint expert meeting which usually takes place by phone or virtual call.
There are a number of advantages to having a joint expert meeting. They include:
It is just the doctors. Without a joint expert meeting, the first time an expert might see or hear the opposite side’s expert is when they give evidence at trial. Trial can be an intense experience for all witnesses including experts who may have attended court many times before. Joint expert meetings usually take place during an expert’s normal working day which means they discuss the claim in an environment that is familiar to them without an audience of a judge, legal professionals, the plaintiff/patient, the defendant doctor, the public and even the media listening in. The experts will have the guidance of an agenda and will be mindful of the duties and obligations of an expert witness. The principles of medical negligence law will be at the forefront of their mind during a joint expert meeting - however the absence of trial pressure enables the experts to discuss the claim and share their respective views about agenda items without the intensity of trial pressure.
Experts are human too and opinions can change Regardless of whether an expert was engaged by the plaintiff’s team or the defendant’s team, it is better to know sooner rather than later if an expert who provided a supportive written opinion is open to being swayed or even changing their opinion entirely. It is better for the side who engaged an expert to know that their opinion has changed and be guided by that in how they deal with the litigation thereafter, well before any trial date.
Narrows the areas of dispute Medical Protection members who have seen a personal injury summons will be familiar with the number of very vague allegations that are routinely pleaded by plaintiffs at the outset of a claim. If during a joint expert meeting the experts agree on some points or allegations but disagree on others the net result is still positive as the often long list of allegations will have been narrowed down well in advance of any trial date. This means that if the claim was to proceed to trial, both sides know what the key areas of dispute will be in terms of expert evidence. Each legal team will form a view on how strong their expert is likely to be on those core allegations and that too will guide how they approach the litigation thereafter, well before any trial date.
For these reasons, we consider that there are advantages to a joint expert meeting for all sides in a medical negligence claim. At present, joint expert meetings are rare and there is no requirement in the court rules or directions to hold these. Irrespective of this, Medical Protection is seeking joint expert meetings more and more frequently in claims where we have supportive expert evidence in defence of our members.
On many occasions the plaintiff’s agents have agreed to such a meeting being held which is great to see and, in our view, reflective of the fact that there are advantages to all parties in these meetings. However, if there is a refusal to agree to a joint expert meeting, Medical Protection will not hesitate to seek court directions to direct a plaintiff’s legal teams to attend to a joint expert meeting.
There has been recent favourable judicial commentary that gives Medical Protection great confidence that joint expert meetings will be directed by the courts if required and we hope that when case management is introduced, joint expert meetings will become even more widely used.