PI Brief Update

Top 10 Ways That Defendant Solicitors Win Clear Cut Cases - Dr Mark Burgin

27/10/20. Dr. Mark Burgin BM BCh (oxon) MRCGP describes the top 10 techniques used by defendant solicitors to kill a case where there is no real chance of defendants winning.

1. Deny, delay, defend

The traditional approach to clinical negligence has been to hope that the claimant goes away or loses interest as the years pass.

It has some features that may not be appreciated, by putting the claimant’s solicitor to strict proof of every element there is a gradual wearing away of the case.

It is rarely possible to provide evidence to back up every statement without disproportionate costs so the solicitor gives way on what appear to be minor points.

By the end of the case so much has been given way that the defence can put up an argument whose sole purpose is to raise doubt and win the case.

2. Irrelevant arguments

The defendants raise an issue which is clearly wrong (a type of straw man argument )and then after lengthy discussions they concede the point.

This does more than delay, it distracts the claimant’s team from what is really important and ensures that the claimant is not well prepared for the case.

As the resources available decrease, this approach is becoming more effective and is increasingly used in cases which should be straight forward.

Occasionally the claimant agrees with the defendant’s version for instance that a clinical diagnosis made by the treating doctors was wrong because they did not confirm it with a test.

3. The Hired Gun Expert

The Hired Gun Expert is alive and well and working for the defendants, saying things like ‘I will decide this case’ or ‘I am not going to look at that evidence’.

These reports are often well argued and sound plausible but rarely contain a range of opinion or any evidence that does not support their opinions.

Some are more subtle and will simply refuse to answer questions when the answers will weaken their side’s case.

The joint report can end up be a restating of both sides and not address any of the material points, increasing the chance that the case will not be settled before court.

4. Make the Claimant Pay

There are many approaches that can increase the claimant’s costs from having each defendant running a separate defence to asking disproportionate questions.

Whereas in most cases where there have been several breaches it makes sense to run one defence and they rely on a single expert, each defendant asks a separate list of questions.

The aim appears to be more about increasing disbursements than about dealing with the cases proportionately and narrowing issues.

The result, predictably is that solicitors will not take cases where the quantum is low or where there are too many defendants.

5. Block Disclosure

There are many cases where the defendants provide all the evidence apart from one (essential) document which they forget to include.

Defence organisations advise the doctors not to answer Duty of Candour requests or provide evidence that they have relevant training.

Audit trailed records and internal communications (by email) have shown amendments to records are common and may only be supplied when threatened with the ICO.

Experts who know where to find evidence are told that unless they have evidence the documents will not be released – a catch 22 situation.

6. Loss of Key Evidence

When the information commissioner is involved the defendants will look for the information, but sometimes will then give an excuse that the evidence has been ‘lost’.

Given that clinical negligence cases last for many years this is perhaps not surprising but the circumstances can be concerning.

The date of destruction of information can often be after the date when it was first requested suggesting that the decision was not an accident.

There have even been cases where the ‘destroyed’ evidence magically re-appears when a fine is applied for breach of data protection rules.

7. Use of Fallacies

There are three types of fallacy that are used by defendants, first they start by assuming something is true that needs to be proven and from this logically proves innocence.

The second they use false legal tests by using words such as ‘clear cut’ or ‘certain’ where the correct test is on balance.

Thirdly they argue the specific as the general or vice versa making points that do not apply in the specifics of this case.

Barristers commonly use fallacies against experts in court when giving oral evidence but it is concerning to see it used in Part 35 questions.

8. Personal attacks and other dirty tricks

An expert who has history of problems can expect to have a rough ride in any subsequent case but what is less reasonable is the rule of thumb attacks.

The defendants use a rule of thumb to make comments that show prejudice, any expert who is too old or too young cannot have the required knowledge.

A generalist cannot deal with any case that has specialist issues because the rules such as GMC good medical practice apply differently to GPs and specialists.

Experts have also been referred to their regulators and allege that they found it difficult to get insurance after taking cases.

9. Ambush with new evidence

The foolish expert fails to review evidence that it provided saying that it will not make a difference to their opinion and can expect to find themselves embarrassed.

What is more difficult is when e.g. carefully edited video surveillance is provided out of context and the expert is asked to comment.

The expert is under pressure to address this evidence and saying that seeing the whole evidence may well give a different view will not wash.

My experience on this type of evidence is that the description of video evidence and what it actually shows have often more common with misdirection than evidence.

10. Unreasonable expectations

Many cases have gaps in the evidence which should be filled by the specialist offering a range of opinion and then an opinion on that range.

Where the defendants have unreasonable expectations as to what evidence is available the claimant’s solicitors may feel that their case is weak due to the missing evidence.

An experienced CN solicitor can rebuff these requests by saying that it is for the court to decide the facts on the evidence but I have seen good cases withdrawn.

Defendant solicitors know that once the costs exceed the limits imposed by insurance it may be easier to drop the case than risk taking a good case to court.

Doctor Mark Burgin, BM BCh (oxon) MRCGP is on the General Practitioner Specialist Register and audits medical expert reports.

Dr. Burgin can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it. and 0845 331 3304 website drmarkburgin.co.uk

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