PI Brief Update

Understanding the Barrister's Role in Clinical Negligence - Dr Mark Burgin

08/12/22. Dr. Mark Burgin BM BCh (oxon) MRCGP explains that a barrister’s success in their role in clinical negligence depends on medical experts working with solicitors.

There are many issues that make a barrister’s role in Clinical negligence uniquely challenging from there is no such thing as a typical case, there are no rules and material is complex.

There is significant unmet demand in clinical negligence so despite the selection of legal cases is on the basis that they are like previous winning cases, variability is the rule.

The Bolam and Montgomery tests are the tip of the iceberg when it comes to doctors being able to decide the facts e.g. ‘loss of chance’ and ‘more than materially contributed’.

Other areas of law have similarly dense textbooks of knowledge but few have some many areas of disagreement each with their own research base.

Test evidence

In an ideal world the barrister would be provided with a complete file of evidence so that they can examine the weight of evidence for and against those facts that need to win the case.

In reality the evidence can be incomplete from missing evidence to medical reports that do not address the issues to evidence that has not been seen by experts.

A barrister may decide to continue but this leads to answers based upon what the evidence might show and increasingly speculative discussions.

Where evidence is missing the medical expert has an important role to ask for that evidence and explain where it can be located and how to obtain it.

Test arguments

The barrister is often asked at short notice to test the explanations of the claimant’s experts and the solicitor’s arguments in a conference with the claimant and solicitors present.

They come into the case at a time of peak complexity before a joint conference between experts has had a chance to narrow the issues so that the answers can be unhelpful.

It is important that the medical expert recognises when the case is still in a state of flux and urge the solicitors to take the steps necessary to provide the answers.

By putting off this meeting it increases the pressure on the solicitors to ensure that all reasonable steps have been taken to provide the barrister with clear opinions.

Assess quantum

Clinical negligence losses can vary wildly depending on the date of the breach and the reversibility of the medical problems meaning quantum can be difficult to calculate.

Often cases are run with the expectation that all the losses were preventable which risks disbursements becoming disproportionate at short notice.

The barrister will be under some pressure to take the most optimistic view of the evidence to prevent the house of cards from falling.

Solicitors need speak with the expert to ask what quantum is likely before they make decisions on disbursements although a screening report is better guide.

Conclusions

Barristers have an essential role in quality control to determine if the case can run and if it has reasonable prospects in court.

They systematically test the evidence, arguments and assess quantum but will struggle where there are key issues left unexamined.

Where the case has been run with an incorrect view of likely quantum the barrister will be put in the embarrassing position of having to give bad news.

Neither solicitors nor medical experts have all the answers to avoiding a poor outcome in a clinical negligence case but working closely together will be effective.

Doctor Mark Burgin, BM BCh (oxon) MRCGP is on the General Practitioner Specialist Register.

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

This is part of a series of articles by Dr. Mark Burgin. The opinions expressed in this article are the author's own, not those of Law Brief Publishing Ltd, and are not necessarily commensurate with general legal or medico-legal expert consensus of opinion and/or literature. Any medical content is not exhaustive but at a level for the non-medical reader to understand.

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