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Judging Clinical Negligence Cases: Clarity of Vision - Dr Mark Burgin

10/09/23. Dr. Mark Burgin BM BCh (oxon) MRCGP examines the benefits of understanding how Judges can forensically dissect a clinical negligence case that is opaque with complexity. 

There are three constraints on a judge’s freedom; the evidence that is presented, which facts are material to the case and the legal precedents to be followed.

If the lawyers choose not present evidence the judge has few powers to independently investigate or obtain evidence that has been withheld.

Judges can challenge a barrister’s skeleton but cannot compel them to explore a different line of argument and consider the associated facts.

The law is a complex set of rules from different sources and the judge can differentiate the case from precedent but only occasionally go against previous judgements.

Analysing Evidence

The judge’s role in analysing evidence has overlap with the duty of the expert to present evidence impartially and the lawyer’s role of presenting that evidence.

Where the role differs is that the judge must monitor when experts fail to consider a wide enough range of opinion or a lawyer’s argument is not sustained.

The evidence may suggest one interpretation but the same evidence may be better explained by alternative explanations and the judge has to look at them all.

An expert who tries to simplify the case by only considering one explanation and ignoring evidence can make the judge’s job significantly more difficult.

Determine facts

Lawyers and expert typically present their ideas, hopes and explanations as facts which the judge has to critically appraise often with incomplete evidence.

This problem can be worsened by an expert feeling that they should decide the case and instead of presenting the evidence in their report they take a side.

Lawyers are allowed to argue as fact that which can be proven on the balance of probabilities, but experts are not and can complicate the judge’s role.

Where an expert (or joint conference) has not considered a material issue from the possibility that the court will disagree can slow the case whilst the questions are answered.

Apply the Law

The law is often so complex that legal practitioners can struggle to understand the how it should be applied in a case, so may need guidance from the judge.

This problem can be made more intractable by an expert who stubbornly avoids answering a material question usually due to limited understanding of the law.

Clinical negligence cases that are in the same area of medicine can raise very different medical issues and there is great potential to differentiate from previous legal cases.

The challenge of exploring different legal approaches depends upon a logical and reasonable report that deals with all the material issues as a firm foundation.


A good understanding of the problems that face a judge can ensure that the evidence is considered independently and completely without ignoring alternate opinions.

The balance between exploring a material issue and trying to decide it is one that can be difficult for an expert to achieve but addressing the options instead assists the court.

Medical experts may not be keen on reading legal texts as it is outside of their comfort zone but many cases on BAILII are written clearly and simply and can improve understanding.

The best way of working with another professional is to understand the issues they face and can see how they break their problems down into smaller pieces.


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


British and Irish Legal Information Institute

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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The opinions expressed in the articles are the authors' 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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