Karen Kearney: Defendants’ experts – it is time to stop the whitewash
Karen Kearney, partner at Cantillons Solicitors, explores the issue of expert witnesses through the prism of a recent medical negligence case.
I recently settled a medical negligence claim for a client which was one of the most difficult that I have prosecuted in my career. It involved two High Court cases arising from an anastomotic leak which was missed clinically and radiologically with devastating consequences for our client.
Our client was diagnosed with colon cancer for which he underwent chemo-radiotherapy followed by surgery to remove the cancer in the colon. Post the surgery, he developed an anastomotic leak. This is a well-recognised complication of the surgery that he had had. Indeed, a manual designed for junior doctors mandates that anastomotic leakage should be considered when there is an unexplained post-operative deterioration, as there was in our client’s case.
There were numerous failures to diagnose and treat this anastomotic leak. It was first missed by the surgeon (who had performed the surgery to remove the cancer) some six weeks post the surgery. Thereafter it was missed by a consultant surgical oncologist and four consultant radiologists over the subsequent weeks and months.
Because of this leak, our client developed an anastomotic stricture and soft tissue mass/fibrosis at the site of the anastomosis. The recurrence of his cancer was suspected, in error, and a series of unnecessary and invasive biopsies, scans, balloon dilatations and two attempts at stenting of the stricture was embarked upon. Our client had 34 hospital admissions within a two-year period.
The second stent was either misplaced or migrated, due to medical negligence, and was left in place in the bowel above the stricture for one year. It eroded into the urinary tract, resulting in obstructive uropathy, repeated bouts of urosepsis, renal failure and ultimately our client required life-saving surgery which involved the taking down of his ileostomy, formation of an end colostomy, small bowel resection and removal of his bladder and prostate, leaving him with a permanent colostomy and urostomy.
Immediately after the life-saving surgery, our client’s wife was told by one of the team that the stent that had been left inside had caused extensive scarring to the bladder wall and that there were definitely questions to be answered. Our client and (his hugely supportive) wife endeavoured to get answers to those questions and find out what had happened and why. However, they were stonewalled at every turn.
Indeed, one of the expert doctors we instructed in our investigations on behalf of our client advised that the surgeons who had performed the life-saving surgery gave such contradictory statements that it left considerable potential for our client and his wife to have been misled in their quest to understand what had gone wrong. Yet again, they were let down by the medical profession. As a last resort, they came to Cantillons and asked us to investigate the matter for them.
The investigations that my team and I carried out in this case were lengthy and expensive. There were thousands of medical records to be taken up and reviewed. Unfortunately, the records kept were poor; most notably the surgeon’s operation note of the surgery to remove the cancer did not record the technique used for the anastomosis or the configuration of the anastomosis, namely whether the anastomosis was an end-to-end join or an end-to-side join. This information was crucial to our investigations and only became available after repeated requests for same to both the surgeon and his legal team. The product information of the stent was also not available within the records. Again, this information was crucial to our investigations. Again, it took repeated demands by us to obtain this information.
We then commissioned reports. The liability experts that we instructed included two colorectal experts, two radiology experts, two oncology experts, a pathology expert, a cardiology expert and a urology expert.
For all the complexities however, the nub of the matter was this. There was a failure to diagnose and treat the anastomotic leak by all of the defendants. That was the primary negligence and was causative of the subsequent difficulties encountered by our client up to and including the life saving surgery. Colorectal, radiology and urology experts were all supportive of this primary negligence. Yet, the defendants fought the cases tooth and nail. Full defences were filed and liability was never admitted nor an apology given to our client even when the defendants (eventually) agreed to pay our client a substantial seven-figure sum to settle his cases at mediation, which took place some two weeks prior to the cases being listed for hearing in the High Court in Dublin for six weeks.
The full defences were predicated on reports from expert doctors practising here in Ireland. One of the experts was a colorectal expert. We furnished his reports to our client’s colorectal expert based in the UK. Our client’s expert likened the reports to a “I see no ships” kind of report, when Nelson holds the telescope to his blind eye. He was scathing in his criticism that they were superficial and did not address the key facts of the case. In other words, a complete whitewash.
The defendants’ radiology expert predicated his report on the wrong anatomy of the anastomosis, namely that the anastomosis had been end-to-side, not end-to-end, despite the fact the latter had been confirmed to us by the defendants’ solicitors some two years previously. Again, it was a remarkably forgiving report.
The defendants’ pathology expert gave an opinion, again supportive of the defendants, without examining the pathology specimens, which our client’s pathology expert said is an absolute no-no.
We see this happening again and again in the cases that we prosecute. Namely where the negligence is blatant but yet some members of the medical profession here in Ireland are prepared to write reports defending the indefensible. It reflects very poorly on the medical profession and the net effect is to prolong the litigation, thereby causing further and unnecessary hardship to plaintiffs and increasing the costs of the litigation, something that the insurers for the medical profession complain bitterly about on a regular basis.
I would call on the medical profession to stop this circling of the wagons once and for all. If a mistake is made, the right thing to do is to accept and acknowledge the mistake. This applies to the doctor who made the mistake and also to the doctor who is engaged by the insurers of the (negligent) doctor to comment on the appropriateness of the care afforded to the patient plaintiff. Not to do so is to further compound the injury to the patient. Ultimately, justice will be achieved and money saved by doing so. Isn’t this in everybody’s interest?