2nd opinions in Clinical Negligence claims – can I shop until I get what I want?
In general healthcare
If a doctor thinks that it is in the best interest of the patient to refer for a second opinion, they should do so. Although you do not have a legal right to a second opinion, a healthcare professional will consider your circumstances and whether a second opinion is needed.
Before asking for a second opinion, it is worth asking your consultant team to go over your diagnosis and explain anything you don’t understand. If you’re unhappy with your diagnosis or would like to consider a different course of treatment, discuss this with them. Your consultant team will be happy to explain things and in many cases there may be no need for a second opinion.
Sometimes a consultant may ask a colleague to provide a second opinion. For example, doctors may ask a colleague about a complicated case, or they may need to refer a patient to a consultant with a sub-speciality interest e.g. hand or finger surgery.
In Medical negligence claims
In medical negligence claim, each party’s evidence is based on expert medical evidence. Sometimes, this opinion is not supportive and as a result the solicitor may consider that the claim has no merit and seek to withdraw the claim. This will be in most cases very disappointing to the client, especially is they are convinced that they were wronged. Sometimes they don’t understand a point regarding breach of duty or causation and in other case they simply don’t accept it.
I have often been asked by my clients to seek a 2nd opinion.
It is firstly crucial to understand that differently from a clinical opinion, such as in general healthcare, the opinion of an expert is first and foremost for the Court’s benefit. Experts have a duty to the court as per CPR 35.3 which states:
- It is the duty of experts to help the court on matters within their expertise;
- This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.
Further, CPR 35.11 states that if you disclose a report to the defendant either directly or via any pleading, the other side can rely on them in so far as evidence at trial is concerned. So, how to you go about it?
Well, firstly there is nothing to stop you for seeking a 2nd opinion for your client however, it is worth remembering these fine points:
Cost: some one has to pay for this opinion and it is only in very extreme cases where it will be the solicitor who will agree to pay for this (and will require approval from the ATE or other funder). This will only be cases where there is clear noncompliance or misgivings about the expert. This is quite tricky as it is usually the solicitor who would have chosen the original expert in the first place so there will need to be a back track.
I had a case where part way through a claim, my counsel told me that a certain expert appeared at trial on a separate case for him and failed miserably and he strongly advocated that we replace him.
If this is not the case, then I usually tell me client that they will need to pay for this report out of their own pocket (or damages depending on the case).
Disclosure: If you have already disclosed the unfavourable report (which is unlikely and should not be done without client’s consent and say counsel’s approval) then it will be an uphill battle to get the Defendant and the Court to agree to having any further opinions adduced.
However, assuming this is not the case, then you are free to theoretically obtain as many reports as you wish and disclose the best one (subject to the issue of cost above)
Shopping: So, what is to stop solicitors from going on and getting reports until they find an expert who will endorse the claimant’s claim? Well, the answer is of course, nothing (bar the cost). However, as the saying goes “if 2 people tell you you’re drunk, go to sleep”. Further, unsurprisingly, the Court are heavily against such an approach as it is mostly a waste of time and money.
Expert evidence is usually well founded usually and if your carefully chosen expert supports a certain view, it can be hard to find another who will have a different opinion which will pass the “Bolam” test (Bolam v Friern Hospital Management Committee, 1957) which calls for a certain action to not pass the scrutiny of a “reasonable body of medical opinion”.
Further, if you do come across an expert who will support such a different approach, they are likely to face a difficult cross examination and therefore, they should be “grilled” by counsel to ensure that their opinion is logical (see Bolitho v City and Hackney Health Authority, 1997) so to avoid to have the case reliant on a “fringe” expert.
Sometimes, whether your client is unhappy with an expert opinion or there is a valid reason to “drop” an expert, you may need to explore the need for a 2nd opinion. You should do this carefully and counsel your client as to the potential personal costs of obtaining such an opinion and the difficulties of relying on such evidence. This is not to say that this practice is forbidden but to caution against the pitfalls of such an approach.