Sin bin for rogue witnesses

It seems that Britain's Sir Roy Meadow has equivalents in Australia

A sport-style system of red and yellow cards is being considered to deal with rogue expert witnesses whose eccentric or irrational views are skewing medical negligence cases. Retired medical experts can earn tens of thousands of dollars each time they testify about whether other doctors' treatments were negligent. Their role has been mired in renewed controversy after an Australian study suggested last week that some obstetricians were being unfairly blamed for cases of cerebral palsy - a condition behind 60 per cent ofnegligence payouts in obstetric cases. The research found that some cases of cerebral palsy could be caused by a virus shortly before or after birth. Traditionally, oxygen starvation during birth was thought to be the main culprit.

Alastair MacLennan, leader of the South Australian Cerebral Palsy Research Group, which published the findings in the British Medical Journal, blamed the courts' willingness to find doctors at fault for cerebral palsy partly on "hired-gun expert witnesses" prepared to make groundless claims that the injury could have been avoided. He has proposed the red-card scheme as a way to bring errant experts to heel. Under the plan, the Royal Australian and New Zealand College of Obstetricians and Gynaecologists would audit and train expert witnesses, and monitor their opinions for statements deemed impractical, dangerous or extreme. Those giving evidence without being registered, or giving opinions not backed by the college, would receive a warning, and a steeper penalty such as loss of college membership on a repeat offence.

"Several of the American colleges have this red card, yellow card system, and anecdotally I am told this is reining in some of the more rogue expert witnesses," Professor MacLennan said. "In Australia at the moment, they can say what the hell they like, which is a real worry. It's fairly easy to fool a judge who's never judged a cerebral palsy case before."

The chairman of the RANZCOG's medico-legal committee, Robert Lyneham, said the college was considering the plan, and was developing its own proposals to allow obstetricians to register as expert witnesses and receive training.

Professor MacLennan said fewer than 1 per cent of cerebral palsy cases were caused during birth. Two international expert panels had agreed that proving the cause was a sudden deprivation of oxygen during labour - something that could be blamed on an obstetrician - would require nine specific pieces of evidence, but rogue experts ignored these, he said. "There's no policing of medico-legal opinion - people in their retirement can sit and give outrageous opinions without peer review, and do," he said. "They're often quite out of touch, and in particular in cerebral palsy they almost never mention the modern literature. "What we're looking for is nine pieces of objective evidence, not somebody saying, 'Oh, this baby was crook at delivery, it must be due to a bad delivery and in my opinion it would not have had cerebral palsy half an hour beforehand'."

Another prominent obstetrician, David Molloy, said there was "a very difficult group of known rogue expert witnesses" who could not currently be dealt with any other way than to discredit their views in court. "There's a very substantial amount of money being made by a small group of doctors, when, in many cases, it's been a decade since they laid hands on a patient," he said.

Report here




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