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The expert report
British Journal of Anaesthesia 1994; 73: 93-97
The expert report C. J. HULL
INSTRUCTION
First, the solicitor writes formally to an anaesthetist whom the solicitor regards as an expert (or has been recommended to him), outlining the facts of the case and inviting the anaesthetist to prepare a report. The letter of instruction is a most important document, as it establishes the basis on which the expert works. It is particularly important for anaesthetists to realize that acceptance of instructions establishes a contract between solicitor and expert. This contract requires that the expert fulfils the terms of the instruction, and that in return the instructing solicitor (not the client) undertakes to meet any reasonable charges. The letter of instruction should summarize the legal process to date, indicating what other expert reports have already been commissioned or received. A good instruction sets out very clearly the legal issues involved, the tests that must be applied to the evidence, specific areas of concern, and often a series of very specific questions which should be addressed. Finally, it sets out in broad terms the financial basis on which the expert is invited to act. The letter may be highly informative in another important respect, in that it may give a clear indication of the instructing solicitor's own experience and expertise in this specialized field. There may be a considerable difference between the instructions of a professional (Br. J. Anaesth. 1994; 73; 93-97) KEY WORDS Anaesthetist: report. Anaesthetist: medicolegal. Medicolegal.
team specializing in personal injury litigation and those of a small-town family solicitor whose regular practice is limited to conveyancing, inheritance and the magistrate's court. The doctor then must decide whether to accept instruction as an expert. This is not a simple matter, as a number of factors must be taken into consideration. For instance, he should be confident that he does, in fact, have expert knowledge of the clinical field involved. While it is flattering to be regarded as an expert by an instructing solicitor, it is less so to have counsel demonstrate otherwise at some later date. If the case lies outside his field of knowledge he should decline. The expert must be reasonably sure that the task can be completed within the time stated. Only too often, reports are commissioned dangerously close to, or even after, the limitation date. In other cases, the expert may find the case far advanced with a trial date set only weeks away and the advice of other experts already to hand, so that failure to meet the deadline may cost the plaintiff dearly. Indeed, the entire case may collapse. Therefore, stated timelimits must be taken seriously and regarded as absolute deadlines. The expert must be sure that there is no conflict of interest. This may arise when the patient, the patient's relatives, or any of the doctors concerned are personal friends or colleagues. Such conflicts are particularly troublesome when advising the defence, because it may be painful and difficult to advise a colleague that he or she has been negligent. It should be understood that preparation of a report may not be the end of the process. Indeed, if the plaintiffs expert concludes that a case of negligence can be made against an anaesthetist or the anaesthetist's employer, it is just the beginning. From the outset there is an implied commitment to prepare supplementary reports, comment on the reports prepared by other experts and, occasionally, to give evidence at trial, save, of course, the unlikely circumstances that the determined course of action is contrary to one's advice and conscience. ANALYSIS
All the relevant clinical records must be photocopied. The expert checks that they are complete, and gives advice regarding discovery of missing documents. If C. J. HULL, F.R.C.A., Department pi Anaesthesia, University of
Newcastle, Newcastle-upon-Tyne NE1 7RU.
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Whenever it is claimed that a hospital patient has been treated negligently, it is customary for some kind of internal inquiry to be conducted. If, on the basis of the findings, negligence is admitted and compensation agreed (as very occasionally happens), that is the end of the matter. However, if negligence is denied the plaintiffs legal adviser must decide whether he or she has a legitimate claim with some prospect of success at trial. In making that decision, the solicitor relies upon reports prepared by one or more experts in the field concerned, and on counsel's advice. If, on the basis of such advice, a legal claim is made against the anaesthetist and the hospital concerned, their legal advisers follow suit by instructing their own experts to prepare similar reports upon which they must decide whether the claim can be defended.
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Was there a duty of care ? Stated plainly, it must be established whether any member of the anaesthetic department actually had any direct clinical responsibility towards the patient. This may be a major issue in a case of emergency admission to hospital following a road traffic accident, where it is claimed that delay and poor initial response contributed to a disastrous outcome. Upon whom lay that duty? This may be a readily identifiable single individual, such as a consultant anaesthetist who causes neurological damage by accidental and unrecognized oesophageal intubation. In some complex cases where it is claimed that damage arose as a result of continuing mismanagement in an intensive care unit, the list of defendants may include a whole host of people, ranging from the most junior nurse to the responsible consultants in a number of specialties. There may be a great difficulty in resolving this issue, especially where the complaint arises from a dispute as to who was "on call" at the time concerned. Was there a failure to fulfil that duty, as determined by application of the Bolam yardstick? It is crucial that the expert has a clear understanding of the Bolam doctrine, as enunciated by Mr Justice McNair in 1957 [1]:
"The test is the standard of the ordinary skilled man exercising and professing to have that special skill... It is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art."
The test, therefore, is whether the standard of clinical management met the standard which reasonably might have been expected of an ordinarily competent anaesthetist while practising anaesthesia, pain management or intensive therapy. That is, can it legitimately be claimed that the defendant's actions would not reasonably have been taken by a clinician of comparable training and experience? Although the expert may consider an action wrong, it cannot be held to be negligent if the defence can show that it represented a rightthinking, legitimate and substantial school of thought at the time concerned, even though many others would have done something quite different. It should be remembered that a doctor not only has a duty to act reasonably, but also a duty to warn the patient of any material risks associated with the proposed plan of management. In the case of a complication which is both serious and likely (as might apply if the anaesthetist planned to use a technique known to carry a 10 % risk of awareness during surgery), there can be little doubt of the duty to warn, but in the case of less likely possibilities (such as the risk of anaphylaxis following i.v. thiopentone) the duty becomes ill-defined. The question of what amounts to a material risk is often unclear and experts may disagree. Nevertheless, it is important that the expert takes a clear view of what the patient should or should not have been told. Was the patient damaged? From the legal standpoint, a claim has no value if there has been no damage for which compensation can be calculated. This may be physical, as in loss or diminished function of some body part, or psychological, as in the case of post-traumatic stress disorder following awareness during surgery. Pain and suffering are considered to be forms of damage. Thus, unnecessary pain suffered by a patient during surgery (as in the case of an ineffective local, spinal or extradural block) is considered under this heading, whether or not there are long term sequelae. If there was a breach of duty, did it cause the damage ? Here the issue of causation may be crucial, and if a case of negligence is to be established it is essential that the expert demonstrates (on the balance of probabilities) a clear and unbroken chain of causation between the negligence and the resulting damage. It is especially important that failings which did contribute to the chain of causation be clearly distinguished from other failings which did not. As in the Wilsher case [2], failure to establish unequivocal causation may cause endless complexities. THE INITIAL REPORT
In preparing a written report, the expert must set out an analysis in a clear and organized manner, such that a solicitor, counsel and, occasionally, a judge can all
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necessary, documents should be photographed in order to achieve true facsimile. This is particularly important where either the original paper or handwriting are coloured, in which case the photocopy may be illegible. Before commencing analysis, the expert should have a complete set of records which are bound, numbered and identical to a set held by the instructing solicitor. An instructing solicitor's inability or unwillingness to meet this requirement indicates a lack of professionalism which may lead to conflict and frustration when real difficulties arise. The expert must establish the facts of the case. This process may be very time-consuming but forms the factual base upon which a report rests and therefore must be completed with the utmost care. Often, the factual record is incomplete, and the expert must use judgment and experience to piece together the most probable sequence of events. For instance, if the anaesthetic record states that the patient was anaesthetized using a rapid sequence induction technique, but fails to make any mention of a neuromuscular blocking agent or a tracheal tube, it may reasonably be inferred that the anaesthetist administered a conventional dose of suxamethonium and inserted a cuffed tracheal tube using a laryngoscope. Unless, of course, it is part of the plaintiffs complaint that this was not done. Then the expert must analyse the facts in terms of the legal issues involved. It is crucial that this is done without bias or favour to either plaintiff or defendant, and it matters not who has issued the instructions. These issues may be summarized as follows:
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THE EXPERT REPORT understand the technical issues and follow the reasoning. There is no standard format, but the following approach has proved acceptable. The report is presented as a series of clearly defined sections: The expert
A statement of identity, with a short curriculum vitae which establishes the expert's credentials. The documents
The complaint
The nature of the complaint should be set out in clear terms. Normally, this may be taken from the letter of instruction, and establishes the basis of the expert's investigation. Occasionally, instructions are worded in the form: "This lady is not very happy with the way her husband was treated in hospital. Please go through the notes to see if there was any negligence". Experts should not engage in fishing expeditions. The scope of the report
Sometimes, the expert is presented with a huge bundle of clinical records, many of which relate to intensive therapy after some intraoperative disaster. Under such circumstances, the expert may decide (or be instructed) that his range of expertise is limited to the anaesthetic aspects alone (or vice versa). It is important that this be stated, otherwise his report may be read to suggest that areas on which he has not commented are considered to be unimportant or irrelevant. The facts of the case
A detailed chronology of all salient facts. This section does not need to include every single item in the clinical records, but should include all items to which reference will be made in later sections of the report. It is good practice to cross-reference (by page number) all chronology items to the clinical records and statements from which they are drawn. It is important that the patient's previous medical history be considered in some detail, with especial regard to previous anaesthetic procedures. This should include a detailed assessment of the patient's state of health immediately before the procedure associated with the alleged negligence (thus, in the case of a patient claiming neurological damage after spinal anaesthesia, it is important to determine if there were any preoperative neurological symptoms,
Commentary on the facts of the case
This section comprises a series of numbered paragraphs, each setting out the expert's views on a key feature of the case. These paragraphs form the logical platform upon which the opinion on liability will be based. Thus, a report dealing with a complaint of technical error during anaesthesia leading to hypoxic brain damage would consider such matters as: • Who was the anaesthetist? • Was the anaesthetist suitably trained and experienced for the type of case involved? If not, the minimum required standards should be stated. • If a trainee, was there adequate supervision? If not, the required standard of supervision should be stated. • Was there a suitably trained anaesthetic assistant? If not, the minimum acceptable level of skilled assistance should be stated. • Did the anaesthetic and monitoring equipment meet contemporary standards, and is there evidence that it had been properly maintained? If not, the standards by which such inadequacy might be judged should be stated.
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Every document supplied by the instructing solicitor should be catalogued, so that the reader may be quite clear as to the extent of the information set on which the report is based. This should include any other items of evidence such as x-rays, cardiotocograph records, etc. Occasionally, crucial documents are not included in the bundle, and this may have a profound effect on the expert's conclusions. If those conclusions are challenged at trial, the expert must be quite clear as to their factual basis.
signs or involvement with neurologists). Any regular medication taken before admission to hospital should be identified and the indications for its prescription established. Most of the facts may be adduced from the clinical records, but whenever possible these must be reconciled with other sources such as witness statements from the plaintiff and his/her family, together with those prepared by medical and nursing staff. In many cases it is essential that the patient be interviewed and, if indicated, examined. Often, this is a far better way of establishing a detailed sequence of events than reliance on proofed statements. If an internal inquiry has been conducted, the report of that inquiry may provide further important information. In those unfortunate cases where a patient has died, the inquest transcript is a most valuable source of information, particularly in those cases in which factual witnesses have been crossexamined by counsel. Although many lawyers do have an excellent understanding of clinical terms, it should not be assumed that the readers of a report are familiar with anaesthetic terms or the names of drugs. In particular, it must be remembered that the report may be read and assessed at trial by a judge. Acceptance of an expert's point of view is more likely if the judge understands every technical term at first reading rather than waiting for detailed explanations from the witness box. Thus, every technical term should be accompanied by a definition or explanation. Traditionally, such notes are placed in parentheses as part of the text itself. However, this approach has the disadvantage that the narrative is broken up by explanatory notes. Further, many readers of the report do not require explanations of basic terms and wish to see the facts set out as clearly as possible. This problem can be resolved by the use of explanatory footnotes, or, if preferred, end-notes in the form of a glossary.
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However, where there are anaesthetic or intensive therapy implications, these should be addressed. Wherever a deduction or opinion is drawn from the facts of the case, the source should be identified and cross-referenced. While this may be seen as unnecessary in a very simple case involving no more than 20 pages of relevant clinical records, complex sets of records and statements amounting to more than 1000 items are not uncommon. In such cases, cross-referencing is essential if the deductive trail is to be substantiated. This is most conveniently done by means of numbered footnotes. Many of the above assessments require detailed comparison between what the anaesthetist did and what should have been done. In turn, this may require an evaluation of what the anaesthetist knew and what should have been known by virtue of training and current literature. It is crucial that the expert makes all such assessments in terms of the date of the alleged negligence. Thus, if the incident occurred in 1985, all the actions of the anaesthetist must be considered by 1985 standards. This includes the range of textbooks and articles that would have been available at the time in question. In this context it is important that the expert assesses what literature should have been known to the defendant in terms of the Bolam doctrine, which requires only, ordinary knowledge and skill, not that of an academic specializing in that particular field. The opinions of an expert carry far greater weight if supported by contemporary textbooks or papers from mainstream journals demonstrating what the defendant would or should have known at the time in question. This is particularly important in the context of published warnings of drug interactions, equipment hazards, etc. Therefore, the expert should have access to previous editions of the standard textbooks, and must be prepared to submit photocopies of all such material in support of these views. References to books, etc. should be fully detailed (i.e. to the exact statements concerned), since lawyers cannot be expected to read an entire review or chapter in search of a particular point. Commentary on liability issues
In this section the expert summarizes both facts and deductions in terms of the five essential elements already set out above: (1) Was there a duty of care? (2) Upon whom lay that duty? (3) Was there a failure to fulfil that duty ? (4) Was the patient damaged, either physically or emotionally? (5) Was the damage caused by the failing(s) ? In each case the expert should make every effort to give clear and unequivocal answers to each question. If he or she cannot, this may indicate a need to consider the issues more carefully. Even if the expert fails to give clear answers in the report, there may be pressure to do so in the witness box, where considered views are more difficult to formulate. If it is not possible to offer clear advice, the expert should say why it is not possible, and should suggest what additional material might make this possible.
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Was a preoperative assessment conducted ? If not, or if inadequately detailed, the relevance of this failing to the present case should be stated. Was the patient suitably monitored from the commencement of anaesthetic induction to recovery of consciousness? If not, the minimum acceptable standards should be stated. Was a properly detailed anaesthetic record kept by the anaesthetist, and was it prepared contemporaneously? If not, the importance of clear and detailed records in this particular case should be explained. Was anaesthesia induced according to acceptable clinical practice? That is, is there a legitimate body of comparable anaesthetists who would have done likewise? If not, alternative techniques that would have been acceptable should be described, with comment as to why they would have been preferred. Was the airway maintained using an acceptable method? If not, what methods would have been acceptable? Was pulmonary ventilation maintained within acceptable limits ? If not, what is the significance of the deviation ? Was fluid balance managed satisfactorily ? If not, how should it have been managed? Was anaesthesia maintained using an acceptable technique, and did the anaesthetist take steps to ensure that the patient remained insensible throughout? If not, what should he have done? Were heart rate and arterial pressure maintained within acceptable limits? If there was a critical incident during anaesthesia, what happened and why? Was the recovery phase properly managed by suitably trained staff? If not, what is the relevance to this case? Was the patient damaged during or as a consequence of his/her anaesthetic management? If there was damage to the patient, what was the exact cause of that damage ? Were there any other likely or even possible causes of the damage, unrelated to the negligence ? If there were several possible causes, including the natural progression of some preoperative condition, it may be argued that the anaesthetist was not responsible for the outcome. On the other hand, if the experts can find no causes of the outcome which did not involve negligence, and if there had been an obvious breach of the duty of care, the legal team may seek summary judgment on the basis of res ipsa loquitur (i.e. the facts speak for themselves). Is there evidence of negligence by other doctors and nurses? Under this heading, the quality of postoperative care becomes important. For instance, if a patient suffering hypoxic cerebral damage during anaesthesia is not treated with adequate skill and vigour in the postoperative period, negligence by others may have contributed to the severity of final outcome. What would have been the prognosis had the accident not occurred? In many cases this may lie outside the anaesthetic expert'sfieldof knowledge.
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THE EXPERT REPORT Conclusion
The expert should state the conclusions in clear and unambiguous terms. These simply say whether the plaintiff has the required elements for a successful claim insofar as the expert's knowledge is concerned.
In some cases, such a conclusion depends only on expert anaesthetic opinion, but more often the views of other experts (radiologists, neurologists, pathologists, psychiatrists, etc.) must also be taken into account. The instructing solicitor and counsel then have the task of reconciling all such opinions into a coherent pattern.
WHAT HAPPENS NEXT?
Preparation of an expert report is just the beginning of the process, and having taken instruction the expert should be prepared to continue, if necessary, all the way to trial in support of the original opinion. If the report fails to consider one or more crucial topics, uses terms which cannot be understood, or fails to construct coherent arguments, it is likely that the expert will be asked to modify it accordingly. If it fails altogether to meet the instructing solicitor's requirements, it is more likely that the report will be quietly discarded. When all the expert reports are to hand, the plaintiffs solicitor is likely to call a conference of experts with counsel, where the case is reviewed as a whole, often in minute detail. Every effort is made to reconcile the opinions of the various experts, especially those of the same discipline. If agreement cannot be reached, this sends powerful signals to the instructing solicitor that there may be several legitimate schools of thought, at least one of which may amount to an effective defence. The expert who fails to express clear views in a report is likely to be cross-examined with some vigour. Almost invariably, there is agreement that some of the written statements were not quite what was intended, and so require re-drafting. The expert also may be asked to
REFERENCES 1. Bolam v. Friern Hospital Management Committee, [1957] 2 All ER 118. 2. Wilsher v. Essex AHA, [1986] 3 All ER 801 CA.
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It might be thought that the views of experts would differ appreciably, depending upon whether they see the case from the perspective of the plaintiff or the defendant. It must be re-emphasized that from the expert's viewpoint, it matters not who has issued instructions. The task is not to establish a case of negligence or to defend such a claim: simply to analyse the facts and offer an honest opinion on the basis of standard legal yardsticks. The only difference between writing reports for plaintiff or defendant is that the defendant's expert need only be concerned with the specific issues raised by the statement of claim. Thus, if a patient complains that she was awake during a Caesarean section under supposedly general anaesthesia, it is not the expert's function to point out that the anaesthetist also recorded the accidental removal of three dental crowns with the laryngoscope.
purge the report of reference to certain documents— usually those on which counsel does not intend to rely at trial. It is usual for counsel to draft a formal statement of claim, largely based upon the advice given by the experts. This sets out in legal terms exactly what the plaintiff claims was done negligently, the damage by that negligence, and the compensation being sought. The plaintiffs experts must check this draft with the utmost care, in order to ensure that it is factually accurate and does, in fact, represent their opinions. In turn, experts instructed by the defence are not only asked to prepare reports on liability but also attend conference to determine if the case should be defended and, if appropriate, assist in the preparation of the formal legal defence. The expert may also be requested to comment on a list of questions to be put to the plaintiff—Request for further and better particulars of the claim, which demand provision of more precise details. The plaintiffs expert is asked to comment on the request and, where appropriate, to draft responses. The expert may also be asked to advise on the preparation of interrogatories—a series of factual questions to be put to the defendant where such facts cannot be adduced from the clinical records. Occasionally, the exchange of factual information leads to discovery of significant details which may require substantial modification of the expert's report (as, for instance, would follow a defendant stating that the anaesthetic record either was incorrect or incomplete, and that the actual sequence of events was as follows...). This final report is the document that the expert must defend at trial. Occasionally, experts on either side may find themselves under considerable pressure to modify their reports so as to omit or change statements and comments which might possibly aid the other side. It is understandable enough that counsel is reluctant to offer points to the other side on a plate. But here experts must take great care, recognizing that their client is the instructing solicitor while at the same time remaining independent. Before signing the final draft of the report the expert should remember that if the case goes to trial that document will have been analysed in great detail by experts instructed by the other side. They will have given particular attention to points which have been glossed over or considered too trivial to mention (such as the anaesthetist's failure to take precautions against gastric aspiration in an emergency anaesthetic for Caesarean section), and counsel will not be slow to suggest lack of objectivity. The expert must remember that in the witness box he or she stands alone, and under crossexamination may have to answer not only for the points which were made but also those which were not.
The expert report C. J. HULL
INSTRUCTION
First, the solicitor writes formally to an anaesthetist whom the solicitor regards as an expert (or has been recommended to him), outlining the facts of the case and inviting the anaesthetist to prepare a report. The letter of instruction is a most important document, as it establishes the basis on which the expert works. It is particularly important for anaesthetists to realize that acceptance of instructions establishes a contract between solicitor and expert. This contract requires that the expert fulfils the terms of the instruction, and that in return the instructing solicitor (not the client) undertakes to meet any reasonable charges. The letter of instruction should summarize the legal process to date, indicating what other expert reports have already been commissioned or received. A good instruction sets out very clearly the legal issues involved, the tests that must be applied to the evidence, specific areas of concern, and often a series of very specific questions which should be addressed. Finally, it sets out in broad terms the financial basis on which the expert is invited to act. The letter may be highly informative in another important respect, in that it may give a clear indication of the instructing solicitor's own experience and expertise in this specialized field. There may be a considerable difference between the instructions of a professional (Br. J. Anaesth. 1994; 73; 93-97) KEY WORDS Anaesthetist: report. Anaesthetist: medicolegal. Medicolegal.
team specializing in personal injury litigation and those of a small-town family solicitor whose regular practice is limited to conveyancing, inheritance and the magistrate's court. The doctor then must decide whether to accept instruction as an expert. This is not a simple matter, as a number of factors must be taken into consideration. For instance, he should be confident that he does, in fact, have expert knowledge of the clinical field involved. While it is flattering to be regarded as an expert by an instructing solicitor, it is less so to have counsel demonstrate otherwise at some later date. If the case lies outside his field of knowledge he should decline. The expert must be reasonably sure that the task can be completed within the time stated. Only too often, reports are commissioned dangerously close to, or even after, the limitation date. In other cases, the expert may find the case far advanced with a trial date set only weeks away and the advice of other experts already to hand, so that failure to meet the deadline may cost the plaintiff dearly. Indeed, the entire case may collapse. Therefore, stated timelimits must be taken seriously and regarded as absolute deadlines. The expert must be sure that there is no conflict of interest. This may arise when the patient, the patient's relatives, or any of the doctors concerned are personal friends or colleagues. Such conflicts are particularly troublesome when advising the defence, because it may be painful and difficult to advise a colleague that he or she has been negligent. It should be understood that preparation of a report may not be the end of the process. Indeed, if the plaintiffs expert concludes that a case of negligence can be made against an anaesthetist or the anaesthetist's employer, it is just the beginning. From the outset there is an implied commitment to prepare supplementary reports, comment on the reports prepared by other experts and, occasionally, to give evidence at trial, save, of course, the unlikely circumstances that the determined course of action is contrary to one's advice and conscience. ANALYSIS
All the relevant clinical records must be photocopied. The expert checks that they are complete, and gives advice regarding discovery of missing documents. If C. J. HULL, F.R.C.A., Department pi Anaesthesia, University of
Newcastle, Newcastle-upon-Tyne NE1 7RU.
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Whenever it is claimed that a hospital patient has been treated negligently, it is customary for some kind of internal inquiry to be conducted. If, on the basis of the findings, negligence is admitted and compensation agreed (as very occasionally happens), that is the end of the matter. However, if negligence is denied the plaintiffs legal adviser must decide whether he or she has a legitimate claim with some prospect of success at trial. In making that decision, the solicitor relies upon reports prepared by one or more experts in the field concerned, and on counsel's advice. If, on the basis of such advice, a legal claim is made against the anaesthetist and the hospital concerned, their legal advisers follow suit by instructing their own experts to prepare similar reports upon which they must decide whether the claim can be defended.
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Was there a duty of care ? Stated plainly, it must be established whether any member of the anaesthetic department actually had any direct clinical responsibility towards the patient. This may be a major issue in a case of emergency admission to hospital following a road traffic accident, where it is claimed that delay and poor initial response contributed to a disastrous outcome. Upon whom lay that duty? This may be a readily identifiable single individual, such as a consultant anaesthetist who causes neurological damage by accidental and unrecognized oesophageal intubation. In some complex cases where it is claimed that damage arose as a result of continuing mismanagement in an intensive care unit, the list of defendants may include a whole host of people, ranging from the most junior nurse to the responsible consultants in a number of specialties. There may be a great difficulty in resolving this issue, especially where the complaint arises from a dispute as to who was "on call" at the time concerned. Was there a failure to fulfil that duty, as determined by application of the Bolam yardstick? It is crucial that the expert has a clear understanding of the Bolam doctrine, as enunciated by Mr Justice McNair in 1957 [1]:
"The test is the standard of the ordinary skilled man exercising and professing to have that special skill... It is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art."
The test, therefore, is whether the standard of clinical management met the standard which reasonably might have been expected of an ordinarily competent anaesthetist while practising anaesthesia, pain management or intensive therapy. That is, can it legitimately be claimed that the defendant's actions would not reasonably have been taken by a clinician of comparable training and experience? Although the expert may consider an action wrong, it cannot be held to be negligent if the defence can show that it represented a rightthinking, legitimate and substantial school of thought at the time concerned, even though many others would have done something quite different. It should be remembered that a doctor not only has a duty to act reasonably, but also a duty to warn the patient of any material risks associated with the proposed plan of management. In the case of a complication which is both serious and likely (as might apply if the anaesthetist planned to use a technique known to carry a 10 % risk of awareness during surgery), there can be little doubt of the duty to warn, but in the case of less likely possibilities (such as the risk of anaphylaxis following i.v. thiopentone) the duty becomes ill-defined. The question of what amounts to a material risk is often unclear and experts may disagree. Nevertheless, it is important that the expert takes a clear view of what the patient should or should not have been told. Was the patient damaged? From the legal standpoint, a claim has no value if there has been no damage for which compensation can be calculated. This may be physical, as in loss or diminished function of some body part, or psychological, as in the case of post-traumatic stress disorder following awareness during surgery. Pain and suffering are considered to be forms of damage. Thus, unnecessary pain suffered by a patient during surgery (as in the case of an ineffective local, spinal or extradural block) is considered under this heading, whether or not there are long term sequelae. If there was a breach of duty, did it cause the damage ? Here the issue of causation may be crucial, and if a case of negligence is to be established it is essential that the expert demonstrates (on the balance of probabilities) a clear and unbroken chain of causation between the negligence and the resulting damage. It is especially important that failings which did contribute to the chain of causation be clearly distinguished from other failings which did not. As in the Wilsher case [2], failure to establish unequivocal causation may cause endless complexities. THE INITIAL REPORT
In preparing a written report, the expert must set out an analysis in a clear and organized manner, such that a solicitor, counsel and, occasionally, a judge can all
Downloaded from http://bja.oxfordjournals.org/ at New York University on May 9, 2015
necessary, documents should be photographed in order to achieve true facsimile. This is particularly important where either the original paper or handwriting are coloured, in which case the photocopy may be illegible. Before commencing analysis, the expert should have a complete set of records which are bound, numbered and identical to a set held by the instructing solicitor. An instructing solicitor's inability or unwillingness to meet this requirement indicates a lack of professionalism which may lead to conflict and frustration when real difficulties arise. The expert must establish the facts of the case. This process may be very time-consuming but forms the factual base upon which a report rests and therefore must be completed with the utmost care. Often, the factual record is incomplete, and the expert must use judgment and experience to piece together the most probable sequence of events. For instance, if the anaesthetic record states that the patient was anaesthetized using a rapid sequence induction technique, but fails to make any mention of a neuromuscular blocking agent or a tracheal tube, it may reasonably be inferred that the anaesthetist administered a conventional dose of suxamethonium and inserted a cuffed tracheal tube using a laryngoscope. Unless, of course, it is part of the plaintiffs complaint that this was not done. Then the expert must analyse the facts in terms of the legal issues involved. It is crucial that this is done without bias or favour to either plaintiff or defendant, and it matters not who has issued the instructions. These issues may be summarized as follows:
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THE EXPERT REPORT understand the technical issues and follow the reasoning. There is no standard format, but the following approach has proved acceptable. The report is presented as a series of clearly defined sections: The expert
A statement of identity, with a short curriculum vitae which establishes the expert's credentials. The documents
The complaint
The nature of the complaint should be set out in clear terms. Normally, this may be taken from the letter of instruction, and establishes the basis of the expert's investigation. Occasionally, instructions are worded in the form: "This lady is not very happy with the way her husband was treated in hospital. Please go through the notes to see if there was any negligence". Experts should not engage in fishing expeditions. The scope of the report
Sometimes, the expert is presented with a huge bundle of clinical records, many of which relate to intensive therapy after some intraoperative disaster. Under such circumstances, the expert may decide (or be instructed) that his range of expertise is limited to the anaesthetic aspects alone (or vice versa). It is important that this be stated, otherwise his report may be read to suggest that areas on which he has not commented are considered to be unimportant or irrelevant. The facts of the case
A detailed chronology of all salient facts. This section does not need to include every single item in the clinical records, but should include all items to which reference will be made in later sections of the report. It is good practice to cross-reference (by page number) all chronology items to the clinical records and statements from which they are drawn. It is important that the patient's previous medical history be considered in some detail, with especial regard to previous anaesthetic procedures. This should include a detailed assessment of the patient's state of health immediately before the procedure associated with the alleged negligence (thus, in the case of a patient claiming neurological damage after spinal anaesthesia, it is important to determine if there were any preoperative neurological symptoms,
Commentary on the facts of the case
This section comprises a series of numbered paragraphs, each setting out the expert's views on a key feature of the case. These paragraphs form the logical platform upon which the opinion on liability will be based. Thus, a report dealing with a complaint of technical error during anaesthesia leading to hypoxic brain damage would consider such matters as: • Who was the anaesthetist? • Was the anaesthetist suitably trained and experienced for the type of case involved? If not, the minimum required standards should be stated. • If a trainee, was there adequate supervision? If not, the required standard of supervision should be stated. • Was there a suitably trained anaesthetic assistant? If not, the minimum acceptable level of skilled assistance should be stated. • Did the anaesthetic and monitoring equipment meet contemporary standards, and is there evidence that it had been properly maintained? If not, the standards by which such inadequacy might be judged should be stated.
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Every document supplied by the instructing solicitor should be catalogued, so that the reader may be quite clear as to the extent of the information set on which the report is based. This should include any other items of evidence such as x-rays, cardiotocograph records, etc. Occasionally, crucial documents are not included in the bundle, and this may have a profound effect on the expert's conclusions. If those conclusions are challenged at trial, the expert must be quite clear as to their factual basis.
signs or involvement with neurologists). Any regular medication taken before admission to hospital should be identified and the indications for its prescription established. Most of the facts may be adduced from the clinical records, but whenever possible these must be reconciled with other sources such as witness statements from the plaintiff and his/her family, together with those prepared by medical and nursing staff. In many cases it is essential that the patient be interviewed and, if indicated, examined. Often, this is a far better way of establishing a detailed sequence of events than reliance on proofed statements. If an internal inquiry has been conducted, the report of that inquiry may provide further important information. In those unfortunate cases where a patient has died, the inquest transcript is a most valuable source of information, particularly in those cases in which factual witnesses have been crossexamined by counsel. Although many lawyers do have an excellent understanding of clinical terms, it should not be assumed that the readers of a report are familiar with anaesthetic terms or the names of drugs. In particular, it must be remembered that the report may be read and assessed at trial by a judge. Acceptance of an expert's point of view is more likely if the judge understands every technical term at first reading rather than waiting for detailed explanations from the witness box. Thus, every technical term should be accompanied by a definition or explanation. Traditionally, such notes are placed in parentheses as part of the text itself. However, this approach has the disadvantage that the narrative is broken up by explanatory notes. Further, many readers of the report do not require explanations of basic terms and wish to see the facts set out as clearly as possible. This problem can be resolved by the use of explanatory footnotes, or, if preferred, end-notes in the form of a glossary.
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However, where there are anaesthetic or intensive therapy implications, these should be addressed. Wherever a deduction or opinion is drawn from the facts of the case, the source should be identified and cross-referenced. While this may be seen as unnecessary in a very simple case involving no more than 20 pages of relevant clinical records, complex sets of records and statements amounting to more than 1000 items are not uncommon. In such cases, cross-referencing is essential if the deductive trail is to be substantiated. This is most conveniently done by means of numbered footnotes. Many of the above assessments require detailed comparison between what the anaesthetist did and what should have been done. In turn, this may require an evaluation of what the anaesthetist knew and what should have been known by virtue of training and current literature. It is crucial that the expert makes all such assessments in terms of the date of the alleged negligence. Thus, if the incident occurred in 1985, all the actions of the anaesthetist must be considered by 1985 standards. This includes the range of textbooks and articles that would have been available at the time in question. In this context it is important that the expert assesses what literature should have been known to the defendant in terms of the Bolam doctrine, which requires only, ordinary knowledge and skill, not that of an academic specializing in that particular field. The opinions of an expert carry far greater weight if supported by contemporary textbooks or papers from mainstream journals demonstrating what the defendant would or should have known at the time in question. This is particularly important in the context of published warnings of drug interactions, equipment hazards, etc. Therefore, the expert should have access to previous editions of the standard textbooks, and must be prepared to submit photocopies of all such material in support of these views. References to books, etc. should be fully detailed (i.e. to the exact statements concerned), since lawyers cannot be expected to read an entire review or chapter in search of a particular point. Commentary on liability issues
In this section the expert summarizes both facts and deductions in terms of the five essential elements already set out above: (1) Was there a duty of care? (2) Upon whom lay that duty? (3) Was there a failure to fulfil that duty ? (4) Was the patient damaged, either physically or emotionally? (5) Was the damage caused by the failing(s) ? In each case the expert should make every effort to give clear and unequivocal answers to each question. If he or she cannot, this may indicate a need to consider the issues more carefully. Even if the expert fails to give clear answers in the report, there may be pressure to do so in the witness box, where considered views are more difficult to formulate. If it is not possible to offer clear advice, the expert should say why it is not possible, and should suggest what additional material might make this possible.
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Was a preoperative assessment conducted ? If not, or if inadequately detailed, the relevance of this failing to the present case should be stated. Was the patient suitably monitored from the commencement of anaesthetic induction to recovery of consciousness? If not, the minimum acceptable standards should be stated. Was a properly detailed anaesthetic record kept by the anaesthetist, and was it prepared contemporaneously? If not, the importance of clear and detailed records in this particular case should be explained. Was anaesthesia induced according to acceptable clinical practice? That is, is there a legitimate body of comparable anaesthetists who would have done likewise? If not, alternative techniques that would have been acceptable should be described, with comment as to why they would have been preferred. Was the airway maintained using an acceptable method? If not, what methods would have been acceptable? Was pulmonary ventilation maintained within acceptable limits ? If not, what is the significance of the deviation ? Was fluid balance managed satisfactorily ? If not, how should it have been managed? Was anaesthesia maintained using an acceptable technique, and did the anaesthetist take steps to ensure that the patient remained insensible throughout? If not, what should he have done? Were heart rate and arterial pressure maintained within acceptable limits? If there was a critical incident during anaesthesia, what happened and why? Was the recovery phase properly managed by suitably trained staff? If not, what is the relevance to this case? Was the patient damaged during or as a consequence of his/her anaesthetic management? If there was damage to the patient, what was the exact cause of that damage ? Were there any other likely or even possible causes of the damage, unrelated to the negligence ? If there were several possible causes, including the natural progression of some preoperative condition, it may be argued that the anaesthetist was not responsible for the outcome. On the other hand, if the experts can find no causes of the outcome which did not involve negligence, and if there had been an obvious breach of the duty of care, the legal team may seek summary judgment on the basis of res ipsa loquitur (i.e. the facts speak for themselves). Is there evidence of negligence by other doctors and nurses? Under this heading, the quality of postoperative care becomes important. For instance, if a patient suffering hypoxic cerebral damage during anaesthesia is not treated with adequate skill and vigour in the postoperative period, negligence by others may have contributed to the severity of final outcome. What would have been the prognosis had the accident not occurred? In many cases this may lie outside the anaesthetic expert'sfieldof knowledge.
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THE EXPERT REPORT Conclusion
The expert should state the conclusions in clear and unambiguous terms. These simply say whether the plaintiff has the required elements for a successful claim insofar as the expert's knowledge is concerned.
In some cases, such a conclusion depends only on expert anaesthetic opinion, but more often the views of other experts (radiologists, neurologists, pathologists, psychiatrists, etc.) must also be taken into account. The instructing solicitor and counsel then have the task of reconciling all such opinions into a coherent pattern.
WHAT HAPPENS NEXT?
Preparation of an expert report is just the beginning of the process, and having taken instruction the expert should be prepared to continue, if necessary, all the way to trial in support of the original opinion. If the report fails to consider one or more crucial topics, uses terms which cannot be understood, or fails to construct coherent arguments, it is likely that the expert will be asked to modify it accordingly. If it fails altogether to meet the instructing solicitor's requirements, it is more likely that the report will be quietly discarded. When all the expert reports are to hand, the plaintiffs solicitor is likely to call a conference of experts with counsel, where the case is reviewed as a whole, often in minute detail. Every effort is made to reconcile the opinions of the various experts, especially those of the same discipline. If agreement cannot be reached, this sends powerful signals to the instructing solicitor that there may be several legitimate schools of thought, at least one of which may amount to an effective defence. The expert who fails to express clear views in a report is likely to be cross-examined with some vigour. Almost invariably, there is agreement that some of the written statements were not quite what was intended, and so require re-drafting. The expert also may be asked to
REFERENCES 1. Bolam v. Friern Hospital Management Committee, [1957] 2 All ER 118. 2. Wilsher v. Essex AHA, [1986] 3 All ER 801 CA.
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It might be thought that the views of experts would differ appreciably, depending upon whether they see the case from the perspective of the plaintiff or the defendant. It must be re-emphasized that from the expert's viewpoint, it matters not who has issued instructions. The task is not to establish a case of negligence or to defend such a claim: simply to analyse the facts and offer an honest opinion on the basis of standard legal yardsticks. The only difference between writing reports for plaintiff or defendant is that the defendant's expert need only be concerned with the specific issues raised by the statement of claim. Thus, if a patient complains that she was awake during a Caesarean section under supposedly general anaesthesia, it is not the expert's function to point out that the anaesthetist also recorded the accidental removal of three dental crowns with the laryngoscope.
purge the report of reference to certain documents— usually those on which counsel does not intend to rely at trial. It is usual for counsel to draft a formal statement of claim, largely based upon the advice given by the experts. This sets out in legal terms exactly what the plaintiff claims was done negligently, the damage by that negligence, and the compensation being sought. The plaintiffs experts must check this draft with the utmost care, in order to ensure that it is factually accurate and does, in fact, represent their opinions. In turn, experts instructed by the defence are not only asked to prepare reports on liability but also attend conference to determine if the case should be defended and, if appropriate, assist in the preparation of the formal legal defence. The expert may also be requested to comment on a list of questions to be put to the plaintiff—Request for further and better particulars of the claim, which demand provision of more precise details. The plaintiffs expert is asked to comment on the request and, where appropriate, to draft responses. The expert may also be asked to advise on the preparation of interrogatories—a series of factual questions to be put to the defendant where such facts cannot be adduced from the clinical records. Occasionally, the exchange of factual information leads to discovery of significant details which may require substantial modification of the expert's report (as, for instance, would follow a defendant stating that the anaesthetic record either was incorrect or incomplete, and that the actual sequence of events was as follows...). This final report is the document that the expert must defend at trial. Occasionally, experts on either side may find themselves under considerable pressure to modify their reports so as to omit or change statements and comments which might possibly aid the other side. It is understandable enough that counsel is reluctant to offer points to the other side on a plate. But here experts must take great care, recognizing that their client is the instructing solicitor while at the same time remaining independent. Before signing the final draft of the report the expert should remember that if the case goes to trial that document will have been analysed in great detail by experts instructed by the other side. They will have given particular attention to points which have been glossed over or considered too trivial to mention (such as the anaesthetist's failure to take precautions against gastric aspiration in an emergency anaesthetic for Caesarean section), and counsel will not be slow to suggest lack of objectivity. The expert must remember that in the witness box he or she stands alone, and under crossexamination may have to answer not only for the points which were made but also those which were not.