No offence to grandmothers but this quotation, often misattributed to Albert Einstein, highlights a truth that all clinical negligence litigators and experts should keep in mind. You may think you understand the principles of material contribution or the law of consent, but can you explain them clearly to a client? You may have treated many patients with sepsis, but can you explain the clinical decision-making process to a Judge?
“Experts” – whether legal or medical –must remember that their role is not just to investigate and then master the evidence but to be able to analyse it, identify the key issues, and then to explain them to non-experts. This is a skill that develops with experience. My own explanation of the Bolam test to clients has, at various times, involved football league tables and GCSE grades. Only the clubs in the relegation zone are negligent. The club that is just above them has had a poor season but is on the right side of the line of what is acceptable. Getting a C grade is still a pass even if most candidates at a school secure A’s and B’s.
In recent months it has been a particular challenge to describe to clients the impact of a possible change in the discount rate. What is the discount rate, how does it affect their compensation, when would it change and what would be the new rate?
Healthcare professionals can be sued for failing to obtain the informed consent of their patients. Lawyers too are obliged to ensure that their clients fully understand the implications of and reasons for decisions made in the course of litigation, such as accepting or rejecting an offer. It is no use spouting legal jargon about Part 36 Offers, enhanced interest and uplifts. We have to adopt a different form of language when communicating with clients than when dealing with each other.
Lawyers should use the same communication skills when instructing expert witnesses. Too often experts include in their reports phrases such as “the care given in this case was sub-optimal and not what I would have wanted to see”, or “on the balance of probabilities the failure to operate may have caused the Claimant’s injuries.” Wording like this shows that they have not understood the Bolam test or the standard of proof for causation. Lawyers have a responsibility to ensure that they do.
Medical experts too should express themselves in ways that lay people can readily understand. For these purposes, Judges are lay people. Experts write their reports for the Court, not for other experts. They should not assume that judges are familiar with medical jargon. I have had to explain what the third trimester was to a High Court Judge who had a background in aviation and shipping law. Thinking about how simply to explain an anatomical feature, a disease process or the way a treatment works, can help clarify an expert’s thoughts and identify the strength or weakness of an argument. As importantly, it will help to persuade the Court to the expert’s point of view.
Some professionals can make even simple concepts sound complex and difficult to understand. That is a tell-tale sign that they do not fully understand what they are talking about. Someone once advised me of the acronym KISS: “Keep it simple, stupid”. It is not always easy, but if you can make the complex sound simple, that will help you and your clients on the road to success.
Nigel Poole QC is author of Clinical Negligence Made Clear: A Guide for Patients and Professionals, published by Bath Publishing. Readers using code NPART10 when checking out on the publisher’s website at www.bathpublishing.com will qualify for FREE p&p – saving £3.50.