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Medical Negligence – Adversaries

A courtroom trial in Ireland (and other Common Law jurisdictions) is an adversarial process.

In short, it is a struggle (with at least two opponents) no less than a boxing match, a game of football or a chess match.

No (professional) boxer loses all of his matches; no (professional) football team loses all its games; no chess player loses all his games. Clearly however, they can be checked and defeated by the activities of the opponent(s).

This is obvious and an accepted part of those activities, But this is not so easily seen in a courtroom trial.

Consequently, there is a mistaken assumption that that process is a search for truth. The reason for this is that no judge and no lawyer will openly disparage, or dismiss from consideration, a relevant, proved fact. There is a minimum level of intellectual rigour to which the participants are expected to adhere and which prevents excessively crude deviation, of that kind, from “realityâ€? .

It is a mistake to think there is a general search for truth; each opponent, subject to reservations, is engaged in emphasising those aspects of “realityâ€? supporting his/her interests.

In this context the judge is analogous to a theatre critic; the judgment is of the performance, not an endorsement (usually) of a timeless truth.

This is no less true of a medical negligence action. It is the obligation of a plaintiff to establish, by means of evidence, that the defendant fell below a minimum standard, and that that default caused injury to the plaintiff.

At the commencement of the trial the plaintiff’s advocate will:

a) open the proceedings by explaining the plaintiff’s current condition;
b) identify the person or body (defendant/s) who the plaintiff says caused that condition;
c) identify the proper role of the defendant;
d) explain how the plaintiff came to be in the care of the defendant;
e) explain what the plaintiff could reasonably have expected from the defendant in the way of care or treatment;
f) identify the actual treatment afforded the plaintiff by the defendant;
g) assert that the treatment actually furnished is the source of the plaintiff’s current condition.

This opening must then be followed by the necessary evidence.

Consider the last point, g); this is the issue of causation. Assume, given that the trial has commenced, the medical experts for the plaintiff are not in agreement with the medical experts for the defendant. That difference of opinion might be on the causation issue. There might be agreement that the defendant was negligent, but disagreement that the treatment, or lack of it, was the cause of the plaintiff’s condition.

By analogy, this is a little like a disagreement as to the trajectories of motor cars in a road traffic accident where nobody is in a position to describe the movements of the cars in relation to each other. It can be forensically proved on occasion, but it is difficult.

Resolution of an issue like that might easily turn on the quality of the experts available to the adversaries. If the plaintiff’s experts are not as familiar with legal concepts and procedures as the defendant’s experts, the plaintiff could lose. What if, for instance, the concept of the civil burden of proof was not understood by the plaintiff’s expert/s? Medical experts have a background in science where the standard of proof is certainty (sort of). Such an expert could, without expressing it, be constrained by an approach seeking certainty, whereas probability would be the correct approach.

It is possible, with preparation, to avoid a mishap like that. There are some difficulties not so easily avoided; very often, if not always, the plaintiff must commence the proceedings without knowing on what issues the case will be won or lost.

To that extent, inevitably, a medical negligence action is a gamble.