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Do you honestly understand microbiology? Few do, and the same applies in litigation. We microbiologists occupy a backstage, geeky niche. The definition of an extrovert pathologist is someone who looks at your shoes when they’re talking to you rather than their own. Nevertheless, our clinical colleagues often need our nerdy advice about obscure bacteria whose names they never learned at Medical School. Why remember the susceptibilities of Stenotrophononas maltophilia when you could be fixing bones, delivering babies or implanting cardiac devices?
Which is fine, until it all goes wrong. Since the early 1900s Infectious Diseases have slipped down the list of causes of death and disability, despite emerging resistance to antibiotics. That means patients do not expect to get infections, and, when they do, they expect them to be curable. Otherwise they may sue, and sometimes on good grounds. I have advised early settlement in several indefensible cases, some fatal.
It may go the other way. Here’s a recent extreme example – a baby born with brain damage whose mother sued the Trust many years after delivery. The final settlement was £4m – yes four million pounds – less than the original claim, and that reduced sum was largely based on my microbiology evidence; the mother had obvious intrauterine infection of a sort that has only recently been recognised as causing foetal brain damage. Four million pounds is several multiples of a Consultant’s NHS lifetime earnings plus pension. Basically, I am in credit with the NHS for my salary and more.
As with any expert witness, you would not get far if your reports were biased. Nevertheless, as a committed supporter of the NHS I get some pleasure from challenging the obvious chancers – an increasingly common phenomenon in the world of “no win no fee”. It isn’t always the NHS either – in a recent case two families developed infectious diarrhoea on a Mediterranean holiday, and sued the hotel, saying among other things that wild birds were unreasonably allowed in the outdoor cafes. How the hotel could have excluded them is unclear...but I concluded on good evidence that the probable source of infection was the swimming pool, not the food. The claimants’ lawyers urged me to say otherwise – but I would have been a fool to waver. The case collapsed. I have had no more instructions from those solicitors – their loss. As it says in The Bible – “the truth will set you free”.
Solicitors ask what proportion of my reports are for claimant or defendant. I answer “They are all for the Court”. Following excellent advice on a ”SpecialistInfo” medico-legal course, I literally and metaphorically point my feet firmly towards the Judge in preparing my comments. I also have to hold my head up in the august company of experienced microbiologists on the other team. Most doctors like to get things “right”; my wife will tell you I am no exception and that is just dandy for expert reports. The witness box can be very uncomfortable if you are wrong.
It’s meticulous attention to detail that pays off and that can revolve around a single letter. One lawsuit involved the “wrong” antibiotics for a man with sepsis after a nephrostogram; hidden among 1600 pages of notes was a report from the lab stating the bug was crucially “R” – resistant – to gentamicin. Notes are harder to read than they used to be, and I am not surprised the defendant’s expert missed it. Finding the microbiology evidence among the physiotherapy and nursing entries can be time-consuming; I can’t be alone in wishing the medical documentation was separate. Thirty years of poring through notes pays off.
Thoroughness and rigorous reference to the published evidence do not always pay off. One report I completed challenged the received wisdom about bacterial sepsis following weeks after an uninfected, trivial puncture wound – the claimant said it was her employer’s fault for not maintaining the workplace floor correctly. Her lawyers did not like my conclusion. There is no clear evidence that bacteraemia is more common after uninfected puncture wounds, which are very, very common.
The lawyers quietly commissioned another report that was more sympathetic to the claim. I thought those days, where experts are paid to put forward any convenient point of view, were gone. I decided early on I wanted a long medico-legal career and an easy conscience.
If you’re thinking of writing these reports, here’s how I got into it – by chance. Our Trust asked me to write one; the lawyers said they liked its clear English style and offered me paid work. I haven’t really looked back – every report is read by many people and word of mouth has guaranteed more and more instructions. On LinkedIn I found a first rate medico- legal secretary, Sue Wilcox of The Medical Secretariat (www.med-sec.net) who set me straight about fees, layout etc. I would welcome any microbiologist into the fold; I enjoy mental jousting with colleagues and the world of microbiology expert witnesses is small and shrinking due to retirement.
Pathology is the “science behind the cure” and sometimes the science behind a heap of NHS money and anguish for the doctors who are named in the lawsuit. If you’re a doctor reading this and you want to avoid such an infection lawsuit, here’s my advice: Write down clearly what you did and why, especially if you diverge from guidelines. If in doubt – call a microbiologist and write the conclusions down. Even if we do talk to your shoes.
Robert can be contacted on: bakermedicolegal@gmail.com
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