The current system for determining medical negligence is "secretive, unaccountable and unregulated", according to an opinion piece in this week's BMJ.
Central to the system are expert witnesses, but these are not subject to regulatory code, audit, appraisal or peer review. Quality of reports provided by expert witnesses varies greatly, and many present source material for their opinions which "they would not dare to offer" to their medical colleagues, says Michael Bishop, a consultant urological surgeon.
Expert witnesses may also be selected for reasons other than their expertise in the field, such as how quickly they produce reports, or their registration with a particular organisation.
Medical negligence claims are mostly considered in closed sessions, attended by medical experts, defence organisations, the NHS litigation authority and solicitors with varying levels of expertise. Damage limitation, rather than a vigorous defence through intellectual argument, is often the outcome says Mr Bishop. Litigation is expensive, but cross-examination in open court provides the only opportunity for experts to be challenged under the existing system.
The public expects expert witnesses to be up to date with the latest thinking in their speciality and unbiased, says Mr Bishop, but this is often not the case. A new system is needed, based on a national register of coded incidents and their outcomes. This would promote consistency in the treatment of negligence claims and enable doctors to better learn from errors.
At a time when several high profile expert witnesses have been called into question, the profession must make itself transparent to restore the faith of its medical colleagues and ensure the protection of the public, concludes Mr Bishop.