One of the most common considerations in litigation is the issue of conflict of interest and experts.
Where a conflict of interest is found to have occurred and not been declared, the likelihood of the court giving any significant weight to that evidence falls quite dramatically. In short, a conflict can defeat your case.
Conflicts of interest however can arise in a number of ways, some of which are not obvious.
There is the traditional issue that the defendant or claimant knows, works with or is connected in some way with the expert. Clearly in these circumstances there is a significant issue as to whether the expert is independent.
In more recent times of course there are issues of business dealings. In Technomed Limited & Another v Blue Crest Health Screening , it was the expert's business dealings in Australia with both the claimant and the defendant that led to the court determining that the evidence would not be helpful. The court concluded that the expert's evidence meant that he could not be seen as independent of the parties and therefore he could not assist the court on matters within his expertise. In that case, because the relationships were with both claimant and defendant, an argument was raised that that made him independent. The court however was not impressed with that.
Many consultants have other business interests which they may not automatically consider as conflicts. A few shares in a private healthcare provider may not be a conflict, but a substantial investment or a place on a board making decisions about provision and resources may be something different. The NHS has substantial private bodies involved on the periphery and in providing on-call/GP type care in Emergency Departments. Many consultants are involved in private rehabilitation provision. The list is endless but not always obvious.
There is, of course, also the issue of the treating doctor which arises from time to time. Even if an expert has not treated a party at the time of the initial report or was not treating them at the conclusion of the case, but did so in between those periods , there is a duty that was ongoing to report a conflict of interest and to raise the issue. The courts generally consider a treating doctor to have a conflict but it is surprising how often cases arrive at our firm where this has occurred.
The issue of conflict is usually considered at the beginning of a case and towards settlement where both parties become impressively interested in the detail of an expert's CV and experience for the purposes of cross examination at trial. The often substantial period in the middle can be overlooked. Conflict is an issue which needs to be addressed throughout a case not just at either end.
Whilst the issue of conflict of interest obviously is extremely pertinent in clinical negligence practitioners where medical experts are being asked to comment on the conduct of fellow professionals, it can arise in any industry and any area of law. The fact is that as the world of business becomes more complicated and global, even within healthcare, those conflicts are potentially more likely to occur. Increasingly, lawyers cannot simply rely on their experts to indicate that there is not a conflict of interest. There has to be an examination of their CVs. Having a conflict does not mean that an expert will not be used, but it does mean that the court will have to give consideration to the conflict and whether it impinges on the weight of the evidence.
The business world is increasingly complex and individuals within it often have a myriad of connections which are more complex than being an orthopaedic surgeon in one trust. It is our role as lawyers to investigate and identify issues. It is however incumbent upon our experts from whatever area of expertise, to consider the issue more widely before they accept or continue with instruction. They do not escape responsibility but we should all think wider and for longer when considering this fundamental issue.
Originally published 14 July, 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
