A hot tub for expert witnesses

• Author: Philip O'Sullivan
• Position: Judge of the High Court of Ireland
• Pages: 1-7

AHOT TUB FOR EXPERT WITNESSES

THE HON. MR. JUSTICE PHILIP O’SULLIVAN*

Ihave recently finished trying my first medical negligence case. It

concerned a thirteen year old profoundly disabled girl who sued her

mother’s obstetrician for failing to conduct timely ultrasound scans

during pregnancy which, she claimed, would have revealed the need

for urgent caesarean section which would have prevented her

injuries. The obstetrician admitted negligence because he had not

done the scans but claimed that her injuries werecaused by an event

in her mother’s pregnancy which occurred before the scans should

have been performed. The scans, he said, would have been too late.

The issue was causation and it boiled down to a question of precise

timing, namely whether or not the plaintiff would have been spared

her injuries had she been delivered before the 35thweek of gestation.

Five eminent witnesses were called to deal with this question.

There was a paediatric neurologist, a paediatrician with special

interest in early childhood and, thirdly, the holder of the only chair

in the world on child nutrition for the plaintiff and for the defendant

apaediatric neurologist and a radio-neurologist. This does not

include the two gynaecologist-obstetricians called for the plaintiff

whose uncontradicted evidence was that thereshould have been

scans and a delivery by the 35th week.

All of these witnesses were supremely well qualified and indeed it

made me fell verysmall to be confronted with experts whose CVs

were thicker than yesterday’s transcript. I found myself moaning to

my colleagues about the impending task before me but they, who

have moreexperience than I, assured me that ours is the best system

anyone has devised to date. Accordingly my task was to apply the

rules of probability to two eminently distinguished and coherent

bodies of evidence which were in mutual conflict. Also disconcerting

was the thought that the better witness might not have been the

better medical opinion but my task was to apply those rules to the

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AHot Tub for Expert Witnesses

*Judge of the High Courtof Ireland.