A hot tub for expert witnesses

AuthorPhilip O'Sullivan
PositionJudge of the High Court of Ireland
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
2004] 1
AHot Tub for Expert Witnesses
*Judge of the High Courtof Ireland.

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