Medical negligence – the damaging consequences of withholding evidence

Withholding evidence by failing to disclose an unfavourable report may not only be unethical, but it can significantly alter the costs outcomes for parties in medical negligence proceedings.

Most people are aware that certain communications between lawyers and their clients, or lawyers and third parties on behalf of the client are protected from disclosure in legal proceedings unless specifically authorised by the client. This is known as legal professional privilege.

However, there are some circumstances where a document must be disclosed to the other party and the Court regardless of how damaging it is to the party concerned.

One such document is a subsequent report by an expert. Once an expert report is served and relied on by a party, the expert has an overriding duty to the Court and not to the person who requested the report. It is not privileged. When a solicitor steps across this ethical boundary by withholding evidence, it can be disastrous for their client (even moreso than the report itself) because they may be forced to disclose other documents which would normally be protected from disclosure, such as written advices from their solicitor. Failure to do so could result in significant costs orders against the client and solicitor.

In one such case of Medical Negligence proceedings in the ACT Supreme Court, a firm of solicitors had suppressed a report from an infectious diseases expert which was against the interests of their client for approximately 2 years. The expert had previously provided three very supportive reports in favour of the orthopaedic surgeon for whom the firm of solicitors acted, and all had been served on the other party. The subsequent report had expressed damaging opinion against the interests of the doctor. One day before the matter was due to go to trial the firm of solicitors served the report claiming that the failure to serve the other party was a simple oversight.

The other party, a teenage girl who had contracted a nasty infection after a third operation at the hands of the orthopaedic surgeon, required production of all letters and communications around the creation of the report and advices to the orthopaedic surgeon from his lawyer.

Associate Justice David Mossop, the judge who heard the application was not happy. He found that withholding evidence by not disclosing the report was probably a deliberate decision and in those circumstances, privilege would be removed over all documents surrounding the report given the likely professional misconduct of the firm involved.

These letters to the client may well have expressed the firm’s view about the poor prospects of defending the case, which would not otherwise have been available to the other party or the Court. If that is the case, the Court may impose damaging costs orders on the surgeon when the defence fails.

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