BMJ Report (Wakefield - January 2011)   Deer, Brian

In response to: Feature: Secrets of the MMR scare: How the case against the MMR vaccine was fixed
Brian Deer
BMJ 342:doi:10.1136/bmj.c5347 (Published 5 January 2011)

Is there a misunderstanding in the media of the conflicting duties of a medico-legal expert?
Gerry Ferguson, Solicitor
Withy King, Solicitors, 5/6 Nothumberland Buildings, Bath BA1 2JE

As a solicitor practising in the field of clinical negligence, acting for claimants, I am amazed at the pejorative terminology used by Brian Deer and endorsed by the BMJ in relation to the investigation of potential clinical negligence claims. I think this attack on the integrity of solicitors acting in this difficult field is one-eyed and sensationalist and has a tabloid flavour that does not sit well with the BMJ's usual editorial stance.

To describe claimant solicitors as 'scheming businesses' involved in a 'scam' is pathetic.

The way Brian Deer presents the 'facts' is that he implies that the solicitors had a pre-conceived idea that they wanted to mount a multi- party action against a pharmaceutical company and went around trawling for clients to fulfil a nefarious and fraudulent plan.

There was nothing 'extraordinary' about the hourly rate paid to the expert, even in 1998.

I do not know how Brian Deer thinks that solicitors who are acting for more than one client with a common complaint should obtain medical evidence. The parents had not gone to the Royal Free 'precisely to blame MMR, wanting (an expert) to help their children and their claims'. Like most clients, they had a theory about how their child's condition had been adversely affected and so they went to an independent expert in an appropriate field seeking an objective assessment to see if there was a link, because they all felt that the changes in their children's behavioural changes were associated in time with the MMR vaccination.

As I understand it, Dr Wakefield found some similarities between some of the children's symptoms and he and others reasonably suggested in the Lancet paper that the possible association required further research. The situation then got completely out of hand due to a media storm and the backlash from the pharmaceutical company's adherents and the Department of Health, who might reasonably be presumed to be motivated by a threatened loss of profit on the one hand and fear that herd immunity within an approved vaccination programme would be damaged on the other.

There was never any assertion (that I have seen) that the cases represented 'a snapshot from a large hospital's caseload'. It seems some people (possibly unfamiliar with the medical litigation process) may have simply assumed this.

From a potential litigation perspective it would have been unwise for Dr Wakefield to have alluded in print to the fact that there was a possible court action being contemplated, because of considerations of legal professional privilege and his instructing solicitors' natural caution in not wishing to 'jump the gun' by disclosing preliminary expert evidence (that had not been finalised for disclosure) in the public domain, thereby handing a tactical advantage to potential defendants in what is (whether you agree with it or not) an adversarial, not inquisitorial, court process.

Again, as I understand it, Dr Wakefield was quite genuinely concerned by his findings and thought they should be urgently flagged up for wider investigation. I cannot see that this stance was anything more than the natural reaction of any concerned clinician who thought there might be a link.

Because his medico-legal reports were privileged, any published data in The Lancet would of necessity have to be 'reviewed and changed' to avoid any breaches of the clinician's duty of confidentiality to the instructing solicitors, child clients and their litigation friends. There is nothing sinister in such a process, simply because someone writing with an agenda terms it 'misreporting'.

You have to bear in mind the GMC tribunal themselves were by no means disinterested parties and, to my mind as a claimant lawyer, I find Mr Deer's assault on the evidence gathering process in litigation ill- informed. I suspect Dr Wakefield was 'caught between a rock and a hard place'. If he kept quiet about the possible link until the end of any possible multi-party litigation years later then, if there was a link, hundreds or even thousands of children might be unnecessarily harmed and he would then be blamed by everyone, no doubt including the media, for keeping his theory of the possible association to himself.

If he openly set out in detail the identities of the patients and the circumstances of his instruction there was a serious risk he would, at a stroke, destroy the viability of any possible multi-party action, because the potential defendants would inevitably be alerted to the thrust of the investigation and significantly greater resources than those available to a 'Norfolk high street solicitor' would be marshalled by the medical establishment and the pharmaceutical multi-national concerned.

The casual way in which some medical academic papers are co-authored is an argument for another day.

It is human nature to seek to distance oneself from an embarrassing error and the co-authors of the paper no doubt wished that they had been more sceptical of the original paper's premise, but they only recanted under immense pressure from the medical establishment, government and media. How many professionals could seriously assert that they would stand up to such overwhelming public pressure?

To suggest that if a solicitor's firm sends a series of clients to an expert's hospital in a short timescale there is 'something fishy' is unworthy of a mature journalist. For reasons of economies of scale and limited funding it makes sense to try and get the expert to see such clients in a block. The exigencies of limited litigation public funding dictate that solicitors obviously try and carry out their investigations cost-effectively.

It really seems to me that (despite all the vicious attacks on Dr Wakefield's ethics) all that happened here was that 'a man with a hammer' assumed that every child with a bowel lesion, developmental disorder and a recent history of MMR vaccination was possibly 'a nail'.

He may have been naive, but the way in which he has been hounded by the media and pilloried by the GMC has simply added another layer of injustice to an already difficult area of law.

I am afraid the way in which Dr Wakefield and his colleagues have been treated might as well have been deliberately designed to discourage clinicians with medico-legal practices from advising potential claimants, for fear of professional ruin. Added to the Government's assault on Legal Aid by seeking to abolish public funding for clinical negligence investigations and claims and the Jackson proposals undermining the financial viability of conditional fee agreements, this sorry episode could be seen as part of a wider long term agenda to render certain professional and corporate vested interests inviolate.

The implication is that in the long term the medical establishment and the Government wish to make it impossible for any potential multi- party drug damage claim ( or indeed any claim against NHS or private hospitals or general practitioners ) to ever receive public funding or be able to be pursued with a conditional fee agreement.

Is that what everyone really wants? A situation where no pharmaceutical company or health provider can ever be challenged, when recent history shows that the executives of some multi-national companies have been engaging in far more reprehensible conduct than the accusations levelled at Dr Wakefield.

I have no connection with Dr Wakefield or the solicitors involved in the MMR investigation, but the media rush to judgment of solicitors' and claimant experts' ethics in these cases is redolent of the Salem witch trials and deeply concerning to me as a solicitor with 30 years of experience of trying to bring claims for claimants in an environment where the dice have always been heavily loaded against injured patients and their families.


Gerry Ferguson T 01225 425731 Ext 1021 Partner DD 01225 352860 Clinical Negligence M 07831 718728 Withy King, Solicitors 5/6 Northumberland Buildings Bath BA1 2JE

Competing interests: Solicitor acting for claimants in clinical negligence cases
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Published 8 January 2011