http://www.bmj.com/content/342/bmj.c5347.full/reply#bmj_el_247450
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.
Regards
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