Litigation privilege

A consultant radiologist member called the MDU advice line to discuss a recent opinion he had been asked to provide for a patient's solicitor in the context of a clinical negligence claim.

The scene

The patient alleged that a delayed diagnosis of cancer had reduced her chances of being cured. 

The member had been asked to review the patient's pre- and post-treatment CT scans and comment on her likely prognosis. Although the reporting radiologist had not identified any recurrence, the member was concerned about the scan appearances and felt there were changes that could represent disease progression. The member asked if he could discuss this with the reporting radiologist.

MDU advice

The MDU adviser explained that because he had only seen these scans in the context of this legal case, the member would need to be mindful of litigation privilege. This means he could not discuss the material with anyone other than those instructing him - even the doctors looking after the patient.

The adviser suggested that the member spoke to the solicitor who had instructed him. That solicitor was acting for the patient, who could therefore be made aware of the member's concerns. It seemed likely the patient would then waive legal privilege and allow the member to speak to her treating clinicians and/or the reporting radiologist about the scans. The member agreed with this approach.

Litigation privilege

Doctors should be familiar with the principles of medical confidentiality but the concept of legal or litigation privilege sometimes causes concern. The need for litigation privilege was explained in a case known as Three Rivers:

"Litigation privilege…is based on the idea that legal proceedings take the form of a contest in which each of the opposing parties assembles his own body of evidence and uses it to try and defeat the other, with the judge or jury determining the winner. In such a system each party should be free to prepare his case as fully as possible without the risk that his opponent will be able to recover the material generated by his preparations."

Litigation privilege applies to information shared with experts when they are instructed in a case, such as clinical records, and to the opinions they provide. This case demonstrates how an expert can find themselves in an uncomfortable position - for example, if they have information they feel should be brought promptly to the attention of the patient or their doctors.

A discussion between the expert and the solicitor who instructed them may provide a way forward. Parties involved in litigation will sometimes agree to waive the legal privilege to allow for disclosure of information.  

A doctor may be justified in breaking litigation privilege - for example, in the public interest where others are at risk - but such cases are unusual and we would encourage any expert to seek our advice before doing so.

 

This page was correct at publication on 16/10/2020. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.

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