Important lessons for the expert witness from a recent case concerning bowel surgery

The recent case of Saunders v Central Manchester University Hospitals NHS Foundation was a claim for alleged clinical negligence resulting in ischaemic necrosis of the large bowel during surgery for reversal of an ileostomy. The issue was whether the damage to the blood supply to the bowel was the result of surgery or a naturally occurring blood clot.  Neither a spontaneous thrombotic event nor damage by excessive traction or torsion to the superior mesenteric artery during surgery had been described in the medical literature.

So far as the evidence of the two expert witnesses was concerned, the judge described one as ‘robust but at times [he] appeared unwilling to reflect on alternative viewpoints’, and the other as ‘more reflective but [he] was sometimes a little vague’.  The judge went on: ‘Neither approach was particularly unusual.  Each had its advantages and disadvantages.’ (para 33)

The joint statement was significantly criticised (paras 34 and 35).  It is worth recalling the purpose of the joint statement –

‘…following a discussion between the experts they must prepare a statement for the court setting out those issues on which –

(a) they agree; and

(b) they disagree, with a summary of their reasons for disagreeing.’ (CPR 35.12(3))

In this case the joint statement ran to 60 pages and failed ‘to agree and narrow issues’ (PD35 9.2) but, the judge found, ‘served only to confuse rather than assist’.  The problem was compounded by their being 2 agendas, as the parties’ lawyers had been unable to agree one consolidated agenda.  The judge pointed out:

The joint statement is an important document.  It ought to be possible to read it and to understand the key issues and each expert’s position on those issues … Frankly, the approach to the joint statement in this case achieved nothing of value.

The case failed because the claimant’s expert had not, to the judge’s satisfaction, offered a clear explanation of the likely mechanism of surgical injury, although he offered a number of possibilities.  His evidence was ‘somewhat vague and shifting.  He admitted he was starting from the position that something must have happened.  He offered various possible explanations, but it was clear he found the mechanism difficult to explain.  He settled on the likely cause being excessive traction … he still found it very difficult to say what [the surgeon] was likely to have done wrong’ (para 81).  There were factors pointing ‘both ways’ so that the judge concluded that she ‘was not able to conclusively exclude the possibility of either of these rare events by reference to the expert evidence alone.’  However the surgeon’s evidence was accepted that nothing unusual happened in the operation and that this was an entirely straightforward procedure.  Therefore the judge was not satisfied on the balance of probabilities that the injury resulted from surgical damage, and the claim failed.

A further problem for the claimant was that his expert suggested that the damage may have occurred because the claimant’s anatomy was such that it was particularly easy for damage to be done. That being so then the question would arise as to how in those circumstances causing such damage was evidence that the standard of care of the surgeon fell below that to be expected of a reasonably competent surgeon (‘Bolam’).

This case is an important reminder that:

  1. The way in which an expert gives evidence in court is important to, and will be assessed by, the judge.
  2. The joint statement should be a concise and useful document written to assist the judge in narrowing the issues and summarising the reasons for disagreement. To provide that is part of the expert’s duty to the court – ‘It is the duty of experts to help the court on matters within their expertise’ (CPR 35.3(1)) – as well as a requirement of the Rule and Practice Direction in relation to joint statements.
  3. Experts must be able to provide a clear, logical and convincing explanation of how their conclusion or opinion is reached, and therefore why it is the correct opinion. This is particularly so for the claimant’s expert because of the burden of proving the claim.
  4. In providing a conclusion or opinion, the expert must keep well in mind the appropriate legal test, in this case the Bolam test.

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