How wrong can an expert be?

Hot on the heels of the last blog, another disaster in court is reported for an expert who surely should have known better.

In Thimmaya v Lancashire NHS Foundation Trust and Jamil (Manchester County Court 30/1/20) the expert was required to pay the costs of most of the litigation in a clinical negligence claim in which he was instructed on behalf of the claimant, arising from his ‘improper, unreasonable or negligent conduct’.  Those costs amounted to £88,801.68 (plus the costs of the application to obtain that ruling).

What did the expert do wrong?  At trial, in cross-examination he was unable to articulate the test to be applied in determining breach of duty in a clinical negligence case.  He could not recall the Bolam/Bolitho test.  And yet that was the legal test he was being asked to address in giving his opinion on the matter which was being litigated.  That failure was previously hinted at by his reference in the joint statement to ‘best practice’ which is of course of no direct relevance when assessing whether the actions or inactions of a doctor are negligent.

Faced with that inability on the part of her expert at a crucial moment in the trial, the claimant had to abandon her claim as she could not, on this evidence, prove negligence.

The expert had himself only carried out the surgery in question on two occasions.  That was held not necessarily to be fatal to his acting as an expert as he had been involved in treating a lot of patients recovering from the procedure.  As the judge said ‘there are plenty of not very good experts about’ and they are not all at risk of paying costs.

His reports were found to be ‘not particularly well written, nor well argued’.  That is not in itself fatal, but of course raises questions as to the expert’s overall competence, and had prompted his solicitors to ask him to confirm his suitability to report.

Due to mental health problems the expert had taken sick leave from his clinical practice, but he continued his medico-legal practice for a period, which included his becoming involved in this litigation, and he did not inform the claimant or her advisers of his medical condition.  However sympathetic one might be on a personal level, professionally the situation was clear (as events proved) in that the expert should have taken leave from all practice.

Learning points:

  1. An expert witness must know and apply accurately the appropriate legal tests when providing an opinion and subsequently giving evidence in court. Nothing short of that will do.
  2. An expert witness is likely to be challenged over their expertise to provide an opinion if they have only very limited personal experience of the matter on which they provide an opinion.
  3. An expert report must be clearly written and provide properly reasoned opinions based on identified facts.
  4. An expert witness must inform the instructing party if any issues arise which might impact on their ability to give reliable evidence, including ill health and judicial criticism in court.

[Who or what is medico-legal minder?  Terms and conditions apply]