Category: Expert witness

Go to jail? An expert’s contemptuous behaviour?

geyre

A judge’s permission is required to bring contempt proceedings against an expert for allegedly providing false evidence, and being in breach of the statement of truth signed at the conclusion of the report.  Such proceedings are rare.  If contempt is proved, then punishments include imprisonment and fines, and the GMC is likely to be concerned as to the fitness to practise of the expert.

In Liverpool Victoria Insurance Company Limited v Khan and others on 21st June 2016 the judge gave permission for an insurance company to bring contempt proceedings against a medical expert, his instructing solicitor and an employee of the claims management company which was assisting the driver of a car to bring proceedings for damages for soft tissue injury caused in a road accident.

The first medical report, following an examination, referred to pain resolving within one week.  A second report, bearing the same date, referred for the first time to muscle spasms and to pain continuing (some 2 months after the accident).  Emails showed that the solicitor had asked the doctor to amend the original report because, it was said, the driver was still experiencing pain.  In a statement the driver stated that his pain resolved in 3 days and said that he had not asked for the statement to be amended.

The doctor claimed in a statement to have amended the report on the basis of a letter received from the solicitor dated 5 days after the report’s date but the metadata for the electronic copy of the letter showed that it was created some 18 months later.

The judge found that there were inconsistencies in the doctor’s evidence that could not be explained as mere errors – details of the examination had changed and new symptoms were referred to, and it appeared that the doctor was happy to amend the report on request, accepting what he was told by the solicitor at face value, despite it contradicting the findings of his examination.

Of course there are circumstances where it may be legitimate to amend a medical report, but amendments must be for good reason.  As paragraph 65 of the Guidance for the Instruction of Experts states experts should not be asked to amend or alter any parts of reports in a manner which distorts their true opinion, and should not include any suggestions from instructing solicitors that do not accord with their views.

It goes almost without saying that an expert must resist pressures to amend a report to include findings from an examination and reports from a claimant which are inconsistent with the doctor’s findings and his record of the examination, and must also remember the expert’s duty to the court and the contents of the statement of truth.

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Proving causation of injury by ‘material contribution’ – useful clarification?

geyre

The recent decision in Williams v Bermuda Hospitals Board [2016] UKPC 4 is an important statement of the principles of the doctrine of ‘material contribution’ in clinical negligence cases.  Although it is a Privy Council decision on appeal from Bermuda, the same judges make up the Supreme Court in our jurisdiction, and the decision is effectively binding on the courts of the UK.

Mr Williams had gone to an A&E Department complaining of abdominal pain. He had appendicitis. A CT scan was planned but was not carried out expeditiously. There were significant delays in diagnosing and treating Mr Williams. During the delay, his appendix ruptured and sepsis developed. The sepsis caused myocardial ischaemia.

The judges held that the MI was caused by sepsis of which there was “guilty” sepsis attributable to the negligent delay and “innocent” sepsis which had already begun irrespective of the delay in diagnosis and treatment.

Readers may recall the case of Hotson[1], the boy who fell from a tree and fractured his femoral epiphysis.  There was negligent delay in diagnosis and he developed avascular necrosis.  His claim fell because there was a 75% chance of that same outcome in the absence of the negligence and delayed diagnosis, and therefore it could not be proved on the balance of probabilities that the avascular necrosis was caused by the clinical negligence.  In Williams however it could not be said that the MI would probably have occurred in any event. Mr Williams succeeded on causation by proving that, on the balance of probabilities, the negligence had materially contributed to the developing sepsis and had therefore materially contributed to the MI.

Williams demonstrates that a defendant’s material contribution need not be concurrent with any non-negligent cause. In Mr Williams’ case, the sepsis attributable to the defendant’s negligence developed after sepsis had already begun to develop. The causes can be either concurrent or consecutive or both. However while the law allows for multiple, cumulative causes it does not allow causation to be established where there are multiple, possible causes, as in the case of Wilsher[2] (multiple possible causes of birth defect, none of which could be shown to be more than 50% probable).

What appears to be a case requiring material contribution in order to be able to establish causation may not be.  In Williams it was said that the earlier case of Bailey v MOD[3], previously considered an example of material contribution, was in fact an example of the ‘egg-shell skull’ principle.  The non-negligent condition of pancreatitis in that case was a pre-existing vulnerability on which the subsequent negligent lack of care caused, on the balance of probability, the cardiac arrest.

The medical expert is advised to seek guidance from the instructing solicitor in any case in which traditional causation is unclear and material contribution might be relevant.

[1] Hotson v East Berkshire Area Health Authority [1987] AC 750,

[2] Wilsher v Essex Area Health Authority [1988] AC 1074

[3] Bailey v Ministry of Defence [2009] 1 WLR 1062

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