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]

The value of contemporaneous documentation

Records and notes made at the time of clinical practice – notes of an examination, operation records etc or letters or emails sent immediately afterwards – will carry substantial weight in court or other tribunals or hearings if the events to which they relate come under scrutiny at a later date, for example in a claim for damages or for professional misconduct.

In Clinical Practice and the Law – a legal primer for clinicians Section 2.4 I wrote:

In understanding the lawyer’s mind it is important to keep in mind the distinction between an oral (spoken) account of something which has happened and a contemporaneous (or near contemporaneous) written record.  With the best of intention, memory is fickle, often selective, weighted by cognitive bias and often lacking in detail, but it is also subject to innocent re-interpretation in the light of subsequent knowledge or facts.  And of course it may be adapted, intentionally or unintentionally, in order to excuse past actions or inaction.  In contrast, a written record, although it may be falsified, if genuinely made contemporaneously to the events to which it relates, reduces the chances of all of these failings.

This means that a careful, full and explanatory record made at the time of the events to which it relates (or made very shortly afterwards) is likely to carry greater weight when seeking to ascertain what happened and why, than an oral account given subsequently when the events are being put under a critical microscope in court or some other hearing or process.

In a recent case Simetra Global Assets Ltd & Richcroft Investments Ltd v Ikon Finance Ltd [2019] EWCA Civ 1413, and in a non-clinical setting, the Court of Appeal made the same point, in criticising the trial judge for failing to explain why he did not accept the evidence provided by contemporaneous records:

A party’s internal documents, including email and instant messaging, tended to show a witness’s true thoughts and were generally regarded as more reliable than their oral evidence or demeanour in court.  Therefore, where contemporary documents which appeared on their face to provide cogent evidence contrary to the conclusion the judge proposed to reach, the judge should explain why they were not to be taken at face value or were outweighed by other compelling considerations.

It is difficult to over-emphasise the importance of ensuring that the clinician makes clear and comprehensible notes and records at the time of, or very shortly after, any involvement with a patient.  Not only will these be useful for the clinician if providing further care to the patient at a later date, or other clinicians taking over from the original record maker, but they should provide a complete explanation as to what took place and why, and, if that was competent and appropriate, a complete answer to later criticism, however that might arise.

More guidance as to what the records and notes should contain, and how to make them concisely and within the limited time available, is covered in Section 8 of the book referred to above.  An explanation of the many processes in which the clinician may be involved should there be criticism of past conduct is covered in Section 15.

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