Category: Giving evidence

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

geyre

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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Are you up to date with ‘concurrent evidence lite’ or ‘luke warm tubbing’?

geyre

Everyone involved with the giving of expert evidence in civil claims is of course familiar with paragraph 11 of the Practice Direction to Part 35 of the Civil Procedure Rules.  That will be so even if they have not seen or taken part in the giving of concurrent evidence, or ‘hot tubbing’ as it is commonly called.  In fact, in injury litigation it is rarely experienced in this country.  The idea of concurrent evidence is to put opposing experts in the witness box together; then the judge, as inquisitor, asks questions based on an agenda setting out points of disagreement between the experts, invites the experts to ask questions of each other, and then hands over to the lawyers for further questioning, before summarising the experts’ evidence (and obtaining the experts’ approval of that summary).

If you have read (and ingested) paragraph 11, then it is time to re-read it.  It has changed!

In July 2016 the Civil Justice Council produced a report ‘Concurrent expert evidence and ‘hot tubbing’ in English litigation since the ‘Jackson Reforms’ – a legal and empirical study’.  This recognised that ‘hot-tubbing’ could take a number of forms, as a number of experts have by now found out, with some judges applying their wide case management powers to hear expert evidence in a way that suited them best but did not necessarily involve them in having to ask the questions.

This has been codified in the new (replacement) paragraph 11.2 of PD35 and other consequential amendments in para 11, and while it still appears under the heading ‘Concurrent expert evidence’ it is expressly not concurrent expert evidence (hence my describing it as ‘concurrent evidence lite’ or ‘luke warm tubbing’:

11.2 To the extent that the expert evidence is not to be given concurrently, the court may direct the evidence to be given in any appropriate manner. This may include a direction for the experts from like disciplines to give their evidence and be cross-examined on an issue-by-issue basis, so that each party calls its expert or experts to give evidence in relation to a particular issue, followed by the other parties calling their expert or experts to give evidence in relation to that issue (and so on for each of the expert issues which are to be addressed in this manner). [My emphasis]

For example in the case of care experts there may be a number of areas of disagreement in their assessments of care needs.  Both experts may be sworn in, and then each be asked to give evidence and to be cross-examined by the parties’ advocates in turn on each of the issues in dispute, one by one.  In that way, all of the expert evidence on a particular issue will be given in one go, before moving on to the next issue.  The judge however maintains her normal role, clarifying issues from time to time, but leaving the questioning principally to the advocates.

It is important to emphasise to the expert that there may be flexibility required as to how the expert issues in any particular case are dealt with, and that by this amendment to PD35 judges are encouraged to consider the route most likely to be beneficial to them and most expeditious on the facts of the case.

PD35 is also amended in relation to the preparation of an agenda for the giving of such evidence, which it recognises may even be prepared by the judge:

 11.3 The court may set an agenda for the taking of expert evidence concurrently or on an issue-by-issue basis, or may direct that the parties agree such an agenda subject to the approval of the court. In either case, the agenda should be based upon the areas of disagreement identified in the experts’ joint statements made pursuant to rule 35.12.

But in either event whoever prepares the agenda we come back to the importance of the joint discussion and the experts’ joint statement recording the areas of agreement, disagreement and reasons for disagreement.  To facilitate the giving of evidence, particularly if it is concurrent or issue-by-issue, the joint statement needs to provide a clear list, defining the areas of disagreement together with a summary of the brief reasons for the disagreement.

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