It is self-evident that within an adversarial system such as exists in the courts of this country, each side will seek to show why the other side’s expert’s opinion is not to be relied upon.  Sometimes that is easier said than done; sometimes it is presented on a plate by the expert him or herself.  And so to the last case to consider before the end of the year – Harris v Johnston [2016] EWHC 3193 – which concerned a revision foraminotomy operation at C6/7.

An expert must know and understand the legal tests to be applied, must reason logically, must address the issues raised in the case by the other side, and must comply with the duty owed to the court under CPR Part 35.  The judge concluded for a number of cogent reasons that the claimant’s neurosurgical expert’s evidence was defective in all of these areas and was to be disregarded so that the claim was in effect decided on the defendant’s expert evidence.

This being a clinical negligence case it would be expected to judge the standard of the operating surgeon by the standard reasonably to be expected of a reasonably competent neurosurgeon.  However, as the judge stated:

“he appeared to equate professional negligence with the degree of competence that had to be demonstrated to pass a surgical examination. Thus when he was asked in cross­-examination whether, at the time when he wrote his report, he considered the CT scans to be indicative of negligence, he replied “it was substandard in that the pathology had not been addressed”. When counsel asked whether by substandard he meant negligent, his answer was: “I think that operation was not carried out to a standard expected of, for example, an exiting exam individual.” That led me to question in my own mind whether [the expert] had ever addressed his mind properly to the principles set out in Bolam v Friern Hospital Management Committee [1957] 1WLR 582. He should have asked himself whether what Mr Johnston did fell below the standards to be expected of the reasonably competent experienced neurosurgeon performing that operation on this patient, not whether an examiner would have failed a student who had done what [the criticised surgeon] did.”

The expert also sought to conclude that a combination of factors, none of which was in itself negligent or evidence of negligence, when taken together demonstrated that the operation had been incompetently performed.  The length of operation was reasonable, negligence could not be inferred from a comparison of ‘before’ and ‘after’ scans, and symptoms could return, as they did here, even where surgery was non-negligent.  His assertion that however a combination of all three demonstrated incompetence was, as the judge noted, logically deficient.

The position, and credibility, of the expert witness was not helped when he sought to resile from the concession he had made in the joint report that the time taken at surgery was reasonable.

The Defence case as to the mechanism of injury was never addressed by the expert in his report or adequately in the joint statement.  The judge noted that:-

“An expert witness is, of course, entitled to take issue with the factual premise on which a defence rests, if he regards it as implausible or impossible, and to point out to the court any evidence or scientific reasons why it should not make those fact-findings. However, an independent expert fulfilling his duties to the court should also give an opinion based upon the hypothesis that the court does make those fact-findings.”

There was an apparent confusion on the documents as to whether the surgeon had used a Cobb retractor or a Cobb dissector in the operation, the former being inappropriate.  Whilst the judge could see the possibility of an excuse for this confusion on the part of the expert prior to the joint discussion, she was highly critical that the expert:-

“did nothing [at the joint discussion] to check if his assumption about the instrument that was used was correct. He accepted in cross-examination that he was under a duty to have done so, and that he was in breach of that duty.”

The judge was concerned as to the expert’s general approach to the case:

“[His] intransigent mindset coloured his evidence throughout, and it did so in a way which was not helpful to the Court. An expert is of course entitled to hold a firm opinion, but in fairness he is obliged to give proper consideration to any material that might test it or potentially cause him to take a modified or different view. He cannot possibly assist the Court if he does not take appropriate steps to ensure that he is giving his opinion based on the facts that are alleged, rather than on assumptions about the facts which may turn out to be completely ill-founded.”

Another cardinal sin for the expert witness it to introduce, without prior warning, new hypotheses in the course of giving evidence in court.  The expert unfortunately was guilty of this.

So the judge concluded that “He declared that he had done his best in preparing the report to be accurate and complete, but he plainly had done nothing of the kind. I do not consider that he gave proper consideration to the pleadings or the witness statements or to the evidence as a whole.  In this case … there was poor attention to detail.”

Conclusion and New Year’s Resolution

A high standard is expected of an expert witness in court proceedings.  That requires

• an understanding of the nature and extent of an expert’s duties which goes beyond a simple reading of the Civil Procedure Rules,
• a high level of accuracy and attention to detail combined with good written and spoken communication skills, and
• a full understanding of the legal tests which the expert must apply in providing evidence.

If that high standard is not reached, the expert witness can expect generous and public criticism.  For those who wish to continue to work as expert witnesses, make 2017 a year for specialist training and study!

Happy New Year!

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