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.
- 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.
- 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.
- An expert report must be clearly written and provide properly reasoned opinions based on identified facts.
- 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 Criminal Practice Directions (CPD) have just been amended in relation to expert evidence provided for criminal proceedings. The requirements of the new Directions are expressly applicable to criminal proceedings but their content is just as applicable to any expert seeking to give unbiased and reliable evidence to any court or tribunal. To look at that the other way round, the matters to which this Direction relate are all matters which could seriously embarrass an expert and the party by whom the expert is instructed in any proceedings if admitted to for the first time under cross-examination, and the failure to disclose them could lead to serious consequences for the expert, including financial penalty and reference to the appropriate professional body.
CPD 19A.7 gives examples of matters which should be disclosed as potentially undermining the reliability of an expert’s opinion or detracting from the credibility or impartiality of an expert, both in relation to the expert and in relation to any corporation or body for which the expert works.
- any fee arrangement under which the amount or payment of the expert’s fees is in any way dependent on the outcome of the case;
- any conflict of interest of any kind, other than a potential conflict disclosed in the expert’s report;
- adverse judicial comment;
- any case in which an appeal has been allowed by reason of a deficiency in the expert’s evidence;
- any adverse finding, disciplinary proceedings or other criticism by a professional, regulatory or registration body or authority;
- any such adverse finding or disciplinary proceedings against, or other such criticism of, others associated with the corporation or other body with which the expert works which calls into question the quality of that corporation’s or body’s work generally;
- conviction of a criminal offence in circumstances that suggest: (i) a lack of respect for, or understanding of, the interests of the criminal justice system (for example, perjury; acts perverting or tending to pervert the course of public justice), (ii) dishonesty (for example, theft or fraud), or (iii) a lack of personal integrity (for example, corruption or a sexual offence);
- lack of an accreditation or other commitment to prescribed standards where that might be expected;
- a history of failure or poor performance in quality or proficiency assessments;
- a history of lax or inadequate scientific methods;
- a history of failure to observe recognised standards in the expert’s area of expertise;
- a history of failure to adhere to the standards expected of an expert witness in the criminal justice system.
CPD 19A.8 states that where there has been adverse comment in the course of a judgment, it would be reasonable to expect those criticised to supply information about the conduct and conclusions of any independent investigation into the incident, and to explain what steps, if any, have been taken to address the criticism.
The potential sanction in criminal proceedings under CPD 19A.9 is ‘a searching examination of the circumstances by the court’ of a failure to disclose, and potentially the exclusion of the expert evidence in the proceedings. But in any proceedings these would all be matters likely to impact on the reliability of the expert’s evidence and should be raised by the expert with the instructing solicitor if not referred to in the report itself.
[Who or what is medico-legal minder? Terms and conditions apply]