Probability and proof – the legal versus the medical – legal wins!

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A recent illustration of the difference between proof in the legal and medical contexts was given in Bell v Ashford & St Peter’s Hospital NHS Trust (QBD 27 July 2016).

A patient had oesophageal cancer.  During an endoscopy the patient’s tumour was negligently perforated, causing serious infection and delaying chemotherapy to treat the tumour.  The patient subsequently was diagnosed with metastatic disease and died within 4 years.  Prior to the perforation, scans and tests had shown no sign of metastatic disease, no evidence of local or distant disease spread and no sign of lymphatic involvement.

The substantial claim for damages by the patient’s estate, based on the loss of a normal life expectancy following what it was alleged should have been ‘successful’ treatment for the cancer, depended on proof that the metastatic disease was caused by the perforation – that ‘but for’ the perforation, the metastatic disease would not have occurred and the patient would not have died.  In other words, the issue was one of causation.

The Trust argued that the patient probably had metastatic disease before the perforation so that the perforation made no difference with regard to that spread (although it was conceded that some damage – but no significant reduction of life expectancy – was suffered as a result of the delay in treatment caused by the infection).  For the patient’s estate, while the expert was unable to point to the definite mechanism by which the outpouring of tumour cells as a result of the perforation caused the recurrence and increased the risk of more distant spread, the expert considered it probable that it did do so.

The judge concluded that, while acknowledging that there was no scientific certainty on the issue, on the balance of probabilities the perforation did cause the metastatic disease and therefore did cause the patient’s premature death.  There was no evidence of metastatic disease prior to the perforation despite all appropriate investigations, and the perforation was therefore the probable cause.  The claimant had proved its case.

(To read more about the legal concept of causation, its application to claims for damages in injury claims and how the expert should report on it, the reader is referred to Chapter 6 of ‘Writing Medico-Legal Reports in Civil Claims – an essential guide’)

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

Go to jail? An expert’s contemptuous behaviour?

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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.

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