The naughty step – another expert criticised for not complying with his duty.

Background:  The previous blog referenced Rich v Hull and East Yorkshire Hospitals NHS Trust [2015] EWHC 3395.  The judge was disappointed with aspects of one of the experts’ involvement in the case.  The expert’s evidence when seeking to explain in cross-examination an inadequate answer to a question in the agenda for the joint meeting of experts was described by the judge as “disingenuous”, and his claim to have omitted words from another answer to a question at the joint meeting as “not [having] been satisfactorily explained”.

The judge’s finding:  The judge referred to the expert’s obligations to the court as explained in The Ikarian Reefer[1] and concluded that the expert had not given “objective and independent evidence to the Court on a number of important matters”.

The judge’s sentence:  The expert got off light.  No referral to the GMC was made.  Apart from the professional embarrassment consequent on the experience in court and the publication of the judgment, the judge directed that he should be sent copies of the judgment and the relevant extract from the White Book [a practitioner’s book containing the Civil Procedure Rules (“CPR”) and notes of explanation] which summarised the guidance in The Ikarian Reefer.  With due respect to the judge, I would suggest that even more useful would be to send the expert a copy of Part 35 of the CPR, the Practice Direction to Part 35 and the Guidance for the Instruction of Experts in Civil Claims 2014, all of which the expert would expressly have claimed to have followed in the required statement in his report that he, like all experts –

(a) understands their duty to the court, and has complied with that duty; and

(b) is aware of the requirements of Part 35, this practice direction and the Guidance for the Instruction of Experts in Civil Claims 2014.   (PD35 3.2(9))

He should also purchase a suitable guide or manual for the use of experts giving evidence in civil claims which sets out clearly their duties and obligations.

The good news: For the party that instructed the expert the good news was that the judge concluded that the breach of duty of the expert was not so serious as to oblige him to disregard his evidence altogether but he did take the breaches into account in evaluating the reliability of his evidence overall.

The moral:  These days a professional offering his or her services as a court expert has no credible excuse for not understanding fully the duties and responsibilities of an expert and complying with them.

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[1] [1993] 2 Lloyd’s Rep 68

The balance of probabilities, medical risk and Bayesian prior probability

For a lawyer involved in civil claims, the balance of probabilities is the “bread and butter” of litigation and is the standard of proof.  For a scientist, and therefore for someone medically trained, probability is something entirely different and something much more nuanced.  A recent example of the different use of words of probability in law and medicine was demonstrated in Rich v Hull and East Yorkshire Hospitals NHS Trust [2015] EWHC 3395.

The Scientific Advisory Committee of the Royal Society of Gynaecologists published in 1992 “Antenatal Corticosteroid Administration Reduces the Incidence of Neonatal RDS”.  This encouraged the use of Betamethasone or Dexamethasone therapy “when delivery is likely before 24 weeks”.  Evidence given to the judge about this guidance indicated that “likely” was a synonym for “probable”, and that this was intended to convey the idea of “significant degree of likelihood”.  Further it addressed risk rather than issues of proof.  One eminent witness indicated his view that a risk of between 5 – 20% would be sufficient to trigger the therapy, possibly adjusted upwards to reflect divergence of view amongst colleagues.  The 5-20%, he explained, reflected a Bayesian prior probability, the generic probability, before considering the circumstances of the individual case.

The judge concluded from the evidence that “likely” in the SAC guidance did not mean “probably” in legal terms but something more akin to “a real risk”.  However he also recognised that “with this type and level of analysis … it is artificial to reduce clinical judgments to the sort of exact formulation to which lawyers aspire”.  In the end the duty of care the judge identified was that the doctor should have considered prescribing maternal corticosteroids if he had, or ought to have had, a clinical suspicion that the mother might or would deliver within the relevant period.

The importance of medical witnesses in legal proceedings understanding the difference of approach to probability and likelihood, and to the terms used, of the two disciplines (law and medicine) is well illustrated by this case.  The danger of misunderstandings arising on points of considerable importance in litigation is apparent.  For those who have read ‘Writing Medico-Legal Reports in Civil Claims – an essential guide’, this is of course another example of a case of “foot-wearing”.

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