Summary
The Claimant sought damages for clinical negligence from the Defendant who, she asserted, failed to diagnose red flag symptoms of cauda equina syndrome at a face to face consultation. The Claimant’s neurorehabilitation expert prepared his reports, engaged in an expert discussion, and signed the Joint Statement, without having seen the Claimant’s witness statement or the reports of other relevant experts.
Learning points for experts
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Ask your instructing party if you don’t think you have been provided with all the documents you would expect to have seen before writing your report or meeting with the opposing expert. It is your responsibility, as much as the instructing party’s, to ensure that you have seen the documents you require to prepare your evidence
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Make sure you have an accurate history of the Claimant’s condition before you write your report. If there are gaps or inconsistencies, go back to your instructing party.
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Check for any inconsistencies between what the Claimant told you and what they stated in their witness statement. Either clarify any inconsistencies or deal with them explicitly in your report.
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You should not write and submit your report if you have not seen the relevant witness statements and expert reports, or attend an expert discussion if you have not seen the opposing expert’s report.
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If, during cross-examination, you mistakenly describe the contents of, for example, a medical note, you should admit that you remembered the information incorrectly and explain any impact the correct information has on your opinion. Never try to make the evidence fit your recollections.
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You should make your instructing party aware of any criticism you have received in a previous judgment, explaining how you have reflected upon the criticism and amended your practice accordingly.
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Be willing to defer to the opposing expert if they have greater specialisation in an area than you, unless there are problems with their evidence such as factual errors or misunderstandings.
Learning points for instructing parties
The Case
The Claimant sought damages for clinical negligence from the Defendant who, she asserted, failed to diagnose red flag symptoms of cauda equina syndrome at a face to face consultation. Four days after the consultation, the Claimant underwent emergency spinal surgery. Liability, aspects of causation and quantum were in dispute. While not agreeing about all aspects of the Claimant’s condition, the experts were agreed that the Claimant would have had a better outcome in a number of respects if she had been operated on four days earlier.
The Neurorehabilitation expert evidence
The Claimant relied on neurorehabilitation evidence from Dr B, a neurorehabilitation specialist, and the Defendant from Mr M, an expert neurologist.
The evidence of Dr B
During cross examination, Dr B stated that he did not have the Claimant’s witness statement when he prepared his reports, nor when he met with Mr M and when the Joint Statement was prepared. He was only provided with it a few days before the start of the trial. He also prepared his reports without having seen the reports of the expert neurosurgeons or urologist, whose evidence would be potentially relevant to the issues that he addressed. He had not asked to see these reports. The judge noted that “[i]t was not [Dr B’s] fault if he was not provided with the witness statements and other reports, but that he did not ask to see them before finalising his report is, in my judgment, a serious omission.”
The judge noted that not having seen the Claimant’s witness statement directly affected Dr B’s reports, particularly his second report. There were serious discrepancies between the actual position and what Dr B recorded it to be. He reported that the Claimant had told him she used a Zimmer frame to get up from the sofa 3-4 days a week and may need a Zimmer frame for indoor mobility, and that she uses a crutch or a Zimmer frame outdoors. This was inconsistent with the Claimant’s own evidence, in both her witness statement and orally, which was that she needed a Zimmer frame to get up from the sofa once in every 3-4 week and, while she generally walked with the crutch outside, and does not need a Zimmer frame to walk either inside or out.
As he had not read her witness statement, Dr B was also unaware that the Claimant had been on a number of overseas trips, including long-haul flights.
During cross-examination, it also became clear that Dr B had not read the hospital discharge reports concerning the Claimant which recorded the extent of her abilities and impairments at that point. As a result, Dr B was unaware that the Claimant had normal motor power at that time, even though he accepted that her current neurological condition should be the starting point when reporting on neurological rehabilitation.
The judge therefore concluded that Dr B had either not taken, or did not record, an accurate history of the Claimant’s condition and based his conclusions on his inaccurate history. His conclusions were therefore “likely to be unreliable”.
The judge also had concerns about the reliability of Dr B’s oral evidence. Dr B did revise his opinion in light of accurate information about the Claimant’s use of a Zimmer frame. However, he referred during cross-examination to a note, in the medical notes he had reviewed recently, which described the Claimant’s falling downstairs and attending hospital, where a head scan was carried out. After he was given a break to find the note, Dr B referred to a note of another fall which was clearly different to the one he had described. After being given a further opportunity to find the note overnight, he identified a note referring to an MRI scan.
However, there was no such record of the Claimant having a fall which met Dr B’s description. The judge noted that “this course of evidence demonstrated that Dr B was not prepared to acknowledge that he had made a mistake and that he repeatedly tried to find evidence to support an error which he must have at least suspected that he had made.”
The judge noted that “Dr B did not deliberately set out to mislead the Court; but made a mistake and rather than admit it, in order to try to save face, sought to justify it. He did in his oral evidence make appropriate concessions but his unwillingness to admit a clear error in answer to a question in cross examination and attempts to justify it remain. They cast serious doubt on the reliability of his oral evidence generally.”
Counsel for the Defendant also drew the judge’s attention to criticism of Dr B, and his report in particular, in MJF v University Hospitals Birmingham NHS Foundation Trust [2024] EWHC 3156 (KB). The judge in that case criticised Dr B for similar reasons to this case, and the party calling him did not rely on his evidence in closing submissions. However, the judge was not persuaded by Counsel’s argument that this indicated a troubling pattern of partisan approach by Dr B, but rather than the inadequacies in his report stemmed from lack of care and attention to detail.
In conclusion, the judge determined that “in the light of the troubling features of [Dr B’s] report and oral evidence, I am unable to rely with any confidence on either [Dr B’s] reports or his oral evidence unless they are supported by other compelling evidence.”
The evidence of Mr M
Counsel for the Claimant criticised Mr M’s reluctance to accept the role of neurorehabilitation specialists such as Dr B in long term care of CES patients. He also argued that, because about 80% of Mr M’s instructions came from defendants, his overall approach was to take the route most favourable to the defendant whenever presented with an alternative course.
The judge agreed that criticism of Mr M’s position on the role of neurorehabilitation specialists had some justification. He agreed in theory that Dr B would be the more suitable expert to opine on the Claimant’s neurological rehabilitation, including prognosis and further needs, making it unfortunate that the judge had had to conclude that he could not rely on Dr B’s evidence for other reasons.
While accepting that as a general proposition the fact that the expert reports overwhelmingly for one side is something which may be taken into account when consider the expert’s approach to the evidence, the judge did not find Mr M’s evidence in this case to be partial in favour of the defendant.
Given the problems with Dr B’s evidence, the judge preferred the evidence of Mr M.