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

• 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

• 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.

• 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.

• 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.

• 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.

• 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.

• You should 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

• Make sure that the experts you instruct are provided with all the documents they need to prepare their evidence.

• Consider implementing a methodology to track the provision of documents to experts.

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