What really happens when your client sues you for your expert witness report?

Doctors who provide expert witness evidence understand that they can be sued by the client[1] . They understand that their duty in preparing and presenting their evidence is to the court rather than the client or the person paying them[2] . In preparing independent and objective evidence for the court, some experts will have experienced being challenged by the client, who does not like or agree with what has been said. Fortunately, it is extremely rare for clients to sue their expert witness, which makes cases where that happens very interesting and instructive.

In Radia v Marks[3] the High Court had to deal with such a claim and what happened provides valuable lessons for all expert witnesses. In this case the defendant, Professor Marks, was a single joint expert providing medical expert evidence in the claimant’s tribunal case against his former employers. The claimant lost that case. He blamed the expert for that and sued him in contract and tort saying that:-

1. The expert misreported the claimant’s account to him i.e. he made factual errors in his report.
2. He failed to undertake a competent review of the medical records, which would have revealed his error.
3. That these errors resulted in the claimant’s evidence being found to be untruthful, which lead to him losing his case and a substantial costs order being made against him.

It is noteworthy that the defendant’s single joint report was not challenged by either side before the hearing of the case by the tribunal. The issues were only raised at the hearing and related to a key point about the claimant’s weight.

The basis of the claimant’s original case was that he had been unfairly treated by his employers. He had been a successful research analyst in the City until developing blood cancer. Following treatment including chemotherapy, he was able to return to work but was left with residual fatigue. He attributed his subsequent problems at work and ultimate dismissal to this disability and said that his employer’s discrimination against him related to that.

He lost that case and a key point in the decision was a finding that he was dishonest about his weight following treatment. It was recorded by Professor Marks that Mr Radia gave his post treatment weight as less than 50kg, having been 95kg before treatment. On that basis Professor Marks reported that as the worst weight loss he had ever seen in a patient with that condition, and that it provided a major objective marker of how arduous his chemotherapy had been.

However, contemporaneous records showed the claimant’s post treatment weight as 81.5kg rather than 50kg. The defendant had made a note of the claimant’s claimed weight in his handwritten note of their consultation and the claimant had repeated a claimed weight of 50/60kg in his evidence at the original tribunal hearing. It is not surprising that under cross examination at that hearing, Professor Marks had to agree that if a person is inaccurate about one part of their history, they are more likely to be inaccurate in other parts.

Having lost his claim and had a substantial costs order awarded against him, Mr Radia turned on Professor Marks, alleging that he had failed to exercise all reasonable care and skill to be expected of an experienced, skilled, and competent expert witness. Specifically he said that the defendant had :-

1. made a grave error in recording the 50kg weight as being at the end of treatment, rather than midway through the four cycles of chemotherapy;
2. failed to read and cross check the medical records to confirm this;
3. given oral evidence which was at odds with the contents of his report;
4. left the tribunal with the impression that the claimant had sought to deliberately mislead.

Mrs Justice Lambert DBE summarised the issues for her determination as:-

1. Was the alleged loss within the scope of the duty owed by the defendant to the claimant? Or put another way, what harm (or risk) was the defendant under a duty to protect the claimant from?
2. Did the defendant act in breach of that duty, bearing in mind that the defendant accepted that he made a mistake in not picking up the references to the claimant’s weight on discharge when reviewing the hospital records? i.e. did that mistake amount to a breach of duty?
3. Did that breach cause the loss claimed, both factually and legally?

It is significant to note that the medical records were sent to the expert in ten emailed tranches three days before the scheduled consultation with the claimant. With a further set of records sent on the day prior to the consultation. There was clearly a large volume of records, and they were said to be sent in a ‘higgledy-piggledy fashion’ and were difficult to read with some pages having been scanned in sideways. The expert had not had a chance to read all the records before the consultation.

Having heard the evidence and all those issues argued over the course of six days of trial, Lambert J decided on the first point, that it was no part of the defendant’s duty to the claimant to protect the claimant from the risk of a finding of dishonesty. She went further to say that a medico-legal expert (in these circumstances) could not give evidence about credibility, which was a matter for the tribunal. Lambert J noted that frequently a medico-legal expert will highlight an oddity or inconsistency or discrepancy in lay evidence, which may then inform the tribunal’s judgement on matters of credibility or reliability of a witness. She found that to extend the scope of the expert’s duty to the protection of a party from the risk of an adverse credibility finding would create a real conflict between the expert’s overriding duty to the court and their duty to the party.

In respect of the second point, breach of duty, Lambert J accepted the defendant’s evidence on what he was told by the claimant about his weight at their consultation meeting and relied on the contemporaneous note that he had made. The failure to challenge what was recorded in the report before the original hearing and the claimant’s evidence on the point during the hearing were significant supportive factors. Lambert J went on to say that it was not a breach of duty not to pick up the weight reference in the medical notes. The bundle of medical records was large (several hundred pages), sent late in the day, not organised let alone paginated, making them more time consuming to review. No chronology was provided, and no attempt made by the claimant or his solicitors to help the defendant navigate his way through the tranches of records.

She held that it was reasonable for an expert to accept what a claimant says at face value without having to do a targeted search through the medical records to confirm what they have been told, particularly by a highly educated and intelligent client like this. Having reviewed the records both before and after the consultation and within the time constraints, Lambert J accepted that if he had made errors or anything required clarification, then there was an opportunity for all involved to raise such points with him. Specifically, she observed that the targeted search could have been undertaken just as well by the legal team as by the expert witness.

As to the point made about failing to maintain his opinion when questioned, Lambert J dismissed that point as unsustainable. Questions must be answered in a manner consistent with the expert’s overriding duty to the court, not to stick to his guns when the underlying basis for that opinion shifts.

Turning to causation, Lambert J focussed on the question of what would or should have happened if Professor Marks had picked up on the weight discrepancy? She accepted his evidence that he would have brought that to the attention of the parties in his report but would also have retained reference to what he was told by the claimant in their consultation. She rejected the suggestion that the defendant should have contacted the claimant to discuss the discrepancy, to seek to reconcile it or ‘iron out’ its significance. Such an approach would have been inconsistent with the defendant’s overriding duty to the court.

Lambert J rejected the claimant’s case that but for the defendant’s failure to record the weight accurately from what he was told or the records, the Tribunal would not have found the claimant to be dishonest. She held that there were numerous other elements of Mr Radia’s evidence which enabled the Tribunal to reach that conclusion, to the extent that the assertion to the contrary did not bear even the most scant examination.

For all these reasons the claim against Professor Marks failed. As an aside, it is apparent from the judgment that he had never been paid for his report and his counter claim for payment was dismissed, seemingly having been lost in the other legal arguments.

There are some very important points arising from this judgment for expert witnesses and those instructing to reflect on.

• Not all instructions are worth having. The amount of wasted energy and lost opportunity for Professor Marks in having to fight this case is incalculable. Although most of his legal costs will be claimed from Mr Radia, recovering them may be a different matter and prove as elusive as his fee for the original report. Experts need to be confident that whoever is instructing them is good for the money and will make payment.

• The importance of the contemporaneous note of the consultation was central to the judge’s decision. It is easy in these days of pressure on fees and time for experts to look for efficiencies in how they deal with instructions but note taking is just as important in this area as it is in clinical practice.

• Medical records require careful consideration by everyone involved in the case, not just the medico-legal expert witness but also the solicitors and the party whose notes they are. Some experts now insist on receiving medical records properly collated, paginated, indexed and even with a chronology to provide guidance. While that isn’t necessary in every case whatever the value, dealing with the records in this way to assist everyone involved is too often overlooked.

• The role of the expert witness in preparing their evidence, writing their report, answering questions arising from it, dealing with another expert witness for the other party and ultimately giving evidence in court, are all governed by rules of court and supporting practice directions and guidance. Getting this right is not difficult but nor is getting it wrong, particularly if the instructing party tries to lead you astray. The need to be aware of the legal requirements is a prerequisite for offering oneself as an expert witness and requires continuing and refresher training. It is essential to maintain CPD in this area of your scope of practice.