Summary

The Claimant’s father and litigation friend alleged that the medical practitioners treating his son were negligent in not promptly carrying out an ultrasound on his head, after he had been admitted to hospital with head injuries. The judge found that the expert for the Claimant was, to an extent, seeking to fight his corner rather than taking a dispassionate approach to the issues raised.

Learning points for experts

• You must not advocate for your client.

• Making reasonable concessions may enhance the weight of your expert evidence, but there will be a point where the scale and significance of concessions undermine the level of confidence in what remains of your evidence.

• Always listen carefully to the question you have been asked, and answer only that question, not the question you wish you had been asked. You will find this point among the excellent practical advice for giving oral evidence which the Right Honourable Lady Simler, Justice of the Supreme Court shared in her recent Sir Michael Davies Lecture to the EWI.

The case

The Claimant suffered head injuries as a baby resulting from physical abuse by his mother. He was admitted to hospital where the favoured diagnosis was pyloric stenosis. An ultrasound scan did not provide convincing support for pyloric stenosis, and the other presenting complaints had resolved, apart from a history of increased measurements in head circumference in comparison with babies of the same age. He was discharged home, with a decision made to keep his head measurements under review. On the next day, his mother assaulted him again causing catastrophic brain injuries.

The Claimant’s father and litigation friend alleged that it had been negligent not to promptly carry out an ultrasound of the baby’s head, which the Defendant denied. It was not disputed that, had such a scan been carried out before his discharge, it would have revealed the fact that the baby had probably sustained trauma to the head, leading to a chain of enquiry which would have prevented the subsequent abuse.

The expert evidence

The judge accepted without reservation the evidence of the Defendants’ expert, Dr R, noting that his approach was reasonable, logical and fair. Also, in contrast to the Claimant’s expert, Dr C, Dr R’s evidence had remained consistent.

The judge found that Dr C’s evidence was significantly attenuated by important concessions which eventually resulted in very little remaining of the Claimant’s original case. The judge noted that, while a willingness to see the other side’s point of view and change a previously held opinion may enhance the weight given to expert evidence, there is a point where the scale and significance of the concessions undermine the level of confidence to be attached to what remains. That had occurred in this case. It was particularly significant that the changes in Dr C’s stance were not primarily, if it all, based upon changes in the available information or the presentation of new arguments which he had previously overlooked. The judged highlighted in particular the contrast between Dr C’s early unequivocal condemnation of the defendants for not performing an ultrasound scan of the head on 6^th or 7^th January which was followed by an equally unequivocal concession that a scan over this time period was, after all, not necessary.

In contrast, the judge noted that Dr Rose considered all of the factors relevant to the proper approach to the Claimant’s subsequent treatment and found nothing wrong in the plan to have the health visitor follow up the issue of head circumference over the next one or two weeks. The judge was satisfied that suggesting now that an urgent ultrasound scan of the head was called for was a criticism based on hindsight rather than reasonable foresight.

The judge also noted that the Claimant was not able to point to literature from any source which tended to undermine the opinion of Dr R. In fact, Dr C was obliged to conceded in cross-examination that the literature presented to the court by the Claimant was of no assistance to the court on the issues to be determined. The judge noted that this would not, of itself, be conclusive but it undoubtedly weakened the force of any Bolam arguments.

The judge also criticised Dr C’s approach to responding to questions while giving evidence, including occasions when he was mildly combative and when he did not always answer questions directly or first time round. Dr C showed a tendency to assume the intended purpose of any given question and, rather than to answer it, to present his defence to a point not yet made. The judge formed the view that Dr C was, to an extent, seeking to fight his corner rather than taking a dispassionate approach to the issues raised. Dr R did not succumb to this temptation.

The judge was left in no doubt that Dr R’s evidence was to be preferred and the Claimant had failed to prove breach of duty.