Responsibilities of experts in clinical negligence claims – overview and recent decisions
This article was co-authored by Will McGregor, Litigation Executive, London.
Expert witnesses are central to the preparation and development of clinical negligence cases. A competent expert with robust and logically based views will be the difference between being successful or unsuccessful, whether at trial or in terms of a settlement. Strict rules and regulations apply to experts and their evidence, and are enshrined within Part 35 of the Civil Procedure Rules, which is a reflection of the importance that experts are given by the courts.
Who is an expert?
An expert is someone with sufficient skill and experience in a particular area over and above that of the ‘layman’. First and foremost, it is incumbent on both an instructing solicitor and the prospective expert to establish whether they have the experience and expertise to provide a report and, if necessary, give evidence in court. This would seem obvious however medical negligence is a vast field and cases can often concern niche and technical areas of medicine. A general surgery expert who has only performed a handful of a particular type of laparoscopic surgery will be at a significant disadvantage to his/her opposite number who has performed it a hundred times.
Written and oral evidence
It is not enough for an expert to have sufficient experience in the procedure. They must be familiar with the rules governing report writing and be able to set out their opinions clearly and logically. Experts are encouraged to take dedicated medico-legal training courses so that they can familiarise with their duties to the court.
In particular, an expert must:
- Read and list all relevant case documents in their report, and confirm all relevant records have been reviewed
- Ensure their opinions address the allegations clearly to assist the parties and the court in determining breach of duty and/or causation
- Verify his/her written evidence with a Statement of Truth
- Append to their report a CV setting out their experience as well as any references relied upon
- Ensure their written and oral evidence is consistent.
Kennedys successfully defended two clinical negligence claims at trial in 2019 where the claimant’s expert was subjected to judicial criticism.
Arksey v Cambridge University Hospitals NHS Foundation Trust 
This was a neurological case where the claimant suffered a sentinel bleed from a cerebral aneurysm. It was admitted on the part of the Trust that the claimant should have been admitted and a CT scan undertaken. It was denied however that this would have avoided a damaging re-bleed the following day.
The claimant’s case was based on the evidence of a Consultant Neurosurgeon who had failed to finalise his report before service, before expert meeting and before trial. The Consultant stated at trial that he had only had access to the full medical records the previous week and he was clearly ill prepared. Mr Justice Spencer was critical in his judgment of all aspects of the Consultant’s evidence stating that it “fell far below the standard to be expected of a reasonable competent expert witness, both in the preparation of his reports and in relation to his preparing to give evidence”. He found his oral evidence to be “unimpressive”. The Trust’s expert was in contrast a “wholly straightforward and reliable witness”. Mr Justice Spencer had “no difficulty in preferring” the evidence of the Trust’s expert to that of the claimant’s “on every point of dispute between them”. Unsurprisingly on the basis of this, the Trust succeeded at trial.
LD v King’s College Hospital NHS Foundation Trust 
This case related to nursing care and, in particular, whether the absence of bed rails to an inpatient’s bed created a breach of duty. HHJ Baucher, sitting in the Central London County Court, was critical of the claimant’s nursing expert, stating in her judgment ‘from the outset I found her evidence to be evasive’. In particular, this expert was criticised for:
- Various inconsistencies in her written and oral evidence
- Repeatedly failing to identify, in her report and the joint statement, that it was a breach of duty not to apply bedrails
- Not reading the core bundle or the trial bundles
- Providing an outdated and inaccurate CV
- Her overall lack of relevant experience, having not worked as a nurse in her own capacity since 2004.
In contrast, HHJ Baucher observed that the Trust’s expert had “vast relevant, recent hands-on experience, answered the crucial questions within her report, and gave clear and cogent responses in the witness box which were evidence based.”
Judicial criticism of experts, especially of the nature in Arksey and LD v King’s College Hospital NHS Foundation Trust, serves as a sobering reminder to lawyers of the importance of due diligence in relation to approaching and instructing a prospective expert witness. Although trial is rare, once an expert is instructed, solicitors should constantly test their expert’s evidence and ensure their evidence stands up to scrutiny. Solicitors will be criticised for failures by their experts with Mr Justice Spencer in Arksey stating "… I do not altogether exonerate the lawyers who have represented the claimant”. He considered that the deficiencies in the expert evidence should have been addressed long before trial.
Experts themselves should also be aware of their obligations, and refuse instructions in matters which are not within their area of expertise. Since the 2011 Supreme Court decision in Jones v Kaney, experts no longer enjoy immunity in respect of their preparation and presentation of evidence. Experts can be liable for negligence at any point of their instruction and are well advised to take out indemnity insurance to protect themselves.
Related item: Contraindication of bed rails in a hospital setting