When an expert witness was under examination

Introduction

Mr W pursued a personal injury claim against his employer for failing to adequately ensure his health and safety, leading to the fall, nasty fracture, ongoing complications, and job loss.

His solicitors commissioned Miss J, an orthopaedic expert, to determine the full extent of his injuries and prognosis. Miss J accepted the commission but then became unexpectedly busy due to additional clinical commitments. There were also logistical complications. These led to delays in her seeing Mr W and then in preparing her report.

When Mr W’s solicitors finally got her report, they took issue with it. Lots of communication ensued between Miss J and the solicitors. Her fees ultimately escalated, going over the solicitor’s anticipations. Ultimately, due to a breakdown between Miss J and the solicitors, they decided to obtain an opinion from a second expert. This added further delay and costs.

Mr W’s former employer eventually agreed to settle. Interestingly, the sum was similar to the valuation of the claim based on the original findings from Miss J. The costs judge was critical of Mr W’s solicitors for what he saw as unnecessary delays on their part and for obtaining a second expert when the opinion and outcome were not materially different to that if they had stayed with Miss J. His conclusion was that this had unnecessarily added to the claimant’s costs and he disallowed payment of these in full.

Allegations

Mr W’s solicitors brought a claim in professional negligence against Miss J. They made allegations in respect of time management, her fees, and the content, accuracy, and conclusions of her report. They averred this had led to Miss J – not them – creating the unnecessary delays and costs referred to by the judge and requested reimbursement of these, plus her fees, in full.

Outcome

Miss J contacted Medical Protection. She had indemnity with us for both her orthopaedic work and her medicolegal work. We instructed an independent expert. They considered Miss J’s report and other material relevant to the claim, like her communications, timelines, and the logistics of examining Mr W.

Our expert opined that Miss J’s report was objective and unbiased. There had been full consideration of what had amounted to a large number of medical records. It had been structured in a consistent and standard manner, with logical, accurate analysis of the evidence. The latest literature had been applied and interpreted correctly. She had not strayed outside her specialty or remit. Her report was deemed Civil Procedure Rule (CPR 35) compliant.

It was noted that the logistical complications were outside her control. Likewise, delays due to extra clinical work could not have been anticipated, being due to colleague sickness at her Trust. She had been transparent at the start about her fees but the solicitors had overlooked these as instruction progressed.

Ultimately, our expert considered that there was no reason for a second expert to have been instructed. Although the course of Miss J’s involvement had been unforeseeably difficult, there were rational explanations for this and the ultimate report was cogent.

A robust letter of response was served denying the allegations. The solicitors discontinued their claim against Miss J.

Learning points

We are encouraging more clinicians to consider expert witness work, especially women, as there is a dearth of experts like Miss J.¹.

The attributes required of expert witnesses have been widely covered,^2,3 including the ‘softer skills’ of time management, transparency over fees, and open communication with the instructing party. In particular, having adequate indemnity in place for this work, appropriate training⁴ (from a provider that reflects and incorporates the guidance from the Academy of Medical Royal Colleges⁵), and knowledge of the medicine, relevant law, and especially CPR 35⁶ are crucial.

It is important to remember that the main output of an expert’s work – the report – will be scrutinised by two sets of solicitors (the claimant’s and the defendant’s) and possibly a judge. Its accuracy and the presentation of robust arguments are vital to maintaining an expert’s credibility in this field.

Like any area of clinical practice, there are risks involved in medicolegal work. Experts are no longer immune to criticism themselves⁷, but Medical Protection has the expertise and resources to assist members in these matters.

We continue to encourage clinicians to consider this rewarding work.

Acknowledgments: Special thanks to Julia Hall, Claims Manager, for her comments.