This article considers the dangers of responding to pressure from an instructing solicitor.
Go to gaol, go directly to gaol ….
Dr Zafar had what some would regard as an enviable medico-legal practice. In addition to his NHS practice as a general practitioner, he produced about 5,000 medico-legal reports a year, generating a gross income of some £350,000.
His clients had low-value personal injury claims, and assisted by appropriate software he could examine a client and produce a report in about 15 minutes. Therefore, an average weekly burden of some 100 reports would take about 25 hours of his time.
He had a number of people working for him in generating the reports and managing his practice.
Dr Zafar’s road traffic accident medical report
Dr Zafar produced a report on a client who was involved in a road traffic accident, on the instructions (through a medico-legal reporting agency) of a firm of solicitors acting for the client. The examination took place about 11 weeks after the accident. The report was produced at the time of the examination, dictating it in the presence of the client, as was the normal practice.
The report recorded that treatment (analgesia) was completed about one week after the accident and that the client ‘was fully recovered from the injuries sustained in the accident’ and that on examination the neck was normal. The prognosis noted that he had ‘fully recovered from the injuries sustained in the accident’. The report concluded with a fairly standard declaration of compliance with the Civil Procedure Rules and the Statement of Truth, both of which were signed by Dr Zafar.
The solicitor then communicated with Dr Zafar that the client still had moderate to severe pain in his neck and shoulders. He asked that Dr Zafar review his notes and ‘given that our client is suffering severe to moderate pain in his neck and upper back, now over two months from the date of the accident, is it likely that he will recover over the next 6-8 months? If so, can you please amend your report in respect thereof? Given that our client is still suffering pain related symptoms, can you confirm whether he is likely to benefit from physiotherapy.’
Dr Zafar produced a revised report without any further examination. His only notes of the examination were what was recorded in the original report. The revised report bore the same date as the original report and nothing in it indicated that it was a revised or amended report or made any reference to an earlier report. However, it noted that the neck and shoulder symptoms had not yet resolved at the examination, the client was still taking analgesia and that the prognosis was for a full resolution in 6-8 months from the accident. The report contained the same signed declaration and statement of truth as in the original report.
The legal proceedings
Proceedings were commenced on behalf of the client and the revised report was served as part of that. Unfortunately for Dr Zafar, when it came to preparation of the trial bundle for the court, the paralegal at the solicitors mistakenly put in the original report.
To worsen the situation, when interviewed by an enquiry agent, Dr Zafar signed a witness statement to the effect that the correct report was the first report and that it had been altered without his knowledge and while in the hands of the medico-legal agency through whom he had received the instructions. Subsequently he made a further statement ‘correcting’ the first and stating that the original report had contained an error which he corrected. These witness statements also carried Statements of Truth.
The insurance company insuring the Defendant in the claim brought proceedings to commit Dr Zafar to prison for contempt of court by making false statements in documents each verified by a Statement of Truth. The judge sentenced Dr Zafar to a suspended sentence of 6 months’ imprisonment. The insurers appealed the sentence.
The Court of Appeal (Liverpool Victoria Insurance Co Ltd v Asef Zafar [2019] EWCA Civ 392) held that the starting point for a sentence for such a contempt of court was a period ‘well in excess of 12 months’ imprisonment’. Breach of the trust that the court put into professional standing should be expected to result in severe sanctions. The fact that experts might have brought professional ruin upon themselves was no good reason not to impose a significant prison term. Suspended terms of imprisonment were not appropriate. That an expert had acted recklessly rather than deliberately would not justify a suspended sentence. Early admissions would reduce the sentence.
Dr Zafar, whose professional career was ruined, was however lucky to be spared prison. The original sentence was allowed to stand in his case as the guidance given by the court was not in existence at the time that he was sentenced.
Learning point
Providing expert evidence is a serious professional task, and when that evidence is prepared for use in court, supported by a signed Statement of Truth, the expert must expect to go to prison if the evidence turns out to have been recklessly or deliberately false.
If asked to amend or change a report, an expert should refer to the guidance in the Guidance for the Instruction of Experts in Civil Claims para 65 before agreeing or refusing, but should be prepared to amend if it is necessary to ensure accuracy, clarity, internal consistency, completeness, and relevance to the issue for which the report is obtained.
Giles Eyre is a recently retired barrister and an Associate Member of Chambers at 9 Gough Square, London, having practised for many years in the field of injury claims and at the interface of law and medicine. He continues giving training and presenting workshops for experts on providing effective expert reports and evidence, and on medico-legal issues, in his own right and for training organisations and in particular for Professional Solutions. He is co-author of Writing Medico-Legal Reports in Civil Claims – an essential guide (2nd edition 2015), and author of Clinical Practice and the Law – a legal primer (October 2018) both published and sold by Professional Solutions Publishing and regularly writes articles on these subjects. He blogs on issues relevant to court experts in civil claims at www.Medico-LegalMinder.net.