The legal basics can sometimes be more problematic for a medical expert than the medical aspect of a report. This month, our in-house solicitor, Ann-Marie Christie, looks at the legal basics in medico-legal reporting and offers some practical guidance for medical experts on how they can get this right.
Writing a well-worded and reasoned medical report is a fundamental part of the litigation process in any personal injury or clinical negligence claim. Medical experts therefore have an essential role in assisting lawyers to make decisions about a case and influencing the level of damages a Claimant receives. An expert must be unbiased and follow their duties under CPR 35. In this article, we will look at the Rules and Practice Directions relating to expert evidence along with some judicial decisions where experts have fallen foul.
Duties and Obligations
An expert always owes a duty to exercise reasonable skill and care to those instructing them and to comply with any relevant professional code of practice. However, when they are instructed to give or prepare evidence for civil proceedings, they have an overriding duty to the court on matters within their expertise. If you are instructed by a party, you must notify the party immediately of any conflict of interest before accepting the instructions and ensure you read the rules – both CRP Part 35 and Practice Direction 35.
Paragraph 3 of the Practice Direction 35 sets out the form and content of an expert’s report:
3.1 An expert’s report should be addressed to the court and not the party from whom the expert has received instructions.
3.2 An expert’s report must:
(1) give details of the expert’s qualifications;
(2) give details of any literature or other material which has been relied on in making the report;
(3) contain a statement setting out the substance of all facts and instructions which are material to the opinions expressed in the report or upon which those opinions are based;
(4) make clear which of the facts stated in the report are within the expert’s own knowledge;
(5) say who carried out any examination, measurement, test or experiment which the expert has used for the report, give the qualifications of that person, and say whether or not the test or experiment has been carried out under the expert’s supervision;
(6) where there is a range of opinion on the matters dealt with in the report –
(a) summarise the range of opinions; and
(b) give reasons for the expert’s own opinion;
(7) contain a summary of the conclusions reached;
(8) if the expert is not able to give an opinion without qualification, state the qualification; and
(9) contain a statement that the expert –
(a) understands their duty to the court, and has complied with that duty; and (b) is aware of the requirements of Part 35, this practice direction and the Guidance for the Instruction of Experts in Civil Claims 2014.
A simple reminder for any expert wishing to get involved in medico-legal work or who is currently involved:
- Comply with your requirements in Part 35, Practice Direction 35 and the Guidance.
- Remember your overriding duty to the court, not the instructing party.
- Inform the instructing party of any conflict of interest.
- Ensure you have access to all the relevant documents.
- State the substance of all instructions.
- Include your declaration and statement of truth at the end of your report.
Some case law
Failure to disclose conflict
In the case of Arrassey Properties Ltd v. Nelsons Solicitors (unreported) 15 July 2022, (Central London County Court), the court entirely rejected the evidence of an expert who had not disclosed a conflict of interest and displayed little understanding of his duties as an expert.
The Claimant in this case was a company incorporated in the Isle of Man with a property investment business in the UK. They would purchase residential properties, let them to tenants, and then in time, re-sell the properties for capital gain. The Defendants were a firm of solicitors retained by the Claimant for the conveyancing. Her Honour Judge Baucher, commenting on the expert evidence, stated in her judgement that:
28. “On the issue of expert evidence, I consider there was a stark contrast between the two experts. In cross-examination and in his closing submissions, Mr Bankes-Jones, who appeared on behalf of the defendant, highlighted what he considered to be “misleading and alarming” aspects of Mr. Balcombe’s evidence. He referred to a conflict of interest, errors within the joint statement, double-counting, issues on valuation and the failure to check details in the embodiment of Mr. Balcombe’s report and the joint statement. I consider there was force in those submissions.”
30. The starting point for consideration of any expert evidence is the requirements under the CPR which govern the provision of opinion evidence by expert witnesses.
31. CPR 35.10, so far as material, provides,
Sub-section (1):
“An expert’s report must comply with the requirements set out in Practice Direction 35.”
Sub-section (2):
“At the end of an expert’s report, there must be a statement that the expert understands and has complied with their duty to the court.”
Sub-section (3):
“The expert’s report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written.”
The judge was satisfied that that there was a conflict of interest in this case and by failing to declare the conflict, which he ought to have been aware of, he did not have “proper regard to his obligations under CPR 35…” She went on to say that this was a serious failing, causing the court to question the entirety of his evidence.
This serves as a stark reminder to experts to ensure compliance with their Part 35 duties, as failure to do so can have a catastrophic effect on the outcome of a case, where a Claimant may have suffered life-changing injuries and/or significant financial losses, only for that expert evidence to be disallowed or the expert discredited.
Non-Compliance
In Pal v. Dr. Luc Damen [2022] EWHC, a Claimant underwent a cosmetic procedure in Belgium, alleging it had been performed negligently. The expert, Mr Steyvers, failed to comply with Practice Direction 35 and his report was not in the required Part 35 format.
The Claimant was a UK national who underwent cosmetic surgery in the form of a breast implant in Genk, Belgium. The surgery was carried out by the First Defendant, a consultant plastic surgeon domiciled in Belgium. The Claimant sued both the surgeon and the clinic where the surgery was carried out.
“An expert’s report must:
(1) give details of the expert’s qualifications;
(2) give details of any literature or other material which has been relied on in making the report;
(3) contain a statement setting out the substance of all facts and instructions which are material to the opinions expressed in the report or upon which those opinions are based;
(4) make clear which of the facts stated in the report are within the expert’s own knowledge;
(5) say who carried out any examination, measurement, test or experiment which the expert has used for the report, give the qualifications of that person, and say whether or not the test or experiment has been carried out under the expert’s supervision;
(6) where there is a range of opinion on the matters dealt with in the report –
(a) summarise the range of opinions; and
(b) give reasons for the expert’s own opinion;
(7) contain a summary of the conclusions reached;
(8) if the expert is not able to give an opinion without qualification, state the qualification; and
(9) contain a statement that the expert –
(a) understands their duty to the court, and has complied with that duty; and
(b) is aware of the requirements of Part 35, this practice direction and the Guidance for the Instruction of Experts in Civil Claims 2014.”
He further stated, “Mr Steyvers’ report failed to comply with practically every requirement. It appeared to me that he was acting as an advocate on behalf of his client’s position which is perhaps not surprising as he acts for the Surgeon in Belgium. He did not give any proper consideration to the evidence of Ms Spronken and did not fully consider the available documentary evidence with the inevitable result that he did not provide a balanced opinion covering the range of possible opinions. The most obvious illustration of this tendency was his abrupt observation that Mr Beer’s report ‘contains a lot of mistakes and incorrect information’.” See also the case of Ruffell v. Lovatt (2018) below which deals with an expert lacking independence.
There is some repetition in the cases highlighted, but for good reason – a reminder to experts that they must be aware of their duties under CPR 35 and comply with them.
Take time to check your report
Do avoid basic errors in your report. There may be temptation for an expert with a heavy clinical practice, who also carries out medico-legal work, to cut and paste sections in a medical report if they are time-constrained, particularly when dealing with routine road traffic accidents. You may also be using an approved template, but you should check it thoroughly, as mistakes are likely to be exploited by the opposing party, potentially discrediting your evidence.
Issues of Independence
In the case of Ruffell v. Lovatt (unreported 2018), the Claimant sought damages from the Defendants for personal injuries and other losses arising from a road traffic accident. Liability was admitted by the Defendant. The issue to be resolved was one of quantum. The Claimant claimed that she had developed CRPS and was left permanently disabled as a result of the accident.
Evidence was obtained by the Claimant from Dr Christopher Jenner, Consultant in Pain Medicine. The court held that Dr Jenner’s evidence was “so flawed” that it could not be relied upon. The judge was highly critical of Dr Jenner’s approach, stating that there was a failure to examine and consider the consequences of the medical records.
The Judgment:
105. Dr Jenner relied on several research papers to try and justify his opinion and he referred to these in his report dated 9th April 2016. Dr Jenner did not add that these papers were the result of studies with animals, not when it was put to him that the studies did not include inflicting pain on the animals, Dr Jenner said he could not remember what the stimulus was in the studies. I formed the view that Dr Jenner had not mastered this topic: he had cited the papers, no-one else considered them relevant.
106. Second, I am satisfied from the evidence of the other three medical experts that CRPS is controversial and the subject of debate. In the particular case of the claimant, there is overwhelming evidence that her problems are not This is because the claimant’s psychological problems are not secondary to CRPS but plainly pre-date the accident and the alleged CRPS by many years. Indeed, it is no exaggeration to say that the claimant has had psychological problems for most of her adult life. Dr Jenner has put the cart before the horse.
The Judge found Dr Jenner’s evidence “combative” and that he repeatedly acted as the Claimant’s advocate rather than as an independent expert. A balanced and independent opinion is what the court seeks. Damaging and misleading expert evidence can not only have significant ramifications for a case and the Claimant concerned, but also land the expert in very hot water indeed. CPR 35 specifically requires an expert to summarise a range of opinions and justify their own. It is for the court to determine which opinion is preferred, but experts must remain independent.
Immunity no longer applies
An expert owes their duty to the court and failure to comply with that duty can have serious implications for the instructing party as well as for the expert. Until 30th March 2011, an expert enjoyed immunity from being sued in relation to any evidence prepared or given in litigation. That immunity has ceased following the Supreme Court decision in Jones v. Kaney.
The court went further in Robinson v. Liverpool University Hospital NHS Foundation Trust v. Dr. Chris Mercier (2021). The Claimant relied on expert evidence from Dr Mercia, a General Dental Practitioner, regarding breach of duty and causation. The Trust argued that Dr Mercier was not the appropriate expert to provide an opinion on the management and treatment given to the Claimant by an oral and maxillofacial surgeon. It was noted that throughout his evidence, Dr Mercier failed to reference the differences between his role and that of an oral and maxillofacial surgeon. The court concluded that he had no expertise in examining a patient prior to general admission in a hospital setting and therefore could not comment on errors in treatment.
His Honour Recorder Hudson stated: “I am entirely satisfied that but for Dr Mercier’s report this claim would not have been brought. All costs claimed within the Defendant’s cost budget are therefore caused by Dr Mercier’s flagrant disregard for his duty to the court. A public body has been put to considerable expense in financing costly litigation that should not have been brought. Although it is not part of my considerations, I observe that a hard-working oral and maxillofacial surgeon was maligned in public and undoubtedly caused significant distress by the actions of Dr Mercier. The Trust is entitled to be reimbursed for the wasted costs incurred. Such an order is just. I therefore make an order for costs against Dr Mercier in the sum of £50,543.85 as set out in the Defendant’s cost budget.”
Although the order to pay wasted costs was overturned on appeal, this case serves as valuable warning to all experts: there is no place for a flagrant disregard of court rules and you must act within your expertise at all times. CPR 35.3 references that it is the duty of the expert to help the court on matters within their expertise. The message is clear – if something falls outside of your expertise, you must say so!
Conclusions
Read the rules and read the rules. It cannot be stressed enough how important it is to read CPR Part 35 and Practice Direction 35 in their entirety. The expert plays a vital role in personal injury and clinical negligence cases, helping the court decide on issues outside its expertise and technical knowledge. Even judges who come from a background in personal injury law have limited medical knowledge and are unlikely to have had formal medical training, unlike a medical expert. A medical expert does not owe a duty to the Claimant in the same way a treating doctor does to a patient. The expert owes an overriding duty to assist the court, rather than the parties instructing them and that must be at the forefront of their mind when writing reports engaging in joint discussions or giving evidence in court. See Writing Medico-Legal Reports in Civil Claims (2nd Edition) by Giles Eyre and Lynden Alexander.