Summary
The Claimant was suing in relation to profound disabilities he suffered due to the Defendant’s admitted clinical negligence. While some of the experts were praised, some were severally criticised by the judge, particularly for failing to consider the range of opinion. Two of the experts were also significantly hampered by their nervousness in cross-examination.
Learning points
Learning points for instructing parties
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Before trial, you should ascertain how confident your experts are at providing oral evidence and, if required, provide them with suitable training such as EWI’s Confidence in the Courtroom course.
Learning points for experts
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You should approach your evidence conscientiously with the sole purpose of assisting the court, giving careful and considered evidence without straying beyond the limits of your experience and expertise.
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Make sure you understand and comply with CPR Part 35.3 2(6) which states that an expert's report must, where there is a range of opinion on the matters dealt with in the report –
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You should consider the advantages and disadvantages of all of the options under consideration. Be careful to avoid focussing overly on the advantages, and ignoring the disadvantages, of the option that you prefer.
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Avoid providing evidence on matters outside of your expertise. If an expert in that field has been instructed in the case, you should defer to their opinion.
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While avoiding advising on matters outside your expertise, do not be deterred by unwarranted criticism from the opposing counsel from fully addressing matters within your expertise.
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While it is normal to be nervous about giving oral evidence, especially for the first time, there are ways to build up your confidence and control your nerves. As a first step, we recommend taking our Confidence in the Courtroom course.
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You can also check out the episode of our Expert Matters Podcast on range of opinion.
The case
The Claimant, who had been diagnosed with poorly controlled asthma, was brought to the Defendant’s hospital by his mother with shortness of breath, low oxygen saturation, elevated respiratory rate and a very elevated pulse. Following assessment, he was discharged and, the next day, suffered a cardiac arrest resulting in a hypoxic brain injury which left him profoundly is disabled. He sued in relation to the Claimant’s admitted clinical negligence.
The neurological experts
Dr P was retained by the Claimant, and Dr A, for the Defendant, as neurological experts. They both prepared reports, letters, and provided minutes from their joint discussion. The minutes recorded their substantial agreement on the Claimant’s diagnosis and prognosis. The principal dispute between the experts concerned the advantages and disadvantages of the Claimant living in a home adapted for his needs with a 24-hour care regime compared to a residential rehabilitation unit.
The judge praised both experts finding them to be expert in their field. Both had approached their evidence conscientiously and had the sole purpose of assisting the court. They both gave careful and considered evidence and do not stray beyond the limits of their experience and expertise.
The neuropsychiatry experts
The Claimant instructed Dr I, and the Defendant, Dr S, as their neuropsychiatric experts. They provided reports and, together, a joint statement which set out a large measure of agreement about the Claimant’s diagnosis and prognosis.
Dr I
In cross-examination, Dr I held fast to his position that the Claimant would be better living at home supported by carers. The judge also noted that did not agree that the Claimant was minimally conscious, notwithstanding the neurologists’ consensus to the contrary. He also stated that he had not considered the advantages and disadvantages of each of the competing accommodation models, because he would not consider any option that would make the Claimant unwell.
The Judge found that, while Dr I was plainly concerned to do his best for the Claimant, he did not sufficiently consider the merits and, crucially, the risks posed by the various accommodation options under consideration. The judge was particularly concerned about two aspects of Dr I’s evidence:
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his effective refusal to answer questions about his failure to consider the disadvantages of the home based setting and the advantages of a residential unit, and
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his effective dissent about the Claimant’s diagnosis, which was neither satisfactorily explained nor consistent with the neurologists’ considered conclusion. Although he accepted that the question of diagnosis was outside his expertise, he seemed determined to advance his view in cross-examination.
Dr S
By contrast, the Judge found that Dr S was a careful and considered witness who was aware of his duties to the court and thoughtfully answered questions. The Judge rejected criticism that Dr S strayed beyond his expertise, noting that his comment son the psycho-social impact on the Claimant’s carer were squarely within his experience and expertise. Dr S had repeatedly stated that he deferred to the neurologists on the assessment of the nature and extent of the medial risk.
Judge’s conclusion on the neuropsychiatry experts
For these reasons, the Judge preferred Dr S’s evidence to Dr I, to the extent that there was any disagreement between them.
The care experts
Mrs E acted as care expert for the Claimant, and Mrs W for the Defendant. The fundamental difference between the care experts was the appropriateness of a domiciliary or a residential care setting, with Mrs E preferring the former and Mrs W the later.
The Judge found that the evidence of both care experts was problematic, although in different ways. The trial was the first time the experts has given oral evidence and they were both nervous. The Judge noted the contrast between the clarity of their joint statement and their hesitation in cross-examination.
Mrs E
The Judge found more fundamental problems with Mrs E’s evidence. She had not considered the advantages and disadvantages of the identified home and residential settings to meet her Part 35 obligations, with consideration of the Claimant’s future care and accommodation only having one sentence in her report. The joint statement, in which she effectively advocated in favour of a home setting, further illustrated the one-sided nature of her approach.
The other unsatisfactory features of Mrs E’s evidence included:
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not seeking medical advice on the appropriate future care setting for the Claimant,
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not setting out the research she said she had conducted on neuro-residential care options,
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not including in her report the information the court would require to determine the Claimant’s reasonable needs,
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concluding that Libertatum or a similar agency would meet the Claimant’s complex needs without having discussed this with any agency.
The Judge concluded that Mrs E fell into the trap of advocating one side’s position rather than providing the court with a full, fair and balanced assessment of the competing merits of the options of the Claimant’s future care and accommodation.
Mrs W
The Judge was satisfied that Mrs W had the requisite experience and expertise to assist the court, however, her nervousness about giving evidence for the first time manifested itself more starkly than that of Mrs E. At one point she seemed unable to concentrate on the question or to give a sensible answer and, towards the end of her evidence, she apologised and said she was tired. While the Judge accepted that Mrs W’s nerves overcame her, this adversely affected the quality of her oral evidence. That said, in contrast to Mrs E, Mrs W's report set out the merits of the competing future care arrangements and her preference for a residential unit was explained by reference to expert medical evidence.
Judge’s conclusion on the care experts
Despite Mrs W’s unsatisfactory oral evidence, the Judge found that the weightier factor was Mrs E’s failure to provide the full and fair analysis which CPR Part 35 requires, along with the other unsatisfactory features of her evidence. The analysis of future care and accommodation required greater consideration than the one sentence it received in Mrs E's’ original report and a more balanced assessment in her contribution to the joint statement and her supplemental correspondence. Where there was disagreement between the experts, the Judge preferred Mrs W’s evidence.
The physiotherapy experts
Mrs F acted for the Claimant, and Mrs S for the Defendant, as physiotherapy experts. The experts prepared reports and, together a joint statement. The latter narrowed the issues substantially, so that the principal question at trial was the appropriate frequency of the Claimant’s access to a hydrotherapy pool, with Mrs F recommending regular daily access to a hydrotherapy pool, and Mrs W access once or twice a week.
The judge’s conclusion on the physiotherapy experts
While the Judge found that both experts discharged their duty to the court and were expert in their discipline, he preferred the evidence of Mrs S. Mrs S’s evidence was calm, measured and analytical. The Judge was particularly impressed by her considered assessment of the benefits and, importantly, the limits of hydrotherapy. In contrast to Mrs F, Mrs S critically and thoughtfully considered whether more was, or was likely to be, better in terms of regularity of hydrotherapy sessions absent any supporting evidence. The Judge noted that he was concerned by Mrs F’s apparent confusion about how many people would be required to ensure that the Claimant was safe during hydrotherapy treatment.