EWI Annual Conference 2026: Opening keynote tackles the use of AI in Expert Reports EWI Annual Conference 2026: Opening keynote tackles the use of AI in Expert Reports

EWI Annual Conference 2026: Opening keynote tackles the use of AI in Expert Reports

“If an Expert, a lawyer, an accountant, an engineer, a doctor produce inaccurate or unreliable opinions or use hallucinatory references, they are...
Do not leave it until cross-examination to reveal your true opinion Do not leave it until cross-examination to reveal your true opinion

Do not leave it until cross-examination to reveal your true opinion

The Claimant suffered serious injuries in a road traffic accident after the Defendant, who was driving out of a side road, collided with the...
A Day in the Life of a General Practitioner Expert Witness A Day in the Life of a General Practitioner Expert Witness

A Day in the Life of a General Practitioner Expert Witness

Dr Frances Cranfield is a GP, Assistant Coroner, and a founding member of the Expert Witness Institute. With three decades of experience spanning...
New Guide to Becoming an Expert Witness New Guide to Becoming an Expert Witness

New Guide to Becoming an Expert Witness

The EWI has just published its new guide to Becoming and Expert Witness. Written by EWI Member Paul Beckett, the guide is aimed at those who are...
Ill-health and sentencing Ill-health and sentencing

Ill-health and sentencing

After summarising the case law, the court in this case stated that there is a high threshold to be reached in order for ill health or physical...
Take care not to conflate your role as a contractor with your duties as an expert witness Take care not to conflate your role as a contractor with your duties as an expert witness

Take care not to conflate your role as a contractor with your duties as an expert witness

The parties disagreed on the extent of the repairs required to the joists, and the manner in which the repairs should be effected, following the...
Podcast Episode 26: Expert Advisor versus Expert Witness Podcast Episode 26: Expert Advisor versus Expert Witness

Podcast Episode 26: Expert Advisor versus Expert Witness

This month, on the Expert Matters Podcast, we take a look at the issues and challenges of being an expert advisor versus an expert witness, and...
Help us map those working in the UK as Expert Witnesses Help us map those working in the UK as Expert Witnesses

Help us map those working in the UK as Expert Witnesses

Have your say in this important research and be in with a chance of winning £200 in vouchers of your choice.

Check out our Case Updates and Member Magazine

Looking for more news relevant to the Expert Witness community? Why not check out our database of cases relevant to Expert Evidence or the latest and previous editions of our member magazine, Expert Matters.

News

Clicking on one of the topics below will display news items relevant to that topic. You can also use the search bar below to identify news items.

Ms Julia Tosh v Mr Vivek Gupta [2025] EWHC 2025 (KB)
Sean Mosby 4617

Ms Julia Tosh v Mr Vivek Gupta [2025] EWHC 2025 (KB)

by Sean Mosby

 

Summary

The Claimant brought a claim of clinical negligence after suffering a rare but serious complication (anal stenosis) of an operation performed by the Defendant to surgically remove her haemorrhoids. The judge found that the evidence of the Claimant’s expert was based on limited experience or expertise. There were also several instances where he had not acted in accordance with his duties as an expert.

Learning points

Leaning points for experts
  • Expert witnesses are under a duty to assess the arguments of both sides and weigh them up fairly. It may damage or even be fatal to your evidence if you do not engage with the arguments of the opposing side.

  • You risk losing credibility if you refuse to admit when you have changed your opinion or make reasonable concessions when you have been shown to have been wrong.

Learning points for instructing parties
  • Ensure that the experts you instruct in a clinical negligence case have sufficient expertise and recent experience to identify the standard of a reasonably competent practitioner at the time of the index events.

 

The case

The Claimant brought a claim of clinical negligence after suffering a rare but serious complication (anal stenosis) of an operation performed by the Defendant to surgically remove her haemorrhoids. The original allegations of negligence in respect of the conduct of the surgery were discontinued after the joint statement, but the Claimant continued to the allege that the Defendant acting negligently in: (i) grading her haemorrhoids, (ii) failing to discuss non-surgical options, and (iii) failing to adequately explain the risk and benefits of the surgery (a ligature haemorrhoidectomy).

Haemorrhoids are graded in severity from Grade 1, small swellings on the inside lining of the anus, to Grade 4, haemorrhoids which permanently hang down from within the anus and cannot be pushed back inside.

The expert evidence

Mr T provided expert evidence for the Claimant and Professor P for the Defendant. Both experts retired from clinical practice prior to the date of the surgery. Counsel for the Claimant conceded that Mr T’s level of expertise in terms of the live issues in this case was limited given how few haemorrhoidectomies he had ever carried out, and how few patients he had seen with grade 3 or 4 haemorrhoids.

The evidence of Mr T

Mr T is a retired general and colorectal surgeon with over 25 years’ experience in a District General Hospital. In cross-examination, he said that by the 1990’s he was working almost exclusively as a colorectal surgeon, mainly cancer but also haemorrhoids. However, he said he had not done many haemorrhoidectomies and had never done a ligature haemorrhoidectomy. From 2009 he was doing very little operating on haemorrhoids and none after 2010. He agreed that it was "a reasonable point" that it was difficult for him to identify the standard of a reasonably competent haemorrhoid surgeon in 2019.

The judge reached the conclusion that Mr T’s evidence was based on limited experience or expertise.

During cross-examination, it emerged that in several instances he had not acted in accordance with his duties as an expert under CPR Part 35 and the Practice Direction to Part 35. These included:

  • Referring in his witness statement dated 21 July 2021 to his having read the Claimant’s and Defendant’s witness evidence when this was only served in April 2024.

  • Although he accepted that he was under a duty to assess the arguments of both sides and weigh them up fairly, neither his expert report, nor his subsequent report, made any reference to the Defendant’s case and he had not analysed the Defendant’s case.

  • Asserting, without any evidence to support it, that the Defendant had graded the haemorrhoids based on their size alone, rather than by using the Grade 1-4 grading system which was consistent with the practice of a responsible body of Consultant Colorectal Surgeons.

  • Denying that he had changed his opinion despite stating in his first report that in his opinion the Claimant’s haemorrhoids were Grade 1 and in the Joint Statement that it was likely that the Claimant had Grade 1-2 piles.

  • It was also clear in his report that he wrongly thought the fissure was not healed and therefore needing treating before changing his opinion in the Joint Statement which noted that “as the fissure is healed it needed no active treatment at that time”. Despite this Mr T denied he had changed his opinion. The judge found it concerning that Mr T was unable to make this reasonable concession and admit that he was wrong.

The evidence of Professor P

Until his retirement Professor P was a full-time colorectal surgeon at the National Bowel Hospital where he undertook a combination of complex and anorectal work. He also ran several clinical trials relating to haemorrhoids in which he did all the surgery. He was made an Honorary Professor of Colorectal Surgery by Imperial College London in 2000. He is the author of 9 recent textbooks in colorectal surgery and has contributed to 300 original articles and 59 book chapters. The Joint Statement listed twelve publications by Professor P on haemorrhoids, including diagnosis and treatment, haemorrhoidectomy and evidence-based practice.

The judge noted that “[Professor P] has extensive experience of diagnosing, grading and treating haemorrhoids and of undertaking haemorrhoidectomies. I found him to be a forthright, straightforward witness who gave direct answers to questions and made concessions where appropriate (as set out in the body of this judgment below). In my judgment his evidence is reliable, objective and unbiased and I therefore consider it appropriate to place considerable reliance on it. I prefer his evidence in all respects to the evidence of Mr T save where he and Mr T agree.”

 

Share

Print
Comments are only visible to subscribers.