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When an expert's evidence is 'fundamentally flawed'

  • Published: June 13, 2018
  • Author: Paul Sankey, Partner, Enable Law

In a recent case at Winchester County Court, the judge found that an expert's evidence was fundamentally flawed to the point where he rejected it on every contentious point. The case of Ruffell v Lovatt[1] contains lessons for medical experts.

The clinical negligence claim

Miss Ruffell was a passenger injured in a road traffic accident in 2012. The driver, her boyfriend, lost control of the car and collided with a tree. She injured her neck and right leg. She claimed damages. Liability was admitted but the extent of the harm caused was not.

The defendant accepted responsibility for nine months of symptoms. However, she claimed that her leg remained very painful and that she had developed chronic regional pain syndrome (CRPS) to the point where she had become permanently disabled and reliant on care. This part of the claim was disputed and came to trial.

The claimant's evidence

According to her statement, the claimant had been active before the accident. Miss Ruffell went to the gym and swam a couple of times per week. She went out with friends socially and went shopping with them. She enjoyed cycling, walking, gardening, and DIY. Since the accident, she has had difficulty with mobility, struggled to use stairs and relied on crutches and a wheelchair. She rarely left her flat, had become totally isolated and was dependant on care. In short, she was now grossly and permanently disabled, would never drive, have children, or enjoy an independent life.

The medical records

The claimant's medical records painted a very different picture of her pre-accident situation.

The judge, from a careful examination of the medical records' Disability Living Allowance claim, found that, prior to her accident, she had been suffering from significant physical and psychological disabilities. She was physically disabled, socially isolated, and substantially dependent for most of her needs. She required help from two carers and a support worker. The claimant had a long history of medically unexplained pain, social anxiety, long-standing psychological problems, and recurrent depression, leading to social withdrawal.

Not only was this all incompatible with her evidence but the judge found her evidence grossly and deliberately misleading.

The expert witness evidence

The Court heard expert evidence from expert witnesses on psychology and pain management. Of these, the judge was wholly unimpressed by the claimant's pain management expert, Dr J.

Dr J concluded that the claimant had neuropathic pain, organic in origin, otherwise known as CRPS. But for the accident, she would not have had mobility difficulties, been capable of work and not required adapted accommodation or care. She would have had a normal level of functional ability. Prior to the accident, she had been (in his view) "fit and well".

The expert witness evidence: the judge's assessment

According to the judge, the foundation of Dr J's opinion was three propositions, none of which accorded with the evidence. They were:

1. CRPS represented physical damage to the nervous system

2. The claimant's psychological problems were secondary to CRPS

3. She was a reliable historian with "a consistent history and examination findings" and "no evidence of conscious or unconscious exaggeration or malingering".

On the first point, Dr J relied on studies of animals and not humans. He could not remember what the stimulus was in these studies. The judge "formed the view the Dr J had not mastered this topic: he had cited the papers, no-one else considered them relevant".

On the second, the judge found overwhelming evidence that the claimant's psychological problems were not secondary to CRPS but pre-dated the alleged CRPS by many years. Dr J had "put the cart before the horse". He added, "The error is a consequence of Dr J's failure to read and consider the claimant's entire medical records before he first reached his conclusion".

Thirdly, the claimant was not a reliable historian. Dr J's conclusions were based on unreliable evidence.

However, the judge went further. He regarded that Dr J's evidence was so flawed as to be unreliable on any contentious point.

1. The conclusion that Miss Ruffell was fit and well prior to the accident "strikingly demonstrated no real knowledge or proper understanding of the claimant's highly relevant pre-accident history". This led to him putting forward "several plainly absurd propositions".

2. Dr J was neither careful nor forensically thorough. When he first reported, more than four years of records were missing. There was no evidence that he even noticed this. He had not corrected his views even when gaps in the evidence were identified by other experts.

3. In his reports, he was dismissive of the views of other, equally well-qualified doctors in terms that were at best off-hand and, at worst, rude.

4. In giving evidence, Dr J was also dismissive of those who did not agree with his "rigidly held opinions". His dogmatic approach was inconsistent with the obligation on an expert witness to consider and acknowledge where there is a range of opinions. He accused other experts of 'concocting' their diagnosis of somatic symptom disorder. To express himself in such objectionable terms "displayed a lack of balance and judgment".

5. His evidence was combative, and he repeatedly acted as an advocate for the claimant. Rather than answer a question directly, he would often sidestep and respond with an argument to support the claimant's position. "The contrast between Dr J's determined advocacy of the claimant's position and the more considered and balanced evidence of the other three medical experts was striking."

Lessons for expert witnesses

To see an expert so comprehensively criticised makes salutary reading. The lessons for experts are:

  • Take seriously the medical records and engage with them where they are inconsistent with your view.
  • Do a thorough job in the first place so that you do not either have to change your view or feel compelled to defend the indefensible.
  • Remember that your duty is to act as an independent expert, reporting to assist the Court, a duty which overrides your obligation to the party instructing you.
  • Do not be an advocate.
  • Treat other experts with respect and recognise where there is a range of opinions.

Read Paul Sankey's 'Top 10 tips on how to be a better medical expert witness'.

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[1]Ruffell v Lovatt – HHJ Hughes QC, 4 April 2018

 

 

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