Maximising the quality of expert evidence in light of Robinson v (1) Liverpool University Hospital NHS Foundation Trust (2) Mercier –Advice to experts from a lawyer’s perspective
It is no exaggeration to say that in clinical negligence, expert evidence will make or break a case. Perhaps more so than in any other field of litigation, success in a clinical negligence case depends on having a good expert in the right discipline; an expert whose report can be relied upon, and an expert who can withstand rigorous challenge in joint discussions and under cross-examination. The recent case of Robinson v (1) Liverpool University Hospital NHS Foundation Trust (2) Mercier (1 October 2021) is a helpful example of things going wrong at every stage of the process and of the consequences to both the parties and to the expert themselves that can follow when it does.
Choosing the expert:
The first question for the lawyers when building or defending a case is: which discipline(s) of expert is/are required? The first question for an expert when instructed should be, am I the right expert to comment on this injury/these symptoms/this act of alleged negligence? Whilst this may seem obvious from the facts (orthopaedic surgeon for a broken limb, etc), it is important to consider the nature of the injury (e.g. is a psychiatric injury more suited to a psychiatrist or a psychologist?) and whose breaches need to be investigated (e.g. is the criticism of surgery, aftercare by medics or the nursing care?)
In Robinson, one of the main criticisms of the claimant’s expert was that as a general dental practitioner he expressed an expert opinion on the standard of care afforded to the claimant by an oral and maxillofacial surgeon without apparent consideration of whether they would have the same duty of examination, access to the same equipment, or the same medical questions to consider.
The second question for the lawyers will be: which expert within that discipline? In my experience, nothing beats personal experience and recommendations. As an expert, if you are still building your practice, it is worth considering speaking at legal personal injury and clinical negligence events (e.g. APIL, PIBA and AVMA conferences) to get your name and your quality known by the lawyers who may wish to instruct you.
When instructed, consider whether you have practical and recent experience of the issues involved? Is this your particular speciality or would it be better to recommend an alternative expert? If you have not got Court experience consider attending a hearing (they are open to the public) where you can watch experts being cross-examined. If you have a mixed location practice (e.g. a plastic surgeon practising in the UK and the USA) make sure you are able to distinguish the standards expected in England and Wales versus the standards in the other country.
Crucially, check your links or potential links to the parties. In EXP v Barker ( EWHC 1289 (QB)), on D’s personal recommendation, his legal team used an expert witness (M) who turned out at trial to be a long-time colleague of D, who had trained him for seven years and written at least one paper with him. They lost the case.
If something changes (e.g. you retire from practice, are unable to work for a period, or start working with one of the doctors involved in a clinical negligence case), make sure you alert your instructing solicitor to this immediately. In Thimmaya v Lancashire NHS FT (30th January 2020, Manchester County Court), D’s wasted costs were awarded against an expert who had only revealed under cross-examination that he had been suspended his clinical practice 18 months previously due to psychiatric difficulties which impaired his ability to give evidence; the claimant was forced to discontinue the case.
Whilst it may be tempting to be a “gun for hire” who will be a big supporter of the case no matter what, in reality these experts are more of a hinderance than a help to lawyers and they may well be torn apart by the other side’s barrister under cross-examination. One of the criticisms of Dr Mercier by the Court in Robinson was that “His opinion fluctuates to whatever he feels will win the case.” What the Court wants and what will serve a party best is an expert who is independent (assisting the Court rather than acting as an additional advocate); reasonable (making concessions where appropriate but standing firm otherwise); can justify their opinions with evidence and clear reasoning, not hunches and unexplained theories; and who stays within the boundary of their expertise.
Testing the expert:
An expert has sent the report to the solicitor, they will need to test it. I always advise solicitors to review expert reports to ensure that they:
- Comply with the requirements of Part 35 and Practice Direction 35 (it is astonishing how often errors come to be made and/or experienced experts do not stay abreast of updates to those sections when they change).
- Is readable (and does not unnecessarily quote large sections of literature or other reports – see Harman v East Kent Hospitals NHS Foundation Trust  EWHC 1662 (QB) per Turner J who criticised over-heavy expert reports where the length is nothing but duplication).
- Reports the facts and medical records accurately and without omissions.
- Explain clearly, logically and consistently the conclusions on breach, causation, and/or condition and prognosis.
- Have properly stated and considered the legal tests (as barristers we frequently see reports stating that it is “possible” or “very possible” that an injury was caused by the accident – this does not meet the required legal test of “on the balance of probabilities”).
As an expert, you can save yourself a lot of time and frustration by reviewing and ensuring these problems will not arise before sending the report to the solicitors.
Robinson shows what happens when the expert does not make these checks and the lawyers fail to properly review the report. The judge identified that there were major gaps in Dr Mercier’s report which should have set off alarm bells for the claimant’s legal team, including that he had not: seen an x-ray which was later described as fundamental to the experts’ analysis; explained why he considered C’s condition 18 months after the surgery was evidence of her tooth’s condition immediately before the surgery; or, crucially, addressed the relevant legal test for breach of duty. The Judge considered that the “report itself reaches wholly unsustainable conclusions”.
Preparing for joint statements:
After exchange of reports, experts will be asked to meet (in person or virtually), discuss the case and prepare a statement of what they agree on, on what they disagree and the reasons for any disagreement.
As an expert, make sure you are clear about what the issues in the case (and in particular your area of evidence) are before the joint statement stage. Review your report and that of your opposite number and try to identify what flaws they will point to in your reasoning (and how you will respond to them) and any weaknesses you can see in their reasoning or in their reliance on literature. If there is any relevant literature that you did not cite in the initial report, make sure you check what it says and have a copy available to provide to your opposite number and the legal advisors for the opposing party. In larger cases there will be an agenda, or at least a list of topics, to consider which has been drafted by the legal teams. Remember that this is a guide and should not limit your discussions to just these topics if others are relevant.
Make sure that what you say in the joint statement is not simply a cut-and-paste of the key passages of your report’s opinion sections, but engages with and answers the opposing case. Make sure that you have read the joint statement thoroughly before signing it and that it is an accurate statement of your views (this may seem obvious, but the expert in Holdsworth v Luton & Dunstable University Hospital  EWHC 3347 (QB) failed to do so).
If possible, you will be at trial to hear not only the other expert evidence (at a minimum you should be there to hear your opposing expert give evidence) but also the witness evidence on the relevant topic. Experts will be giving opinion evidence which may be highly dependent on the facts that the Judge has to decide. If something new comes out in oral evidence, it should not take the expert by surprise in the stand. If you cannot hear the witness evidence, ensure that a full note is provided by your legal team as far as possible in advance of giving evidence.
As stated above, as an expert if you have never given evidence it is worth attending Court to watch other experts being cross-examined if you can. If there is a possibility of “hot-tubbing experts” (where both experts give oral evidence simultaneously), make sure you are properly prepared for this experience by your legal team. As an expert, you will be invaluable to the barrister cross-examining your opposing expert, so try to be close enough in Court to pass notes if needed.
What if it all goes wrong?
It is important for experts to be aware of the legal consequences of their work and of what may happen if they collapse (or are found to have unsustainable views) pre-trial or in the stand. As stated above, it is vital to keep your legal team aware of any links with any treating doctors involved with the case and any changes in circumstances or in your opinion so that they are not caught by surprise at the last minute.
Be aware that if an expert destroys the case through a late change of heart or at trial, particularly if it becomes clear at trial that their original advice was based on unsupportable reasoning, both the opposing party and the expert’s own party may pursue a claim against that expert for their wasted costs.
In Robinson, Recorder Hudson awarded D NHS Trust their wasted costs to be paid by Dr Mercier, holding that an expert witness was not immune from the sanction of compensating those who had suffered by evidence given recklessly in flagrant disregard of his duties to the Court. He held that it should have been obvious to Dr Mercier at the outset, and at various stages throughout the proceedings, that he was not the appropriate expert. He was found to have not made any efforts to assist the Court, but instead to have wilfully stuck to his case theory irrespective of the questions asked or the evidence given. His evidence was held to be grossly unhelpful and wholly unreliable, showing a flagrant reckless disregard for the duties of an expert to the Court. Having found a case in negligence established, the Recorder Hudson considered whether there was a causal link to the loss. He held that, despite Dr Mercier’s attempt to lay the blame on the claimant’s legal representatives for concocting a case out of his report, but for the initial report the claim would not have been brought and the NHS Trust would not have been put to considerable expense defending it. Such an order was therefore just.