Expert witnesses play a crucial part in personal injury cases, particularly catastrophic injury claims, which often involve complex injuries. In this article, we consider an expert’s duties and explore recent case law where expert evidence has come under the judicial spotlight.
Who are medico-legal experts?
A medico-legal expert is a practising medical practitioner or another medical professional who is regarded as a specialist in their chosen field. Based on their expertise, the expert is responsible for providing an impartial and independent opinion based on all material facts.
Often in high-value cases where the injuries sustained are complex, there will be a number of experts instructed by the solicitors representing the claimant and defendant.
What are the duties of an expert witness?
An expert witness’s duties often include the following:
- Undertaking a clinical examination of the claimant.
- Writing a report based on evidence provided by the instructing solicitor, such as medical records, accident reports and witness evidence.
- Responding to Part 35 questions within 28 days once the expert’s report has been served on the opposition party.
- Attending conferences with the instructing party’s legal advisors.
- Having a joint meeting with the equivalent expert instructed by the opposition party to discuss matters and produce a joint statement, with the aim of trying to narrow the issues in dispute and explore whether there are areas of agreement.
- Giving evidence and being cross-examined at court (although very few high-value personal injury or clinical negligence cases actually reach trial).
Since December 2014, medico-legal reports have been required to comply with the Civil Procedure Rules (CPR) Part 35. Additional guidance is available in the associated Practice Direction 35 and in the ‘Guidance for the instruction of experts in civil claims’, published by the Civil Justice Council. The General Medical Council also provides guidance for medical practitioners acting as witnesses.
An expert’s primary duty is to the court, regardless of which party is settling the expert’s fees. As such, medico-legal experts must carefully review the evidence provided by their instructing solicitor, including medical records and other evidence such as the claimant’s witness evidence, in addition to examining the claimant.
Experts must ensure that their written or oral evidence is confined to areas of relevant knowledge and expertise, based on careful consideration of the facts of the case in question. Interestingly, there is no one test for confirming whether a witness is considered sufficiently qualified. Rather, this decision rests with the judge.
All experts must also declare any conflict of interest, ensure they are able to comply with the court timetable and have appropriate indemnity insurance in place.
Reflecting on recent cases: challenges and pitfalls
Over the last year, there have been a number of cases where expert evidence has come under the judicial spotlight. We explore three of these cases below.
- Lacking the necessary expertise – in Eaton v Auto-Cycle Union Limited & Ors [25.10.22], the claimant, a successful motorcycle racer, was seriously injured when he made contact with another motorcycle. The claimant argued that had the straw bales “been positioned at the point of impact then he would have avoided serious injury”. Unfortunately, according to the judge, the engineer instructed by the claimant: “lacked the necessary expertise to substantiate and justify his conclusions.” As such, the claimant’s written closing submissions placed no specific reliance on any part of his evidence. It is important that an expert and the legal team feels they have the correct expertise to assist.
- Failing to declare a conflict of interest – in Arrassey Properties Limited v Nelsons Solicitors [15.7.22], the claimant property company brought a claim in negligence against the defendant solicitors. The judge was highly critical of the expert who failed to highlight a conflict or potential conflict stating: “he should have drawn the very conflict he accepted in the witness box to those that instructed him and at the very least specifically identified it in his report. That in itself is a serious failing and causes the court to question the entirety of his evidence and whether he is sufficiently au fait with the CPR 35 provisions.” In contrast, the expert instructed by the defendant was considered “an impressive witness” and his evidence was accepted by the judge in its entirety.
- Unconscious bias – in Palmer v Mantas & Anor [20.01.22], the claimant’s case was that she had suffered a minor traumatic brain injury combined with a somatic symptom disorder as a result of a road traffic accident. The judge was critical of the use of language by the neuropsychologist instructed by the defendant who made some “judgemental and rather scathing comments” about the claimant. The pain medicine expert was also subject to some criticism and the judge found him to have departed from his Part 35 duty.
Ultimately, expert witness evidence can make or break a case. An expert must execute their duty with impartiality and care by considering various factors, including disclosing any conflicts of interest, highlighting the extent, nature, and cause of injuries, and explaining the expected duration of the recovery period.