Legal update on the pitfalls and intricacies of medicolegal expert evidence

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Legal update on the pitfalls and intricacies of medicolegal expert evidence

Published 4 March 2021

Medicolegal expert evidence sits at the heart of cases involving injury, and from a practitioner’s perspective building a case around expert evidence is an all-important skill. There have been several recent cases worth noting that highlight the pitfalls, intricacies and surprises involved in doing so.

Learning Points:

• Be careful when vetting expert reports for service to ensure that they (1) critically examine all the relevant medical records and diagnostic criteria, (2) are not unfairly critical of the lay witnesses, particular injured claimants, and (3) appropriately refer to all material literature.

• Experts are independent advisors to the Court (CPR 35.3). Any whiff of partisanship on their part will be seized upon and could result in adverse inferences being drawn.

• Make sure that experts’ reports contain their full and frank opinion, to try to avoid being gazumped by their true opinion coming out under cross-examination.

• The Court is likely to weigh the benefit of additional expert evidence against the issue of proportionality in favour of having the additional evidence, where the facts require it.

Ali v Home Office – A cautionary tale of the need to critically consider the medical evidence

The case involved the legality of Mr Ali’s detention during / following the appeal of refusal of his claim for asylum. The facts are of little relevance (though the detention was deemed lawful), save to the extent that His Honour Judge Baucher briefly addressed the claim for Post-Traumatic Stress Disorder (PTSD) which Mr Ali purported to suffer as a consequence of his detention.

The parties relied upon expert psychiatric evidence (the Home Office relied on a report from Dr Das, Mr Ali on Dr Apostolou). HHJ Baucher was roundly supportive of Dr Das’ opinion, finding him “… an impressive witness … [providing] a detailed comprehensive report … [which he] explained fully and clearlyin a considered and professional manner.” ([96]). Considering all the evidence and the diagnostic criteria (the International Classification of Diseases – 10, ICD10), he found that Mr Ali had never suffered with PTSD, and it would have been surprising for him to have done so where, in Dr Das’ experience no detainee had suffered PTSD purely as a result of their detention.

By contrast, HHJ Baucher was highly critical of Dr Apostolou. He found her to be “… an extremely hesitant and unimpressive witness.” Her failures were fundamental – Mr Ali’s GP notes from during the time of his detention (which were large given other physical issues) were bereft of any mention of mental health at all, let alone PTSD – yet Dr Apostoulou did not consider that this damaged Mr Ali’s credibility as a witness. She further did not consider the ICD10 diagnostic criteria when concluding that Mr Ali suffered PTSD, rather she based this on her ‘clinical impression’ based only upon Mr Ali’s assertion to her in assessment ‘that he was clinically well before his detention’.

(Ali v The Home Office [2020] EW Misc 27 (CC))


Leach v North East Ambulance Service – Your experts must remain objective, at your peril

Ms Leach suffered a subarachnoid haemorrhage at home. The case centred around delayed attendance by the Trust’s ambulance. This is another matter considering PTSD, though also serves as a useful clear reminder on the law on material contribution (at [13-14]).

The question for His Honour Judge Freedman was whether the negligent period of delay (the final 31 minutes of a total 1 hour 49 minute delay) caused or contributed to Ms Leach’s PTSD.

The parties relied upon expert psychiatric evidence (the Claimant relied on Dr Smith, the Trust on Dr Bowers). Whilst accepting that PTSD could have occurred but for the negligent delay, Dr Smith argued, in line with Bailey, that medical science could not say at what point during the overall 109 minute period Ms Leach crossed the threshold for development of PTSD – “… the longer the exposure, the more likely it was that PTSD would occur and/or that it would be more severe” and therefore he considered the negligent delay (which was approximately 1/3rd of the total period of delay) had materially contributed to the Claimant developing PTSD.

HHJ Freedman found Dr Smith to be a “… thoughtful, balanced, and careful expert witness who was doing his best to provide the court with his genuinely held opinion.” He dismissed Defence Counsel’s assertion that Dr Smith was nothing but “… an advocate for the cause”.

Dr Bowers however, committed a litany of errors and came under close scrutiny:

• He argued that Ms Leach was deliberately attempting to minimise her psychiatric history for the purposes of the litigation. This was given short-shrift: “… there was no evidential basis for such a suggestion and it should not have been made.” Further evidence of Dr Bowers’ “… less than fair approach …” was the assertion that Ms Leach was in some way culpable for her own misfortune simply for not having her phone charged (it ran out of battery whilst seeking emergency attention).

• He materially changed the view expressed in his written report under cross-examination, and sought to rely on literature not referred to in his written report – literature which he also misquoted at the risk of misleading the Court.

• HHJ Freedman considered Dr Bowers to be “… deliberately attemptingto present an assessment which was less than favourable to the Claimant.

Dr Bowers’ clear lack of objectivity proved fatal; Dr Smith’s propositions were preferred and the claim succeeded.

(Leach v North East Ambulance Service NHS Foundation Trust [2020] EWHC 2914 (QB))


Jarman v Brighton & Sussex University Hospitals – Reliance on another party’s experts at trial

Ms Jarman suffered a back injury at work causing significant symptoms of cauda equina syndrome, with resultant disabling bladder and bowel dysfunction, pain and reduced mobility. She separately sued her employer for occurrence of the injury, and the Trust for delayed spinal decompression surgery.

Ms Jarman’s claim against her employer was concluded shortly before trial (in December 2020), but not before all the parties’ expert Neurologists and Neurosurgeons had held joint meetings and produced their joint memoranda. Ms Jarman applied, seeking permission to rely on her employers’ experts’ evidence, including oral evidence, at trial against the Trust following settlement of the employer’s claim.

CPR Part 35.11 gives any party the automatic right to use another party’s served expert’s report as evidence at trial. However, in this case the claims against the employer and Trust had never been consolidated (though they were case managed and tried together), so that automatic right did not exist. Ms Jarman applied, seeking the Court’s discretion under CPR3 and CPR35.1, to rely on the employers’ expert reports.

The application came before Mrs Justice Lambert on 11.11.2020. Whilst the decision was fact-sensitive, she relied heavily on Shepherd and Neame v EDF Energy [2008] EWHC 123 (TCC), where this specific scenario was envisaged, discussed and the judgment reached that the Court’s discretion should be exercised to permit reliance. The evidence of the two experts already formed part of the experts' joint statement, and redacting their evidence from that statement would possibly give the wrong impression or misrepresent the opinions expressed in it.

The Trust’s principal objection, on grounds of proportionality, was disregarded as calling the two experts would cost £22,000 and add only one day to the trial, which was proportionate to the claim’s value (c.£2m), importance, complexity and the parties' financial position.

(Jarman v Brighton & Sussex University Hospitals NHS Trust [2020] EWHC 3238 (QB))

Authors

Kristian Hansen

Kristian Hansen

Bristol

+44(0)117 918 2056

Nicola Kumi

Nicola Kumi

Bristol

+44(0)117 918 2373

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