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Medico-legal practice in 2022: The first shot across the bow for experts?

By Glen Whitehead, a  serious injury lawyer at Irwin Mitchell 

Having formerly prepared medical reports myself when a physio, and now receiving and reviewing them on behalf of my clients as a solicitor, I am always interested when expert witness events hit the headlines.

The case of Palmer -v - 1) Mantas 2) Liverpool Victoria Insurance Company Ltd [2022] represents an opportunity early in the year for the High Court to set the tone for experts who fall short of the standards required under Part 35 of the Civil Procedure Rules.

CPR 35.10 states that an expert report must comply with the requirements set out in the Practice Direction, which in turn requires experts to provide objective, unbiased opinion on matters within their expertise, following consideration of all the material facts.  Where there is a range of opinion on an issue the expert must summarise the range and give reasons for their own opinion.  The expert report must include a statement confirming that the expert is aware of the requirements of Part 35, the Practice Direction, the guidance provided for the instruction of experts in civil claims and that they have complied with their duty to the Court.  There is no ambiguity in this expectation.  

In Palmer the claim arose from the Claimant sustaining significant injuries, including a traumatic brain injury, when she was involved in a collision on the M25 motorway in 2014.  Liability was admitted and the parties proceeded to trial on the issues of causation and quantum. During the course of the litigation the claimant attended a total of 22 medico-legal assessments, involving eight experts, all preparing reports for the court.

As they approached trial the parties remained a significant distance apart. The claimant’s updated Schedule of Loss valued the claim at £2.2 million with the second defendant’s initial valuation at £5,407, primarily for general damages relating to physical injuries.

At trial the parties agreed that the claimant was active, generally well and working in a full time job at the time of her injury. The parties did not agree on the extent of the brain injury or the amount of future treatment required, however, it was generally accepted across the expert joint statements that the claimant continued to experience neurological symptoms and chronic pain as a result of her injuries.

Differing views on severity of injuries

Not all the defendant experts were convinced of the severity of the claimant’s reported symptoms. The second defendant served a report from their consultant in pain management, who gave evidence that he had formed his view from the outset that the claimant was not telling the truth.

Ahead of trial the second defendant alleged that the claimant had deliberately acted in a fundamental dishonest way, so as to maximise her level of compensation; they sought to have the claim struck out. This presented serious consequences for the claimant if the allegation was upheld.

Judge finds claimant to be honest and helpful

In his Judgment, Anthony Metzer QC, sitting as a Deputy High Court Judge, gave his analysis of the medical expert evidence.  While recognising the high standard presented by six out of the eight medical experts, the Judge held that the defendant had failed to establish that the claimant was fundamentally dishonest.  Contrary to the second defendant’s assertions, the Judge found the claimant to be an honest, helpful, impressive and dignified witness in her own case.  The total award for the claimant was ordered in the sum of £1,679,406.00.

The Judge stated that he found it necessary to make specific reference to the evidence presented by two of the Defendant’s experts, these being the neuropsychologist and the consultant in pain management.

The report prepared by the defendant’s neuropsychologist was described as being ‘littered with judgemental and rather scathing comments’ with the claimant described as self-pitying and histrionic. The neuropsychology report was also described as lacking in balance and although not intentionally adverse in her findings, demonstrated unconscious bias.

The criticism of the pain management expert was more direct.  Having not reviewed the records before the assessment with the claimant he had therefore not raised with her the specific entries upon which he later relied when forming an opinion about her honesty.  The expert had made it clear that he did not believe the claimant, and then failed to recognise the alternative case in respect of pain management.  It was also identified that he had made an error in the joint statement and had not acknowledged all the elements of the claimant expert’s range of opinion. 

Furthermore the pain management consultant made what was considered to be an unfair attack on the opinion provided by one of the claimant experts from another discipline, an approach which the pain management expert later apologised to the court and accepted was ‘simply not good enough’.

When challenged about his evidence the pain management consultant accepted that he had been over zealous in his use of language, probably slightly unfair and that he could have been kinder. The expert even admitted that he ‘winced’ when he re-read his reports ahead of the trial.

In recognising the potentially career damaging effect of negative comments about the expert the Judge confined his review to this specific case. In his closing comments on the matter it was stressed that whilst it is clearly open to an expert to disbelieve a claimant, there must remain a strict adherence to the requirements under Part 35 and that these ‘should not be departed from, either intentionally or recklessly’.

Experts and Accountability

It is becoming an increasingly frequent occurrence  that medical practitioners who fail in their duties to the court are then held accountable. In this particular case the defendant experts did not meet the requirements set out in PD 35. The second defendant’s own counsel accepted that he could place no reliance on its own pain management evidence at trial.  However, in reviewing the chronology of the case it must be acknowledged by all that this evidence had been relied upon when served upon the claimant, it was available to the defendant at the point they were quantifying the claim and when raising the allegations of fundamental dishonesty.

It was noted by the Judge that it has been only a relatively short period of time since the same neuropsychologist was the subject of comments by Master Davison in Mustard v  1)Flower  2) Direct Line [2019]. 

Third Party Costs Orders

Some parties have taken to seeking losses from experts by way of Third Party Costs Orders.  With some recent high profile cases and costs orders reaching tens of thousands of pounds.  There is an increasing appetite to pursue medico-legal experts who are deemed to have fallen below the required standard given the high standard expected and the consequences that their evidence can have on vulnerable people.

In January 2020 Lancashire NHS Foundation Trust sought a Third Party Costs Order against a consultant orthopaedic spinal surgeon. Her Honour Judge Claire Evans held that allegations that the surgeon was not competent to be an expert went to the very heart of his duties to the court.  He was found to have failed comprehensively in his duties as an expert witness and this had resulted in significant and unnecessary costs.  The expert was ordered to pay £88,801.68 and the costs of the application.

In September 2021 a dentist instructed as a Part 35 expert was also described as having shown a flagrant disregard for his duty to the court.  It was deemed that he should have recognised that he was not able to comment on the potential negligence and that he had not made any effort to understand the issues in the case.  Recorder Hudson made an order for costs against the expert in the sum of £50,543.85.

These sums are significant and the reputational damage associated with such judicial comments will in all probability have a financial impact on any expert’s medico-legal and treating practice.  

It remains to be seen whether the Second Defendant in Palmer will seek a Third Party Costs Order.   Even if recovery of costs is not sought through this route, these comments from the Bench still provide a clear warning that experts should approach their duties and responsibilities as a Part 35 expert with the utmost respect and integrity.

About Glen Whitehead

Glen is a solicitor in Irwin Mitchell's Sheffield Serious Injury team.  He represents adults and children who have sustained life changing injuries.  

As a former physiotherapist Glen has many years’ experience of medico-legal matters and regulation of clinical standards from the perspective of a healthcare professional.  As a solicitor he finds this invaluable when engaging with experts on behalf of his clients.  He retains a keen interest in the role of the expert witness in personal injury claims and has conducted education, training and workshops on this topic.

Find out more about Irwin Mitchell's expertise in supporting people following serious injury at our dedicated section.