An expert’s role is paramount in any clinical negligence or personal injury claim as it is the expert’s evidence that the Court will consider in assessing whether damages and, if applicable, the amount of damages that are payable by a Defendant.
Getting the right expert from the start is key to ensuring that a Claimant has the best chance of proving their case and securing the correct level of damages. The instruction of any expert should therefore be given careful consideration. Their evidence will need to be set out clearly and will need to address all of the issues that the Court might expect it to opine upon.
Civil Procedure Rules
Of paramount importance is an expert’s duty to comply with the rules as set out in the Civil Procedure Rules (CPR). Their duty is to the court in commenting on matters that are within their area of expertise. Their duty is not to the party instructing them and they should not comment upon matters that are outside of their own field of specialism. The expert’s role is to assist the court so that the Judge can hear evidence, along with an explanation, on matters that are outside the Judge’s own knowledge and experience. Having the right expert whose opinion is convincing and which the court considers is reliable is therefore vital to succeeding at trial. Without convincing and reliable evidence the case will almost certainly fail.
It is therefore important that an expert is instructed who has particular expertise in the matter you are asking them to address and that they are still practicing within their area of specialism as this will ensure they are fully up to date with research and any new procedures. Where experts have experience of the court process or have given evidence at trial in cases previously, they are likely to be more accustomed to the court process and what the court expects of them and this may be a determining factor on whether the expert should be instructed to opine in the case.
The CPR sets out clearly the type of information which is required to be detailed within an expert report. It should set out what material the expert has considered in forming their opinion, reasons as to how they have formed their opinion and where there is a range of opinion they are expected to comment upon this range.
If an expert fails to comply to requests for information or causes delays in a case, this could have cost consequences to the party instructing them or, on a worst case basis, the court may order that the expert evidence cannot be relied upon if the evidence is served out of time. Any expert instructed therefore must be aware of the importance of timings throughout the court process and what is expected of them at each stage and this should be set out clearly from the outset.
Once the expert has prepared their report they must verify the document by signing a statement of truth. Verifying a document containing false information without an honest belief in its truth can have disastrous consequences for the expert in question.
In a recently reported matter a doctor, Titus Odedun, was found to have falsified his experience when providing expert evidence in personal injury cases. Concerns were raised about his evidence on the basis of his experience, field of specialisms and professional memberships he claimed to have and concerns were submitted to the General Medical Council.
He subsequently came before the Medical Practitioners Tribunal Service panel as a result of his alleged misconduct. The panel found that he had ‘demonstrated a reckless disregard of [good medical practice] principles’ and ‘put his own interests before those of the profession.’ He was found to have been persistently dishonest in providing his opinion to support a number of claims. The decision was made by the panel to remove him from the medical register with immediate effect.
It is therefore paramount that the right expert is instructed at the outset who has sufficient experience, specialism and skill and who is aware of and can comply with their duties as required by the CPR and can set out and evidence to the court clearly their evidence.
Getting it Wrong
When the wrong expert is instructed it can affect the prospects of success of the claim. It can also mean that the case cannot be properly quantified which in turn may lead to a lower level of damages being secured and a potential under settlement of a claim.
Any failure to ask questions of an expert where an opinion is unclear or where evidence from an alternate expert is not obtained if the initial expert is unable to comment as they are outside the experts’ specialism, can lead to a potential chronic condition going undetected.
Questions should be raised by a Claimant’s solicitor on all aspects of the case, including details of how the injuries may affect the Claimant in the future or whether there may be a deterioration of the condition so that case can be properly quantified. Failures to investigate future losses which may impact upon a Claimant’s working or home life can lead to an undervaluation and under settlement of the claim. Such failures by a solicitor may result in a claim for professional negligence against the solicitor for either instructing the wrong expert in the first instance or for failing to properly investigate fully the effects of the injury.