The Litigation Series – Week 13: Finalising And Serving Evidence – Expert Reports

Expert evidence is crucial in medical negligence claims. If we don’t have expert evidence which supports that the treatment received was substandard, then we do not have grounds to continue with a claim.

When we ‘serve’ expert evidence, we are sharing it with our opponent for the first time. Up to this point, the evidence has remained confidential. Therefore, it is obviously very important to feel confident that the expert evidence is reliable and clear. The defendant will also need to serve their expert evidence on us, so what I am discussing in this blog will apply to them as well.

Many of the experts we use in our cases will have undergone training in how to produce reports that meet the expectations of the Court. However, in our role, it is still very important to ensure compliance. The role of expert evidence is to assist the Court in understanding specialist issues. It is also important to remember that the expert’s duty is to the Court, so they must be objective and unbiased in their opinions. Ultimately, if the case were to end up in a Trial, the experts would be expected to give oral evidence discussing their reports so they need to be confident and fully informed about what they are saying.

As a brief overview, expert reports need to contain:

• details of the expert’s professional and academic qualifications
• details of any literature relied on when writing the report. Copies of this must also be provided.
• An overview of the factual background giving rise to the claim.
• The evidence they have based their opinion on. They have to differentiate between facts, deductions and assumptions and state the basis of any deductions or assumptions. They must also only focus on areas of dispute between the parties.
• A summary of conclusions with some reasoning about how they reached those conclusions
• The expert must confirm at the end of the report that they understand that their duty is to the court, and that they have complied with that duty

A good way to finalise expert evidence for service is to have a conference. A conference will be led by a barrister, the client would of course be in attendance with their solicitor, and some or all of the experts in the case would be present for discussions. A conference is an informal and confidential forum to test the evidence. By this stage, the experts will have seen the medical records and relevant evidence in the matter, such as witness statements. The conference will establish whether or not any of the experts wish to change their opinion in any way, or whether they continue to support the case. The discussions can be very detailed and interesting. It also gives us a final opportunity to deal with any issues before we share their reports with the defendant and the Court.

There is not always one right answer, or one right way to do things when it comes to medical treatment. In medical negligence cases we reach the stage of serving expert evidence, because both we and the Defendant are relying on medical experts in the same area of medicine, who have a difference of opinion. Therefore ensuring the served expert reports are clear is very important, as the next stage will be joint discussions. To prepare for this, we prepare an agenda, which is like a list of questions, which pinpoint the areas of dispute between the experts. They then have a discussion between themselves, to see if they can reach an agreement on these questions and therefore narrow the issues even more.

If an expert changes their opinion at a late stage, this can be disastrous for a case. Therefore, being as prepared as possible, and making sure the evidence has been thoroughly tested before we formally serve the report is very important.

If you have suffered injuries due to medical negligence you may be entitled to compensation. For a free initial consultation with one of our medical negligence experts please call 0808 231 1281 or request a call back online.