The Litigation Series – Week 6: Expert Reports – Liability

We hope that you have been enjoying our Litigation Series to date and how medical negligence claims work. This week we will be discussing the issue of expert liability reports.

The importance of expert reports has already been touched upon briefly. However, to put it simply, in the majority of cases, obtaining supportive expert evidence/reports can be the single most important element of your claim. It can determine whether your claim ultimately succeeds or fails. The importance of choosing the correct and best expert/s cannot be overlooked and is a step that requires particular care and thought.

Succeeding in a Clinical Negligence Claim

First, to understand why expert evidence is so important, here is a reminder of what you (the Claimant) must prove in order to succeed in a medical negligence claim:

1) Breach of Duty

It must be established that the standard of care fell below a level normally expected of a practitioner in that field (negligence). If the practitioner can show in their defence that there is a body of competent practitioners who would have acted in the same way a claim will fail.

2) Causation

It must be established that any damage suffered is a direct consequence of the negligent act or omission (causation). The fact that a practitioner can be shown to have been negligent is not sufficient on its own, you have to be able to establish that there is a direct causal link between the negligence and the injury for which you are claiming compensation. This link between cause and injury is not as obvious as it sounds.

For example, if a Claimant has suffered a two year delay in the diagnosis of cancer, but an expert states that earlier diagnosis would not have made any difference in terms of treatment required and that person’s condition, prognosis or life expectancy; then a claim in medical negligence would be unlikely to succeed.

The Importance of Expert Reports

The reason why expert evidence is so important is because most cases will be determined on the strength of the medical expert reports. If your expert is of the view that the treatment you received fell below a reasonable standard of care and that this led to your injury, then this is what you need to give you the best chance of succeeding in your claim. If you receive an unsupportive expert report, the prospects of success would fall dramatically and could lead to a claim being abandoned.

It is not as simple as just having your own supportive expert evidence though. It should be remembered that the Defendant themselves will also likely obtain their own expert reports. Claims will become contested when both the Claimant’s and Defendant’s expert/s take different views on the claim.

Experts for both sides must act independently and their duty is to the Court, not to the party who instructed them. But this does not mean that there won’t be a legitimate difference in opinion as to what would be considered reasonable care in a person’s case.

In these instances, the resolution of a claim can in a large part depend on how strong each side considers their expert evidence to be, and whose evidence would be preferred if put in front of a Trial Judge. Therefore it is imperative that your expert/s are suitably qualified to comment on the precise issues to be addressed, and are strong and robust from the outset.

I have had many cases where the selection of the correct expert is key and ultimately the reason why those claims successfully settled. For example, choosing the correct vascular expert where my client unfortunately suffered an unnecessary leg amputation, or instructing the correct ophthalmologist to comment on the treatment my client received which resulted in her suffering a complete loss of sight in one eye, was vital in successfully settling those claims.

Choosing the Right Expert/s

Selecting the right expert to prepare a report in your claim is crucial. Not all medical professionals prepare medico-legal reports. Reports must also include specific medical and legal details, as well as complying with certain Court rules. Experts in niche areas of specialism such as narcolepsy can also be more difficult to find.

The instructed expert needs to be independent and ideally should not have any connection with the medical professional or hospital that you are bringing a claim against. They should also not be your treating doctor. I am frequently asked by clients if their own doctors can act as formal experts in their claim. This is often not possible or appropriate as they may have no experience with litigation, and their impartiality may be questioned. I have only acted on one case where my client’s treating doctor was also instructed as their expert. This was because my client’s condition was so specialised that only a handful of doctors in the UK could competently comment on my client’s condition. This situation is rare though.

So what other factors need to be considered when selecting your expert/s? Below are just some of the issues a solicitor will need to consider when choosing the correct expert for your case:

• Specialism/Expertise: You need to choose an expert who is of the same specialism as the doctor, nurse, etc who provided the negligent treatment to you. If the negligent act was by a GP then you would instruct a GP expert. Or if for example your case related to cancer treatment, you would instruct an oncologist. It should be remembered that there are hundreds of different medical specialisms, and therefore multiple experts may need to be instructed, from nurses to plastic surgeons, to dentists to urologists.

• Experience: This will be particularly important for more complex claims.
  You need to consider whether the expert has the relevant experience to comment on your claim. This can be in terms of their level of seniority, whether they are still practicing, or whether they work in the NHS, privately or both. If for example a claim was against the actions of an obstetrician under a NHS Trust, it would be preferable to instruct an expert with experience working within the NHS rather than only doing private work.
  You also need to consider an expert’s medico-legal experience. Whilst all experts need to start somewhere, for more complex claims you would preferably not want to instruct an expert who has never engaged in medico-legal work before. You will also want to know if they normally act for Claimants, Defendants or both.

• Turnaround Time: How quickly an expert can complete their report can be important. Experts can often have lengthy turnaround times for reports. In some instances you may need to instruct an expert who is able to work within strict deadlines. On other occasions, it may be wiser to wait to instruct a “better” expert but who may have a longer turnaround time. Choosing an expert just because they can complete their report the fastest is not always sensible. Expert turnaround times can range from no more than one week to two years+ in the most extreme cases.

• Court Directions: The instruction of specific experts can be limited by the Court. It is not the case that you can rely on any expert report you want. The Court will limit the instruction of experts to only those it considers are relevant to determine the outcome of the clam.

• Costs: Experts do not work for free and obtaining expert reports can cost thousands of pounds. Who is ultimately liable to pay for these costs will depend on the outcome of the claim. However, there is an expectation by the Court that legal costs remain reasonable and proportionate and this must be kept in mind when choosing experts. For example:
  The most experienced and leading experts in their field can command significantly higher fees than less experienced experts. In less complex claims you may not necessarily need to instruct such an experienced expert.
  Or in “low value claims”, it could be considered disproportionate to instruct five or more experts for a claim that may only be worth £5,000.

• Recommendation/Previous Experience: Often there is no better substitute than instructing an expert who you have successfully used before or has been recommended to you by a colleague.

This is not an exhaustive list and only some of the factors that a solicitor will need to consider when choosing the right expert in your claim. Some clients may wish to have input in the selection process, while others prefer not to. Either way a careful balance will need to applied to the specific requirements of each case and to prioritise what the most important aspects are for your claim.

Unsupportive Expert Reports

Unfortunately not all cases will be successful. This can often be as a result of an unsupportive expert report. It is important to remember that if an expert provides an unsupportive report, this does not mean it is because the wrong expert has been instructed. As already mentioned, an expert’s duty is to the Court. Their report must be based on their honest neutral opinion. They cannot simply prepare a report that is supportive of a case just because they have been instructed by the Claimant.

It is far better to know the genuine prospects of a claim from the outset, rather than taking a claim all the way to trial, because an expert has prepared a report on the basis of what they think you want them to say. This will eventually be discovered and the case will most likely fail, which in turn could result in adverse cost risks for you.

On some occasions, obtaining a second opinion from another expert may be considered. But this should only be done if there are real and genuine concerns about the report that has been provided. The simple fact of a report being unsupportive would not in itself justify obtaining a second opinion. This issue will be considered further in next week’s blog.

Where Expert Reports May Be Less Important

There are of course some claims that will focus more on factual disputes. This will typically be when it is the patient’s word against the medical professional. In such cases, the Claimant’s witness statement can also be the just as vital as the expert reports. Witness statements will be discussed later on in the Litigation Series.

There are also some rarer cases where the facts are so clear that expert reports are not required at all. For example, I have previously settled a claim related to a dispensing error by a pharmacist. In this case my client was incorrectly prescribed the wrong medication causing him pain and suffering for a limited period of 4 weeks. As the negligent act of dispensing my client the wrong medication was so clear, expert evidence was not required to successfully settle the claim.

Overall selecting the correct expert/s for your claim is vital and can often be the difference between being successful or not. This should therefore be done with care, consideration and listening to the advice of your solicitor. Next week, we will be considering expert reports on condition and prognosis and quantum, and how these are used to value a person’s claim.

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 0330 822 3451 or request a call back online.