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Instruction of the Expert from the Solicitor’s perspective

Ann Logan, Balfour+Manson LLPann.logan@balfour-manson.co.uk

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Becoming an Expert

• Registers of experts - APIL, Avma, Academy of Experts, the Expert Witness Institute, Resolve, agencies

• The Law Society of Scotland’s code of practice https://www.lawscot.org.uk/members/business-support/expert-witness/expert-witness-code-of-practice/

• Demonstrate experience and ability by providing references from appropriate referees

• Witness training programmes for giving evidence

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Accepting Instructions

• Conflict of interest from personal knowledge or geographical location always to be declared

• Exp v Barker [2017] EWCA Civ 63 – example of too close a relationship

• Appropriateness in terms of clinical practice– Practising at the time of the incident– Equivalent expertise as a peer and in area of medicine

will be scrutinised – Recent criticism of expert due to retirement by the

time of giving evidence – LT v Lothian HB

Helen Coyle v Lanarkshire HealthBoard [2013] CSOH 167

“Her written report …. had certain curious features including having no signature or reference to the name of its author, and it was not clear Dr Lee had been appraised of and understood the duties to the court of a person called as a skilled witness. As she

gave evidence I formed the clear impression that she did not have the expertise to qualify her to give expert evidence on the standard of care reasonably to be expected of a midwife

responsible for a high risk labour such as that of the pursuer”

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Different types of report

1. Factual - condition and prognosis from independent

perspective or from treating physician

2. Negligence - to address the Hunter v Hanley test

3. Causation – to address the “but for” test

4. Fatal Accident Inquiry – certain prescribed

circumstances

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Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 and The Inquiries Into Fatal Accidents And Sudden Deaths Etc.

(Scotland) Act 2016

Inquiries still proceed under the 1976 Act due to delays in proceeding with an Inquiry and transition period v Mandatory where the death was in Scotland and occurred

during employment or occupationv Or died in legal custody, prison, police custody, remand

centre, young offenders institution or child detained in secure accommodation

v Discretionary if circumstances giving rise to serious public concern and in the public interest

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Sherrif’s determination to establish

• (a)when and where the death occurred,• (b)when and where any accident resulting in the death

occurred,• (c)the cause or causes of the death,• (d)the cause or causes of any accident resulting in the

death,• (e)any precautions which—• (i)could reasonably have been taken, and• (ii)had they been taken, might realistically have resulted in

the death, or any accident resulting in the death, being avoided, b+m

Determination and implications of evidence

• (f)any defects in any system of working which contributed to the death or any accident resulting in the death,

• (g)any other facts which are relevant to the circumstances of the death

• Witness is giving evidence on oath – involvement may be factual or as an expert, and if civil proceedings subsequently, may be challenged if evidence alters

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Letter of InstructionGeneral points to note – timescale may be important due to timebar, usual rule 3 years from date of accident or negligence. Timeframe for receipt of report crucial.

Child – 3 years runs from 16th birthday in Scotland

Incapacity – generally time does not run

Date of knowledge – from when it was reasonably practicable for pursuer to know

that there was negligence and who is

the responsible party

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Documents you should receive

üMedical records - relevant incident and previous medical history as well as current relevant records

ü Pursuer’s or relative’s statement of events – particularly important where there are discrepancies with the notes

ü Complaints procedure reports including SPSO reportü Internal investigation reports, SAER, LAER in terms of the

voluntary pre action protocol for clinical negligence claimsü Guidelines and protocols relevant to the procedure,

hospital, or health board both at the time and currentü Court pleadings and statements from medical personnel

usually obtained during the course of litigation

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What do lawyers want?

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The Legal Process

• Client approaches solicitor, ingathers records and evidence, obtains funding, instructs expert for report

• If clinical negligence – either on negligence, or causation, occasionally can cover both

• If personal injury – damage done and prognosis• During negotiations may be given other side’s report to

consider and comment upon• If not resolved may be court proceedings – Sheriff Court

local to pursuer, All Scotland Personal Injury Court in Edinburgh, Court of Session, Edinburgh, if claim realistically valued at > £100,000

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The Legal Process continued• Summons (Court of Session) or Initial Writ (Sheriff

Court) begins action, Defender lodges Defences• Dependent on type of action, pleadings combined into

one document, the Record or the Open Record – and both sides given opportunity to adjust

• Consultation with solicitor/counsel• Closed Record final position of parties and date for proof

[civil hearing]• Revised report for disclosure, previous reports may not

have been disclosed, exchange of evidence• Further consultation and possible Joint meeting • Attend proof and give evidence• Judgment

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Role of the expert

• Independent, thorough and reasoned • Duties and responsibilities of an expert as stated in The

Ikarian Reefer case - National Justice Compania NavieraSA v Prudential Assurance Co Ltd (No 1) [1993] 2 Lloyd’s Rep 68.

• The independent product of the expert; objective, unbiased opinion in relation to matters within his/her expertise; state facts or assumptions, not omit material facts; make it clear when issue falls outside his/her expertise; any qualification to be made clear

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• Endorsed in Scotland in Kennedy v Cordia (Services) LLP 2016 (UKSC) 59 Para 38 the use of skilled evidence

(i) the admissibility of such evidence, (ii) the responsibility of a party’s legal team to make sure that the expert keeps to his or her role of giving the court useful information, (iii) the court’s policing of the performance of the expert’s duties, and (iv) economy in litigation.• Recent consideration in Sheriff Appeal Court case

Armstrong v ERS [2018] where a doctor provided reports as to whether 3 pursuers had suffered whiplash and/or additional minor injuries, found there had been and damages awarded

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Implications• Insurers appealed questioning the doctor’s impartiality and

independence as he was paid on a contingency fee basis• Held that he was almost acting as an advocate for the

pursuers’ cases – and although there might be circumstances that could justify contingency basis, they were “very rare”, none applied here. Further, there were deficiencies in report writing and giving evidence at proof. Expenses against pursuers.

• Do not accept contingency instructions or offer reports unpaid, question of influence

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Inexpert witnesses• Liverpool Victoria Ins Co Ltd v Dr Asef Zafar 2019 –

GP altered report based on solicitor’s comments which contradicted what patient had said about recovery at examination – discovered when original report mistakenly in trial documents – 6 months suspended prison sentence, GMC subjected him to interim conditions, and investigation continuing

• Ruffell v Lovatt 2018 – expert dismissive and rude of other sides’ experts, who were more qualified

• St Helens Council v M and F 2018 – expert not paid as felt so strongly about diagnosis of fractures in children but had no expertise of children

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Report layout

• Format – cover sheet with your name, address and contact details

• Name, address, DOB of patient• Name, address, reference of instructing solicitor• Date of examination if relevant, ID seen• Type of report• Date of report and whether draft, first or subsequent• Contents page with index of sections and appendices

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• Introduction – brief outline of your expertise in the area, referring to CV as appendix

• Sources of information – list of all documents examined, specify which medical records and dates

• Examination – whether carried out and date• Issues to be addressed – whether liability, of whom and

when, or causation, or condition and prognosis• History of injuries and general background• Chronology and time line – reference to specific entries,

narrate from records, taking whole entry

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Ø Use numbered paragraphs and numbered pages, very important when discussing report subsequently with solicitors and counsel

Ø Set out what has been considered in the report by way of review of records, radiological imaging, what gleaned from other evidence available, summary of witnesses precognitions

Ø Give a detailed description of the condition with diagrams as the report is aimed at lay people, do not make assumptions about medical knowledge

Ø Opinion section – if liability, whether there has been a breach of duty, addressing Hunter v Hanley test in detail, do not use “substandard” - negligence is for the court

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• Causation – whether the breach caused or materially contributed to the damage and what difference that has made. Would the same outcome have resulted irrespective of the negligence? Balance of probability not scientific certainty.

• Current condition and prognosis, and any recommendations for treatment and costs

• The case stands or falls on the expert evidence in clinical negligence cases and the expert’s role is critical. In personal injury cases, the amount of damages is dependent on the evidence and crucial to the further progress of the claim.

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Statement of compliance

• I confirm that I understand my duty to the court and that I have complied with that duty.

• I confirm that I have made clear which facts and matters referred to are within my knowledge and which are not. Those which are within my knowledge I confirm to be true.

• The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.

Refer to any qualifications to that statement eg further records or evidence required

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Appendices

• Medical terminology – glossary of relevant terms• Supporting literature – recite publications and produce

references in appendix• CV – relevant qualifications, current positions,

memberships, publications. This may be scrutinised by the court when the solicitor is seeking certification of your involvement as a skilled witness. Hunter v East Lothian Council – expert had “academic and professional qualifications…experience of nursing and teaching…research responsibilities” therefore was skilled. But “no experience of this type of case…asked to opine on matters that were matters for the court” and so not reasonable to employ him.

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Role of the expert in consent cases

• Montgomery v Lanarkshire Health Board [2015] UKSC 11 changed the landscape in terms of the test to be applied to the health professional

• Not based on Hunter v Hanley but the expert does still have a factual role in determining whether an informed decision has been made by a patient in conjunction with a doctor

• Recent developments in the Court of Session in the mesh cases debates and Jerry Taylor v Dailly Health Centre

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Montgomery test

Para 87. An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo,

and her consent must be obtained before treatment interfering with her bodily integrity is undertaken.

The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks

involved in any recommended treatment, and of any reasonable alternative or variant treatments.

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Montgomery

The test of materiality is whether, in the circumstances of the particular case, a

reasonable person in the patient’s position would be likely to attach significance

to the risk, or the doctor is or should reasonably be aware that the particular patient would

be likely to attach significance to it.

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Para 89…it follows from this approach that the assessment of whether a risk is material cannot be reduced to

percentages.

The significance of a given risk is likely to reflect a variety of factors besides its magnitude: for example, the nature of the risk, the effect which its occurrence would have upon the life of the patient, the importance to the patient of the benefits

sought to be achieved by the treatment, the alternatives available, and the risks involved in those alternatives.

The assessment is therefore fact-sensitive, and sensitive also to the characteristics of the patient.

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What to look for in records

• 3 processes – that there is a Management planAn explanation has been givenWhat the patient responses have been• Evidence of all three = a thorough consent processThe GMC Guidance on good medical practice should be addressed as part of this examination

http://www.gmc-uk.org/guidance/good_medical_practice.asp

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Expert’s role in consent casev Can comment on which investigatory or treatment

options are available as matter of medical skill and judgement

v Can comment on what risks are inherent in eachv Can comment on whether the options were reasonable

for this patient – from factual perspective, not as an exercise of expert opinion

v Cannot comment on whether consent was actually given, matter of fact to be established by the court, based on pursuer’s evidence

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Questions to address

• Facts of the case – patient’s condition, prognosis, the treatment given, what was the outcome

• Expected benefits and risks, but not reduced to mere percentages

• What credible or reasonable alternatives were there to the treatment – Birch v UCL – angiogram vs MRI

• What can be evidenced with regard to consent – what information was given, by whom, by what method, how, where, when?

• Examination of the medical records - GMC Good Guidance on clinical records

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Patient’s particular circumstances• What circumstances were known, or should have been

known, to the doctor• What factors might have influenced the selection of

treatment options – Rogers v Whitaker – sympathetic ophthalmia

• What do patients usually do – depends on circumstances whether this is relevant and not to be relied on from pre-Montgomery era

• Patient’s evidence on what they would have done is very relevant and critical to know

• Question is one ultimately for the judge

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Session round up and discussion

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Ann Logan, Balfour+Manson LLPann.logan@balfour-manson.co.uk