“RECKLESS EXPERTS”: SHOULDERING THE BLAME: WHEN THE EXPERT HAS NOT READ THE DOCUMENTS TO HAND

October 14, 2018 · by · in Civil evidence, Civil Procedure, Expert evidence, Experts, Fundamental Dishonesty

The judgment in Liverpool Victoria Insurance Company Ltd v Khan & Ors [2018] EWHC 2581 (QB) was looked at earlier.  It made the point that “reckless” reporting by experts can lead to experts being in contempt of court.  This led me to consider a case I was involved in recently on behalf of a defendant.  If this represents a common practice then some medical practitioners are putting themselves at risk.

THE CASE

The claimant was injured whilst at work. The defendant was not the employer but the claimant alleged they were liable.  Shortly after the accident the claimant’s solicitor wrote to the defendant, the defendant told them to go away.  Nothing was heard for many years, however as is often the case 3 years and 4 months later the claimant’s solicitors obtained a without notice order giving them permission to serve without a medical report.

This had dire consequences for the defendant in that, when proceedings were issued, their insurers declined to provide an indemnity. They were defending a relatively modest personal injury action.  Further the claimant was being represented on an “old style” CFA. The costs schedule came to £26,000 (plus there would have been a 100% markup on profit costs and an insurance premium).  This had become, almost literally, “bet the firm” litigation for the defendant.

THE CLAIMANT’S MEDICAL EVIDENCE

When the claimant’s medical report was obtained from an orthopaedic consultant it was said that the claimant had an injury to the left shoulder.  The reporting doctor said, twice, that he had read the medical records and there was no previous history of problems with the left shoulder.

The medical records should have been available on disclosure but were disclosed very late. They were not available at the time that the defendant put questions to the defendant’s expert.  The expert replied to the questions put by reiterating that he had now read the medical records.  The expert stated, again, that there were no previous problems with the left shoulder.

THE MEDICAL RECORDS

The medical records eventually arrived with the trial bundle a few days before trial.  In fact there was a considerable history of problems with the left shoulder pre-dating the accident.  The expert’s assertion that there were no pre-accident symptoms was wholly wrong.

EXTRACTS FROM THE DEFENDANT’S SKELETON

These are taken from the skeleton argument. The accident occurred in March 2013.

  • The Claimant has produced medical evidence in support of his claim. The [medical expert], states that the Claimant “gives no history of left shoulder symptoms or cervical spine symptoms prior to the accident on …” 
  • It does not appear that [the doctor ] examined the medical records with care. The records contain numerous references to problems with the left shoulder prior to the accident.
  • At p. 145 of the bundle there is reference to “left painful arc syndrome (left shoulder) which has been helped by increasing his tramadol…” (November 2012).
  • Also at p.145 an entry for December 2012 “Shoulder pain a rela (sic) nuisance making his life a misery- pt keen for steroid injection – has had one in the past. “
  • On p.146 there is an entry “Classic eft (sic) painful arc”. Minor surgery was done. (21st December 2012).
  • An entry also in December (date unreadable in bundle) records “Shoulder pain has resolved with steroid injection, Pt very pleased”.
  • The shoulder was also treated again in January 2013 (date illegible).
  • On p.147 there is an entry (January 2013) “Shoulder pain much improved. Struggles to pain above his head so refer physio”
  • There are several references to “refer to physio” at p148     throughout January and March 2013. There was a physiotherapy appointment on the 8th March 2013. [before the accident]
  • At p.242 there is a referral to physiotherapy, this clearly refers to the Claimant suffering from “bilateral painful arc syndrome. Steroid injections helped with both [emphasis added] but he  does have some weakness when working above head height.”
  • At p.149 the first entry relating to the accident is  … 2013        “Discussion about treatment – Has been painting a block of  flats, fell over a pieve (sic) of scaffolding. Has hurt shoulder   again. (Emphasis added).

POST-ACCIDENT RECORDS

Equally interesting was the fact that the claimant only complained of a left shoulder problem only once shortly after the accident. Thereafter, for several months, the claimant only complained of a right shoulder injury. Several months after the complaint was of a bilateral injury. None of this was mentioned in the medical report.

WHAT HAPPENED AT TRIAL?

As it happens the claimant went on to lose on the issue of liability. However the judge made the observation that had he been called on to make an award of damages he would have made no award at all.  It was the claimant’s job to prove the case and the medical evidence was so unreliable that it was not possible to make any assessment at all. It was not for the court to pick through and determine what, precisely, was left reliable when an expert had patently not looked at the records and made statements that were clearly incorrect. (For those unfamiliar with Fast Track procedure the medical report was admissible at trial, the expert was not called to give evidence).

FUNDAMENTAL DISHONESTY YOU MAY THINK – BUT YOU’D BE WRONG

The trial judge, who has not been averse to making findings of fundamental dishonesty in other cases, specifically found that the claimant was not dishonest.  This may appear strange. However the claimant was somewhat elderly and befuddled. He had relied on his solicitor and the medical expert.  There has been (fairly inexcusable delays) by the claimant’s solicitor and he had not been examined until more than three years after the accident.  (This was a pre-LASPO case so the claimant was liable to pay the costs in any event).

WHAT WAS THAT EXPERT DOING?

It appeared that the expert had been extremely reckless in failing to make the most basic checks of the medical records.  The expert said twice that he had read the medical records.  If the records had, in fact, been read and these (wholly obvious) entries had been missed this would be remarkable – and reckless in itself.

A FORTUNATE DOCTOR: SOME UNFORTUNATE LITIGANTS

The defendant in that case was a small business whose primary interest was to forget the litigation and get back to the difficult task of earning a living. I suspect an insurer, or an insurance backed defendant, may have been much more robust.  The key point, however, is that this slapdash approach by the doctor (I may be being kind) led to the claimant being misled; the defendant incurring costs (under a QOCS case these would never have been recovered) and the court being misled.   If the claimant had succeeded on liability at trial the claimant would have received no damages at all. It may be time for some medical experts to re-examine their own practices.

 

 

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