EXPERT HAD A “FLAGRANT DISREGARD FOR HIS DUTY TO THE COURT”: ORDERED TO PAY £50,500 WASTED COSTS
NB – THE COSTS ORDER AGAINST THE EXPERT IN THIS CASE WAS OVERTURNED ON APPEAL. THE JUDGMENT ON APPEAL CAN BE FOUND HERE.
The judgment of Recorder Hudson in Robinson -v- Liverpool University Hospital NHS Foundation Trust & Dr Chris Mercier can be found on the Association of Costs Lawyers website here. It is a salutary warning to all experts. The Recorder found the doctor’s conduct to be so flagrant that he ordered that the doctor pay the defendant’s costs of the action in their entirety. The excellent summary of the case on the ACL website can be found here.
“I am entirely satisfied that but for Dr. Mercier’s report this claim would not have been brought. All costs claimed within the Defendant’s cost budget are therefore caused by Dr. Mercier’s flagrant disregard for his duty to the court. A public body has been put to considerable expense in financing costly litigation that should not have been brought. Although it is not part of my considerations I observe that a hard-working oral and maxillofacial surgeon was maligned in public and undoubtedly caused significant distress by the actions of Dr. Mercier. The Trust is entitled to be reimbursed for the wasted costs incurred. Such an order is just. I therefore make an order for costs against Dr. Mercier in the sum of £50,543.85 as set out in the Defendant’s cost budget.”
THE CASE
The claimant brought an action for clinical negligence arising out of dental treatment. She relied on an expert, Dr Mercier, in support of her allegations of negligence. The trial started, but was discontinued after Dr Mercier gave evidence. The defendant applied for wasted costs against the expert. That application was successful.
THE DISCONTINUANCE OF THE CLINICAL NEGLIGENCE ACTION
“At the conclusion of the evidence, Mr. Gray on behalf of the Claimant withdrew her claim. Mr. Maddison for the Defendant trust sought 21 days to consider whether a third-party costs order should be pursued against Dr. Mercier in light of the evidence he had provided. I granted that application.
Unfortunately, Dr. Mercier had blanked his screen at this stage in the proceedings and unbeknownst to the court was not listening to this part of the proceedings having left to pick his son up from school. It is not clear to me how much he heard. In the same vein, his screen was blanked throughout much of the first day of the proceedings. His second witness statement suggests that he was similarly not present for some of the hearing prior to giving evidence”
THE JUDGMENT
The judgment contains a detailed consideration of the law and principles relating to costs against experts. The defendant contented (and the Recorder accepted) that the doctor should not have been giving evidence in the case at all.
9. On behalf of the Defendant trust it is submitted that Dr. Mercier:
a) should not have been giving evidence in this case, at all; and,
b) had an ongoing, and continuing, duty to the Court to ensure that he was
the appropriate expert to assist the Court which he patently failed to
abide by until he gave his oral evidence at Trial.
25.The Trust makes the fundamental assertion that it should have been obvious
to Dr. Mercier at the outset, and at various stages throughout the
proceedings, that he was not the appropriate expert to opine on the
management, and treatment, afforded to the Claimant on 8th November 2016.
It is submitted that it would, and should, have been obvious to Dr. Mercier that
as a General Dental Practitioner, he should not have been expressing an
expert opinion on the standard of care afforded to the Claimant by an oral and
Maxillofacial Surgeon. In particular the Trust rely on the following
concessions made by Dr. Mercier:
(i) that he had had no experience of surgical removal of teeth under
General Anaesthetic since 2000 [79];
(ii) that he had no experience of consenting patients for the
extraction of a tooth/teeth under General Anaesthetic [80]; and,
(iii) that he conceded that Mr Keith Webster, as Maxillofacial
Surgeon working in a Hospital, was “better placed” to give expert
evidence in the case [81].
26. It is right that at the substantive trial, Dr. Mercier said the following:
Q. Can you speak to the standards attributable to an
oral/maxillofacial surgeon?
A. I believe so.
Q. You have never actually occupied that position having never
actually been an oral and maxillofacial surgeon, have you, no?
A. No, that’s correct.
Q. Since 2000 you have never had a patient on a table under
general anaesthetic?
A. Correct.
Q. Would you say you are as well placed as Mr Webster to
speak to the standards to be applied to the evidence of an oral
and maxillofacial surgeon?
A. No, Mr Webster is an oral and maxillofacial surgeon so he is
going to have more experience in a hospital setting than I have.
Q. My question was are you as well placed. Would you accept
you are not as well placed to speak to—-
A. Yes.
27.This extract was redolent of the evidence given by Dr. Mercier throughout.
The answer “Mr. Webster is an oral and maxillofacial surgeon, so he is going
to have more experience in a hospital setting than I have” is not a complete
answer reflecting the reality. He’s not simply going to have more experience
in a hospital setting, he is going to have a lot of experience in a number of
areas that Dr. Mercier just doesn’t have. Dr. Mercier does not have any
experience of managing a list in a hospital setting, of the facilities to be
expected, of the competing pressures, and of the practice of the general body
of such professionals. At the outset of the extract he has said that he believes
that he can speak to the standards attributable to an oral/maxillofacial
surgeon.
THE DOCTOR’S WITNESS STATEMENT
The evidence in reply to the application appears, if anything, to have compounded the doctor’s difficulties.
Dr. Mercier’s witness statement it seems to me entirely misses the point. At
paragraph 38 he talks about the questions posed of him during his evidence.
He says that “As this would have been one course of action that would have
been available to the treating surgeon, I answered “Yes”.” He therefore
accepts that he agreed that a proper course of action would have been to
send the Claimant back to the GDP about the upper tooth, and remove the
two lower, and further states that that answer was correct when given. If that
is right then the Bolam test is not satisfied and there is no causal link to any
damage. I do not know whether Dr. Mercier’s difficulty is a sheer
unwillingness to consider other propositions or a fundamental lack of
understanding of the legal test. It is notable that in his letter of 2nd July 2020
Dr. Mercier confirms that his opinion is that the remaining molar “was
identified as requiring extraction and that the extraction of this tooth was not
carried out as consented for and planned”. His case now appears to be that it
wasn’t identified but it should have been, and by Mr. Bajwa on the 8th
November 2016 notwithstanding no other dental practitioner having identified
it as requiring extraction previously. It is in my view disingenuous to suggest
that his opinion has remained the same throughout. His opinion fluctuates to
whatever he feels will win the case.
Dr. Mercier tells me in his second witness statement that he envisaged that
with an adequate examination, Mr. Bajwa would have had all the information
he needed about Miss Robinson, including the state of the bone associated
with that tooth and the fact that Miss Robinson was a dental phobic. He goes
on to state that irrespective of whether there was a mistake in referral, she
should have been given the choice of removal at hospital. He therein offers
no analysis of what equipment is available at the hospital for such an
examination pre-operation, or what degree of documentation would generally
be available in such a setting. As a general dental practitioner, I cannot see
how he could know such things, certainly not to such a degree to be able to
comment on what a reasonable body of such professionals should expect.
Had Mr. Bajwa realised that he had incomplete dental records prior to GA, it
cannot be right that he should have simply proceeded knowing that he had
incomplete records. He did not have the letter suggesting that she had a
dental phobia. It cannot be right that he should have known information that
was not before him. Whilst it is acceptable for Dr. Mercier to opine that he
should have had this information. He did not, and it cannot be right to suggest
a reasonable oral or maxillofacial surgeon appreciating that he did not have
any of this information, should have proceeded to remove teeth on the sole
basis of his own discussions with Ms. Robinson and a brief observation of her
teeth. Dr. Mercier’s evidence is simply absurd and his inability to recognize
that is extremely concerning. Whilst he is at liberty to say that Mr. Bajwa
should have had access to certain information, once he has concluded that he
didn’t, to then conclude that he ought to have proceeded to remove teeth is
simply unsustainable. It is also fair to say that he should have realized that
his documentation was inaccurate prior to GA, but again, it is unreasonable to
go on to say that had he realized that he should have gone on to remove. Dr.
Mercier implies in his witness statements that that was not his evidence and
he was merely intending to convey that Mr. Bajwa should never have been in
that position in the first place. That is in no way what he said. It is in my
judgment inarguable to suggest that he did not comment on what Mr. Bajwa
should have done having found himself in the position he did after GA
NO DUTY ON THE OPPOSING PARTY TO POLICE AN EXPERT’S EXPERTISE
The Recorder dealt with an argument that the defendant never questioned the doctor’s expertise.
38.Dr. Mercier, and his advocate Ms. Whittaker have referred on a number of
occasions to the fact that no other party has ever questioned his expertise
during these proceedings. With respect I cannot see why it should be the duty
of another party to police Dr. Mercier’s duty to the court. CPR PD 35, para 2
clearly states:
2.4 Experts should make it clear—
(a) when a question or issue falls outside their expertise; and
(b) when they are not able to reach a definite opinion, for
example because they have insufficient information.
NO EFFORT TO UNDERSTAND THE ISSUES IN THE CASE
It is not clear to me that Dr. Mercier has made any effort to understand the
issues in this case. Dr. Mercier repeatedly commented in his witness
statements that he did not attempt to express a view on the surgical technique
applied. To make such references appears to imply that there is no difference
between an oral surgeon and GDP beyond the moment in theatre. There is a
wealth of difference in terms of role, experience and facilities. At no point does
Dr. Mercier make any attempt to analyse those issues. Nothing about his CV
would indicate that he has any understanding of the role, experience or facilities
of such a practitioner and to imply that the only difference is the moment in
surgery is to be obtuse. It is perhaps right to observe that Dr. Mercier
continuously refers to the process of consent, when he appears in fact to be
describing the process of advice and treatment recommendation. The two are
very different, and whilst oral surgeons will routinely conduct the former, they
are significantly less likely than a GDP to engage in the latter.
46.In reaching a conclusion in this matter I have been at pains to distinguish
between the way Dr. Mercier gave his evidence to the court and the specific
assertions made by the Defendant trust. It is important that Dr. Mercier be given
an opportunity to respond to allegations made. I formed the view during trial
that Dr. Mercier was not making any efforts to assist the court, but instead
wilfully sticking to his case theory irrespective of the questions asked or the
evidence given. His evidence was grossly unhelpful and wholly unreliable in
my judgement. I will not at this stage detail examples of the same, because it is
not relevant to this application. The application before me is predicated on the
specific assertion that it should have been obvious to Dr. Mercier at the outset,
and at various stages throughout the proceedings, that he was not the
appropriate expert to opine on the management, and treatment afforded to the
Claimant on 8th November 2016. In the circumstances of this application
therefore I confine myself to the nature of Dr. Mercier’s expertise
47.Dr. Mercier has worked as a GDP and did GA extractions in 1997-2000 while
in the armed forces. He has done no general anaesthetic extractions since
then, and has not worked in a hospital setting. He is not now nor has he ever
been an oral and maxillofacial surgeon. He told me that he had observed in
relation to some patients at Arrowe Park Hospital. He told me that he has never
consented a patient for extraction under general anaesthetic. He told me that
he felt he could speak to the standards to be applied to an oral or maxillofacial
surgeon, but he accepted that he was not as well placed as Mr. Webster to
speak to those standards. I’m afraid that a couple of occasions attending at
Arrowe Park in no way qualifies one to give evidence as to what a reasonable
body of oral and maxillofacial surgeons should or should not know or do. In my
judgment it is inappropriate for a GDP to be making such assertions.
48.The question before me however is whether it was improper, unreasonable or
negligent, or further did it show a flagrant reckless disregard for the duties of an
expert to the court. I am bound to say that I do consider that it was wholly
unreasonable and negligent. Dr. Mercier’s first report is simply a recitation of
information with a determination to find that the Claimant had a case. The
amended report adding a paragraph in relation to breach of duty was wholly
unsupportable. Throughout his evidence at court, Dr. Mercier failed to make
any reference to the differences between his role and that of an oral and
maxillofacial surgeon, and plainly failed to even address his mind to whether
there were differences to which he could not speak. It is plainly the case that
he has no expertise in the examination of a patient prior to GA in a hospital
setting and cannot speak to any errors in the treatment given.
ATTEMPTS TO BLAME THE LEGAL TEAM
The doctor’s attempts to create a narrative that he was responding to a narrative created by the legal team was given short thrift.
49.In his witness statements prepared for this application and in her submissions,
Dr. Mercier and Ms. Whittaker have sought to create the narrative that Mr. Gray
of Counsel created a case theory to which Dr. Mercier was not a party which
made Dr. Mercier’s evidence appear to be something that it was not. I do not
accept this narrative, creative though it is. Dr. Mercier was asked to comment
on whether the oral and maxillofacial surgeon on 8th November 2016 had
committed a breach of duty causing damage. He responded by opining that a
breach occurred and caused damage. His assertions were replicated in the
particulars of claim. His evidence has changed over time which has led Mr.
Gray of Counsel into difficult ground, but it is Dr. Mercier who has changed his
case rather than Mr. Gray. I conclude that Dr. Mercier has shown a flagrant
reckless disregard for his duties to the Court and that he did so from the outset
in preparing a report on subject matter in which he has no expertise.
50.I have noted that Dr. Mercier at no point referred in his evidence to the relevant
legal test, and often his answers implied that he does not understand it.
However, I have not explored that issue given the specific assertions made by
the Defendant trust.