PROVING THINGS 254: WHICH EXPERT IS GOING TO BE ACCEPTED? AN IMPORTANT ISSUE CONSIDERED IN A CLINICAL NEGLIGENCE CASE

January 8, 2025 · by · in Uncategorized

I am grateful to barrister Nadia Whittaker for sending me a copy of the judgment of HHJ Baddeley in Lochrie -v- Edwards (County Court in Sheffield 07/01/2025), a copy of which is available here. Final Lochrie v Edwards Judgment G48YJ355  It is an interesting example of a judge considering which expert’s view is the correct one.

Whose expert evidence is going to be accepted at trial (Clinical negligence): Webinar 14th February 2025: Booking details available here.

Expert evidence is crucial to clinical negligence cases, both in terms of establishing liability and causation. The result  of the action will, in most cases, depend on which experts’ evidence is accepted at trial.

This webinar takes a close look at the way in which the courts consider expert evidence at trial in clinical negligence actions and the reasons that expert evidence is not accepted.

Issues considered include:

  • Red flags. When the expert does not comply with the CPR 35 requirements
  • “Not an expert at all”
  • An expert with no expertise in the area they were reporting in
  • “Red flags” for the contents of expert evidence
  • “Closely run” cases – what tips the balance?

THE CASE

The claimant brought an action alleging that the defendant had not given a full and adequate explanation of the risks involved in an operation to her eyes.  Her case was not that the operation had been carried out negligently, but that she had not been fully informed of the risks and if she had been she would not have had the operation itself.  Ultimately the judge preferred the evidence called by the defendant and the claimant did not succeed.

CONSIDERATION OF THE EXPERT EVIDENCE

The judge considered the expert evidence on the question of whether the defendant should have identified that the claimant was a “high risk” patient and given information on that basis.   He preferred the evidence of the defendant’s expert who had practical experience of advising patients in this context.

THE JUDGMENT ON THIS ISSUE

One of the issues the judge had to consider was whether the claimant should have been identified as a “high risk” patient.  The experts called by each part differed on this. The judge preferred the views of the defendant’s expert who had considerable practical experience on this issue.

“Was the Defendant negligent in failing to identify that the Claimant was a high-risk patient?

117. This is a matter for expert evidence.

118. Mr Rimmer conceded that he was not suggesting that the Defendant’s examination of the Claimant’s eyes and the tear break up time test that he undertook was done negligently. However, his submission was that the Defendant’s failure to take a more detailed history was negligent and that had he taken a more detailed history, he would have identified that, notwithstanding the normal eye examination / tear break up time test, the Claimant had an underlying dry eye condition, with meibomian gland disease and that that that was relevant to the issue of the risks of the surgery.

119. Mr Walker’s view was that the Claimant was a patient with a higher risk of suffering complications than average due to these underlying conditions and her anxiety /depression.

120. Mr Morris considered that the Claimant was a patient with a low risk, due to her young age and the low eyesight correction that was required. He did not believe that her history of anxiety and depression was a matter that necessitated special consideration by the Defendant.

121. I found Mr Morris’ evidence more helpful than Mr Walker’s. Mr Morris is a very experienced laser eye surgeon, having consented patients and performed over 10,000 procedures. Mr Walker is not a laser eye surgeon and has not conducted LASIK surgery. He was unable to opine based on his own personal experience. Instead, he relied on his experience as a general ophthalmic consultant and on his academic research.

122. I accept Mr Morris’ evidence that contact lens intolerance and issues with anxiety and depression are common in people seeking laser surgery and not factors that significantly increase risk.

123. I prefer Mr Morris’ evidence as to the date of onset of the Claimant’s meibomian gland disease. The Defendant put a tick by “lids” on the patient assessment form, indicating that the meibomian glands were assessed. The Defendant would have likely noticed an issue if there was one. As Mr Morris put it “it is most unlikely that significant meibomian gland disease would be present in the absence of inferior conjunctival staining and a normal tear break up time.”

124. The Boots records support Mr Morris here. His evidence that the Boots records showed evidence of contact lens intolerance, rather than with a significant dry eye problem made sense.

125. I accept Mr Morris’ evidence that the Claimant was not a high risk patient, given the small correction to her eyesight that was required (-2.25 in the right eye and -2.50 in the left) and that she did not have a significant dry eye problem before her surgery (as per the normal tear break up time test performed at the consultation and the Defendants observations in his record that she had a normal ocular surface).

126. I do not accept the Claimant’s case that the Defendant’s failure to take a more detailed history meant that he missed information that would have necessitated a different explanation of risk.”