Instructing an expert in a clinical negligence case - points to note and pitfalls

Monday 1st February 2021

Medical experts play an important role in the majority of clinical negligence cases. Despite a clinical negligence solicitor having the knowledge surrounding the legal requirements that will need to be established in order to pursue a claim, the assistance of various medical experts is required. In a clinical negligence claim, the experts will work alongside the solicitor to help establish the liability and causation elements of the case.

Instructing a medical expert is seen as necessary, for both the Claimant and the Defendant. Instructing a medical professional, who works in the same speciality as the medical professional who has allegedly carried out the negligent treatment, helps the solicitor establish whether there has been a breach of duty. In addition, whether that breach of duty has caused the Claimant some form of additional injury/damage.   A solicitor may wish to instruct a medical expert to assist when valuing the amount of compensation the Claimant is entitled to. This may be by the expert commenting upon the Claimant’s future health and wellbeing and any assistance they may require in the future.

A report by a medical expert can be the difference between a claim being successful or unsuccessful. It is therefore important that both the solicitor and the client make an informed decision when choosing an expert to instruct.  

The recent judgement in the case of Thimmaya v Lancashire NHS Foundation Trust highlights the importance of instructing an appropriate expert. In this case, a Spinal Surgeon was instructed to produce an expert report on behalf of the Claimant. The expert came under criticism by the Defendant, after it appeared that during cross-examination he was unable to articulate the ‘Bolam’ and ‘Bolitho’ tests, which need to be applied to establish breach of duty. As well as concerns regarding his knowledge surrounding the legal tests, it appeared that he had only carried out the surgery in question twice.  At the relevant time, the expert was suffering from cognitive difficulties, which made him unfit to give evidence. 

It was ruled that the expert was not fit to continue to act as an expert witness and as a result, he had not complied with his duties owed to the Court under Part 35 of the Civil Procedure Rules. In this case, the Claimant had no choice but to discontinue her claim. The Court later ordered that the expert pay a proportion of the Defendant’s costs, as a significant amount of Court time had been wasted and as the Defendant had incurred unnecessary costs. 

This case had both financial and practical consequences and ultimately resulted in the Claimant abandoning her claim. The case highlighted the importance of experts’ duties to the Court and the consequences an expert could face if they fail to meet them.  

What to look out for in an expert

It is essential that when instructing an expert, the expert holds a number of key qualities. Things to look out for include:

● Ensuring that the expert is appropriately qualified. It is important to make sure that the expert also has sufficient practical experience in the area in which they are being instructed.

● Considering whether the expert is often instructed on behalf of the Claimant or the Defendant. It’s important to avoid ‘hired guns’ who may be biased towards Claimants or Defendants.

● Considering the expert’s Trial experience, and whether they prepare medical reports on a regular basis.

● Considering whether the expert has enough time to deal with the case in sufficient detail, and that they will work on the case at a proportionate cost. 

Here at Waldrons, we ensure that our experts are carefully considered before being instructed. We use internal and external supplier registers to ensure that there have been positive past experiences of the experts we instruct.