Dr Sophie Haroon, Medicolegal Consultant at Medical Protection, looks at an interesting case where the expert witness becomes the centre of the claim.
Mr W was a 67-year-old porter. One day at work he slipped down the full length of some stairs. They were very wet, having been recently mopped but with no warning signs left out. He fell badly, landing awkwardly with his full weight on his left ankle. He attended A&E and was diagnosed with a trimalleolar ankle fracture. He had surgery to stabilise it. Six months later, after a complicated course, Mr W still had pain, sensory loss in his foot and significant mobility problems. He never returned to work.
Mr W pursued a personal injury claim against his employer for failing to adequately ensure his health and safety so leading to the fall, nasty fracture, ongoing complications and job loss.
His solicitors commissioned Miss J, an orthopaedic expert, to determine the full extent of his injuries and prognosis. Miss J accepted the commission but then became unexpectedly busy due to additional clincial commitments. There were also logistical complications. These led to delays in her seeing Mr W and then in preparing her report.
When Mr W’s solicitors finally got her report, they took issue with it. Lots of communication ensued between Miss J and the solicitors. Her fees ultimately escalated, going over the solicitor’s anticipations. Ultimately, due to a breakdown between Miss J and the solicitors, they decided to obtain an opinion from a second expert. This added further delay and to their costs.
Mr W’s former employer eventually agreed to settle. Interestingly the sum was similar to the valuation of the claim based on the original findings from Miss J. The costs judge was critical of Mr W’s solicitors for what he saw as unnecessary delays on their part and for obtaining a second expert when the opinion and outcome were not materially different to that if they had stayed with Miss J. His conclusion was that this had unnecessarily added to the claimant’s costs and he disallowed payment of these in full.
Mr W’s solicitors brought a claim in professional negligence against Miss J. They made allegations in respect of time management, her fees and the content, accuracy and conclusions of her report. They averred this had led to Miss J – not them - creating the unnecessary delays and costs referred to by the judge and requested reimbursement of these, plus her fees, in full.
Miss J contacted Medical Protection. She had indemnity with us for both her orthopaedic work and her medicolegal work. We instructed an independent expert. They considered Miss J’s report and other material relevant to the claim like her communications, timelines and the logistics of examining Mr W.
Our expert opined that Miss J’s report was objective and unbiased. There had been full consideration of what had amounted to a large number of medical records. It had been structured in a consistent and standard manner, with logical, accurate analysis of the evidence. The latest literature had been applied and interpreted correctly. She had not strayed outside her specialty or remit. Her report was deemed Civil Procedure Rule (CPR 35) compliant.
It was noted that the logistical complications were outside her control. Likewise, delays due to extra clinical work could not have been anticipated, being due to colleague sickness at her Trust. She had been transparent at the start about her fees but the solicitors had overlooked these as instruction progressed.
Ultimately, our expert considered that there was no reason for a second expert to have been instructed. Although the course of Miss J’s involvement had been unforeseeably difficult, there were rational explanations for this and the ultimate report was cogent.
A robust letter of response was served denying the allegations. The solicitors discontinued their claim against Miss J.
Like any area of clincial practice, there are risks involved in medicolegal work. Experts are no longer immune to criticism themselves but Medical Protection has the expertise to assist members in such matters.
We continue to encourage clinicians to consider this rewarding work.
There are a number of reputable providers of expert witness training. Members of Medical Protection and Dental Protection have access to a 10% discount off the price of Bond Solon’s expert witness courses, e-learning products and annual conference. To redeem, quote promo code MPS10 at the point of booking. For further information: email [email protected] or call 020 7549 2549.
Special thanks to Julia Hall, Claims Manager at Medical Protection, for her comments.