Expert Evidence in Professional Negligence Claims

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7 December 2021

Professional Negligence cases can stand or fall on the strength, or otherwise, of the expert evidence. If a client wishes to criticise the work of a professional person, then there must be a supportive report from an expert of the same or similar professional discipline. This is very familiar territory for practitioners who conduct clinical negligence cases in which McNair J’s famous quote in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 still reigns supreme -

A doctor who had acted in accordance with a practice accepted at the time as proper by a responsible body of medical opinion skilled in the particular form of treatment in question was not guilty of negligence merely because there was a body of competent professional opinion which might adopt a different technique

At the heart of this evidence will be the opinion of an appropriate medical expert.

This issue was at the heart of the recent decision in – Robinson v Liverpool University Hospitals NHS Foundation Trust & Dr Chris Mercier (unreported), a dental negligence case.

The Claimant’s expert witness was Dr Mercier, a General Dental Practitioner. The case involved treatment received from Mr Bajwa, a consultant Oral and Maxillofacial Surgeon. The claimant’s case was in effect dependent on Dr Mercier’s evidence. Recorder Hudson noted that, with one small exception – “every other particular is taken from the report of Dr. Mercier”. The case proceeded to trial in which Dr Mercier gave evidence remotely. During cross examination he conceded  an alarming lack of experience in relation to matters at the heart of the claimant’s case. For example he admitted that he had not carried out surgical removal of a tooth under General Anaesthetic for over 20 years. He had never gone through a consenting process for such extraction. Worst of all he accepted that the Defence expert Keith Webster, a Maxillofacial Surgeon was ‘better placed’ to give evidence.

Not surprisingly, the claimant’s case collapsed after this evidence. This is a stark reminder to anyone conducting such cases that it is not enough to have supportive expert evidence. That evidence must come from an expert who is suitably qualified.

Following the withdrawal of the claim, the Defendants applied for a Third Party Costs Order against Dr Mercier pursuant to s51 Senior Courts Act 1981 for the entirety of the costs. S51 (3) gives the court – “full power to determine by whom and to what extent the costs are to be paid.”

The Recorder found that the expert’s failings went to heart of the claimant’s case –

The reality is that Dr. Mercier is simply not in a position to tell me that a reasonable body of oral surgeons, with the facilities available within the hospital setting, would have been able to state whether this tooth was restorable”

He was not an oral surgeon and had no experience of hospital treatment. In addition to the absence of relevant expertise there were 15 further criticisms of his evidence including that he had failed to consider the evidence in the case properly, or at all, until the trial.

The Recorder referred to Travelers Insurance Company Ltd v XYZ [2019] UKSC 48 in which it was found that there has to be - “a causative link between the particular conduct of the non-party relied upon and the incurring by the claimant of the costs sought to be recovered under section 51”

She noted that the Particulars of Claim were based almost entirely on Dr Mercier’s opinion.

I am entirely satisfied that but for Dr. Mercier’s report this claim would not have been brought.’

She ordered him to pay all of the wasted costs in the sum of £50,543.85.

The lessons here are clear. Before instructing an expert in a professional negligence claim you must be satisfied that they are suitable qualified. CPR Part 35 2.4 requires experts to make it clear

  • when a question or issue falls outside their expertise; and
  • when they are not able to reach a definite opinion, for example because they have insufficient information.

This must be explored in the context of the particular case. It was not enough for Dr Mercier to say that he was a dentist and the case was about teeth. He lacked experience in the particular area within which a professional person was being criticised. This was a critical and ultimately expensive failing.

© Melissa Worth, December 2021

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