Expert evidence problems

Baker v Epsom & St Helier University Hospitals NHS Trust [2015] EWHC 1011 (QB) saw the claimant seek damages for the manner in which a below knee amputation had been performed. The amputation had become necessary following an earlier injury. The claim ultimately failed, with the trial judge finding that there had been no negligence: [38].

In making adverse comment about the expert evidence, the trial judge noted at [29] that the claimant’s expert had not considered the typed operation note. The expert admitted that the document was critical and had been overlooked: [29].

The expert was also criticised for misquoting another medical practitioner (at [30]) and for failing to appreciate that his primary duty was to provide independent opinion the court, not to support the claimant (at [34]).

The trial judge also queried how the legal team instructed by the claimant continued the case without fully addressing, and causing to be corrected, some of the expert evidence deficiencies: [36].

In an unrelated matter Duffy v Secretary of State for Health [2015] EWHC 867 (QB), the claimant was granted an adjournment as a key expert witness (a paediatric neurologist) had been the subject of media reports about drug usage. The expert indicated that he was suffering from conditions which would affect his ability to concentrate in court, particularly in the context of expected media attention.

The witness in question had been retained in a number of cases. The judge hearing the application made clear that adjournments would not necessarily be granted in other cases.

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