The importance of an independent expert

PI_Sabrina_Hartshorn By Sabrina Hartshorn

Watts v The Secretary of State for Health [2016] EWHC 2835 (QB)

Where an expert loses sight of her duty to provide independent assistance to the court by way of objective unbiased opinion in relation to matters within her expertise.

A copy of the judgment can be found at: http://www.bailii.org/ew/cases/EWHC/QB/2016/2835.html

Key points

  • The need for an expert to be balanced, to have a thorough knowledge of the subject matter and for a report to be thoroughly researched and presented
  • The need for an expert to inform those instructing them without delay if, for any reason, they change their opinion.
  • The need for an expert to be clear, concise and robust in their reports and in the giving of their evidence
  • The need for experts to adhere to the basic duties as outlined within CPR Part 35.
  • The reliance solely on one textbook to support assertions on a fundamental part of the case may provide a Claimant with an unrealistic hope of success or fatally weaken what might otherwise be a valid claim had the expert’s report been thoroughly researched and presented.

 Facts

Miss Watts brought a claim for damages sustained at her birth on 6 September 1993 in Stoke Mandeville Hospital. The Claimant sustained a right brachial plexus injury (also known as Erb’s palsy) which resulted in permanent weakness and restriction of movement in her right upper limb. It was accepted that the Claimant’s birth was complicated by the occurrence during labour of shoulder dystocia, a well recognised obstetric emergency. If the shoulder is not freed and the delivery completed, the baby can die or suffer serious brain damage because of compression of the umbilical cord in the birth canal.

Liability was in issue. The Claimant claimed that the Defendant had breached its duty of care by failing to apply the standards that applied at the time of the alleged negligence which thereby caused the brachial plexus injury. In particular that i) at the time of delivery, the position of the head was left occipito anterrior (LOA); ii) that the right injured shoulder was in the anterior position facing the pubic symphysis of the mother and would have emerged before the left shoulder and iii) the injury was caused by excessive pulling or traction to free the shoulder. The Defendant denied breach of duty claiming that the practice adopted during the birth of the Claimant was such a practice that was accepted as proper by a responsible body of medical people skilled in that particular area of practice and the cause of the Claimant’s injury was not down to any negligence on the Defendant’s part. In particular the Defendant stated that i) no excessive force was used; ii) that in any event the head was right occipito anterior (ROA) and the right shoulder was in the posterior position; and iii)that the likely cause of injury was traction against the mother’s sacral promontory during a rapid delivery of a large baby.

Law

The legal principles adopted in this case were those established by the cases  Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 and Bolitho v City & Hackney Health Authority [1998] AC 232

Guidance/Protocols available at the relevant time

In 1993, Stoke Mandeville had a protocol for dealing with cases of shoulder dystocia. Within the protocol were specific instructions for midwives to follow when faced with such cases. In the Claimant’s case, the specific steps referred to in the protocol were followed as evidenced from the medical notes at the time. It was noted by HHJ Peter Hughes QC that in 1993, there appeared to be some reluctance in the medical profession at the time to a prescriptive approach of guidelines and protocols. It appeared that in 1993, the medical profession saw such guidelines and protocols as an interference with professional independence and judgment.

The expert evidence

In ascertaining whether or not there had been a breach of duty of care, the court heard from the Claimant and Defendant’s gynaecological and obstetrics experts. Counsel for the Defendant made a number of serious criticisms of the Claimant’s expert, all of which  appeared to show a flagrant disregard by the Claimant’s expert  for the duties and responsibilities of an expert as set out in CPR Part 35. These included failing to provide a balanced opinion in her report by apologising in open court for failing to recognise that the protocol in place at the hospital at the time  was reasonable; making several and unjustified and unexplained attempts to change her opinion in favour of the Claimant at trial eg. stating in cross examination that propulsion was not a legitimate explanation for some brachial plexus injuries which was an issue at the heart of the case but no such opinion had been expressed by her before despite having held such a view for six months and failing to give any detailed reason for that opinion.  She also undertook to provide expert evidence in respect of shoulder dystocia in 1993 in circumstances where she had no experience of managing a shoulder dystocia until 1998.

Mr Peter Hughes QC said of the Claimant’s expert that “she was a distinctly unimpressive witness, with a serious lack of knowledge of clinical practice in 1993 and a worrying lack of appreciation of the importance of basing her opinions by the standards pertaining at the time. ” She based her opinion in relation to a fundamental part of the claim solely on the work from one textbook of the procedure in the United States. Such an approach was considered by the court to be “unbalanced and highly misleading. ” He also stated that the following:

“It is a basic duty of any expert witness, in accordance with Part 35 of the Civil Procedure Rules, to maintain independence and objectivity. Experts must not take it on themselves to promote the point of view of the party instructing them or engage in the role of an advocate.”

Conversely, the Defendant’s expert was “clear, concise and robust both in his report and his evidence. His opinion remained consistent throughout. I have no hesitation in preferring his evidence to hers.”

Dismissal of claim

The claim was dismissed on the basis that Mr Hughes QC did not accept the Claimant’s assertion of the position of the foetus on point of delivery as the parents evidence had been inconsistent on matters surrounding the delivery of the Claimant and contrary not only to the medical notes provided by the Defendant but also a handwritten letter drafted by the Claimant’s mother shortly after the birth. It was also not supported by the expert evidence. He also concluded that the injury was not likely to have been caused by excessive traction. The standards in 1993 were such that there was no clear guidance as to the level of force appropriate and the Claimant’s expert had accepted in cross examination that clinicians on a regular basis applied more traction in 1993 than they would now.

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