The importance of choosing expert witnesses and preserving evidence – get it right or pay the price

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6 min read

We have a stark reminder of the evidential issues that arise when claims are brought years after the events giving rise to such claims, and how the choice of expert witnesses can make or break a legal case

The decision in Sadar v NHS Commissioning Board (2014), a claim for damages for injuries sustained at birth, is a stark reminder of the evidential issues that arise when claims are not brought until the claimant reaches majority, and how a solicitor’s choice of expert witnesses can make or break their client’s case. This article looks briefly at these two issues and explores how the defendant when the evidential advantage appeared to favour the claimant.

Background

The claimant was delivered in 1989. Complications during the birth left him with permanent disfigurements. No claim was lodged by the parents but on his majority the claimant brought proceedings contending that his injuries were caused by the negligence of the hospital staff, principally by applying excessive forceps traction during his delivery.

Decision

The court, persuaded by the testimony of the defendant’s witnesses of fact and its experts, found in favour of the defendant hospital. The claimant’s injury had been caused by factors outside the control of the hospital staff - there had been no negligence at any stage.

Evidential issues

It is not unusual in claims involving injuries sustained at birth for more than twenty years to pass before a case is brought. This creates evidential difficulties for defendants. It is perhaps self-evident that in the case of the claimant evidence is more readily available because of the parents’ emotional involvement, family recollection and on occasion written records than for a hospital which has to handle the usual bureaucracy, transient staff and other administrative issues exacerbated by the passage of time. Consequently, for the hospital the recovery of evidence may be more challenging. It seems reasonable therefore to assume that a claimant bringing a claim on reaching his majority will have a marked evidential advantage over the defendant but as Sadar demonstrates this is not always the case.

The key issue in Sadar was the accuracy of a note made by the attending midwife – the primary witness of fact for the defendant. The note recorded the positioning of the Claimant during delivery and was vital to the case. The position of the claimant determined the likelihood of the claimant’s injury being the result of natural causes rather than by the negligence of the hospital. The claimant challenged the accuracy and reliability of this note but in the judge’s words, the midwife proved to be "a highly impressive witness", "plainly honest" in her "account of her practice twenty four years ago". The judge "accepted her evidence unreservedly".

The claimant’s mother was not impressive and the judge referred to her as an "unsatisfactory witness". He placed no reliance on her account.

The court accepted that in 1989 the knowledge and techniques with regard to shoulder dystocia were significantly less sophisticated than they are now, there was no universal guidance regarding management of this obstetric emergency and standards of note taking were not as demanding as today. The court was also persuaded that at the time of the claimant’s birth midwives of experience such as the attending midwife, would more often than not correctly identify the position of a baby on abdominal examination.

The court was satisfied that the attending midwife’s note was accurate, acknowledging that the claimant had faced an uphill struggle in seeking to undermine the redoubtable midwife’s note. The judge found that it was "inherently unlikely that a woman of her experience and meticulous professionalism would have made a mistake" "still less that she would have mis-recorded it".

The importance of choosing experts wisely

The claimant’s case was not helped by the seemingly unconvincing display of his expert witness and the judgment in Sadar is littered with stark reminders of how crucial it is to choose expert witnesses wisely. Experts play an increasingly important role in litigation and this is especially true in complex medical negligence claims. At trial, judges expect the testimony of experts to "educate" them on areas outside their own knowledge; retaining the right expert can therefore be key to the success of a claim. Failure to find the right expert or instructing one who the court finds unreliable or unconvincing can be nothing short of a disaster, especially when earlier more useful evidence might have led to advice being given to the claimant that their case did simply not stack up, thereby avoiding the cost and emotional involvement in taking a case to trial that should have been abandoned.

Adherence to the duties laid down in the Civil Procedure Rules (CPR) is of crucial importance to the worth of any expert. Part 35 provides that experts have a duty to help the court on matters within their expertise. That duty overrides any other duties the experts may have to their instructing party. Further, the evidence of any expert must be the independent product of that expert. Experts are expected to make it clear to the court when an issue or question falls outside their expertise and they should never assume the role of an advocate or take it upon themselves to promote the point of view of the party instructing them.

In Sadar, the judge was clear that three of the claimant’s experts had forgotten their overriding duty. He described the claimant’s midwife expert as being "overly keen to find arguments to support the claimant’s case", unfairly "seeking to nit-pick at the care given and the quality of Midwife B’s note-taking without making any allowance for the fact that standards were somewhat different twenty four years ago". The judge was equally unimpressed with the claimant’s obstetrics expert, describing him as "a most unsatisfactory expert witness" who "sought to side step the evidence", by "illegitimately straying into creative advocacy". The claimant’s case was not helped by the paediatrics expert who the judge found to be "all too willing to step outside his area of expertise", "aligning himself unequivocally with the claimant’s obstetrics expert on all matters" – even when those matters were shown to be "incorrect", "unproven" and "ill-judged".

In stark contrast the judge was wholly convinced by the evidence of the defendant’s experts. The hospital’s midwifery expert was described as being "particularly impressive". The obstetrics expert was found to be "an expert of palpable integrity".

Conclusion

The Sadar case highlights the critical need to pay attention to the selection and proper instruction of expert witnesses, to ensure their quality and understanding of their role and duty under Part 35 of the CPR. Of vital importance too is the need to preserve evidence, and it is incumbent on all involved to ensure that practices and processes are in place to achieve that objective.

We operate a Medical Experts Database System (MEDS). Professionally managed it houses details of over 10,000 experts throughout the UK. MEDS is continually updated and is accurate and reliable enabling users to quickly find an expert that meets their requirements precisely or to check the details of an expert instructed by others. Already in use online by numerous insurers, brokers and adjusters MEDS is presently available to clients of Mills & Reeve LLP without charge. Others may have access by arrangement. Usernames and passwords will be issued on subscription.

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