Paul Rumley examines how far the Court will let you go, in terms of expert evidence, in looking at all of the possible consequences arising from clinical negligence, including whether or not you can have your own expert or if you have to instruct an expert jointly with the Defendant.
By Paul Rumley
In all clinical negligence cases it is necessary to seek input and advice from specialist medical experts. These experts provide independent advice on issues such as the standard of medical treatment provided, whether the patient has suffered avoidable harm as a result of any substandard medical treatment and also the nature of the harm suffered and the prognosis for the injuries. Experts can be instructed by either party, or in some cases by both parties jointly. A recent reported clinical negligence case has looked at the issue of single or joint instruction of experts.
In the ongoing case of Yearsley v Mid Cheshire Hospitals NHS Trust the Claimant is pursuing a claim that he developed chronic infection to his right foot following surgery. In brief, it is alleged that this, in turn, led to surgery to the shoulder for septic arthritis which in turn caused or exacerbated dementia.
The Claimant wanted to instruct an expert to consider the link between his physical surgery, and his dementia and therefore whether that formed part of the injury he could claim compensation for as being caused by the negligent medical treatment he received originally.
The Defendant Trust tried to resist the Claimant being able to obtain and adduce this further evidence, despite their own instructed expert indicating that the Claimant did indeed have significant dementia which required a proper assessment. They argued that either a single joint expert (one expert instructed by both parties at the same time) should be instructed, or at least a single expert should conduct the testing for dementia.
If you have a single joint expert, there are a number of potential complications for the claim:
The Judge, Mrs Justice Whipple, considered the arguments made by both parties in June 2016. She noted in her judgment that she was very mindful of the costs of additional expert evidence, but found the following:
It is of vital importance that Claimants, who have the burden of proof in a clinical negligence claim, are allowed to fully and openly investigate their claim, and understand what the strengths and weaknesses are. Single joint experts, in certain circumstances, can inhibit that for the reasons set out above. To that extent, the Court therefore go primarily with the Claimant instructing an expert first, to see if the Defendant would accept the findings and thereby reduce the costs of litigation.
In my experience, Defendants increasingly push for single joint experts in lots of claims. This case is a timely reminder that they will not necessarily be successful in such arguments, because that may not be appropriate in certain cases, and that Claimants need to consider arguing for their own expert. It is still an issue which needs to be decided on a case-by-case basis, depending on the importance of the issues the expert needs to advise on, and should not be conceded readily or automatically by specialist Claimant clinical negligence solicitors.