The importance of an experts conflict of interest

In a recent clinical negligence case heard in the High Court, EXP v Dr Charles Simon Barker, the Court had to consider both the procedural and substantive implications of an expert’s conflict of interest that emerged during the trial.

Facts

The Claimant, EXP, was a full-time District Judge at the time of the injury in 2011, although the alleged breach of duty occurred 12 years earlier in 1999.  The claim was against Dr Barker, a consultant neuroradiologist at The Wessex Nuffield in Southampton, and it concerned the alleged failure by Dr Barker to identify and report a cerebral aneurysm on an MRI scan in 1999.  He reported the MRI as normal.  However, in September 2011 the aneurysm ruptured, causing a cerebral bleed that required evacuation and clipping and the Claimant was left with left-sided visual loss, left-sided weakness, cognitive dysfunction and various other neurological and psychological problems.

The substantive issue

The key issue at trial was whether a reasonably competent neuroradiologist in 1999 should have seen and reported the aneurysm on the MRI, such that the failure of the Defendant to do so was in breach of duty.  Causation was not pursued at trial and it was accepted by the Defendant that, if the aneurysm had been diagnosed in 1999, it would have been clipped successfully and the Claimant would have returned to work in 2-3 months.

The experts

The Claimant’s medical expert was Dr Paul Butler from Barts Hospital in London.  He had been a consultant neuroradiologist since 1986.  His report stated that he expected the 5-6 mm aneurysm to be seen on the MRI in 1999 and Dr Barker had been in breach of duty.

The Defendant’s expert was Dr Andrew Molyneux.  He was a consultant neuroradiologist in Staffordshire.  His CV served with his report stated that he had been a consultant neuroradiologist in Oxford between 1979 and 2004, following which he had moved to Staffordshire.  His report stated that he considered that the MRI scan was within a range of normal and it was not a breach of duty to fail to report the aneurysm.  His CV did not mention Dr Barker.

The Claimant also served a report from a neurosurgeon, Mr Peter Kirkpatrick from Cambridge, who supported Dr Butler and stated that he, too, could see the aneurysm on the MRI, which he considered to be abnormal.  The Defendant served a neurosurgical report from Mr Paul Byrne from Nottingham, although the defence did not rely on this report at trial and Mr Byrne was not called to give evidence.  However, as subsequently became relevant, the report referred to a 1998 paper as being the definitive paper regarding the incidence of aneurysm rupture at the time.

The Defendant, Dr Barker

The Defendant’s witness statement stated that he did not recall reviewing the MRI, although he did not offer any opinion on what it showed, preferring to leave that to the experts.

His CV disclosed with his witness statement revealed that:

• Between 1984 and 1989, he had been a Registrar in Oxford on the radiology training scheme;
• In 1989 he became a Senior Registrar in Oxford;
• He then became a Consultant in Southampton in 1991

His CV did not mention Dr Molyneux.

The trial

During cross-examination at trial, it emerged that there, in fact, was a very substantial connection between Dr Molyneux and Dr Barker, in that:

• Dr Molyneux had trained Dr Barker during the latter’s 7 years of specialist radiology training between 1984 and 1991, and in particular he had trained him for 2½ years as a Senior Registrar in interventional neuroradiology between 1989 and 1991;
• They had worked together closely over this substantial period;
• They had written a paper together for an international radiology symposium;
• They might have co-operated on other papers, but Dr Molyneux could no longer specifically recall whether that was the case;
• Dr Molyneux had helped Dr Barker to obtain two foreign fellowships;
• They had been officers together on the committee of the British Society of Radiologists;
• Dr Barker said that Dr Molyneux had guided and inspired his practice and had helped him become a consultant in Southampton; and,
• Dr Barker had recommended that Dr Molyneux be the defence expert.

Both experts stood firm at trial in relation to their respective opinions on the substantive breach of duty issue in the case.

The judgment

The judge (Mr Justice Kenneth Parker) was troubled by this connection between the defence expert and the Defendant, and the nature and extent of the connection, especially as it involved a mentor and tutelage role.  He was further troubled by the fact that Dr Molyneux referred to the Defendant as “Simon” in cross-examination, which he felt showed traces of the bond between them remaining.

The judge was also troubled by the fact that the connection and its extent had not been disclosed by the defence team before trial. Not only was this practically and procedurally problematic, but it created an inference of a deliberate default.

The judge was very critical of the defence team and the expert for not disclosing the connection and its extent before trial.  He emphasised in cases such as this the need for early disclosure and cited the GMC Guidance on this point.  He said that this was a case management issue, so sufficient disclosure must take place early enough in the proceedings such that it can be addressed during case management.  He was of the view that it was not for the Claimant to hunt down the extent of the connection but for the Defendant to disclose it, and details relating to it, frankly.

The judge noted that, in principle, an interest or connection between an expert and a Defendant did not result in automatic inadmissibility of the expert’s evidence, as it was a matter for the Court on all the facts; however, it may render the evidence inadmissible or it may just affect the weight of the expert’s evidence.

In this particular case, an additional factor was that Dr Molyneux had failed in his report to comment on Mr Byrne’s flawed analysis of the 1998 paper to which he had referred, as it was a paper that had been criticised and arguably discredited, and Dr Molyneux knew (or ought to have known) that, and it was his duty to draw this to the Court’s attention.

Ultimately, the judge did not rule Dr Molyneux’s evidence as inadmissible, although he was a whisker away from doing so.  This may have been because the judge had already heard Dr Molyneux’s evidence by the time the conflict had emerged and, as the latter was the Defendant’s only expert, ruling his evidence as inadmissible would ostensibly have been fatal to the defence.  However, the judge’s confidence in Dr Molyneux had been “very substantially undermined”, such that he preferred Dr Butler’s evidence.  Given the case turned on a fine point of dispute between the experts, this meant that the Claimant, therefore, succeeded.

Moral of the story

This is more of a problem for Defendants but it can, however, occur with Claimants.  From a Defendant’s perspective, they should explore with their expert early on any connection and potential conflict, and take the necessary steps to address the issue, including full, frank and early disclosure should they continue to retain their expert in spite of a potential conflict.  From a Claimant’s perspective, they should be alive to the possibility, too, of conflict and press for early disclosure from the Defendant if it is not volunteered and readily forthcoming.  From an expert’s point of view, it is important both not to assume a connection is not a conflict and to be frank about disclosing any connection early on to the instructing solicitor so that, as necessary, it can be explored fully and disclosed to the other side.  The dangers of not doing so are readily apparent from this case.

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