Expert evidence by the back door
In clinical negligence work expert evidence is vital to the success or failure of a case. The choice of expert and their approach to the case is a fundamental issue to be considered throughout.
There has always been a conflict between claimants and defendants in respect of expert evidence. In a case that goes to trial in which liability is disputed defendants will often bring treating medical professionals to the court. In essence, they are allowed to use additional experts to give evidence on behalf of the Trust. This inequality of arms has been a continued battle over many years and there is of course established case law to allow the claimant to adduce additional evidence if required.
More recently there has been a tendency in some cases to bring forward as witness evidence (that is not expert) what is in fact expert evidence.
Recently I had a case where a witness statement was served purporting to come from a consultant radiologist at another hospital but in the same Trust. Ostensibly it was to do with waiting times for an MRI scan . However, within it is contained expert evidence about the original radiological reports and whether they demonstrate what has (in fact) been agreed they demonstrate. In short it is a clear attempt to provide expert evidence by the back door.
This issue arose also in a patent case called Teda UK Limited v Gilead Sciences Incorporated in 2017.
In that case, the defendant served a witness statement of a professor in HIV medicine based at the Chelsea & Westminster Hospital. The witness was in fact a well-known expert in his field and had provided evidence before . His witness statement indicated that he had been asked to give evidence as “an independent factual witness”.
This was a clear attempt to provide a witness statement from an expert not connected to the case. Although the statement was quite short (which the court applauded), it did not change the position that it was expert evidence which the court had not given permission for.
In the same case, there was an additional problem because the claimant had then served hearsay notices in respect of some scientific papers which again amounted to expert evidence by the back door because the court’s permission had not been granted.
Both the claimant and the defendant had their attempts to adduce evidence through the back door rejected by the court with obvious potential costs issues.
There is anecdotally a change in emphasis between the claimant and the NHS Resolution in part. Some cases proceed on a very consensual basis throughout and there is a good working relationship between defendant and claimant lawyers on the whole. However, attempts to circumvent the court’s directions and to add evidence for which permission has not been granted only serves to cause difficulties with the running of a case, disrupt the timetable and prevent good working relations which ultimately is in the interests of both claimant and defendant organisations.
Court delays are such that the disruption to the timetable can be significant, causing distress to claimants and anxiety for defendant witnesses alike..
If claimants and defendants are to work together properly in relation to cases to keep costs at a reasonable and proportionate level (which is something the NHS Resolution considers pertinent) then attempts to circumvent the directions of the court must not be made. Proper practice is that if expert evidence should be adduced permission should be sought. The defendants or indeed claimants should follow this.
Attempts to circumvent the system cause enormous problems. This cannot be in the interests of the claimant, the defendant, the court or justice generally.
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