Experts -You need them but can you pay for them?
Clinical negligence cases are in that group of claims which require expert evidence. The case cannot succeed without a supportive expert opinion. Sometimes this is fairly minimal but usually two or more experts are required and as cases increase in value or complexity the number of experts needed can rise significantly.
A recent case demonstrated the fundamental importance of adducing expert evidence. It is very difficult to establish any professional negligence case without having an expert .
In the recent case of Avondale Exhibitions Ltd v Arthur J Gallagher Insurance Brokers Ltd [http://www.bailii.org/ew/cases/EWHC/QB/2018/1311.html] the claimant, Avondale, brought a claim against their insurance broker. There were two strands to this case. The first was that the claimant alleged that the broker had failed to disclose the criminal convictions of an individual who ran and owned the claimant company to their own insurers. The insurers had managed to avoid a number of policies taken out by the claimant on the basis that these convictions had not been disclosed. It was not at all in dispute that the convictions should have been disclosed and it was not in dispute that the insurers of Avondale should have had that information. The case for the claimant was simply that they had informed their insurance broker that there were criminal convictions but the insurance broker had failed to pass on that information to the insurers. The broker denied that they had been informed.
The second allegation however was that the insurance broker was negligent because they had not stressed the importance of disclosure and had not brought the importance of that disclosure to the attention of the claimant.
It was found at trial as a matter of fact that in fact the claimant had not informed the insurance broker of the convictions.
The alternative allegation that the insurance broker in failing to stress the importance of disclosure and to bring this to the claimant’s attention also failed. The judge needed an expert to comment on what a reasonable broker would do. There was a lack of expert evidence to demonstrate that the broker had fallen below a standard of care that could be expected of the reasonable insurance broker.
The judge commented:-
“It is usual for the court to require expert evidence as to the standards ordinarily observed within a profession before it will find that a professionals conduct amounts to negligence” and then continued….
“The lack of expert evidence significantly limits (although it does not exclude) the possibility of finding that the conduct was such to constitute a breach” [of duty].
In a clinical negligence case the whole case in essence rests on expert evidence. Sometimes that expert evidence confirms the obvious – an item was left inside the patient during the course of an operation, an incorrect limb was affected by surgery, antibiotics were not given when prescribed. Even in those cases however there are often issues as to what harm has been caused. The removal of the incorrect limb is obvious; a failure to give antibiotics in the face of an already significant infection may not be quite as obvious if you are dealing with somebody for example who is already got a problem with their immune system and therefore the antibiotics may not have been as effective in any event even if given. Expert evidence is required.
In the Avondale case the court made it clear that it needs expert evidence in order to find that the duty of care had been breached and that there has been harm as a result.
Lovely though this is, it does fly somewhat in the face of the constant pressure on costs against claimant lawyers. It is the claimant’s duty to establish a case and therefore the claimant needs expert evidence. However, although the court needs the evidence, it seems increasingly that judges are reluctant to allow sufficient sums in budgets for the evidence to be adduced properly. We can all see as lawyers the need for some experts to bring their attention to bear on the core issues in the case and in fact most experienced experts are well able to do so. There are however cases where there are a large number of factors which need to be taken into account or the medical history is complex and relevant. Not all cases can be established on the basis of three or four page reports with simplistic analysis.
This case emphasises the need for expert evidence. As claimant lawyers however we have increasing difficulty in obtaining approval of budgets that allow for proper expert evidence to be adduced. There is an evitable conflict between the two positions which does no credit to the legal system and does not allow claimants a proper analysis of their case.
With increasing pressure from defendants in relation to costs, this conflict will become wider and more apparent. The court system has to look at approving realistic budgets in complex clinical negligence cases to allow what ultimately is another member of their team, another judge, to have the information to make a decision. At the moment the judges undertaking case management are restricting the ability to present expert evidence and ultimately not allowing the judge who deals with the matter at trial to have all the information that they require to make a proper judgment. This cannot be in the interests of justice.