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Rowbottom v The Estate of Peter Howard, Deceased & Anor [2023] EWHC 931 (KB), A Case with Expert Witness Bias
A sad case of a serious RTA between a car and a motorcycle where both drivers claimed that the other was on the wrong side of the road.
An excellent case summary can be accessed via the link below from Gordon Exall, at Civil Litigation Brief, involving an expert wrongly favouring evidence that supports “his” claimant, when the first rule of giving expert evidence is one’s duty to the Court.
HHL Sephton KC (sitting as a High Court Judge) was critical of the role of one of the experts in the case:
“A second reason why I do not feel able to rely upon Mr Green is that he did not appear to me to understand the obligation of an expert fairly to deal with all the evidence and not simply to address the points that support his hypothesis. Mr Hunter’s criticism is fair that Mr Green was happy to emphasise the witness evidence that supported his theory whilst remaining silent about those witnesses whose evidence did not.”
Read more: https://www.civillitigationbrief.com/2023/04/26/beware-of-over-eager-experts-an-expert-that-simply-addresses-the-points-that-supports-their-hypothesis-is-heading-for-trouble/
An MPS Survey Finds up to a Third of Doctors Experience Suicidal Thoughts During GMC Investigation
The Medical Protection Society (MPS) sent a survey to over 900 doctors who had been investigated by the GMC in the past five years and of the 197 who responded nearly a third (31%, 61) admitted they had suicidal thoughts during their GMC investigation.
Most of those who responded said the investigation caused them stress and anxiety, and found the process negatively impacted their mental health, citing the length of the investigation and the tone of communications from the GMC as major factors.
Dr Rob Hendry, Medical Director at Medical Protection, said: “We understand the GMC exists to protect the public, and must investigate serious complaints. But there is no reason why it cannot operate and communicate with doctors under investigation with more compassion. Finding out your fitness to practise is being called into question can be devastating, and it is easy to see how quickly a doctor’s mental health could deteriorate if they feel they are considered ‘guilty’ from the outset.
“The GMC has made many improvements to its initial communication with doctors, but more is needed. For example, the first letter to a doctor could alleviate some anxiety by setting out the GMC’s legal requirement to investigate all complaints and its policy for dealing with any malicious complaints – which are a huge source of stress for doctors and can take months to resolve.
“Above all else however, the Government and the GMC must ensure fewer doctors are dragged through this extremely stressful process unnecessarily. For the Government this means progressing GMC reform with urgency to give the regulator more discretion to not take forward investigations where allegations clearly do not require action.
“Reform should also reduce the number of doctors who are pursued by the GMC on the vague and ill-defined basis that action will ‘protect public confidence in the profession’, when investigations should surely be focussed on doctors who potentially pose a risk to patient safety.”
SpecialistInfo are launching a new training course in July 2023, which should be helpful for doctors worried about being the subject of a GMC investigation: A Risk Management Toolkit for Medical Professionals, with course leader, Caroline Bennett, former Head of Regional and International Claims at the MPS:
“With the right toolkit you will be better placed to prevent the occurrence of an adverse event, but if one should occur you will also be better equipped to minimise the chance of a claim ensuing or, if it does, manage yourself through the process to achieve the best outcome. Forewarned is forearmed!”
More information and booking page here: https://www.specialistinfo.com/ml-risk-management-toolkit Read more: https://www.medicalprotection.org/uk/media-policy/campaigns/gmc-investigations
Extending Fixed Recoverable Costs
The amending Statutory Instrument for FRCs will be laid before Parliament, following ministerial approval, in late May 2023. It reflects the draft changes to the Civil Procedure Rules (CPR) agreed by the Civil Procedure Rule Committee (CPRC) on 31 March 2023. The draft changes to the CPR and related practice directions, have been approved by the CPRC, but the rules have not yet been made nor approved by MoJ ministers.
The MoJ has confirmed that the rules will state that clinical negligence claims must be allocated to the multi-track, and so excluded from FRC, except where the claim is one which would normally be allocated to the intermediate track and breach of duty and causation have been admitted.
In summary, From 1 October 2023, FRC will be extended across the fast track, and in a new intermediate track for simpler cases valued up to £100,000 damages. The following case types will be allocated to the multi-track rather than the new intermediate track, and will thereby be excluded from FRC:
• A mesothelioma claim or asbestos lung disease claim;
• One which includes a claim for clinical negligence, unless both breach of duty and causation have been admitted
• A claim for damages in relation to harm, abuse or neglect of or by children or vulnerable adults;
• [Claims against the police involving an intentional or reckless tort, or relief or remedy in relation to the Human Rights Act 1998. This exclusion does not apply to a road accident claim arising from negligent police driving, an employer’s liability claim, or any claim for an accidental fall on police premises.]
The Government’s proposals on introducing FRC for clinical negligence cases up to £25,000 has being taken forward separately by the Department of Health and Social Care (DHSC) and are not being introduced as part of this package of reforms. The Law Society have raised concerns about the possible capping of expert fees at £1,200: this could prevent high-quality evidence being collected, and a single joint expert giving evidence for both parties: this could be unfair to one side.
At the time of going to press, this information was still a draft version of one that will be published when the amending Statutory Instrument is laid before Parliament, following ministerial approval, in May 2023.
Read more: https://www.legislation.gov.uk/uksi/2023/572/pdfs/uksi_20230572_en.pdf and https://www.justice.gov.uk/__data/assets/pdf_ file/0003/177645/cpr-156-pd-making.pdf
Do Not Resuscitate (DNR) and Do Not Attempt Cardiac Pulmonary Resuscitation (DNACPR) Order Misuse
A 2021 investigation by the care watchdog, the Care Quality Commission, found there may have been more than 500 breaches of individual human rights due to the misuse of DNR decisions.
The decisions are not legally binding, but they can be appropriate if a person is unlikely to withstand the resuscitation procedure. Crucially, the order should only be activated after they've consulted with the patient, or their family.
An Essex University study suggests potential confusion around orders. In a small study of 262 care professionals, most of whom had responsibility for applying the 2005 Mental Capacity Act, researchers found:
17% said they'd seen instances of DNACPR decisions informing care and treatment decisions beyond their intended use;
28% said they'd seen DNACPR forms added to medical notes due to blanket decisions, such as the age of a resident;
55% reported witnessing decisions being made without consultation with the resident or their family. Prof Wayne Martin, who led the research said:
"That's what we call mission creep – it’s not what these forms were designed for. It's really a violation of both law and people's rights to care. "They look like they're an order, when they're not legally binding."
Researchers are calling for better training for medical and care professionals, as well as new standardised documentation, based on consultation, a person's individual circumstances, and a clear understanding of the law.
Read more: https://academic.oup.com/bjsw/advance-article/doi/10.1093/bjsw/bcad078/7160963?login=false
NHS Response to COVID-19: Stepping down from NHS Level 3 Incident
NHS England reported on 18 May that significant changes on covid reporting are coming at the end of June.
Amanda Pritchard, NHS Chief Executive, announced that the following will change: COVID-19 Patient Notification System (CPNS) will no longer be collecting data where an individual has died from COVID-19. COVID-19 deaths will be recorded using the death certification process, which is the same as other infectious diseases.
The acute COVID-19 data collection process will be stood down with a subset of data incorporated into the existing UEC data collection.
The outbreak reporting process will be changing (details TBC).
The National and Regional Operations Centres will continue to operate, but with reduced hours of operation. She added: “Stepping down the incident is of course done in the knowledge that COVID-19 as a health issue itself, as well as the wider long-term impact of the pandemic, will continue to be significant for years to come. New waves and novel variants will continue to impact on patient numbers, as well as staff absences, and we will also need to continue to provide services for those suffering the effects of ‘long COVID’.”
Read more: https://www.england.nhs.uk/long-read/nhs-response-to-covid-19-stepping-down-from-nhs-level-3-incident/
Lawyers Advised not to Get Involved in Expert Joint Statements
A new edition of the King’s Bench Division Guide published in May contains a new paragraph relating to the instruction of experts:
“Whilst the parties’ legal advisers may assist in identifying issues which the joint statement should address, those legal advisers must not be involved in either negotiating or drafting the experts’ joint statement. Legal advisers should only invite the experts to consider amending any draft joint statement in exceptional circumstances where there are serious concerns that the court may misunderstand or be misled by the terms of that joint statement. Any such concern should be raised with all experts involved in the joint statement.”
This confirms what expert witnesses should already know, that their duty is to the court and their instructing law firm or agency must not influence their evidence in any way.
Read more: https://www.judiciary.uk/guidance-and-resources/the-ninth-edition-of-the-kings-bench-guide-is-now-available/
Khan -v- Aviva Insurance Ltd (2022): Travel Anxiety Question (Issue 22 Medico-Legal Magazine)
A reader asks, after the Medico-legal News article in the last issue on claim layering, Khan v Aviva (Issue 22 medico-legal magazine), “in the link to the judge's opinion was the statement that as travel anxiety was not a recognised psychological condition that there was no need for a psychological report. I have been under the mistaken belief that significant travel anxiety did warrant a psychological report as it ‘was outside my area of expertise’. I suspect that many of my medico-legal colleagues have thought the same. So, is there some legal authority to clarify this that I can quote apart from Khan v Aviva or is this enough?”
Andrea Barnes, Barrister and SpecialistInfo
Medico-legal course leader replies:
Experts should not be overly concerned with this judgment. CPR rule 35 makes it clear an expert should highlight symptoms or history they are told which falls outside of their expertise, which he has done as an orthopaedic expert being told of potential psychological/psychiatric symptoms. He will not know whether they amount to a recognised psychological/psychiatric injury; travel anxiety or otherwise. His duty to is to assist the court and he should therefore flag up any issue he cannot answer within his field of expertise. We recommend all he needs to do is state:
"X tells me they have experienced the following xxxx symptoms following the incident. These appear to be psychological/psychiatric in nature and fall outside my area of expertise. [Note - if you are told by the Claimant they are having a serious/significant impact on their lifestyle you may wish to add X tells me that these symptoms are impacting on their day to day activities]. I leave it those instructing me to consider whether the symptoms reported require psychological/psychiatric assessment."
It may slightly more complicated if he has been asked to consider an organic cause for an orthopaedic injury which he believes is actually psychological/psychiatric in nature or has an underlying/overlapping psychological/ psychiatric element. In that case he should clearly state this and state that he would defer to a psychological/psychiatric opinion on this point. If you are an expert witness interested in foundation or advanced training with Andrea and her colleagues from Normanton Chambers, then please take a look at our training calendar: https://www.specialistinfo.com/course-calendar-2023
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