Details within this blog may be triggering so caution is advised
Expert Witness Reports
Once the solicitor accepts you as a client, they will commission expert witness reports. These are usually a midwife, an obstetrician, a neonatologist, and a radiologist. They each look at the notes, statements and letter of claim from their own angle, although they usually have sight of the other expert reports, which may (although it shouldn’t) influence their own report. Expert witnesses are supposed to be completely unbiased and work only on the evidence before them. That is stated in their brief and their witness statements, and is enshrined in court rules.
The Ministry of Justice have multiple strict requirements stating this need for total impartiality under the Civil Procedure Rules and the Guidance for the instruction of experts in civil claims 2014.
So why do we get such diverse and seemingly biased (which is putting it favourably) or simply incompetent reports submitted in legal cases?
- Legal Aid have a set budget for each expert. This may be a factor in more complicated cases needing more expensive and niche experts. Some however are excellent.
- Incompetent legal team commissioning expert reports without wide knowledge of the field.
- An expert with a weak understanding of their own case and is swayed by the arguments of other experts working on the case.
- Someone who is simply not competent, has not kept up with the latest research, is sloppy and doesn’t follow the Brief.
- An expert who has an unconscious bias towards their own profession and may have seen some part of the incident as excellent but overlooks actual negligence.
Always, always, always read these reports and report back where you see fault or lack of clarity!
So, onto a personal story of how expert witness reports can go so wrong.
The mother in question was 37.5 weeks pregnant. All seemingly well but with a breech baby and a report 10 days earlier that the baby was smaller than expected. The ‘small for dates’ issue was dismissed as mum being short and not an issue. The breech set for an elective c section.
On a weekday evening at 8.30pm mum experienced sudden onset of abdominal pain in her pelvis. The pain was moderate, constant but with no other symptoms. Mum phoned the labour ward at 9pm and explained baby was breech but this pain started suddenly and was constant. She was told to call back in an hour if it was still there and take 2 paracetamols.
After half an hour of the pain continuing constantly without relief she called again at 9pm and insisted on being seen and was told to come in but no need to rush. She arrived in 20 minutes where a scan showed a fading heartbeat and she was rushed to theatre for an emergency c section. Baby was dead at birth but resuscitated and had suffered a moderate/severe HIE. Mother had a placental abruption causing the baby to lack oxygen and suffer a brain injury. The baby was five and a half pounds and suffering from IUGR which was ignored 10 days earlier.
That’s a simple example of negligence on the part of the midwife who took the call who should have recognised the signs of a placental abruption (constant abdominal pain with or without vaginal bleeding). Yes?
The expert witness reports…
Midwife. If the mother had said what she said, she should have been told to come in immediately and placental abruption suspected. Mum had call and witness records
Radiologist The injury shown on MRI showed complete lack of oxygen 20 minutes before birth. The delay caused by the midwife was 30 minutes
Obstetrician. Did not read the brief. Ignored the undiagnosed IUGR. Said mother should have been in agony rather than just having ‘pain’. Said the level of brain damage was too great for the level of bleeding from the placenta, therefore baby must have twisted the cord around himself prior to birth, cut off his oxygen supply, then untwisted himself after the damage was done. Yes really, this tiny baby, in normal fluid with no record of any cord issues. As the emergency c section was done so quickly and so efficiently along with the resuscitation we believe he showed unconscious bias towards the Trust.
Neonatologist. Said the same as the obstetrician and copied his homework.
So, the Obstetrician and the Neonatologist displayed both incompetence and laziness and lost the case legal aid. This resulted in the case almost being closed. However.
The Neonatologist displayed yet more incompetence by writing a report for the defence!
He returned the fee and withdrew.
With the money a new neonatology report was commissioned. She disagreed totally with the previous report and the obstetric report.
Very long story short a new obstetric report was also commissioned and the new reports stated:
The brain injury was worse than it would have been because the baby was already compromised by the undiagnosed IUGR. The IUGR should have been diagnosed and monitored, the mother informed and the midwife also informed. The midwife should have recognised the symptoms of a placental abruption and advised immediate admission. Baby would have been delivered at 10pm before the brain injury occurred and would have been unaffected.
All the above experts (good and bad) were Legal Aid funded.
So, the moral of this story is simple. Expert witness can be completely useless, biased and incompetent and we, the clients, often have no idea of this. The legal team are not medical experts and can only go on what they are told. Legal cases have been dropped. Families receive no justice and babies continue to be harmed as no lessons are learned.
If you think a report is inaccurate or wish to understand it better AvMA (Action against Medical Accidents) have their own experts who can advise and analyse them for you free of charge. My AvMA page is in my Overview section.
If you believe you suffered negligence you can always see another legal firm. It doesn’t end there.
