Details within this blog may be triggering so caution is advised
Expert Witness Reports
Once the solicitor accepts you as a client, they will usually 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,They each look at the notes, statements and letter of claim from their own professional perspective. They may have sight of other expert reports, but their opinion should remain independent and based on the evidence before them. 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 Civil Procedure Rules and Practice Direction 35 set out strict requirements for expert independence and impartiality. The Judiciary’s Guidance for the Instruction of Experts in Civil Claims 2014 also provides guidance on the instruction and use of experts. 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 funding places limits and rules around expert fees. This can sometimes make it more difficult to obtain particularly expensive or highly specialised expert evidence. Some experts, however, are excellent.
- A legal team without sufficient specialist knowledge of the medical issues may not identify the most appropriate expert or ask the right questions.
- An expert who does not fully understand the issues in the case, or who fails to consider the evidence independently.
- An expert who is not sufficiently experienced, has not kept up with relevant research, is careless, or does not properly address the brief.
- An expert who may have an unconscious professional bias, for example giving greater weight to the actions of their own profession than to evidence suggesting something went wrong.
Always, always, always read these reports and tell your solicitor if you see something that appears wrong, has been misunderstood or is unclear!
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 9.30pm 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.
On the evidence in this case, it appeared to be a straightforward example of a failure to recognise the warning signs of placental abruption. 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 reports were considered so problematic that the case was put at serious risk of losing its Legal Aid funding.
The Neonatologist displayed yet more incompetence by writing a report for the Defence! He had already written a report for us, so he was effectively looking at the same evidence and somehow failed to realise that he had already been involved in the case. He returned the fee and withdrew.
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 experts reached very different conclusions. Their reports stated that:
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. Accordingly the new expert’s causation opinion was that the 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 witnesses can produce reports that are seriously flawed, incomplete or apparently biased, 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 simply want help understanding it, AvMA (Action against Medical Accidents) can provide advice and support. My AvMA page is in the Overview section.
If you believe you have suffered as a result of negligence, you can always seek a second opinion from another legal firm. It doesn’t necessarily end there.
sources: Civil Procedure Rules / Justice.gov.uk, Judiciary, Expert Witness Institute
