When is an expert not an expert?
Will Balfry and Laura Scott recently acted in a case where there were concerns that the Claimant’s expert was not qualified to provide an opinion on the injuries sustained in a road traffic accident. The expert’s evidence was challenged and the Court ordered the Claimant to obtain new reports from a suitable expert. The case highlights the importance of making appropriate enquiries of an expert’s suitability and where appropriate raising objection to the Claimant relying upon the report.
The matter arose out of a road traffic accident that took place on 11th February 2014, when four occupants of a vehicle were injured. Originally the claim commenced in the MOJ Portal for Low Value claims but left the process due to the insurers disputing the medical evidence provided. Proceedings were therefore issued for all four Claimant’s utilising Part 7 of the CPR.
All four Claimants were examined a mere seven days after the index accident and were carried out by an expert describing himself as a “self-employed pain and anaesthesia consultant”. All the injuries were soft tissue in nature, but to multiple areas with extended recovery periods of up to 18 months. Twelve weeks of physiotherapy were recommended with ‘1-2 sessions per week’ meaning a potential 24 sessions of physiotherapy for each Claimant. The fact that the expert had examined three out of the four Claimants as a result of injuries said to have been sustained in previous road traffic accidents was also something not dealt with by the expert. The Claimants alleged that they had sustained psychological injury and the expert addressed those issues, despite that being an area outside the expertise of a pain consultant. Enquiries with the General Medical Council revealed that the expert was registered as an Anaesthetist from 2009 but had no other specialist qualifications.
The Defendant raised a list of Part 35 questions of the expert, which the Defendant did not feel had been adequately answered by the expert, so the Defendant asked for a CMC to deal with the issues arising.
DWF advocate Laura Scott dealt with the CMC and submitted that the expert was a wholly inappropriate expert to carry out an examination where the Claimants alleged that they had sustained soft tissue injuries and experienced mild psychological symptoms. In particular, submissions were made that a pain management consultants have a distinct skill set to that of a GP or consultant orthopaedic surgeon: a pain management consultant will generally be engaged to assess the treatment of chronic pain conditions, which by their very nature are substantially different to soft tissue, orthopaedic and psychological injuries.
It was submitted that the expert’s fee for examination of each Claimant (without review of records) at £300 plus VAT was too high. Had the Claimants’ instructed a GP expert, then the costs of that report would be have been less and would have provided a more appropriate and accurate assessment of the Claimants’ injuries. It was also submitted that the Claimants had been examined too soon after the index accident and that there had been no opportunity to let the injuries settle.
Part 35 questions had been raised of the Claimant’s medical expert in relation to these issues, seeking confirmation as to the extent of his medical training and the basis upon which the examination had occurred almost immediately post-accident. It was also pointed out to the court that the Claimant had instructed the medical expert without recourse to the Defendant, denying the Defendant the opportunity to raise their concerns about the suitability of the Claimants’ expert.
Relying upon CPR r.35.1, which states that ‘expert evidence shall be restricted to that which is reasonably required to resolve the proceedings’, Laura submitted that it would be immensely difficult for the court to assess quantum on the basis of the current medical evidence and this would cause significant prejudice to the Defendant. It was submitted that the Claimants should therefore be debarred from relying on the reports and should instead be re-examined by a GP, jointly instructed between the parties with access to medical records and previous reports. The court was also referred to CPR r.35.4(4), which states that ‘the court may limit the amount of a party’s expert’s fees and expenses that may be recovered from any other party’.
District Judge Malik agreed that the Claimants should not be given permission to rely on the medical evidence they had obtained. There were concerns as to the expert was adequately or appropriately qualified to provide a medical assessment and that he had commented on psychological symptoms, which were outside his area of expertise. It was noted that the expert had failed to adequately address the concerns raised by the Defendant within the Part 35 questions. Held, it was proportionate and reasonable for further reports to be obtained, on a joint basis, from a GP with full access to medical records. It was ordered that the Claimants would be debarred from recovering the costs of the reports that they had already obtained.
This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.