PROVING THINGS 95: OH… WHY A COMBATIVE EXPERT WITNESS NEVER HELPS: LEAVE ADVOCACY TO THE ADVOCATES…

Crown Office Chambers have a short post on their website that deals with the judgment in Ruffell -v- Lovatt HHJ Hughes 4 April 2018.  The post provides a link to the judgment itself.  The judgment is another example of a failure to prove things.  It provides an object lesson to experts who fail to consider the full picture when reporting and take up an adversarial stance at trial.

THE CASE

The claimant was injured in a road traffic accident. Liability was admitted. The extent of the injuries were in dispute.  The claimant’s case was that she had developed complex regional pain syndrome.   The judge rejected the claimant’s case on causation.  A substantial claim for financial damages was also rejected and the claimant awarded £12,500 in general damages and £350 in past losses.

EXPERT EVIDENCE

Inevitably in a case such as this the claimant has to rely on expert evidence.  The judge was categorical in his rejection of the claimant’s  own evidence. The claimant had a complex medical history before the accident which was not fully taken into account by the experts.

In reference to the claimant’s expert the judge was highly critical of the uncritical approach taken. The failure to examine and consider the consequences of the medical records. The wholesale acceptance of everything the claimant said and the combative and adversarial role adopted by one of the claimant’s medical experts.

THE JUDGMENT

 105. Dr Jenner relied on several research papers to try and justify his opinion and he referred to these in his report dated 9th April 2016. Dr Jenner did not add that these papers were the result of studies with animals, not When it was put to him that the studies did not include inflicting pain on the animals, Dr Jenner said he could not remember what the stimulus was in the studies. I formed the view that Dr Jenner had not mastered this topic: he had cited the papers, no-one else considered them relevant.
106. Second, I am satisfied from the evidence of the other three medical experts that CRPS is controversial and the subject of debate. In the particular case of the claimant, there is overwhelming evidence that her problems are not This is because the claimant’s psychological problems are not secondary to CRPS but plainly pre-date the accident and the alleged CRPS by many years. Indeed, it is no exaggeration to say that the claimant has had psychological problems for most of her adult life. Dr Jenner has put the cart before the horse.
107.This error is a consequence of Dr Jenner’s failure properly to read and consider the claimant’s entire medical records before he first reached his Dr Jenner never properly attempted to understand the claimant’s history. Instead, Dr Jenner considered the index accident as year zero for the claimant, treating everything thereafter as flowing from that event. In fact, the index accident was merely a trivial event in a larger, decades-long continuum. This involved the claimant regularly complaining to her doctors of one sort of psychosomatic illness after another, together with a small number of discrete physical ailments involving her left wrist and her breast.
108. Third, as discussed later in this judgment, I have found that the claimant was not a reliable historian and because Dr Jenner (like the other treating and expert doctors) was obliged to rely on the history she provided, his conclusions are inevitably based on unreliable evidence. Dr Jenner accepted what he was told by the claimant without reservation. He wrote, and never departed from the following:
“Miss Ruffell is a reliable historian with a consistent history and examination findings … no evidence of conscious or unconscious exaggeration or malingering in Miss Ruffell’s presentation.”
109 .Dr Jenner eventually accepted that the claimant’s low back pain was mechanical in nature and therefore not attributable to the In any event, I am satisfied that the use of elbow crutches by the claimant is a function of her long-standing psychological problems and is not attributable to the index accident. This means than any back pain caused by the use of the crutches is not relevant.
110. If it was necessary for me to do so, for these reasons I would reject on its merits the expert evidence of Dr Jenner. There is, unfortunately, a more fundamental reason for rejecting the opinions of Dr
The credibility of Dr Jenner
 111. I have no doubt that Dr Jenner is a conscientious as well as an experienced consultant who does his best for his patients in his However, I regret that I have been driven to the firm conclusion that his expert evidence in this case is so flawed that I cannot rely on any contentious aspect of the same.
112. I do not hold against Dr Jenner the fact that he was uncomfortable in the witness box. Giving evidence in court is stressful and doing so when one’s professional opinion is being challenged is doubly so. Dr Jenner on several occasions started laughing at propositions put to him by counsel and he also had a habit oflapsing into lecture mode. These matters are not material to a careful assessment of his expert opinion and I ignore them.
113. My reasons for coming to the conclusion I have are as follows:-
114. First, I reject the comment by Dr Jenner in the joint statement that, absent the decades-old neck and back pain, “Miss Ruffell was otherwise fit and well prior to the index ” If Dr Jenner had any real knowledge or understanding of the claimant’s pre-accident history, he could not have made that statement. When challenged on this, Dr Jenner was unable to explain himself.
115. The opinions of an expert doctor, in a case such as this, who has so strikingly demonstrated no real knowledge or proper understanding of the claimant’s extensive and highly relevant pre-accident history are of little or no This is not a case where the expert was silent. Dr Jenner positively asserted that the claimant was fit and well prior to the accident.
 116. Second, Dr Jenner was neither careful nor forensically thorough. In his first report (4th November 2013) Dr Jenner reached a detailed conclusion and thereafter maintained that conclusion, unchanged, in all his subsequent When he prepared this first report the claimant’s medical records before him ended on 23rd July 2009. More than four years of records were missing and important events occurred during that period. Dr Jenner did not ask for the missing records, or qualify his conclusion or express a tentative conclusion. There is no evidence that Dr Jenner even noticed that years of relevant medical records were missing.
117. This is despite that fact that when he prepared his report in November 2013, Dr Jenner had before him the psychiatric report dated 15th November 2012 by Dr Stallard which clearly identified some of the gaps in the evidence before
118. The opinion expressed by Dr Jenner in his first report was repeated, verbatim, in all his subsequent The initial failure to grapple with the claimant’s entire medical history therefore affected all of Dr Jenner’s reports and letters. This led to Dr Jenner putting forward several plainly absurd propositions:
(a)In the joint statement (18th July 2016) that the claimant was “fit and well prior to the index accident.”
(b) In his report of 27th September 2017 that, absent the index accident, the claimant “would have been capable of work” and “would not have required care and assistance.”
119. For Dr Jenner to maintain these views in September 2017 necessarily implies either a complete disregard for the claimant’s medical history or a significant degree of carelessness. When cross-examined, Dr Jenner accepted that he was wrong but could offer no explanation for these erroneous statements.
 120. In his first report (4th November 2013), but only in his first report, Dr Jenner also diagnosed the claimant as suffering from “secondary myofascial pain ” However, this diagnosis was not supported by his own examination findings. Nor was the diagnosis ever repeated. Indeed, Dr Jenner made no further reference to myofascial pain syndrome again, despite preparing five further reports. I infer that either Dr  Jenner reached an erroneous diagnosis or else he failed adequately to record his examination fmdings. Whatever the reason, Dr Jenner did not correct the same, leaving the diagnosis quietly abandoned. In evidence Dr Jenner, once again, said that he could not explain what had happened.
121. Third, in his reports Dr Jenner was dismissive of the views of other, equally well-qualified doctors and, moreover, in terms that were at best off-hand, at worst, Dr Jenner did not confine his comments to the opinions of Dr Glynn, the defendant’s pain expert, but was caustic about the defendant’s expert psychiatrist as well. I set out examples from Dr Jenner’s reports below:
(a) “Dr Glynn is deliberately trying to raise the element of doubt in the examination fmdings of Miss … In my opinion, Dr Glynn is being misleading.” 14th June 2016.
(b) With regards to the medical reports of Dr Christopher Bass, I entirely disagree with the following … This is entirely … Dr Bass does not appear to be aware ofany of these basic facts…. Dr Bass has not fully taken into consideration Miss Ruffell’s presentation.” 12th June 2017.
(c) “I would entirely disagree with Dr Glynn on that point … This entirely … Dr Glynn entirely fails to discuss….” 12th June 2017.
(d) “I have had the opportunity to review Dr Bass’s background…. I do not understand why he would be commenting on specific dermatological conditions, as this is entirely outside his area of  expertise” 16th June 2017.
(e) “As a consultant psychiatrist, Dr Bass is discussing matters which are completely out of his domain as a consultant psychiatrist and as a consultant in pain medicine I cannot accept his views as he does not have the appropriate training and experience to make such comments and assertions.” 16th June 2017.
122. I note in respect of the last comment that Dr Bass has more experience in years working in pain clinics than Dr Jenner’s 14 years. Dr Bass also has more peer-reviewed publications referencing CRPS than Dr Jenner, who has none.
123. Fourth, when he gave evidence, Dr Jenner was dismissive of those who did not agree with his rigidly held opinions. When Mr Ferris put the following proposition to Dr Jenner: “there is no generally accepted or understood pathology or physical explanation for CRPS” Dr Jenner replied “absolute rubbish and nonsense.” This dogmatic approach is inconsistent with the obligation on an expert witness to consider and acknowledge where there is a range of opinions, even if the expert, for his own reasons, rejects In this instance, Dr Jenner flatly rejected the proposition that a diagnosis of CRPS was controversial, a proposition the other three medical experts accepted.
123. Dr Jenner suggested in evidence that the expert psychiatrists, Dr Bass and Dr Stallard, had “concocted” their diagnosis Plainly, Dr Jenner was not in a position to make such a criticism and even if he disagreed with the diagnosis, to express himself in such objectionable terms displayed a lack of balance and judgment.
124.  Fifth, the content of Dr Jenner’s evidence was combative and he repeatedly acted as an advocate for the claimant. There was a lack of balance and much argument in his evidence. Rather than answer a question directly Dr Jenner would often sidestep and respond with an argument to support the claimant’s position. For example, when asked whether low back pain was common in the general population, Dr Jenner answered that it was common in people with CRPS. Only when an answer was insisted upon did he acknowledge that low back pain was indeed commonplace in the general population.
125.  Another example is when Dr Jenner was asked to consider the position if the claimant was found not to be a reliable historian. Dr Jenner replied that he would be very surprised if that were the finding. He added: “What can I say? I think she is “
126. The contrast between Dr Jenner’s determined advocacy of the claimant’s position and the more considered and balanced evidence of the other three medical experts was  striking. The other experts listened to the questions and answered them, briefly and as best they could. Dr Jenner did not.
127. For these reasons I cannot rely on the opinion evidence of Dr Jenner.

 

Later in the judgment.

165. Dr Jenner was obliged to accept that his assessment of the claimant’s pre-accident condition was wrong. He could not explain how he came to make such a fundamental error but I conclude that the most probable explanation is that Dr Jenner accepted at face value what he was told by the claimant and then failed to cross-check that information with the claimant’s full medical The claimant told Dr Jenner that she was:
“… leading an active and social life prior to the index accident. Some hobbies she would enjoy include cycling, walking, gardening and DIY. These hobbies are no longer possible …”
166. Dr Bass pointed out that the claimant was housebound and incapacitated before the index accident. This situation was and remains a consequence of the claimant’s long-term, constitutional, personality difficulties and It has nothing to do with the index accident.