SOLICITORS AND EXPERT WITNESSES CAN GO TO JAIL: WITNESS STATEMENTS AND THE VASTLY CHANGED MEDICAL REPORT

In Liverpool Victoria Insurance Company Ltd v Khan & Ors [2018] EWHC 2581 (QB) Mr Justice Garnham found a solicitor and a doctor in contempt of court.   The solicitor was imprisoned for 12 months, the doctor given a six month sentence, suspended for six months.   This involved deliberately dishonest conduct by the solicitor.  The doctor was not dishonest but reckless. Recklessness by an expert can be contempt of court.  This is important reading for lawyers and experts alike.

“In my view, Dr Zafar was not just negligent about the content of the revised report; he allowed the assertions referred to at paragraph 153 above to be included in the revised report, not caring whether they were true of false, and not caring whether or not the Court was misled as a result. Accordingly, he is, in those respects, guilty of contempt of court.”

THE CASE

A claimant had been involved in a minor road traffic accident.  He approached a claim management company who then instructed solicitors.  They in turn instructed a doctor to report.

THE CHANGING SHAPE OF THE MEDICAL EVIDENCE

A report was obtained that described minor injuries.

1. The First Defendant then instructed ‘Med-Admin Limited’ (“Med-Admin”), a medico-legal agency, run by his aunt, to arrange for a medical report to be obtained on Mr Iqbal. Med-Admin Limited arranged, via the domain “UK-Doctors.com”, for the Third Defendant to prepare the report.

2. On 17 February 2012, on the instruction of TKW via OTC, the Claimant was examined by the Third Defendant. A report was produced the same day (“the original report”). Dr Zafar told me he produced medical reports of this sort by typing the relevant data revealed by his patient, or client, into software installed on his laptop. In the space of approximately 15 mins, he could both examine the patient and produce the report. He said he produced 5,000 such reports each year. The report in Mr Iqbal’s case recorded the fact that he had been examined at Dr Zafar’s consulting rooms in High Wycombe on 17 February 2012 on the instruction of TKW. Mr Iqbal’s symptoms were described in this way: “Mr Iqbal developed mild pain and stiffness in the neck on the day of the accident. These resolved one week from the day of the accident. These symptoms were due to whiplash” (my emphasis).

3. Dr Zafar described the treatment Mr Iqbal received as follows “Mr Iqbal did not receive any treatment at the scene of the accident. After the accident he drove to work. He took analgesia four hours after the accident. The treatment finished one week later”. The report noted that the “Claimant is fully recovered from the injuries sustained in the accident.” The musculoskeletal examination recorded “Neck – examination of the evidence neck was normal. There is no clinical evidence of any neuro-vascular deficit.” Dr Zafar’s concluding opinion included the following: “Mr Iqbal’s injuries and recovery period were entirely consistent with the account of the accident.” Under the heading “prognosis”, Dr Zafar wrote “Mr Iqbal has fully recovered from the injuries sustained in the accident.” That report, which was dictated in the presence of the Claimant, was signed by the Third Defendant electronically.

CHANGES TO THE MEDICAL REPORT

Through a somewhat tortuous process the original medical report was heavily revised.

1. 1. y 2012. That file note includes the following:

“KK (Mr Khan) received (a telephone call) from MI (Mr Iqbal). MI received medical report in post. MI not happy with prognosis – 1 week neck pain. MI told KK that he told expert he had neck pain/wrist pain and shoulder pain. MI said that he had told expert his several acute symptoms settled in 1-2 weeks but ongoing symptoms. KK advised he would go back to expert ASAP. MI and KK to revert back by phone once new report received. MI not happy – ensure actioned asap.”

1. 1. 22 February 2012 is also the date of a letter sent, apparently contemporaneously, by TKW to Dr Zafar, care of Med-Admin Ltd. I was shown a copy that bears a watermark which reads “FILE COPY”. TKW thanked Dr Zafar for sending the medical report to which I have just referred. The letter included the following:

“We have sent a copy of the report to the Claimant who has advised us that he does not wish for the medical report to be disclosed for the following reasons:

1. The expert has advised that his neck symptoms resolved within one week of the date of the accident. The Claimant advises that there may have been a misunderstanding during the examination and that he advised the expert that acute symptoms resolved within one to two weeks, but he still experiences a dull constant pain in his neck.

2. The expert has not commented on pain symptoms in the Claimant’s shoulder.

3. The Claimant advises, the expert has not commented on the right wrist pain, which he describes as moderate in severity…

Please ask the expert to review the Claimant’s comments as set out above in line with the medical report he has prepared and his notes following the examination. In the event that the expert, upon review of his clinical notes, original report and his comments to the Claimant feels it is appropriate to prepare an amended report to do so in compliance with CPR Part 35…”

1. 1. On 24 February 2012, there was email communication between the First Defendant, Med Admin Ltd and Dr Zafar’s office. This email chain is important and accordingly I set it out, in chronological order, in full.

   2. At 12.47 on 24 February 2012, Mr Khan emailed Med Admin in the following terms:

“In the case of our client Mr Iqbal we have received a medical report from Dr Asef Zafar. The prognosis period he has provided is one week. We have taken instruction from our client and can confirm that our client is now over two months from the date of the accident and confirms that he still has moderate to severe pain in his neck and shoulders. Our client also confirms he has mild to moderate pain in his wrist for which he is taking pain killers. Our client confirms, as he is a taxi driver, he is required to sit for prolonged periods of time and is experiencing pain in his lower back which is making it uncomfortable for him to carry out his job. I should be grateful if you could review your notes from the examination in light of the following: given that our client is suffering severe to moderate pain in his neck and upper back, now over two months from the date of the accident, is it likely that he will recover over the next 6-8? If no, can you please amend the report in respect thereof. Given that our client is still suffering pain related symptoms can you confirm whether he is likely to benefit from physiotherapy…I should be grateful for your urgent response…”

1. 1. At 12.50, a woman by the name of “Krystle” at Med-Admin forwarded that email to the Third Defendant’s office. At 14.34, Mr Jardella, one of Dr Zafar’s secretaries, emailed Dr Zafar and said “I can do this amendment if you tell me (1) if their suggested prognosis (6-8 months – we put down 1 week) is acceptable? And (2) does he need any physiotherapy? Dr Zafar replied at 14.38, “Does he have any other symptoms that I have suggested 6-8 months and physio. What were his injuries”

   2. Mr Jardella responded at 14.47 “He has no other injuries. His only symptom is Mr Iqbal developed mild pain and stiffness in the neck on the day of the accident. These were resolved one week from the accident. These symptoms were due to a whiplash injury. His exam shows he has no restriction or palpation (sic). Does that need to be changed too? The 6-8 months and physiotherapy is their suggestion”

   3. Dr Zafar replied, “Which agency”. Mr Jardella responded “Med-Admin”. Dr Zafar replied, “When did I see him”. It was the evidence of both Dr Zafar and Mr Jardella that it was likely that that last email was followed by a telephone conversation between them.

   4. That same day, 24 February 2012, a revised version of the medical report (“the revised report”), was produced by (or on behalf of) Dr Zafar. Superficially, it appears identical. Like its predecessor, it bears the date of 17 February 2012. The revised report made no reference to the original report; did not explain that it was an amended report or how it differed from the original report; and did not provide reasons for the changes.

   5. The Claimant alleges that the following statements by Dr Zafar in the revised report about Mr Iqbal are false:

i) “He developed moderate pain and stiffness in the neck and shoulder on the day of the accident. These have not improved yet.” (Ground B24)

ii) “He developed mild pain and stiffness in the wrist on the day of the accident. These have not improved yet.” (Ground B25)

iii) “The [taking of analgesia] is continuing.” (Ground B26)

iv) “He still has difficulty in sitting for prolonged periods of time.” (Ground B27)

v) “There was paraspinal muscle tenderness on both sides and muscle spasm.” (Ground B28)

vi) “Examination of the upper limbs was normal.” (Ground B29)

vii) “I anticipate this symptom [pain to the right wrist] will fully resolve between 6-8 months from the date of the accident “. (Ground B30)

viii) “I anticipate this symptom [pain and stiffness to the neck and shoulder] will fully resolve between 6-8 months from the date of the accident.” (Ground B31).

1. 1. That amended version of the report was emailed to Med Admin that same day. Med Admin forwarded it to Mr Khan under cover of an email timed at 15.28 on 24 February 2012.

   2. There is also a file note dated 24 February 2012 which, it is said, comes from Mr Khan’s files on Mr Iqbal’s case. That note reads:

“(Mr Khan) called (Mr Iqbal) re (medical report). KK advised MI that an amended report had been received. KK went through amended prognosis period with MI. MI happy to disclose. KK to send report out for completeness anyway”

THE TRIAL

This difference became exposed at trial when the original report was included in the trial bundle rather than the revised report.  The trial judge was not best pleased by these anomalies and ordered a representative of the claimant’s solicitors firm and the doctor in question to file witness statements to explain matters.  Eventually the claimant discontinued the action. The defendant applied to set aside the discontinuance to seek wasted costs.

THE CLAIMANT’S EVIDENCE

The insurer (LVI) took a witness statement from the original claimant, Mr Iqbal. That statement was illuminating.

1. 1. Nevertheless, Mr Iqbal indicated thereafter that he was willing to talk to enquiry agents instructed by LVI’s solicitors. In the result, on 29 September 2015, he swore an affidavit in which he asserted, amongst other things, that:

“i) His principal concern after the accident had been to have his car repaired – which was why he had contacted On Time Claims and had gone to their office in High Wycombe. “

ii) His contact at On Time Claims had been the Second Defendant, who had filled in various forms for him – one of which had been a personal injury form.

iii) His injuries had been very minor, and he had not intended to make a claim in respect of them, but the Second Defendant had filled in the forms and he had followed his lead.

iv) He had informed the Third Defendant that his symptoms had resolved within 2-3 days of the accident.

v) He had been sent a copy of the original report (which had stated that his symptoms had resolved one week from the date of the accident) and had spoken with the First Defendant on the telephone about it, indicating to him that the report overstated his symptoms, but the First Defendant had told him that it was just the way that doctors worded things, and that he should not worry about it.

vi) He had never informed the First Defendant that his symptoms were ongoing.

vii) He had only attended On Time Claims office once, and did not require any translation services as he could speak and read perfect English.

viii) He had not attended On Time Claims’ office on 22 February 2012, nor had he ever taken a copy of any medical report to their office, nor had he telephoned the First Defendant in the presence of the Second Defendant, nor had he told the First Defendant in any such call that his symptoms were ongoing, and the First Defendant’s purported file note of a telephone conversation between them on that date was false.

ix) The First Defendant had not telephoned him on 24 February 2012 and read the revised report to him. Nor had he authorised the First Defendant to disclose any revised report.

x) He had not attended On Time Claims office on 25 February 2012; nor seen any revised report at their office (on that or any other day); nor signed anything there to confirm that he was happy with the content of any medical report.

xi) He did not see any revised report until very shortly before trial.

xii) The Fourth Defendant had telephoned him and had asked him whether he had a copy of the revised report, which he did not. The Fourth Defendant had immediately emailed him the revised report and then telephoned him and told him that he needed to memorise and to follow its content.

xiii) On the morning of the trial, he had told the Fourth Defendant that the revised report overstated his symptoms, which had resolved after 2-3 days, but the Fourth Defendant had told him to tell the Court that he had recovered after 6-8 months.

xiv) The impression that he had got was that things would become difficult for him if he said that his symptoms had lasted for only 2-3 days, but that everything would be fine if he said that his symptoms had lasted for 8 months.

xv) Thereafter, he had been required to attend an examination by another doctor, Mr Spigelman. Before that examination, the Fourth Defendant had contacted him again and had impressed upon him that he needed to follow the revised report, and that if he did so everything would be fine. As a result of that pressure, he had told Mr Spigelman that his symptoms had lasted for 8 months.

FINDING OF A FORGED SIGNATURE

The judge found that the solicitor had forged the signature on the original claimant’s witness statement.

1. The signing of Mr Iqbal’s statement is a very different matter. Mr Iqbal denies he signed the statement. Had that assertion stood alone, I would not have accepted it. But it is strongly supported by expert evidence to which there has been no substantial challenge. It was Ms Radley’s firm opinion that the five signatures on the statement of 23 April 20 in Mr Iqbal’s name were not his normal and natural writings, and that there was strong evidence to support the proposition that the questioned signatures were simulations. I accept that evidence.

2. It was Mr Khan who was pressing to have that statement signed on 26 April 2013. He plainly had a motive for getting it signed; he had promised it to LVI’s solicitors in the personal injury action and it supported the case he was trying to advance. Unlike the case of Mr Sultan’ statement, there was no other candidate for the authorship of that signature, other than Mr Khan. I am driven to the conclusion that Mr Khan forged that signature. That lie was intended to mislead LVI and the Court. Ground C7 is made out.

THE DOCTOR AND THE REVISED MEDICAL REPORT

1. 1. As will be recalled, Dr Zafar produced the original report on the date of the examination, 17 February. Following the emails between Dr Zafar and Mr Jardella, one of his secretaries, the revised report emerged.

   2. The difference between the two reports was stark. Under the heading “Symptoms”, the original report said “Mr Iqbal developed mild pain and stiffness in the neck on the day of the accident. These resolved one week from the date of the accident. These symptoms were due to a whiplash injury”. The revised report said “He developed moderate pain and stiffness in the neck and shoulder on the day of the accident. These have not improved yet. He developed mild pain in the right wrist on the day of the accident this has not improved yet.”

   3. Under “Treatment”, the original report said, “the treatment finished one week later”; the revised report said “”the treatment is still continuing”. Under “Present Symptoms Reported by the Claimant the original report said “Claimant has fully recovered from the injuries sustained in the accident”; the revised report said “He developed moderate pain and stiffness in the neck and shoulder on the day of the accident. These have not yet improved yet”. Under “Employment Position / Education” the revised report said “Mr Iqbal explains that he has difficulty in sitting for prolonged periods of time.” Under Examination the original report said ‘Examination of the neck was normal’; the revised report said ‘Neck: There was paraspinal muscle tenderness on both sides and muscle spasm Upper Limbs: Examination of the upper limbs was normal’ (i.e. additional examination of the upper limbs).

   4. Under Prognosis the original report said “…developed mild pain and stiffness on the day of the accident. These resolved 1 week from the date of the accident… Mr. Iqbal has fully recovered from the injuries sustained in the accident”; the revised report said “For the right wrist pain no additional treatment is required. In my opinion this symptom is due to a whiplash injury. On the balance of probabilities, I anticipate this symptom will fully resolve between 6-8 months from the date of the accident. For the neck and shoulder pain and stiffness no additional treatment is required. In my opinion these symptoms are due to a whiplash injury. On the balance of probabilities, I anticipate these symptoms will fully resolve between 6-8 months from the date of the accident”.

   5. It follows from my finding above that the trigger for these changes was the email of 24 February 2012 from Mr Khan to Dr Zafar. It is worthwhile repeating the terms of this critical email:

“Given that our client is still suffering severe to moderate pain in his neck and upper back now more than 2 months from the date of the accident is it likely he will recover over the next 6-8? If so, please can you amend the report in respect thereof. Given that our client is still suffering pain related symptoms please can you confirm whether he is likely to benefit from physiotherapy. In the event that he is please can you provide an estimation as to the number of sessions you recommend?”

1. 1. As noted above, the Claimant alleges that a number of statements in the revised report by Dr Zafar about Mr Iqbal are false. The Claimant contends that Dr Zafar was simply doing what Mr Khan asked of him, exercising no clinical judgement in the process. They say, in particular, that he acted dishonestly in responding to that email by making those changes. They suggest Dr Zafar was motivated by the earnings he would make from the provision of such reports to include such inaccurate assertions.

   2. I reject that contention of dishonesty. I accept Mr Goldberg QC’s argument that it is unlikely in the extreme that Dr Zafar’s production of the revised report was dishonest. As Mr Goldberg QC submits Dr Zafar had no prior relationship with anyone else involved that might supply him with a motive for producing an exaggerated report. All communications were sent via Med-Admin and that makes it difficult to see how there could be any conspiracy to produce dishonest reports. In addition, Dr Zafar had (almost) nothing to gain and everything to lose by producing a dishonest report in February 2012 for TKW, a firm which had not previously sent him work and whose work Dr Zafar did not need.

   3. However, dishonesty is only one basis for a finding of contempt. As noted above, contempt can also be based on recklessness. And in my judgment, it was Dr Zafar’s recklessness that led to the production of this revised report.

   4. Dr Zafar’s method of working, the “industrialisation” of the process of producing reports for the court in support of personal injury claims, imposed on him the most stringent of timetables. He had to examine and interview each patient and produce the corresponding report in an average of 15 minutes. There was precious little time for thought or reflection. An amended report had to be squeezed into an already frenetic day; he was paid nothing more for it. An amendment did not count as one of the 32 reports he did on average each day.

   5. I have no doubt that when Mr Jardella emailed Dr Zafar and offered to make the requested amendment for him, Dr Zafar readily agreed. And I am equally sure that Dr Zafar did not require Mr Jardella to show him the amended draft when he had made the change. Certainly, Mr Jardella did not do so. Mr Jardella could not remember whether or not Dr Zafar asked him to show him the new draft but assumed he would have done so. I do not adopt that assumption. In giving evidence, Mr Jardella displayed a touching loyalty to his employer of whom he was obviously fond and whom he greatly respected. But it is notable that Dr Zafar neither emailed him this instruction (despite his use of email to discuss the case with Mr Jardella) nor did he react when Mr Jardella did not show him the new draft. It was not uncommon for solicitors to ask Dr Zafar to consider amendments to his reports. Such a task would have been routinely delegated to secretaries. I have no doubt that if Dr Zafar required the secretaries to show him the amendments in draft he would have had a system to ensure that happened. There was no evidence of any such system and nothing to suggest that was the practice adopted on this occasion.

   6. Furthermore, I have no doubt that if Dr Zafar had asked Mr Jardella to show him the draft before submitting it, Mr Jardella would have done so. Mr Jardella was plainly an intelligent and diligent employee and it strikes me as vanishingly unlikely that Mr Jardella would either have ignored or forgotten such an instruction.

   7. In my judgment the amendments were made by Mr Jardella, on Dr Zafar’s instructions and Dr Zafar was content to allow his secretary to make such changes without his checking his work. I am satisfied so that I am sure that Dr Zafar was so busy that he gave no thought to whether or not the amendments were justified. He did not care whether the amended contents of the report were true or false. All that mattered to Dr Zafar was getting another report out.

   8. The allegations which the Claimant assert were false include the following:

“i) “He developed moderate pain and stiffness in the neck and shoulder on the day of the accident. These have not improved yet.” (Ground B24) “

iii) “The [taking of analgesia] is continuing.” (Ground B26)

vii) “I anticipate this symptom [pain to the right wrist] will fully resolve between 6-8 months from the date of the accident “. (Ground B30)

viii) “I anticipate this symptom [pain and stiffness to the neck and shoulder] will fully resolve between 6-8 months from the date of the accident.” (Ground B31).

1. There was no attempt by Dr Zafar to investigate whether the amendments he was asked to make to the report, or the amendments which in fact were made, were clinically justified. He just did as he was asked by the solicitor. He just accepted what he was told by the solicitor about Mr Iqbal’s pain and stiffness in the neck and shoulder not having improved, despite the fact that there was no evidence of that when he had seen him in February 2012. In fact, according to his first report, by the time of the examination there were no such symptoms. He made no further enquiries about whether Mr Iqbal’s consumption of analgesics despite there being no report of this when he had seen Mr Iqbal in the February. He had no proper basis for his new prognosis that pain in the wrist, neck and shoulders would subsist for 6-8 months given that he had previously expressed the opinion that Mr Iqbal had fully recovered from the injuries sustained in the accident.

2. In my judgment, it is no answer to those points to say that Dr Zafar or Mr Jardella relied on the email of 24 February from apparently respectable solicitors. The findings recorded in the revised report were not just additions to the findings in the original report, or minor amendments, they stood in stark conflict with the original report. If the revised report was going to be a genuine expression of Dr Zafar’s opinion, rather than mere recitation of the solicitor’s views, they required, at very least, some further enquiry. Dr Zafar’s duty to the court required no less.

3. In my view, Dr Zafar was not just negligent about the content of the revised report; he allowed the assertions referred to at paragraph 153 above to be included in the revised report, not caring whether they were true of false, and not caring whether or not the Court was misled as a result. Accordingly, he is, in those respects, guilty of contempt of court.

4. Accordingly, I find allegations B24, B26, B30 and B31, relating to the revised report, are made out.