SHOULD A “RECKLESS” MEDICAL EXPERT GO TO JAIL? WATCH THE ARGUMENTS IN THE COURT OF APPEAL
Last year I wrote about the judgment in Liverpool Victoria Insurance Company Ltd v Khan & Ors  EWHC 2581 (QB). Among other things in that judgment it was found that a medical expert’s recklessness amounted to contempt of court. The expert was given a suspended sentence. The insurer has appealed, arguing the sentence was too lenient and the expert should have been imprisoned. The arguments in that appeal are now available live on YouTube having been streamed live. The arguments are of interest to anyone interested in civil procedure (and may be of interest to some experts). There is also detailed discussion about sentencing policy in civil cases.
THE CONDUCT OF THE EXPERT
A brief reminder. The doctor had examined the claimant. The claimant’s solicitor wrote to the expert asking for various amendments to be made. Those amendments were made as requested.
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.
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.
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 SENTENCE PASSED
The doctor was sentenced to six months, suspended for two years.
THE ARGUMENTS ON APPEAL
These can be seen on YouTube in two parts.