THE DANGERS OF AN “ENTHUSIASTIC” EXPERT – CASTS DOUBTS ON THEIR RELIABILITY

Most clients are happy to find an expert witness who agrees with their case. Even better, it may be thought, is an eminent expert who feels very strongly about the case.  However, as we have seen so often on this blog, strong feelings can lead to difficulties.   The judgment of HHJ McKenna in Flanaghan v University Hospitals Plymouth NHS Trust [2019] EWHC 1898 (QB) is a case exactly to point. The doctor, eminent and respected in his field, had strong feelings about the case which led the court to the view that there was a lack of reliability in his opinions.

THE CASE

The claimant brought a clinical negligence action alleging negligence in two consultations. The claimant’s case was supported at trial by an eminent surgeon.

THE JUDGMENT

The judge reviewed the medical evidence in detail.  The case rested on expert evidence. He preferred the evidence of the expert called by the defendant.

Discussion and Conclusions
    1. The allegations made against Mr Sudhakar in the amended Particulars of Claim are markedly different from those originally advanced in the original Particulars of Claim which were based on the evidence of another highly experienced consultant neurosurgeon, Mr Peter Kirkpatrick, rather than Mr Choksey. Specifically, the original Particulars of Claim made no allegations whatsoever in respect of Mr Fewings and as against Mr Sudhakar the alleged breaches were:
i) wrongly placing the disc prosthesis too deep in the posterior vertebral body or wrongly failing to remove all of the osteophyte which was protruding so that it caused compression in the cord;
ii) following the MRI scan at 2350 hours on 26 October 2012, failing to return the Claimant at the operating theatre to remove the wrongly placed prosthesis or the osteophyte;
iii) on 27 October, wrongly taking the posterior approach since “an interior approach would have been correct for an interior cervical discectomy”;
iv) during the operation on 27 October, failing to decompress the spinal cord at C6/7 by moving the disc prosthesis to an appropriate position or by removing compressing osteophyte;
none of which are now pursued.
  1. It can be seen, therefore, that in the original Particulars of Claim, as well as there being no complaint at all about Mr Fewings, there was no suggestion that vertebrectomy was the only reasonable approach; no suggestion that the operation should have been delayed; no suggestion that a pre-operative CT scan was mandatory; no suggestion that on discovery of the CSF leak the operation should have been converted to a vertebrectomy; and no suggestion that the Claimant should have been re-operated upon in the early hours of 27 October. Not surprisingly, reliance is placed on these matters by the Defendant to support its central contention that there was a range of opinion on all these matters and that neither Mr Fewings nor Mr Sudhakar were negligent in their decision making. There is force in that submission as it seems to me.
  2. As leading counsel for the Claimant candidly conceded in final submissions, the reality is that the Claimant cannot succeed unless the court prefers the evidence of Mr Choksey to that of Mr Mannion. That course of action was urged upon me on the basis that Mr Choksey was plainly a highly experienced neurosurgeon whose position has been consistent throughout, in contradistinction to that of Mr Mannion. In this regard, much was made of the contents of paragraph 33 of the original Defence; Mr Mannion having been instructed throughout in contrast to Mr Choksey who was not, as I have already indicated, instructed at the time that the original Particulars of Claim were served. It was said that the contents of paragraph 33 demonstrate that at that time Mr Mannion shared Mr Choksey’s subsequently held view about the need for the use of a vertebrectomy to remove osteophytes from behind the vertebral body where they were exerting retro-vertebral pressure and it was submitted that Mr Mannion’s attempt to distance himself from the pleading was unattractive and criticism was made of him for omitting to make reference to having seen the original Defence in his Report. For my part, I do not accept the force of that criticism in the light of the evidence that the point of maximal decompression was at the disc level (Good and Mannion) and that the worst stenosis was at the disc space and not behind the vertebral body. In this regard it is also to be remembered that the factual evidence of Mr Sudhakar was to the effect that the osteophytes had formed at the edge and might have extended slightly upper or lower and to some extent behind the vertebra but he would not characterise them as retro-vertebral, evidence which I accept.
  3. However, even if there was some force in that criticism of Mr Mannion, nevertheless I have no hesitation in concluding that his opinions are to be preferred where they differ from those of Mr Choksey. In coming to that conclusion, I do not doubt Mr Choksey’s eminence or his experience and indeed it is fair to say that Mr Mannion fairly and rightly expressed his admiration for Mr Choksey when giving his evidence.
  4. As it seems to me, however, Mr Choksey plainly feels or felt very strongly about this case. That strength of feeling has led him to express himself in very strong terms and, it is fair to say, in my judgment, that his analysis has been premised on an exaggerated assessment of the factual situation which pertained in 2008 which tended to cast doubt on the reliability that can be placed on his opinions in respect of the 2008 allegations and which inevitably seeps into a consideration of his views in respect of the 2012 allegations.
    1. By way of example so far as the 2008 allegations are concerned, he characterised Dr Sadler’s reaction to what could be seen on the MRI scan as “alarming” when the word he used was in fact “impressive”; he described the cord compression as being extremely severe, whereas that is not a finding that has been made by anyone else and he suggested that the Claimant had “a history of a stumbling gait” which is plainly an exaggeration of what was described to Mr Fewings as a minor “waddle” which only bothered Mr Flanaghan and certainly did not bother the Claimant. Mr Choksey described the Claimant as having “critical spinal cord compression” in circumstances where radiological findings cannot tell anything about symptoms generally still less their severity. He described the Claimant’s condition inaccurately as “a significant and severe spastic myelopathy”. Significantly, Mr Choksey misstated what Mr Fewings had said about the Claimant’s symptoms and in particular as to whether or not she was asymptomatic. He also described the Claimant’s symptoms as improving prior to the 26 October operation, and put the word in block capitals for emphasis even though this was not the case. There had been some improvement initially, it is true, but the Claimant’s condition had in fact plateaued between the evening of 23 October and the surgery on 26 October.
  5. As it seems to me, therefore, and contrary to the opinion expressed by Mr Choksey, who was unable to point to any local or national guidelines mandating annual review or bi-annual MRI scans, the decision to offer conservative management in conjunction with appropriate advice as to re-referral if there was any deterioration was plainly within a reasonable range of opinion, supported as it is by Mr Mannion.