CLAIMANT’S MEDICAL EXPERT ORDERED TO PAY DEFENDANT’S COSTS: EXPERTS PLEASE NOTE (EXPERTS’ INSURERS NOTE CAREFULLY)
In Thimmaya -v- Lancashire NHS Foundation Trust (30th January 2020, Manchester County Court) HHJ Claire Evans ordered that a medical expert pay a significant part of the defendant’s costs when she found that the expert had failed in his duties to the court. In this case by stating that conduct had been negligent in circumstances when he could not state what the appropriate test for negligence was.
“… it is right that experts should all understand the importance of their duties to the Court and the potential consequences if they fail in them.”
The claimant brought an action for clinical negligence against the defendant. She relied on the expert evidence of a Mr Jamil. The case failed. The judge was not happy that the claimant’s expert understood the relevant test. The defendant applied for a third party costs order.
THE JUDGE’S CONCERN ABOUT THE EXPERT’S CONDUCT
The judge set out the reasons for her concern.
“It arises because in the course of being cross-examined at the trial before me in Preston
on 11th and 12th March 2019, Mr Jamil was wholly unable to articulate the test to be
applied in determining breach of duty in a clinical negligence case. He was given a
number of opportunities to explain it; he was asked the question in different ways; that
did not assist him. In the end, he stated that he did not know the test to be applied. The
Claimant then had no real choice but to discontinue her claim, he being the only expert
upon whom she relied.”
THE JUDGE’S CONCLUSIONS
The judgment sets out the fact that the judge was only concerned with this particular case.
The gateway to it unfolding that Mr Jamil was not aware of the test for breach of duty
arose from his choice of wording in the Joint Statement he prepared with Mr Allibone,
Consultation Orthopaedic Surgeon instructed by the Defendant, in May 2018. Mr Jamil
referred in the joint statement to “best practice”. Of course, best practice is not what is
required of a doctor so as to avoid being found to have been negligent.
8. Mr Jamil may well have been able to report having proper regard to the Bolam/Bolitho
test in previous cases. He may well have understood the test and been able to fulfil his
duty to the Court in previous cases. This is not a case about what Mr Jamil has, or has
not, done before. The question for me is whether in this particular claim, at the relevant
times, he had a proper understanding of the test to be applied in giving an opinion as to
whether a clinician had been negligent. And plainly by the time of the trial he did not.
THE CONSEQUENCE: THE DOCTOR PAYS THE COSTS
The judge concluded that the expert should be ordered to pay the costs, on grounds akin to wasted costs orders.
“Those are all significant failings which amount in my judgment to improper,
unreasonable, or negligent conduct, such that the jurisdiction to make a costs order
against Mr Jamil (which is, both parties agree, essentially to be exercised on the same
basis as a wasted costs order) is engaged.”
CAUSATION AND COSTS
The judge then considered issues relating to causation and found that considerable costs had been incurred from the time that the expert should have ceased acting.