AN EXPERT REPORT THAT DID NOT COMPLY WITH PRACTICALLY EVERY REQUIREMENT OF CPR 35: IT FAILS TO PERSUADE THE COURT

An example of the importance of the format of an expert report can be found in the judgment of Master  David Cook in Pal -v- Damen [2022] EWHC 004697 (QB). It is a decision that shows that the courts will pay close attention to the form of an expert report. The format of the report itself is often indicative of whether the expert has complied with their duties to the court.  A report that does not comply with the basic provisions of CPR 35 is unlikely to be given much, if any, weight.  

 

THE CASE

The claimant was bringing an action for clinical negligence following an operation in Belgium.  There were two defendants: the clinic and the surgeon who carried out the operation.  Both defendants disputed jurisdiction and made an application under CPR 11.  In order to establish jurisdiction the claimant had to establish that she had an arguable case against each defendant.  This was a matter of Belgian law, the issue being which party the claimant had a contract with.. Each party relied on an expert on Belgian law.  The Master was critical of the format of the report relied upon by the surgeon in relation to both form and substance. This report did not comply with CPR Part 35. The Master preferred the report relied upon by the clinic.   He found that there was an arguable case case against the surgeon but not the clinic.

WEBINAR ON EXPERT EVIDENCE

On the 30th June 2022 I am presenting a webinar on the joint meeting of experts.  Details are available here.

 

THE MASTER’S REVIEW OF THE EXPERT REPORTS

The Master reviewed all three reports.

Expert evidence

25.The report of Mr Delvaux complies with the requirements of CPR 35. He concludes, as is common ground, that the Claimant had a contract for her treatment. In his opinion the issue in Belgian law is whether there was “an all in contract”, where the patient has a contract exclusively with the clinic that makes a commitment to take care of everything or “two distinct contracts”, one with the clinic that provides the medical care, accommodation and medical infrastructure and the other with the treating doctor which covers the provision of medical services, see §11 of his report.
26.It was Mr Delvaux’s opinion that the Claimant entered into an “all in contract” with the clinic and that the First Defendant was an “enforcement agent”. The basis of this opinion is set out in §12 of his report.

“12. It is generally agreed in the case of Belgium case law and literature that there is a contract between the doctor and the patient only if the patient has chosen this doctor freely. However as the Court of Appeal of Liège states:

“If the patient goes to an institution without personally choosing the doctor who will treat him, in such a way that he implicitly puts himself in the hands of the doctors attached to that institution, and he only has a contact with the hospital; this contract concerns both the obligation of safekeeping and the obligation of care. This institution is therefore liable towards its co-contractant for its enforcement agents’ faults” and “the hospital institution is liable towards the patent not only for its own fault but also of the persons it has substituted for itself in the performance of its obligation of care”

According to PUTZ and FOSSEPREZ, “In this situation, the patient that considers himself a victim of a medical fault could only sue the hospital based on contractual liability”

In this case, I would therefore consider that there is an “all in contract” between Mrs Pal and the clinic, since Mrs Pal did not personally choose the doctor who would perform her surgery. The clinic did not give any other option to the patient as to which doctor will undertake her surgery and directly set up the appointment with Dr DAMEN.”

27.Mr Delvaux considered the possibility that that there might be two distinct contracts, one with the Clinic and one with the Surgeon at §13 of his report. In particular and in agreement with Mr Steyvers he formed the view that the declaration of informed consent, referred to by Ms Spronken as the “treatment agreement” could not be considered a contract. His final position was that it was only arguable there could be a contract with the Surgeon,
28.The reports of Mr Steyvers are not in CPR 35 form. Mr Steyvers is the Surgeon’s retained lawyer in Belgium. His conclusion set out at §14 of his report is that the Claimant entered into a contract with the Second Defendant. His basic reasoning mirrors that of Mr Delvaux. In relation to the treatment agreement at §16 of his report he states:

“… However, it is very clear that this document is not a contract at all. It is a standard document, designed by the clinic, that has to be filled in by the performing doctor during in his pre-operative consultation with the patient. As such the consent form’s legal status is nothing more than a declaration of the fact that the patient has been made aware of the possible risks of the surgery. This is no contract at all. It simply records that the patient has been appropriately informed of the risks”

29.Mr Steyvers concludes that as the Claimant went to the Clinic’s web site and made her payments direct to them paid them her contract was with the Clinic.
30.In his supplemental report Mr Steyvers criticises Mr Beer’s report. At §1.3 of his report he states;

“ The report of Mr BEER (a witness from the second defendant) contains a lot of mistakes and incorrect information..

Mr BEER says on page 4 of his report that there always has to be a written agreement for cosmetic surgical procedures and refers to article 18 §3 of the Belgium Act of 23 May 2013 regulating the qualifications required to perform non-surgical cosmetic medicine and cosmetic surgical procedures.

This article does not at all state that there must be a written agreement or contract. This article is nothing more that the obligation to inform the patient. §3 states that there must always be made a written report of the information that has been given to the patient (= the declaration of informed consent). This is no contract, only an obligation to inform the patient.

Mr DELVAUX also agrees with me on this point (p 13 of his report):

“I agree with Mr STEYVERS that the Declaration of informed consent cannot be considered as a contract. This Declaration of informed consent is the only the proof that the patient has been duly informed on the surgery, as legally prescribed by Section 18 of the Belgium Act of 23 May 2013 regulating the qualifications required to perform non surgical cosmetic medicine and cosmetic surgical procedures.”

Because Mr BEER starts by making a completely wrong assumption, the rest of his report is not correct either.

There is no contract intuitu personae.

Intuitu personae is a Belgium legal term which means that the contract is closed between two parties because himself/the personal qualities of the counterparty. When someone contracts with you because of your capabilities.

This is not the case at all. Ms PAL never had the choice as to which doctor she wanted to perform her surgery.

It is not possible at all to first close an all-in agreement with the clinic and afterwards (after paying making the reservation etc retrospectively turn it into a doctor out agreement. This of course is against the law. ”

31.Mr Beer’s report and supplementary report are CPR 35 compliant. Mr Beer starts by considering the contractual position. In common with Mr Delvaux he agrees that that there are two possibilities. Firstly, a “doctor out” agreement, under which the clinic undertakes to provide and supervise medical care, provide accommodation and make medical and other infrastructure available, with the patient then concluding a separate medical treatment agreement with the doctor, which covers medical services only. Secondly an “all in” agreement under which the clinic provides not only the nursing care, accommodation and medical infrastructure but also the medical services of the surgeon.
32.At §2 para 3 of his report Mr Beer discusses the treatment agreement;

“In the standard situation, as discussed above, the treatment agreement with the doctor and the and the hospital agreement are usually oral.

The medical treatment agreement is a consensual agreement, in principal: it comes into being through the mere concurrence of the parties’ expressions of will. This concurrence of expressions will usually happen orally, tacitly or explicitly. But there are exceptions to the consensual nature of medical treatment.

Specific legislation some times requires the patient’s explicit written consent.

A written agreement is required for cosmetic surgical procedures.

In this regard, reference can be made to Article 18 §3 of the Belgium Act of 23 May 2013 regulating the qualifications required to perform non surgical cosmetic medicine and cosmetic surgical procedures (Belgium Official Journal of 2 July 2013)

To be able to consent in this system, a treatment agreement must be concluded between the patient and the doctor. This is an agreement intuit personae.

This treatment agreement is strictly persona;. It may not be transferred to agents/auxiliary persons.”

33.Mr Beer then considers the argument that the Surgeon was acting as an agent of the Clinic for the medical treatment he performed on the Claimant. He observes that situation is governed by a system of interconnecting agreements between; the patient and the hospital, the patient and the doctor and the hospital and the doctor. He concludes, on the facts of this case, that there are two separate agreements that cannot be regarded as a “main agreement” and “sub agreement” but as two independent coexisting agreements, the hospital agreement (doctor out agreement) and the medical treatment agreement between the Claimant and the Surgeon.
34.Lastly, Mr Beer conducts an analysis of the relevant documents. Firstly, he notes that the agreement between the Clinic and the surgeon provides that the surgeon bears full medical and civil liability responsibility for the treatment of his patients. Secondly, he refers to the treatment agreement, whilst this document is headed “declaration of informed consent” it contains details of the procedure, the cost of the procedure and more importantly contains the express non-indemnification clause set out at paragraph 22 above. Thirdly he refers to the standard terms and conditions set out at paragraph 20 above. He concludes that if the Surgeon made a medical error or had been negligent during his treatment of the Claimant the Surgeon would be contractually liable.
35.In his supplemental report Mr Beer addresses the points made by Mr Delvaux and Mr Steyvers.
36.At §2.2 of his supplementary report Mr Beer addresses the Court of Appeal of Liège case referred to by Mr Delvaux at § 12 of his report. He points out that the facts of this case are very different. In the Court of Appeal case the patient was admitted to hospital as an emergency without any direct communication with the emergency doctor to whom she was then referred. In this case he points out that the Claimant had an individual pre-operative consultation with the Surgeon and was free to refuse treatment or seek a second opinion. He also noted that both Mr Devaux and Mr Steyvers appear to acknowledge that the Claimant read the general terms and conditions published on the clinic’s web site and pointed out that in order to make a booking the Claimant would have to have ticked a box accepting them.
37.At §2.1 of his supplemental report Mr Beer takes issue with Mr Steyvers’ view of the “informed consent document”. In Mr Beer’s opinion the document is more than a statement by the Claimant that she has been informed of the risks of the operation as it also contains the treatment agreement referred to in the Clinic’s general terms and conditions.

 

THE MASTER’S CONCLUSIONS

The Master concluded that the report prepared on behalf of the clinic was the most compelling.

54.On the basis of the expert evidence I have no hesitation in concluding that there is a good arguable case that the Claimant entered into a contract with the Surgeon. I find the analysis of Mr Beer persuasive on this issue. He was the only expert who properly considered the factual background and contractual documentation in a balanced and logical manner. I agree with his opinion that there is only one logical result on the basis of the contractual documentation.
55.I conclude that I can place no weight upon the evidence of Mr Steyvers. The requirements of an expert’s report are set out in PD 35 §3.2:

“An expert’s report must:

(1) give details of the expert’s qualifications;

(2) give details of any literature or other material which has been relied on in making the report;

(3) contain a statement setting out the substance of all facts and instructions which are material to the opinions expressed in the report or upon which those opinions are based;

(4) make clear which of the facts stated in the report are within the expert’s own knowledge;

(5) say who carried out any examination, measurement, test or experiment which the expert has used for the report, give the qualifications of that person, and say whether or not the test or experiment has been carried out under the expert’s supervision;

(6) where there is a range of opinion on the matters dealt with in the report –

(a) summarise the range of opinions; and

(b) give reasons for the expert’s own opinion;

(7) contain a summary of the conclusions reached;

(8) if the expert is not able to give an opinion without qualification, state the qualification; and

(9) contain a statement that the expert –

(a) understands their duty to the court, and has complied with that duty; and

(b) is aware of the requirements of Part 35, this practice direction and the Guidance for the Instruction of Experts in Civil Claims 2014.”

56.Mr Steyvers’ report failed to comply with practically every requirement. It appeared to me that he was acting as an advocate on behalf of his client’s position which is perhaps not surprising as he acts for the Surgeon in Belgium. He did not give any proper consideration to the evidence of Ms Spronken and did not fully consider the available documentary evidence with the inevitable result that he did not provide a balanced opinion covering the range of possible opinions. The most obvious illustration of this tendency was his abrupt observation that Mr Beer’s report “contains a lot of mistakes and incorrect information”.
57.Mr Delvaux’s report was presented in a manner which complied with CPR 35 however, there are parts of his reasoning which do not withstand logical analysis, in particular his reference to the Court of Appeal of Liège case at §12 of his report. In my view and in agreement with Mr Beer the facts of this case are to be distinguished for reasons given by him in his supplemental report; on the basis of Ms Spronken’s uncontested evidence the Claimant did in fact have a choice of whether to proceed with the Surgeon and freely chose to do so. It was this issue which was the basis of Mr Delvaux’s opinion that there was an “all in” contract with the clinic.
58.In the circumstances and substantially for the reasons submitted by Ms Wyles QC I cannot conclude there is a good arguable case that there was a contract for medical treatment and /or medical services with the Clinic.
59.In conclusion, the Claimant has established a good arguable case for the existence of a contract for medical treatment and /or medical services between her and the Surgeon and accordingly this Court has jurisdiction over that claim. The Claimant has failed to establish a good arguable case for the existence of a contract for medical treatment and /or medical services against the Clinic and accordingly the Court does not have jurisdiction over that claim.