COST BITES 98: THE SIMILARITIES IN MEDICAL REPORTS SHOULD BE REFLECTED IN THE COSTS OF REPORTS

We are returning again to HD v Northern Devon Healthcare NHS Trust [2023] EWHC 2118 (SCCO) Costs Judge James considered the sums that should be allowed in relation to the claimants’ medical reports.  This involved a close examination of the reports and their similarities.

“With this level of involvement/instruction and making use of a precedent as he clearly has (and as was clearly reasonable to have done) Dr Agur ought to have been able to make some economies of scale. I do not see that Dr Agur’s fee in “HD” reflects that very obvious fact.”

THE CASE

The judge was assessing costs in  six cases relating to vaginal mesh litigation.  The litigation was subject to a Claims Handling Agreement.  One of the issues was the costs of the claimant’s medical experts.  The judge was assessing costs in six cases and noted that there was a large degree of common material in all the reports.  There was nothing ominous in that given that these were similar cases. The judge’s primary concern was in relation to how this impacted upon the reasonableness of the costs of the reports.   (There are some criticisms of the report in the judgment. It is important to remember that the experts did not have any opportunity to respond to this criticism. Further the judge’s primary concern was with the reasonableness of the costs).

THE JUDGMENT ON THE CLAIMANTS’ MEDICAL EVIDENCE

The judge reviewed each report, noting the common areas in each.

[124]   The following points arise. Taking “HD” as the prime example, although the Report has 33 numbered pages, 17 of them are obviously common, with barely any unique content. The details of Dr Agur’s qualifications and experience are about as long as the entire Report (in fact, given the format, probably longer if one were to undertake a word count on them).

[125]   Of what remains, only the cover sheet, intro and issues and current condition (in effect the history taken from Mrs “HD” over the telephone) are more unique than not. That totals 7 pages of the 33 (21%) and even within those 7 pages there is a lot of common ground or else straightforward admin material, e.g. Dr Agur’s introductory paragraph, a list of documents provided and reviewed, and the issues to be addressed and statement of instruction.  

[126]   The meat of the dispute between the parties really lies within the last category, which I have termed as pages with considerable common features. Another term might have been, pages without more unique content than not. In “HD”, these total approximately 7 pages out of 33, or 21% of the Report. Taking each of the components of that category in turn, I note the following.

Prognosis

[127]   One might think the prognosis in these cases would be unique and there are certainly unique/bespoke features. However, there are multiple common features, for example:

• In every case it is stated that the chronic pain is permanent and that the Claimant will need to continue long term analgesia for life. Where the Claimant has undergone removal surgery, Dr Agur refers to the statistic that, as is the case with at least 50% of cases, removal surgery did not improve the Claimant’s chronic pain (“HD”, “CT”, “CB”). Where the Claimant has not undergone removal surgery, Dr Agur recommends that she should, but adds that the success rate in improving chronic pain, will only be 50% (“HL”). In “CM” Mr Riad refers to further surgery but does not refer to the 50% chance of her chronic pain persisting thereafter; he simply says she will need pain relief for life. Her Schedule of Loss includes a pre-paid monthly prescription (for pain meds) for life. In “CH”, Dr Agur refers to her two partial removal surgeries, scarring and pain: again 50% is not mentioned but pain meds for life, are included in her Schedules as well.

• In almost every case the Expert states that he expects an 80% or 90% chance of requiring Botox bladder injections every 6 to 12 months (hence the 9 months in the Schedules of Loss). The wording is for all practical purposes identical as is the wording of a follow-up paragraph regarding a 20% risk of developing a UTI. It does not appear that bladder Botox was foreseen for Ms “CH” by Dr Agur and yet her Schedule 3 claims £112,470.00 by way of future losses for this treatment. In contrast, bladder Botox was foreseen for Ms “CT” but her third Schedule does not contain it, whereas her second Schedule contained a claim of £80,490.00 for bladder Botox.

• • In every case the Expert recommends Antimuscarinic medication at a cost of £1,300.00 per year. The pain and scarring are stated to have caused the Claimant permanent loss of sexual function for “HD”, “CH”, “CM” and “HL” but not for “CT” or “CB”. Ms “CT” is a widow with serious health issues aside from the TVT-O surgery and Ms “CB” is married but was already being helped with personal care by her husband after several strokes left her requiring ongoing care and assistance.

[128]   Obviously, the above indicate some personalisation across the ‘Prognosis’ in the medical Reports and of course there is nothing sinister in there being a high degree of similarity even allowing for two separate Experts being involved. These ladies all had fairly similar prior histories/symptoms leading to them being recommended for TVT or TOT surgery, and all alleged fairly similar post-operation sequelae leading to their claims against the Defendant. Even something as specific as ‘drain-pipe urethra’ gets multiple mentions but that just suggests that multiple Cs could be at risk of developing it after a repeat continence procedure (“HD”, “CT”, “HL”, “CB”).

iability

[129]   In four of the six Reports, Dr Agur sets out his opinion on Liability in three almost identical paragraphs. He states that he has read and understood the Letter of Claim and what it says about consent pursuant to Montgomery and Chester; he refers to the GMC Consent Guidance [2008] and then asserts that, in his expert opinion, the clinical team ‘clearly’ did not comply with this guidance and therefore, and in his expert opinion, in breach of their duty of care, the clinical team did not provide (Ms “HD”, Ms “CH”, Ms “CT”, Ms “CB”) with adequate information by way of setting out, explaining and discussing with her all the risks of, and all the alternative treatment options available to her rather than, TVT, TVT-O or TOT surgery.

[130]   In his fifth Report (“HL”), Dr Agur again sets out the three standard paragraphs but adds to them the national standard of clinical practice taken from IPG262 NICE 2008, which suggested that evidence on the safety and efficacy of this type of surgery was inadequate, and that it should only be performed within the context of a Research Study; he adds that he found no evidence that she had signed a separate consent form for this surgery to be performed within such a context. He adds that the specific TOT used in that case had not yet been evaluated in clinical trials, which the clinical team had a duty to inform her.

[131]   In his Report (“CM”), Mr Riad goes into rather more detail; he refers to her mild SUI and to a Urodynamic Study on 13 January 2010 and to pelvic floor exercises undertaken by her following delivery of her child in 1990 and to the fact (taken from her medical records) that she was neither offered nor received supervised pelvic floor exercises for mild SUI. In his view, offering her TVT Surgery instead, fell below the acceptable standard of care: he refers to NICE 2006 to assert that pelvic floor exercises for at least 3 to 6 months, should have been tried, and that the failure to offer that, or Duloxetine, or a continence vaginal pessary, meant that her care fell below an acceptable standard. He goes on to address flaws in the Consent Form (not least that it was signed on the day of the operation) and to assert that no information leaflet was provided. He deals with a bladder perforation that occurred and went undiagnosed. He then gives the three standard paragraphs more or less exactly as Dr Agur did.

[132]   The contrast between Mr Riad’s and Dr Agur’s Reports on Liability is striking. On four out of five Reports, Dr Agur states that he understands the law, he understands what the clinical team were supposed to do and says that they ‘clearly’ did not do it. However, this is presented as a bald statement; he has the Medical Records but does not refer to them or give the relevant extracts to show how the clinical team ‘clearly’ did not do what was required. In his fifth Report he goes into a little extra detail but does not really get into the Medical Records on Liability.

[133]   Looking for example at DAC Beachcroft’s letter of 21 May 2020 to Fortitude Law on “HD”, they say, “…we have provided you with a copy of the patient information leaflet which was given to the Claimant. You have indicated that the Claimant denies receiving this. The patient information leaflet box on the consent form has been ticked, which is contemporaneous evidence that a PIL was given. We also have witness evidence which confirms that the leaflet (the specific version forwarded to you) was given to the Claimant. It is a matter for the Court to decide whose evidence is preferred…the factual assertions raised in respect of risks, benefits and complications discussed and consent given are noted and will be addressed in witness evidence…”

[134]   There is more in similar vein regarding known risks in 2014, one consent form for both procedures, severity of symptoms pre-injury based upon contemporaneous records, the viability of other treatments that the Claimant alleged should have been tried et cetera. There is obviously a significant dispute on the facts, between the Claimant and the Defendant, as to what the Claimant was told or provided with by the Defendant in the way of advice, alternatives to surgery and printed materials, yet all that Dr Agur has to say is that the Defendant ‘clearly’ failed to comply with the guidance, without anything cogent to show that he weighed the contemporaneous evidence in the Medical Records against the history given to him over the telephone, and preferred the latter for [list of reasons]. That is a common, and worrying, theme in his Reports.

Causation

[135]   Dr Agur and Mr Riad split this into Clinical Causation and Factual Causation and it is fair to say that across these pages there is bespoke content, but there is understandably a lot of common content as well. For example, under Clinical Causation a near-identical paragraph dealing with stand-alone chronic pain and other neurological pain conditions due  to nerve damage appears in “HD”, “CH”, “CM” (even though that Report was by Mr Riad), “CT”, “HL” and “CB”. However, there is then an explanation of how the chronic pain and other symptoms (such as loss of sexual function, incontinence and UTIs) can be linked to the specific surgery undergone by the Claimant.

[136]   Under Factual Causation in “HD” Dr Agur again refers to stand-alone chronic pain, as well as the 2006 NICE Guideline, a 2007 systematic review of the literature by the Birmingham team (Latthe et al), an FDA mesh warning in 2008, the 2009 Cochrane systematic review, a 2010 landmark study by Richter et al, a 2010 study by Cholhan et al, a 2011 Leicester Study, a study by Freeman et al also in 2011, the York Report commissioned by the MHRA, a 2018 systematic review and meta-analysis from the Cochrane Collaboration (Dumoulin et al), a 2013 systematic review and meta-analysis (Li et al), a 2010 large randomised trial (Richter et al – this appears to be the ‘landmark study’ above referred-to), and a 2019 study by Ong et al.

[137]   Each of these has a paragraph devoted to it, with 13 paragraphs in all; they all appear in “HL” as well. 12 of them appear in “CT” (Cholhan is absent), 9 appear in “CM” (Cholhan and the 2011 Leicester and Freeman studies are missing), 8 appear in “CB” and 6 in “CH”. Cholhan dealt with dyspareunia, pain before, during or after sex, so its absence from “CT” and “CB” makes sense but its absence from “CH” and “CM”, both of whom were said to have ongoing loss of sexual function, is harder to understand. In any event the basic point is that there is a great deal of the same content across all 6 Reports under this heading.

[138]   Other paragraphs explain how these various studies impact upon the Claimant’s claim; again, there are many common paragraphs across all 6 Reports including that of Mr Riad on “CM”. In “HD” these include a paragraph stating (‘For the avoidance of any doubt’) that synthetic mesh devices are designed to treat only SUI symptoms; this also appears in “CH” and “CT”. There is a paragraph referring to the likely outcome had all the risks of surgery been pointed out, explained to and discussed with the Claimant; that paragraph appears in all 6 Reports.

[139]   There is a paragraph referring to the outcome had the Claimant received non-surgical treatment; that appears in 5 out of 6 Reports but each is tailored to list the specific non-surgical treatment(s) relied upon. There is a paragraph regarding the outcome had the Claimant received the original, well-established non-mesh native tissue surgery e.g. colposuspension or autologous fascial sling; that is again present in 5 out of the 6 Reports.

[140]   There is a paragraph explaining the lower risk of adverse outcomes in native tissue as compared to synthetic mesh implantation, which appears in all 6 Reports. This leads to an odd result in that the reference to a better outcome from native tissue surgery appears in the Report on “CB”, but the paragraph suggesting that she should have undergone colposuspension or autologous fascial sling surgery, does not. It does look like another failure to adapt a precedent.

[141]   There is a paragraph referring to the risks of stand-alone chronic debilitating pain and other adverse sequelae being absent from non-mesh procedures or treatments; that appears in all 6 Reports (it is part of another paragraph in “CT” and interestingly appears to have been cut and pasted into that Report as it has come out in a different point size). Finally, there is a paragraph referring to the relatively lower success rate versus the lack of a causal link between urethral bulking agent injections and stand-alone chronic pain, nerve damage, pain, chronic and recurrent UTIs or OAB. That again appears in all 6 Reports.

[142]   There is absolutely nothing sinister about this, for the reasons already given. However, it does mean that in “HD” (for example) of 27 separate paragraphs or sub-paragraphs under the heading of, “Factual Causation” 20 are held in common with at least some other Reports; “HL” has 19, “CT” 17, “CM” 15, “CH” 13 and “CB” 12 such paragraphs. It is clear that the genuinely unique content in each Report is no more than a handful of pages.

Conclusion

[143]   What, if anything, does all of this mean? I refer to the Point of Dispute (‘PoD’) on Dr Agur’s fee in “HD” in which it is stated that the evidence was not complicated and the expert is routinely instructed by Fortitude Law in these cases. The assertion (within the PoD) that the expert has not highlighted inconsistencies between the Claimant’s history and what is in the Medical Records from the time, is borne out by what I have seen. I note the assertion (within the PoD) that the Mediator raised those issues with the Claimant and that the Claimant appeared to have no idea this would come up, but I have not seen any evidence of that at present and so I have not factored it into this Judgment although if borne out it might be relevant to Conduct matters in due course.

[144]   Dr Agur’s Reports, in particular on Liability, do not engage with the Medical Records and any problems they may pose for these cases going forward. Whilst there is such a thing as a Claimant-minded Expert versus a Defendant-minded Expert, one would expect Dr Agur even as a Claimant-minded Expert, to fulfil his duty to the Court, and put the Claimant herself on notice, of such matters rather than blandly saying the Defendant is ‘clearly’ liable. The Reply refers to Dr Agur having received 1,265 pp of Medical Records but that figure does not add anything to the issue; Dr Agur has not delved into the records in any great depth as far as his Report (certainly – but not only – on Liability) shows.

[145]   As to the failure to provide a breakdown between Dr Agur and the agency (Speed Medical) I note that in “HD” the Reply does not state that a breakdown has been sought. I find it curious that Speed Medical’s invoice has space on it for an accident date and a vehicle registration number, which (together with the Company’s name) suggests that this is an agency more used to Reports in Road Traffic Accident cases. Even so, I do not think that Stringer v Copley assists the Defendant on the facts in this case.

[146]   What does assist the Defendant, and which came to the fore during the Hearing (although it was referred to in the PoD) is the fact that Dr Agur does so many Reports for Fortitude Law and that there is so much common material across not only his Reports but also the Report of Mr Riad in “CM”. There was some reference to the way in which Defence lawyers (whether Counsel or Solicitors) are paid well below market rates because of the bulk nature of the work that they do. In the above table it is noted that between 12 August 2020 (when he took a medical history from both Ms “HD” and Ms “CH” over the telephone) and 14 January 2021 (when the Report on Ms “CT” was produced) Dr Agur produced 5 Reports which contain a preponderance of common/precedent material. I do not have any information upon how many more Reports he has produced, during that period or overall, but the sample I have seen is sufficient to enable me to conclude that the fee charged for each of them, is too high. With this level of involvement/instruction and making use of a precedent as he clearly has (and as was clearly reasonable to have done) Dr Agur ought to have been able to make some economies of scale. I do not see that Dr Agur’s fee in “HD” reflects that very obvious fact.

[147]   As to the Reply stating that, “The evolution of attacks on medical agencies obviously (and rightly) requires medical evidence to be subject to robust tests, therefore it is vitally important that it is done thoroughly and properly after a discussion with the Claimant,” that does not address the issues raised in the PoD. It is a statement of what should happen in every case rather than an explanation of how Dr Agur’s Report in “HD” meets that standard. For the reasons above referred-to I think some of the Defendant’s criticisms of Dr Agur’s Report have been borne out.

[148]   I do not think that the £1,500.00 offered by the Defendant is sufficient, that is more the level of fee I would expect for an Orthopaedic Report. However, for the Report I have seen in “HD” I would not allow the ‘as drawn’ amount nor the £3,500.00 offered by the Claimant in the Reply either. Instead, I would allow £3,000.00 plus VAT. By way of indication only, I would anticipate reductions to Dr Agur’s fees in the other cases seen by me.

[149]   As to Mr Riad’s fee, I am not sure how he came to have the same precedent letter as Dr Agur; given that I find that using a precedent in cases with so many similar features was a reasonable and proportionate way to proceed I do not think that it matters, save to say that as with Dr Agur I would expect that precedent to generate a significant saving. That will be a matter for argument when the Preliminary Issues in “CM” are addressed [6].