WHEN THE JUDGE PREFERS ONE EXPERT WITNESS OVER ANOTHER: A CLINICAL NEGLIGENCE EXAMPLE

In  Woods v Doncaster And Bassetlaw Teaching Hospitals NHS Foundation Trust [2024] EWHC 1432 (KB) Mrs Justice Lambert preferred the claimant’s expert evidence to that that of the defendant. This was not because either expert was unduly partisan. Rather it was because of deficiencies in the report of the defendant’s expert.

WEBINAR ON EXPERTS IN THE COURTS IN 2024

It is the almost certain knowledge that issues with experts will continue to crop up that I have arranged a webinar towards the end of the year, “Experts in the Courts in 2024” on the 11th December 2024 , booking details are available here. 

The webinar will examine the key cases where expert evidence and expert conduct has been considered by the courts throughout the year.

THE CASE

The claimant brought a case alleging clinical negligence due to negligent delay in her delivery.  One issue was the findings that could be drawn from two traces. The defendant’s expert had reported on the first trace in detail but had a poor copy of the second trace.   Over time the second trace became more significant and the claimant’s expert obtained a clearer copy.  When the matter got to trial the defendant called no factual evidence.  The issue was essentially one between the experts.

THE JUDGE’S FINDINGS IN RELATION TO THE EXPERTS

1. 1. At various stages of their questioning and in their closing submissions counsel accused the expert on the other side of failing to provide objective and unbiased opinions, both in their reports and in their evidence at trial. Counsel sought to challenge the experts by suggesting to each that their reports had been prepared with the respective statements of case in mind. It was expressly put to Mr Hare that his analysis had been influenced by his knowledge that, in order for the claim to be successful, it was imperative to deliver the claimant before 11 October 1998, a criticism which he rejected emphatically. A similar point is taken against Mr Tuffnell in Mr Baker’s closing submissions in which he describes as “a further worrying feature” of Mr Tuffnell’s evidence that his report was prepared having read and considered the Defence, the “obvious implication being that Mr Tuffnell prepared his report to meet the Defence.” I am aware that both experts are experienced and have broad shoulders. However, I am quite satisfied that there was no basis for either counsel to challenge the objectivity of the experts in this case. It would be distinctly odd if an expert’s final report, prepared for the purposes of disclosure had not been prepared having had sight of the statements of case.

1. Having cleared the decks of those points, I start by recording some aspects of Mr Tuffnell’s evidence which, notwithstanding my conclusion above, I found to be problematic. A number of them feature in Mr Baker’ closing submissions.

1. 1. As Mr Tuffnell acknowledged, his report of 2023 had been prepared by him without a recent review of the second trace. In his covering letter to the report dated 7 June 2023 he wrote: “I have completely redrafted my report because the case that is being put now is different to the case that we dealt with in 2007. However, my interpretation of the CTG is based upon the interpretation I made at that time on 28 September 1998. I do not seem to have another copy…I have based this report upon my previous interpretation of the CTG…” I assume that the reference to 28 September 1998 is an error and that he meant, in 2007. When asked about the preparation of his report in court he said that he may have had a copy of the second trace, but it was not legible. This is not what he said in his covering letter though. Whatever the problem, he confirmed that he had imported into his July 2023 report that section of the report from 2007 which set out his interpretation then of the second trace.

1. 1. On any assessment, this was wholly unsatisfactory. In 2007 when the section of the report concerning the second trace had been written, the second trace was not the subject of criticism. By 2021 when the case was issued however, the second trace was the focus of the claim. A better and more legible copy of the second trace was available. Even if the copy retained by the defendant had degraded, the claimant’s team were in possession of a copy which had been made by Mr Hare before the trace had deteriorated badly. It is unclear whether it was sent to Mr Tuffnell. If it was then it does not appear that he reviewed it before the meeting with Mr Hare. In the joint expert minute, he observed that his “consideration of the CTG has to be based upon my first review of this case which happened in 2007. The current available copy of the CTG actually has no heart rate visible, so I can only rely on my opinion at that earlier time. I cannot review it.” In fact, a better copy of the second trace formed part of Mr Hare’s report. Although the later part of the trace remains difficult, if not impossible, to interpret, it is possible to identify (although perhaps not clearly) the heart rate, the variability and the ink markings associated with fetal activity in the earlier sections. The second trace appeared within the body of Mr Hare’s report (rather than as an appendix). It is difficult to see how, had Mr Hare’s report been considered by Mr Tuffnell, he could have missed the copy of the second trace.

1. 1. There are some other parts of Mr Tuffnell’s evidence which are concerning. In the section of his report which considers the first trace, he sets out that it had been noted that the baby was moving at the time of the trace. There is however no such reference in the notes. His report refers to there being no history of continuing leakage and/or leakage on the day of attendance. This statement must be seen in the context of a documented report from Mrs Woods of leakage, indeed on the basis of the midwifery note, this was the presenting complaint and the reason for the self-referral. Mr Tuffnell explained that this was clumsy wording and that he was intending to convey that there had been no further leakage following admission but, as Mr Baker put to him, this is not in fact what he wrote in the report.

1. Both of the points above are small points. But in conjunction with the circumstances in which the report was put together by Mr Tuffnell they go to create an unfavourable picture. I am reluctantly driven to the conclusion that, in this case, Mr Tuffnell’s preparation has lacked the attention to detail which the case demanded. Predictably, it led to matters being raised for the first time in evidence (not having featured in his report or expert meeting and not having been put in cross examination) in circumstances when it was impossible to know whether Mr Tuffnell had thought about these things beforehand (but not set them out in writing) or whether they were occurring to him for the first time in the witness box. He relied on little, if any, literature even when he was challenging the use of Guidelines (for example, FIGO/RCOG and the need for 5 minutes minimum of stable baseline). Whilst I understand that in his oral evidence, he may have been trying to convey the reality of practice in a busy but competent antenatal ward, I regret to say that the overall impression was of a rather casual approach to the issues in the litigation. As Mr Baker highlights, this is in stark contrast to Mr Hare who gave the impression of having considered the issues in the case with real care and who provided thoughtful and measured responses to the questions posed.