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For those medical practitioners involved as experts in the medico-legal field, the Court of Appeal decision in EXP v Barker [ 2017] EWCA Civ 63 is a salutary read reinforcing the principles of independence and objectivity in the provision of expert evidence.
The Background Facts
The Defendant brought an appeal as against the decision of Kenneth Parker J of 7th May, 2015. He had decided that the Defendant was negligent in failing to identify and report the presence of a right middle cerebral artery aneurysm in the course of his review of an MRI scan of the Claimant’s brain in April, 1999.
In March, 1999, the Claimant, a barrister, experienced visual disturbance. An MRI scan was organised and was subsequently reviewed by the Defendant, a then consultant neuroradiologist. By 2011, the Claimant had been appointed a district judge. On 8th September, 2011 she collapsed in her home and lost consciousness. A CT scan revealed an acute parenchymal haemorrhage centred on the right temporal lobe. The bleed had been caused by a ruptured aneurysm. Emergency surgery was performed.
At the trial at first instance the issue was relatively narrow, namely whether the MRI scan in 1999 did indicate the presence of an aneurysm which a reasonably competent neuroradiologist would have identified and reported. Each side instructed their own neuroradiologist expert. Dr Butler for the Claimant and Dr Molyneux for the Defendant. Each side instructed neurosurgical expert evidence from Mr Kirkpatrick and Mr Byrne, respectively. Mr Byrne’s reports went almost exclusively towards causation. As it happened causation was conceded shortly before trial.
There had been a court direction in the case which specified that “experts will, at the time of producing their reports, incorporate details of any employment of activity which raises a possible conflict of interest“. During the course of cross examination at trial it emerged that “the connection between Dr Barker and Dr Molyneux had been lengthy and extensive“. In particular, Kenneth Parker J at Paragraph 52 of his judgement noted:
i. Dr Molyneux had trained Dr Barker during his 7 years of specialist radiology training and in particular had trained him for 2 1⁄2 years as a registrar and senior registrar in neuroradiology;
ii. They had co-authored a paper for the 14th International Symposium on radiology. The paper was not shown on Dr Molyneux’s list of publications on his CV. Dr Molyneux also informed the court that they may have co-operated on other papers which he could not specifically recall;
iii. Dr Molyneux had helped Dr Barker to obtain foreign placements; and
iv. Dr Molyneux and Dr Barker had been officers together on the committee of the British Society of Radiologists.
No connection had been raised by either the Defendant nor his expert.
It also emerged during the course of the trial that Dr Barker had requested that Dr Molyneux should be the defence expert. Further, Kenneth Parker J expressed himself to be “taken aback“ by the fact that in an unguarded moment Dr Molyneux referred to the Defendant as “Simon“, which although not his first name, is the familiar name by which he was known.
Furthermore, Dr Molyneux also knew that his neurosurgical colleague instructed in the case, Mr Byrne had relied on research (“ISUIA“) which was highly criticised and yet Dr Molyneux had done nothing to bring this to the attention of anyone. He had been an executive committee member of ISUIA and could have been expected to know of the criticisms of the study. He would have known therefore that Mr Byrne’s neurological evidence, which might be given, was “seriously deficient and misleading“. The explanation offered that it was not within Dr Molyneux’s remit to comment on any aspect of the neurosurgical evidence was one that Kenneth Parker J found “difficult to accept“. He described this matter as something which “again raised doubts in my mind about Dr Molyneux’s evidence in this case“.
Reasoned Desicion at First Instance
Kenneth Parker J considered that the failure to disclose the connection between the Defendant and the defence expert was “a very substantial failure indeed“, the more so in that there had been the specific direction provided by way of case management regarding disclosure of any conflict of interest.
Kenneth Parker J was invited by Counsel for the Claimant to totally exclude Dr Molyneux’s evidence. He indicated that he had come very close to ruling that Dr Molyneux’s evidence was inadmissible but declined to do so. He recognised that Dr Molyneux was an eminent neuroradiologist but that where, as in the instant case, the core issue turned upon the court’s ability to evaluate the finely balanced medical judgments of the respective experts, the court’s confidence in the independence and impartiality of those experts must play an important role. Accordingly, Kenneth Parker J remarked that it was “with considerable regret, that by reason of the matters set out earlier in this judgment my confidence in Dr Molyneux’s independence and objectivity has been substantially undermined“. Whereas, on the other hand, he had complete confidence in the independence and objectivity of Dr Butler, and that he much preferred to accept his judgment, formed on his great experience and skill.
The Synopsis of the Court of Appeal
The Defendant appealed. The first generic ground of appeal as to whether the Bolam test had been properly formulated and applied was dismissed by the court. The other generic ground and main ground of appeal related to the approach taken by Kenneth Parker J in relation to the consideration of the expert evidence of Dr Molyneux. The Court of Appeal in the judgment of Irwin LJ determined that the trial judge had considered that the witness had so compromised his approach that the decision to admit the evidence was finely balanced, and that the weight to be accorded to his views was “considerably diminished“. The Court of Appeal considered that he was “fully entitled to take that view“ and proceeded one stage further in stating “indeed, had he decided to exclude Dr Molyneux’s evidence entirely, it would in my view have been a proper decision“.
Moreover, the Court of Appeal considered that there was good reason for doubting Dr Molyneux’s approach to the “problem in hand“ about the ISUIA evidence. The scrupulous expert in Dr Molyneux’s position should be “pointing out the problem to the legal team well ahead of trial“.
Conclusion
The precursor of any consideration of expert evidence is best referenced by CPR 35.3 which clearly sets out that the duty of the expert is to help the court with matters within their expertise and that this duty overrides any obligation to the party providing instructions or payment. Barker aptly demonstrates the importance of independence and impartiality in the provision of expert evidence. In his judgment at Paragraph 51, Irwin LJ sets out the position succinctly in stating “our adversarial system depends heavily on the independence of expert witnesses, on the primacy of their duty to the Court over any other loyalty or obligation, and on the rigour with which experts make known any associations or loyalties which might give rise to a conflict“.
In practical terms, any conflict of interest should be communicated by the instructed expert upon consideration of initial instructions. In most cases, this would result in the instruction of an alternative expert, but in those rare cases where the continued instruction of the expert is a likely formality (such as a limited pool of specialist expert evidence in the area concerned), full and frank disclosure of the interest should be made to the other party as soon as possible. Echoing the views expressed by Irwin LJ in Baker and enhancing upon their direction, resonance is to be had to the dicta of Judge Davis in the South African case of Schneider NO & Others v AA & Another (5) SA 203 (WCC) (a non-clinical negligence case) in which it was stated:
“Agreed, an expert is called by a particular party, presumably because of the conclusion of the expert, using his or her expertise, is in favour of the line of argument of the particular party. But that does not absolve the expert from providing the court with an objective and unbiased opinion, based on his or her expertise, as is possible. An expert is not a hired gun who dispenses his or her expertise for the purposes of a case...“
Jonathan Godfrey came to the Bar in 1992 and now specialises almost exclusively in clinical negligence work. His expertise covers the whole breadth of clinical negligence work from orthopaedic injury to cancer misdiagnosis and cerebral palsy birth injury. Jonathan has joined the SpecialistInfo Medico-Legal Training Team and will be the lead for our Clinical Negligence Courses from January 2018.
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