The Royal College of Surgeons has issued new guidance for surgeons wishing to act as expert witnesses. This guidance applies whether a surgeon is a witness in civil, criminal or coroner-type cases.
From a clinical negligence perspective, the issue of expert suitability to deal with a case is pertinent to both sides. These cases are often won and lost on the basis of expert evidence and, from time to time, all of us (on either side ) deal with experts who really are not familiar with their responsibilities and pay insufficient attention to detail.
A common complaint from clients is that what is written in a report is partially or completely inaccurate.
The answer to some of this is to record meetings with expert witnesses. In a case where a client has memory difficulties or is easily tired, recording the interview with the expert helps to ensure that whatever is put in the report of the claimant or defendant is a fair and balanced review. Not all experts, of course, are happy with this and it does not apply in every case. However, in some cases, it can be a useful reminder, both to expert and client, of the statements that are being made.
A case where this went awry, however, demonstrates the problem with this type of technique.
In the case of Mustard v Flower & Ors the claimant did have some minor difficulties and so she was informed that it would be advisable to record the interviews. As it was, she did not record her own side’s meetings, but she did record some of those with the defendant’s experts. Not all of these were declared to the defendant’s experts so it is easy to see why they had concerns. However, she had agreed with the defendant’s neuropsychologist that she could record the interview but not the subsequent neuropsychological testing. There was clearly an effort to turn off the machine, but she failed to do so and therefore the entire attendance was recorded.
The solicitor representing the claimant arranged for a transcript of the meeting to be prepared. He had not read or listened to the recording. It was only at that stage when the transcript came through that he realised that there was a difference between what was recorded and what was said in the report.
Quite why there was so much difference, bearing in mind that the neuropsychologist was aware of the recording, is not clear. In addition, the solicitor then sent the transcript through to his own expert who had some concerns about the testing. A further series of reports and questions arose and the matter became fairly convoluted. Ultimately, it went back before the court and the court had to weigh up whether the evidence obtained (albeit without the consent of the neuropsychologist concerned) could be used because it had an evidential benefit or whether it should be discarded because of the means by which it had been obtained. In the end, the decision was to use the evidence.
There are many clients who, after an appointment when they see the report from a defendant’s expert, in particular, consider that they do not accurately reflect what they have said during the course of a consultation. It is neither practical nor realistically desirable for claimants to record all interviews in all circumstances even if the experts are happy for that to occur. It does, however, raise the question of the accuracy of note-taking by defendant experts. There is no actual reason to assume that claimant experts are more accurate, but it is simply the case that fewer issues come up about them, perhaps because of the party on whose behalf they are instructed. Some experts dictate a proportion of the report in front of claimants. Whilst certainly helpful it may be difficult after a long examination for a claimant to concentrate on what is being said .
As a matter of principle, I always ask that claimants are accompanied to appointments if at all possible. If the claimant has an issue in relation to memory or cognitive damage I tend to ask for a recording to be made with the consent of the defendant’s expert (and indeed the claimant’s expert) if at all possible if no one is there to accompany them. A long appointment should be recorded if practical as no one can accurately remember all of such an attendance.
It is important to remember that those with cognitive damage are vulnerable clients and they do not always understand either the questions that have been put to them or subtle nuances . However all experts should be aware of the process and it should be applied to both sides as much as possible.
There are always issues about the conduct of experts from time to time. The issue of accuracy in recording information provided by the claimant is one which often comes up in the claimant lawyer’s office but rarely in court. This was perhaps an extreme example, although we do not always know. Perhaps if more recordings or note takings from claimants and their chaperones took place, less inaccuracy would occur. What is apparent however is that this is welcome guidance. All experts should be thoroughly trained not just in what is needed for the court but also in the importance of taking a proper note on which to base a later report.