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Independence of Experts

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A recent Court of Appeal decision (February 2017) emphasised the importance of expert witnesses in medical negligence cases being truly independent.

In the case of EXP v Barker [2017] EWCA Civ63, the court heard an appeal by a consultant neuroradiologist who was said to have acted negligently in failing to identify the presence of an aneurysm while reviewing an MRI brain scan.

The scan had been carried out in 1999 and at the time the consultant neuroradiologist concluded that it showed that everything was normal. In 2011 the patient suffered a ruptured aneurysm in the brain. The claim for damages for consequent injury went to trial where the interpretation of the 1999 scan was at issue.

An expert neuroradiologist advising the patient said the scan showed a potential abnormality which was not consistent with normal brain anatomy and that further investigation should have been carried out in 1999. In contrast, the expert advising the defendant said the features of the 1999 scan were consistent with normal brain anatomy.

The trial judge chose to prefer the evidence of the patient’s expert witness and in doing so said that the court’s confidence in the defendant’s expert witness had been undermined by his failure to disclose a close professional connection with the neuroradiologist who had advised the patient in 1999. The two had previously worked together and had co-authored research papers.

The Court of Appeal held that the trial judge was entitled to take the view that the independence of the defendant’s expert witness was compromised. The decision whether to admit his evidence at all had been finely balanced and it was reasonable for the judge to attach less weight to his views.

The Court of Appeal held that the adversarial system which operates in civil proceedings in this country depends heavily on the independence of expert witnesses, who owe a primary duty to the court. Experts must make known any associations or loyalties which might conflict with their overriding duty to give independent expert opinion.

This decision re-emphasises the point that the expert’s primary duty is to the court and not to the party instructing that expert. When instructing expert witnesses, practitioners should draw this decision to the attention of the expert, emphasising that any personal or professional connection to the treating doctor must be declared at the outset.

If you or someone you know has suffered an injury as a result of sub-standard medical care please contact our medical negligence team on 0113 245 8549 or by completing an enquiry form.