The assumption by lawyers and courts is that in Orthopaedic cases a practicing NHS Consultant will be an expert able to inform the Court in matters of injury that they need to form a reasoned assessment of the case. Much of the time this is not the case.
If you consider the daily work of an Orthopaedic Consultant in the NHS, do they see and assess whiplash associated injuries, back pains, sprains and minor fractures? In the vast majority of cases, never.
Do they assess past medical history that might play on the overall picture of the claimant? Almost never unless it directly affects the part they are treating.
Do they assess disability, the reasonableness of claimed assistance, periods of time off work, suitability of different types of work after an injury? Never.
Are they in a position to assess interacting disability from past conditions, injury being considered, and any future constitutional deterioration? Never. Are they qualified to do so (Occupational Health or Disability qualification)? Exceptionally rare.
Is the expert qualified as an expert, such as having the Cardiff University/ Bond Solon qualification? Most are not. Are they therefore fully aware of the implications of CPR35 and their need to follow them and only inform the Court of areas within their expertise? Many still do not follow the rules as they should and hired guns are still prevalent.
And yet in the vast majority of cases they are put up as an expert in such cases purely on the basis of the position they currently hold, which as can be seen is almost entirely irrelevant to the opinion they are about to give.
Judges all too often take the current NHS Consultant as automatically being an expert in the field they are being judged on and, while court appearances are increasingly rare, I have never seen this challenged by Barristers or Judges.
And the point is this. The Expert has to be experienced and qualified in the area they are claiming to give expert evidence to the Court (although not required by the definition of Expert).
I have never met an expert who has all of the relevant experience and qualifications for the task they are standing in Court to perform, and the result can be a bit if a car crash.
Recently I was in Court with an expert who tried to claim that the condition of the claimant, proven post-accident, must have been present before the index accident. He was instructed by the Insurance Company and was taking their side. That was concerning in itself as he was breaching Part 35, something that neither Barristers or the Judge picked up. He was able to provide no evidence to support his claim. The judge ended up having to go through two different versions of events, each given over about an hour and sift which pieces had supporting evidence and which did not. Fortunately, he got it right; fortunately Judges usually get it right, but I have witnessed some real horrors.
All of these problems would readily and swiftly have been uncovered and resolved by the use of hot tubbing. Personally I would welcome the practice but have never seen it. As Experts we go through a similar process when doing joint reports. This can sometimes be a frustrating process. Recently I did a joint report were we had one area of disagreement. My opposite number (he is not an opponent although judges often use this term) wanted the phrase that the injury was caused by the ‘whiplash mechanism’ in the injury. My counter was that my opinion was based on the fact that the mechanism of the accident ( a rollover) did not include a whiplash mechanism, which is entirely confined to a rear end impact. If this case gets to Court, a hot tubbing would readily sort out who is correct and why – on paper or via individual evidence the Barristers will make certain the water is muddied unless the Expert elaborates to the Judge. I apologise for elaborating to Judges to all those who have witnessed my elaborating to Judges but Learned questions can sometimes be meant to confuse the Judge rather than clarify the case.
What Experts have to remember, all the time, is that they are not on one side. Too few do so. Barristers remember this some times, Solicitors think of ‘them’ and ‘us’, and their Expert is part of ‘us’. Judges get this wrong regularly. In the above case I was said to have ‘conceded’ certain points: I didn’t concede anything, I never need to. If it is correct and supports one side or the other I will say it is correct. To do otherwise, no matter who instructs, is to break CPR 35
Mr R Scott-Watson
BSc(Hons) MB BS LLB (Hons)(Open)Cert. Av. Med. Cert.MR(2)CUEW DDAM FRCS(Ed)
Orthopaedic Surgeon, Expert Witness & Disability Analyst APIL Expert
Medico-Legal Reporting since 1990. Over 22,000 reports.
- 2018 AI Global Excelence Award – Most Trusted Orthopaedic Expert Witness – UK
- 2018 / 2019 Corporate Intl Magazine Global Award ‘Orthopaedic Therapy Expert Witness of the Year in England’
- Global Law Experts Orthopaedic Surgeon and Disability Analyst Expert of the Year 2017 / 2018
- Orthopaedic Expert Witness (the UK) Leaders in Law (LIL) for 2017/18, 2018/19
- Winner: FORENSIC INSIDER Orthopaedic Award 2016
- Winner: Lawyer Monthly Magazine Orthopaedic Expert Witness of the Year 2016 and 2017
- Winner: Forensic and Expert Witness E Magazine Medico Legal Award 2014/15 & 2016/2017
- Winner: Forensic and Expert Witness E Magazine Lifetime Achievement Award receiver for Trauma & Orthopaedics.
- 2014. Cardiff University Bond Solon Expert Witness Certificate.
- MEOL Accredited Expert.
- MedCo Accredited Expert.DME 4726.
- Fully trained in CPR and in LVI cases.