ZZZ v Yeovil District Hospital NHS Foundation Trust [2019] EWHC 1642 (QB)
This article originally appeared in Issue 3 (November 2019).
Following a car accident in 2011, XXX brought proceedings against ZZZ. The claim was settled for £3 million plus annual periodical payments. ZZZ then brought contribution proceedings against Yeovil District Hospital, alleging that there was a failure by the Hospital to protect XXX’s spine on presentation to the emergency department.
Garnham J found that the Defendant was in breach of duty by its failure to consider a trauma call and its failure to treat XXX on the assumption that she may have suffered significant spinal injuries. However, the claim failed on causation.
Expert evidence
Significantly, Garnham J weighed up the evidence given by the eight expert witnesses. His analysis, praise and criticism are a lesson in how (and how not) to give independent expert evidence.
His criticisms focused on the evidence provided by Mr Jamil, expert surgeon for the Claimant. He found that he was “a thoroughly unsatisfactory witness” [80] with “numerous and fundamental” deficiencies [81]. Mr Jamil’s expert reports failed to take into account important features of the case [82-85]. Further, in those reports which were directed towards causation, he
“volunteered his views relevant to breach of duty. Surprisingly, he did not defer on that issue to the experts instructed to consider breach of duty. More fundamental, it was apparent in the course of the evidence that Mr Jamil did not know what the test for breach of duty is in a professional negligence case. He only succeeded in articulating something approaching the correct test after it had been explained to him by Mr Counsell” [87].
Garnham J continued [88-89]:
“That piece of incompetence was underlined by the fact that in a county court in March of this year, Mr Jamil had again been unable to articulate the test he was applying when advising that another doctor was negligent… I regard Mr Jamil as a wholly unreliable witness.”
This was in stark contrast to his assessment of other experts. For example, he commented that Professor Schapira, a neurologist, was “an impressive witness in many ways, not least in his willingness to acknowledge the limitations of his expertise…” [77]. Mr Thumbikat, a spinal injuries expert, was similarly “highly impressive and credible” who gave detailed and clear evidence, made reference to literature and made appropriate concessions [90-94].
And the majority of his praise went to Mr Mannion, a neurosurgeon, who he described as “quite exceptional” [96]. Among his attributes were his impressive CV, his great experience and expertise, in particular, his current and ongoing experience of treating the very condition from which XXX suffered [96-97].
Comment
This case is yet another reminder that clinical negligence cases stand and fall on expert evidence. It is not always possible to find an expert as suitable as Mr Mannion. But there are ways of avoiding the sorts of criticisms faced by Mr Jamil. Experts should only comment on matters within their expertise, reports should be scrutinised and amended at an early stage, and experts should be aware of the standards and tests applied by the court.