Abstract
The Supreme Court has decided that the expert has no immunity from being sued for negligence with respect to a report made for a client in preparation for litigation (Jones v Kaney [2011] UKSC 12) or in the course of litigation or evidence given in the course of litigation.
Justifications for liability
The justifications for imposing liability are simple and straightforward. The expert is under an express or implied duty to the client to exercise all reasonable care and skill. If he is negligent, and the client suffers damage, then in justice and fairness he should remedy that wrong. He gives his services voluntarily and receives a fee for his services. The paramount duty of the expert is towards the court. Public interest requires responsibility and accountability.
Consequences of potential liability
It was unsuccessfully argued that there will be undesirable consequences of making the expert liable. He will be afraid, apprehensive, deterred, inhibited and reluctant to get involved. As it is, he dislikes litigation work, and finds it a distraction from the practice of medicine. If ‘because of that report’ the client has to discontinue, or settle unfavourably, or he loses the case, he will blame the expert. Constantly under the threat of being harassed and sued by a disgruntled and perhaps impecunious client, especially a convicted criminal, the expert will be ultra-cautious and vague and non-committal in his report, say no more than the bare minimum, hesitate to ‘stick his neck out’, always risk-averse. Following reflection, and following seeing the reports for the other side and meeting with their experts, he will be very reluctant to admit to changing his mind because in doing so he could appear to be incompetent or indecisive, indeed negligent. Involvement in litigation could risk injuring his reputation. Increased liability will mean increased insurance premiums, and insurance is not always a complete indemnity. Having gone through all the pretrial work and a settlement or a trial, then to find the whole matter in effect re-litigated, this time against him personally, could be seen as just ‘too much’. The expert report might represent a team effort, for example, in public law child cases, and identifying the role and responsibility of an individual expert might be difficult when the expert is acting as a spokesman for the team. Ultimately it will not be in the interests of injured claimants or the courts, or indeed the public, if the existing shortage of experts willing to act, e.g. in obstetrics and child abuse, is seriously exacerbated, or indeed if no expert is even prepared to act.
No real risk
Their lordships were satisfied that potential liability for negligence posed no real risk to the system or to the good professionals. The good expert is made of sterner stuff. He is a conscientious robust man of professional integrity, fully aware of his ethical and professional duty to the client instructing him and of his overriding duty to the court, under the civil, family and criminal procedure rules and protocols. He frankly, and with candour, speaks his mind, he yields to no pressures or threats or inducements. Reputation means a great deal to him. Having seen the reports of the other side and having discussed the issues with the experts for the other side, where appropriate he has no fear of changing his mind or modifying his opinion, he is able to resile with dignity, which is the mark of the expert searching for the scientific truth. The medical expert is not afraid of risk; he meets risk every day in the course of his practice. He is not afraid for his reputation; indeed, a good performance may enhance his reputation. Taking the utmost care is second nature to his calling. It is the poor expert, the ‘cowboy’, whose reputation is at risk, as indeed it should be.
The disgruntled and vexatious client is unlikely to find lawyers willing to take up a claim for negligence against the medical expert unless the provable facts are blatant. The courts will not tolerate vexatious and abusive proceedings. Negligence will be very difficult to establish against an expert (Meadow v GMC [2006] EWCA Civ 1390, [2007] QB 462). An error of judgement, a mistaken view and a change of mind are not negligence. Negligence requires falling below normal standards. However, it may be a disturbing experience to be subjected to the process of accusation.
The doctor is insured and has the support of his defence or protection society. The fees payable for his litigation work are likely to be restricted in the future under fixed fees where public money is involved, and both sides having to bear their own costs whatever the outcome of the case.
A bad case
In Jones v Kaney, rather unusually there did seem to be a prima facie case of negligence against the expert. Arising out of a motor car accident, the expert psychologist for the claimant signed a joint report with an expert for the defendant saying that the claimant was deceptive and deceitful and not suffering from post-traumatic stress disorder (PTSD). On this basis the claimant settled, however, not on very favourable terms. Subsequently, it appeared that the claimant's expert had not seen the report from the other side, had discussed the matter on the telephone with the expert from the other side, the joint report was drafted by the expert for the other side, and the claimant's expert had apparently actually meant to say that the claimant was evasive not deceptive and deceitful and did in fact suffer from a degree of PTSD. Had the claimant known the real opinion of his own expert, he would not have settled so unfavourably. The lawyers acting for the claimant do not appear to have been very diligent on behalf of the client.
Conclusions
So it is business as usual. However, undoubtedly even higher standards will be expected. Instruction in the course of medical education and early experience should increase ‘awareness’ of the consequences of error. Accreditation may help to raise standards, although accreditation is not well regarded by some senior medical men. Thorough familiarity with the CPR 35 will be assumed. Indemnity insurance will need to be carefully reviewed; the premiums will be higher. There cannot have been many experts who, till now, have negligently carried out their work in the knowledge that they could not be sued. Their professional pride and reputation have always meant a great deal and they have never been immune from the disciplinary examination and potential liability for fitness to practise. One may hope that the medical expert approached to make a report, meet the other side, agree a joint report so far as possible and give evidence in court if needed, will respond in a constructive, helpful and professional manner to assist the court and the client in the pursuit of truth and justice, on the basis of an honest, responsible, careful, professional, independent, impartial opinion and in the public interest. He has nothing to fear.