Legal: Being a competent expert witness

A RECENT judgment from the county court has highlighted the risks involved when accepting instructions to become an expert witness. The case (Robinson v (1) An NHS Trust and (2) Dr Mercier [2021]) concerned expert evidence provided by a GDP – Dr Chris Mercier – in a dental negligence claim against an oral maxillofacial surgeon and his employing trust. The case involved a tooth extraction performed under general anaesthetic.

Dr Mercier agreed to comment on the standard of care provided by the dental surgeon but later at trial conceded that he had never worked in a hospital setting, and had no experience of teeth extraction under general anaesthetic since 2000. He also agreed that an expert oral maxillofacial surgeon providing evidence for the defendant was better placed to comment on the case.

The claimant in the negligence case discontinued her claim following evidence at trial and the defendants then applied to the court to recoup their legal costs.

Flagrant disregard

In her judgement awarding a third-party costs order of over £50,000 against Dr Mercier, the recorder did not hold back in a barrage of criticisms, concluding that he had shown a flagrant disregard for his duties to the court and a lack of understanding of the relevant legal tests.

The recorder further held that “but for Dr Mercier’s report, the claim would not have been brought” and that “a public body has been put to considerable expense”. Nonetheless, she made it clear that the cost order was made solely on the basis that Dr Mercier was not the appropriate expert to opine in the negligence case.

Last year, a similar order for wasted costs was made against an expert in the case of Thimmaya v (1) Lancashire NHS Foundation Trust and (2) Firas Jamil [2020]. The expert – Mr Firas Jamil – also failed to exercise his duties to the court which led to the claimant discontinuing the claim at trial.

In particular, Mr Jamil was unable to articulate the Bolam/Bolitho legal test to be applied in determining breach of duty in a clinical negligence case. He accepted that with hindsight at the time of the trial he was not fit to give expert evidence due to mental health problems and should have ceased his medico-legal work.

Practical advice

In agreeing to act as an expert in legal proceedings, you must always bear in mind that you have an overriding duty to the court, not to your instructing solicitors or any other involved party.

You must also restrict your comments or objective opinion on matters to those areas that fall within your expertise. It is your sole responsibility to make it clear when an issue falls outside of that remit.

The case against Dr Mercier highlights just how commenting on issues outside your area of expertise and contemporaneous practice can carry the risk of costly consequences.

Action points

• Experts considering undertaking medico-legal work must understand their duties to the court and the potential cost consequences of failing to do so.
• Only accept instructions within your area of expertise, having regard to both specialty and your contemporaneous practice.
• Responsibility for dento- or medico-legal work cannot be delegated to your instructing solicitor; you must personally ensure you are fulfilling your duty to the court at all times.

Related resources

• Nothing but the truth. Considering expert work or already accepting expert instructions? You can read the advice set out in an article published in March 2021 by Joanna Jervis, senior lawyer at MDDUS.
• On-demand webinar - An Expert's Journey: how to avoid traps. Learn how to avoid the pitfalls of expert work you can attend the MDDUS on-demand webinar.
• Acting as a witness in legal proceedings. GMC. For the full GMC guidance on being an expert witness.

Ayah Reza, paralegal, MDDUS