This case highlights several issues of importance when engaging an expert witness.

The case involved a patient who presented with large cysts in her liver. One method of treatment is to remove fluid from a cyst, and replace it with alcohol in order to scar it so that it shrinks and closes down. The procedure can be painful and, therefore, it is normally done under heavy sedation or anaesthesia. In this instance, that was not possible for various reasons, and so a local anaesthetic was given directly into the cyst in order to numb the wall. Unfortunately, a lot of this was absorbed into the patient’s bloodstream, and she collapsed during the procedure. Resuscitation was immediately commenced, as it was felt she had suffered cardiac arrest. When the cardiograph was eventually attached, it became apparent that her heart was in fact pumping and, on balance of probabilities, the collapse had been caused by a sudden drop in blood pressure due to local anaesthesia, and the situation was improving quickly.

Multiple reports had been obtained from various experts dealing with the incident, and the case was about to proceed in court. However, the trial lawyer noted that the patient was in pain around the chest immediately after the incident and, therefore, directed that a report be obtained detailing the significant bruising and pain that occurred immediately after the event due to the Cardio Pulmonary Resuscitation attempts. He stated that a report from “a consultant orthopaedic surgeon is, therefore, an essential proof in this case”. The lawyer for the Plaintiff then engaged an expert, sending all the notes and records, giving a full background of the complaint and asking the expert to compile a report on the incident, but did not mention the specific instruction from the trial lawyer. The consultant orthopaedic surgeon read the extensive notes and contacted the lawyer to ask exactly why he was being engaged as he noted at least two previous opinions had been obtained. It was only then he was informed of the trial lawyer’s request, and he pointed out that all that was being asked was to comment on bruising and pain around the chest for a short period of time after the incident and, therefore, not only was there a waste of time in reading notes, but a comment on such matters was not within the province of an orthopaedic surgeon.

This case highlights why it is important to be very precise when instructing a medical expert. It is important to provide the expert with any previous report on the matter, to specify exactly what matters are to be addressed, and to ensure that the expert was from the appropriate speciality. Not to do so results in a waste of time and effort by all those involved and can result in unnecessary expense.

MDU figures for 2021 show that fewer than one in six actions in medical negligence actually succeed, with the vast majority failing on the grounds of causation. It must be remembered that subsequence is not the same as consequence.

Initial screening is, therefore, essential to manage client expectations at an early stage. This avoids unnecessary effort and costs for all concerned. Too many cases are taken to court with no chance of success. This is stressful for both the client and their legal adviser, and indeed for the medical personnel involved.

For fast and effective screening of all potential medical negligence cases, contact Peyton Medico Legal Services now on +44 (0)28 87724177 or email [email protected]