Expert Witness Trial Experience
The vast majority of clinical negligence matters will settle without going to trial but I have been involved in giving evidence (and being cross examined) at trial in a number of cases.
Clinical negligence cases in High Court – 28 times
Inquisitions by Her Majesty’s Coroner’s – 17 times
General Medical Council cases – 5 times
These including the following cases:
Expert Witness Case 1
Emma Thomson –v- Dr Blake James, Dr Gadsby and Dr Wallace
Royal Courts of Justice, London, April 1996
Before Mr Justice Gage and then the Court of Appeal
Mr John Grace QC for the Claimant, Mr Miller QC for the Defendant
Instructed by Evill and Coleman Solicitors, on behalf of the Claimant
Emma Thompson suffered measles encephalitis in June 1987 and was left with severe mental handicap. She was registered with Dr Blake James practice from birth until November 1982, with Dr Gadsby from November 1982 until July 1985 and then with Dr Wallace. She did not receive measles vaccination, being advised that she should not receive this because in June 1982 she suffered what might be considered a convulsion. Vaccination with immunoglobulin cover was not offered and there was a factual dispute as to whether her parents would have accepted this had it been offered.
Mr Justice Gage found against Dr Blake James in so far as the advice he gave not to be vaccinated was causative of the damage sustained by Emma. This was however overturned on appeal.
Expert Witness Case 2
Daniel Barnsley –v- Dr Ahmed
Royal Courts of Justice, London, March 1998
Before Mr Justice David Steel
Instructed by Gadsby Wicks Solicitors, on behalf of the Claimant
In December 1985 Dr Ahmed sanctioned the administration of measles vaccination despite the claimant being unwell. He went on to develop measles, pneumonia, hepatitis and possible encephalitis and is left rendered mentally retarded and partially deaf.
The claim failed as it was found that there was no basis for saying Dr Ahmed’s judgement was impaired or faulty and further his present state was not thought attributable in whole or part to his illness.
Expert Witness Case 3
Ms Tracey Kent –v- Dr Griffiths, Dr Roberts and London Ambulance Service
Royal Courts of Justice, London, February 1999
MLC0112 (QBD:Turner J, 16 July 1999)
Before Mr Justice Turner and then the Court of Appeal
Instructed by TG Baynes Solicitors, on behalf of the Claimant
The claimant brought two simultaneous claims in negligence. The first, which was dismissed, was against her General Practitioner on the basis that the failure to follow Guidelines was a matter of professional discretion and judgment
‘to hold that, if it could be shown that the general practitioner defendants had failed to follow guidelines, the claimant succeeded would involve the rejection of clinical judgement on the part of the treating general practitioner as having relevance in respect of decisions in regard to treatment and advice’.
The second, much more significant case against the London Ambulance Service after an ambulance, ordered by the doctor through a 999 call, took forty minutes to arrive at her house, where she was suffering a severe asthma attack, resulting in the claimant suffering respiratory arrest. The issue before the court was whether an ambulance service owed a duty of care to those relying on its services.
The claimant won in the first instance and the LAS appealed, whereupon the Court of Appeal held:
It was ‘reasonably foreseeable’ that the claimant would suffer further illness if an ambulance did not arrive promptly
The claimant and defendant were ‘sufficiently proximate’ once the LAS accepted the call and dispatched an ambulance, and a specific duty of care was established; there being no good reason for it failing to arrive within a reasonable time, this duty was breached.
It was ‘fair, just and reasonable’ to allow a duty of care to exist between an ambulance service and its patients with regards to promptness of pickup (and presumably, return to the hospital) where no good reason for delay is offered.
Neither reasonable foreseeability nor proximity were disputed, nor were breach of duty (if it existed as such, without emergency service immunity) or causation. However, the LAS submitted that to establish this duty of care was against public policy considerations which in previous cases had limited the duty of care of the police, fire brigade and coastguard (who case law held not to have a duty of care to respond to a 999 call, on the grounds that it would divert their resources from ambulance provision to fighting court cases. Lord Woolf distinguished the ambulance service as different – despite answering 999 calls, it is part of the health service and thus shares the health service’s duty of care to those in tortious proximity (he declared people to whom an ambulance is dispatched were in sufficient ‘proximity’); he deemed it relevant that it only has to deal with the victim at the scene, and is not having to act with ‘concern to protect the public generally’, unlike the fire and police services (ignoring coastguards in this reasoning).
The ambulance service would not owe a duty of care under negligence for refusing to respond to a 999 call (though they may be in breach of statutory duty). Also, the burden upon the claimant of showing a causative want of proper care (considering the particular conditions of an emergency) would ordinarily provide ambulance services with what he called the ‘necessary protection’ against liability, except where their conduct was manifestly deficient.
While the general rule has remained that the emergency services are not liable in negligence for an inadequate response, this case has made the exception that, where that inadequate response made the situation worse, a duty of care could exist under certain specific circumstances. However, it now seems that the statutory power granted to the ambulance service to answer an emergency call has crystalised into a specific duty to respond to a particular 999 call which was owed to C as a particular individual.
Expert Witness Case 4
Ms Rachael Knott –v- Dr Alan Leading
High Court, Leeds, May 2010
Before Mrs Justice Nicola Davies QC
Instructed by Irwin Mitchell Solicitors, on behalf of the Claimant
Mr Robin Oppenheim QC for the Claimant, Mr George Hugh-Jones QC for the Defendant
Rachael Knott aged 20 contracted meningitis and has been left with severe hearing loss. Rachael brought a medical negligence claim against her GP arguing that the GP had failed to recognise and act upon signs of meningitis when he assessed Rachael at home. A different GP reviewed Rachael the following day and arranged for her to be admitted to hospital where meningitis was diagnosed and treatment commenced.
It was Rachael’s case that had the first GP referred her to hospital she would have been treated earlier and made a full recovery avoiding her severe hearing loss.
As part of the case the Judge needed to decide exactly what signs and symptoms Rachael was demonstrating when assessed by her GP. The evidence from Rachael and her parents was very different to that from the GP. Mr and Mrs Knott recalled Rachael as having petechial spots, a classic sign of meningitis while the GP did not record or recall these and had noted Rachael as alert and sitting up in bed.
In this case the Judge found that the GP’s notes and recollection were correct and that Rachael had not developed petechial spots by the time of the GP assessment. The Judge went on to say, on the basis of her findings of Rachael’s presentation, that the GP was not negligent in failing to refer Rachael to hospital.
Expert Witness Case 5
Mr Bruce Mason –v- Dr Laurence Gerlis
Royal Courts of Justice, London, July 2012
Before His Honour Deputy District Judge Nigel Wilkinson
Instructed by Kennedy’s Solicitors on behalf of the Defendant
Mr Joel Donaven QC for the Claimant, Mr Simeon Maskery QC for the Defendant
This clinical negligence claim arises from the management of Mr Mason’s mid back pain by three GPs practising privately under the aegis of Dr Gerlis’s Same Day Doctor Clinic in Wimpole Street, London. Their management took place over four consultations between 19 October 2008 and 5 November 2008. Mr Mason, a dual Canadian/British national then aged 60, was at that time working in Maidenhead as a high-level IT contractor. Devastatingly, the cause of his symptoms was an infective discitis at level T5-T6, which progressed to an epidural abscess. However, the discitis was not diagnosed until after Mr Mason lost the use of his legs and collapsed on 11 November 2008. Despite prompt hospital admission and spinal surgery the next day, he has been left with a permanent T4-level paraplegia.
The case was withdrawn on the fourth day of trial following the factual evidence and the evidence of the two General Practitioner experts (myself for the defendant).
Expert Witness Case 6
Mrs Julie Coakley –v- Dr Henrietta Rosie
Royal Courts of Justice, London, April 2014
Before His Honour Judge Oliver Jones QC
Instructed by Moore Blatch Solicitors, on behalf of the Claimant
Mrs Susan Rodway QC for the Claimant, Mr David Balcombe QC for the Defendant
Julie Coakley, who was then 48 years old, was an accomplished artist and was completing a degree in art. She saw her General Practitioner Dr Henrietta Rosie on 7 January 2008 with ‘flu like symptoms’ for seven to nine days associated with the onset that day of a rash. The character of the rash was in dispute the Claimant describing it as purpuric/petechial and the defendant as urticarial. She was sent home with a diagnosis of a respiratory infection and five hours later was found collapsed by her husband and admitted to hospital where a diagnosis of meningococcal meningitis was made. She recovered but has been left completely blind and with only 40% of hearing.
Judgement was given in favour of the Claimant on both liability and causation at agreed seven figure damages.