An expert witness who was not fit to give evidence has been hit with a huge wasted costs order by the judge in a court hearing.  The punishment highlights the risks experts face if they do not have the level of expertise expected by the courts.

A consultant spinal surgeon was appearing as an expert witness in a clinical negligence case.  Under cross-examination he was unable to explain the “Bolam test”, which is used to determine breach of duty in clinical negligence cases.  The trial collapsed following this failure.

The judge, Her Honour Judge Claire Evans said that the expert had “failed comprehensively” in his duties to the court and ordered him to pay nearly £89k to the defendant, Lancashire NHS Foundation Trust.

Whilst it would not be right to use him as an example to send a message to experts, it is right that experts should all understand the importance of their duties to the court and the potential consequences if they fail in them,” she said.

At the time of the hearing, the surgeon was suffering mental health issues and was on sick leave from his clinical work – but not his expert witness work.  The judge said he should not have continued to act as an expert witness at a time when he was unable to work in his clinical practice.

James Burgoyne, Director – Claims & Technical, Brunel Professionals said: “Expert witnesses perform a critical role in many negligence cases, and it is essential that they have the appropriate expertise to explain complex issues to the courts. It was not long ago that expert witness work was perceived by the professional indemnity insurance market as low risk, but the courts have been taking an increasing strict stance on poor performance by experts. As this case shows, experts face consequences if they fail in their duty.”

Reports about the case have been published by Law Society Gazette and Litigation Futures.

Brunel provides professional indemnity insurance broking services to professional firms.  Visit our website to find out more or call Jonathan Filer on +44 (0)117 325 0752.