An expert witness who was not fit to give evidence has been given a substantial wasted costs order by a judge in a medical court hearing. The punishment hunderpins the risks expert witnesses can face if they do not have the level of expertise expected by the courts.
A consultant spinal surgeon was testifying as an expert witness in a clinical negligence case
but 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 subsequently collapsed.
The judge, Her Honour, Judge, Claire Evans announced 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,” the Judge said.
At the time of the hearing, the surgeon was suffering mental health issues and was on
sick leave from his clinical work, though the same did not apply to his expert witness work.
The judge sremarked the surgeon should not have continued to act as an expert witness at a time when he was unable to carry out his duties in his clinical practice.
It is of importance expert witnesses have the appropriate expertise to explain complex issues to the courts. In previous years expert witness work was considered by the professional indemnity insurance market as low risk, but the courts have been taking an increasing strict stance on any substandard performances by experts.
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