The Case of the Biased Expert

Today’s case is a cautionary tale about the consequences of defendants going on a fishing expedition in their client’s notes and hiring an expert who is prepared to slant the evidence against the plaintiff and produce a report for Court purposes which glosses over the true facts, in order to give credibility to a statement of claim.

This specific case relates to an elderly lady who developed breast cancer.? She had a very significant family history of the condition and was fully counselled by at least two Consultant Surgeons and a Breast Nurse into her management choices.? She was given time to consider her options and chose to have a mastectomy with axillary clearance as a primary procedure.

In the event, she turned out to have a tumour in her breast but no evidence of any spread into the glands of the axilla.? She did not require any further therapy.

Initially, the claimant was annoyed that in her estimation the diagnosis had been delayed by three to four months and she therefore consulted a lawyer as to whether or not she could take a claim in medical negligence against the hospitals involved.? After due consideration, the lawyer declined to take on the case as, even if there had been a delay (and there was not), there was no consequential damage.

The claimant, who suffered from a long-term depressive illness, decided several years later to ask another lawyer if there was a case, and a Professor of Oncology from another jurisdiction was requested to give an opinion as to whether there had been any mishandling of the claim and in particular whether there was any evidence of consequential damage caused by delay or ‘any other grounds’ for a case.? The expert stated that, although there had been no delay, he would not have managed the client in the same way based on his own practice, some 10 years after the initial surgery.? He failed to mention that the options given to this lady were held by a “reasonable, reputable and responsible” body of medical opinion at the time in question and so encouraged the lawyer to take a case against the initial lawyer whose advice was sought and who had recommended against issuing proceedings.

A second expert report was obtained by the defendant’s lawyer, clearly showing the bias in the initial report and, on the basis of objective evidence such as literature published at the pertinent time, that the method of management was well accepted.??

The main lessons from this case are two fold:

1. Make certain that any medical expert, however esteemed in his own profession, understands the primary duty to the Court?
2. Ensure any medical expert also understands that a reasonable standard of care does not necessarily equate to their own bias, and also is that pertaining to a “reputable and responsible” body of medical opinion in practice at the time in question.