The UK legal system is adversarial, and profound disagreements are bound to arise when opposing sides present or contest evidence. However, there are well-established procedural rules and conventions of politeness and this includes the judicial pronouncements by which judges explain their reasoning. Expert witnesses are there to enlighten the court with the benefit of their wisdom and experience, and it is rare to find a team of experts roundly criticised; however, this did happen—albeit in measured tones—in one recent case in the English High Court (Sardar v NHS Commissioning Board).
The case concerned a 24-year-old man who had suffered a brachial plexus injury at birth and who brought a claim in his own name once he reached the age of majority. Memory recall for the ‘witnesses of fact’ is clearly going to be problematic after such a long gap, and the judge was certainly critical of the version of events related by the claimant's mother. However, the case is particularly memorable for his comments about the claimant's expert witnesses. In relation to their duty to the court, section 35.3 of the Civil Procedure Rules states:
It is the duty of experts to help the court on matters within their expertise. This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.
At birth the claimant weighed 5.3kg. An obstetric registrar, assisted by a midwife, acted as accoucheur, and he recorded ‘difficulty in delivering the shoulder’. The attending midwife had called for obstetric assistance because of meconium-staining, slow progress in the second stage of labour, and because she anticipated a large baby. In terms of assessing what actually happened, the judge began by noting that the claimant's mother had not been a reliable witness of fact. He found it impossible, he said,
‘to place any reliance on her account of the birth and care she received. Her account bore no relation either to the contemporaneous records or with any other evidence. I found her to be an unsatisfactory witness who appeared to be seeking to assist her son's claim by being highly critical at every turn and painting the Hospital in as bad light as possible.’ (per Haddon-Cave J @ 28).
The attending midwife, by contrast, he found to be ‘highly impressive’, being:
‘plainly honest and doing her best to give a clear account of her practice 24 years ago…She struck me as utterly professional and meticulous in all her work. I accept her evidence unreservedly’ (per Haddon-Cave J @ 29).
Having paid this compliment the judge then listed the failings of three of the claimant's expert witnesses. In order to explain their conclusions judges have to make explicit their reasoning. He began with the expert midwife, whose arguments he referred to as ‘illogical’ and ‘disingenuous’. He noted:
‘The Claimant's midwife expert seemed overly keen to find arguments to support the Claimant's case. She sought (unfairly) to nit-pick at the care given and the quality of [the midwife's] note-taking at the time without making any allowance for the fact that standards of note-taking etc. were somewhat different 24 years ago’ (per Haddon-Cave J @ 32).
The obstetric expert witness fared even worse. His arguments and suggestions were ‘tortuous’ and ‘breathtaking’, his premises ‘startling’. The judge noted that he was
‘… a most unsatisfactory expert witness. He appeared to forget his duty to the Court and seemed illegitimately to stray into creative advocacy for the Claimant's cause’ (per Haddon-Cave J @ 33).
Expert witnesses are there to assist the court in coming to a decision about a case; they are not meant to be partisan. As the Civil Procedure Rule notes, they are also meant to stay within their sphere of expertise. Unfortunately for the claimant, his paediatric expert:
‘… appeared all too willing to step outside his area of expertise in a manner which suggested that he, too, had forgotten his duty to the Court. He saw fit to align himself uncritically with the Claimant's obstetrics expert on all matters…” (per Haddon-Cave J@34).
This discussion should make it clear that roles in this setting are well-defined, and that to stray from that defined role is to invite criticism. Part of the expert's role is to comment on what was acceptable practice when the relevant events occurred. Those who put themselves forward as subject experts are, to some extent, putting their reputations on the line. If the case in question should go to court then in almost all cases, the hearing is held in public and the judgement is published. This is intended to make the system transparent—people can see what the process is.
In relation to shoulder dystocia, Leigh (2013) cautions against medical experts who seem to assume that Erb's palsy must be the result of negligence—unless practitioners have a fair amount of relevant clinical experience they are not really in a position to criticise another's actions. When Leigh (2013: 632) makes the claim that some experts ‘seem only to have seen the movie’ he expresses the belief that they evidently lack this personal clinical experience.
Over 20 years ago Symonds (1992) noted that most practitioners were fully aware of the fine line between clinical success and disaster, and were accordingly reluctant to sit in judgement on their peers. Today it is not difficult to find websites advertising the services of medical expert witnesses, and society needs practitioners to act in this role. Nevertheless, some claimants evidently struggle to find a health professional prepared to act on their behalf (Expert Witness, nd), which does not sit well with notions of access to justice. It is preferable to employ someone who was in clinical practice at the relevant time, as they are more like to be able to comment credibly on what was acceptable practice then. In claims that take many years to be raised (not uncommon with obstetric cases) this means instructing a more senior practitioner. Pronouncing on what was acceptable years or even decades earlier includes discounting more recent developments in knowledge or practice, something the midwifery expert in the Sardar case apparently failed to do with regard to documentation.
When conducting medico-legal research in the 1990s, I encountered several documented problems with expert witnesses, including apparent lack of motivation, lack of expertise, and being inefficient or out-of-touch (Symon, 2001). The Sardar case suggests that there are still problems with some experts, and claimants will struggle when this happens. However, training has become more widely available for those who wish to pursue this route, and the expert's role has been clarified. All this makes being an expert witness more feasible, and there are certainly financial rewards, although these have to be earned by a considerable and often protracted workload, to say nothing of the anticipated stress of court hearings. If you choose this option, you must be aware that your duty is to the court and you must be prepared to have your expertise questioned.