Any dentist that provides expert witness assistance should beware of signing joint (or indeed any other) statements that they do not wholly agree with as the consequences can be severe
The Supreme Court has recently confirmed that expert witnesses who give evidence in Court are not immune from being sued for negligence. There has been a longstanding principle of established case law dating back to 1585 (Cutler v Dixon(1585) 4 Co Rep 14b: 76 ER 886) that it is in the public interest that all those taking part in a civil trial, namely the Judge, jury and witnesses (including expert witnesses) are granted civil immunity from being sued for negligence. This was so that experts could give evidence freely and fiercely and without repercussion. The issues raised in the case of Jones v Kaney addressed the fact of whether the act of preparing a joint witness statement is one in respect of which an expert witness enjoys immunity from suit.
Facts
The case of Jones surrounded a road traffic accident that occurred in Liverpool in 2001. Jones was stationary on his motorcycle waiting to turn at a road junction when he was knocked down by a car driven by a Mr Bennett. Bennett was drunk, uninsured and was driving whilst disqualified. Jones claimed not only for his physical injuries but also damages for psychiatric consequences which included PTSD (post-traumatic stress disorder), depression and an adjustment disorder with associated illness behaviour which manifested itself as a chronic pain syndrome.
Jones instructed solicitors who in turn instructed a consultant orthopaedic surgeon who advised that an opinion was needed from a clinical psychologist to assess Jones’s psychological injuries. Jones’s solicitors instructed Mrs Kaney (the respondent in this case) who was a clinical psychologist. Mrs Kaney prepared her psychological report which stated that Mr Jones was suffering from PTSD. This was disputed by the defendant’s insurer and they obtained their own expert report which claimed that Jones was exaggerating his symptoms. A further report was obtained from Mrs Kaney which said that Jones was suffering from depression but that he did not have all the symptoms to warrant a diagnosis of PTSD.
The Judge ordered that the two experts meet to hold discussions and to prepare a joint statement. The discussion took place over the telephone (which is perfectly normal) and the defendant’s expert prepared a draft joint statement which crucially Mrs Kaney signed without amendment or comment. It turned out that this statement was damaging to Jones’s claim.
Joint statement
The joint statement recorded that Jones’s psychological reaction to the accident was no more than an adjustment reaction that did not reach the level of a depressive disorder of PTSD. It further said Jones was deceptive and deceitful in his reporting and that the experts agreed that his behaviour was suggestive of ‘conscious mechanisms’ that raised doubts as to whether he was genuine. This signed statement was damning to Jones’s case.
Reactions
Jones’s solicitors tried to clarify the signed statement with Mrs Kaney who argued that she had not seen the defendant’s report at the time of the telephone conference, that the joint statement did not reflect what was agreed in the telephone conversation but she felt pressure to sign it and that her true view was that the claimant had been evasive rather than deceptive. It was her view that Jones had suffered PTSD which had resolved. Jones’s solicitors asked permission from the Judge to change their psychiatric evidence but this was refused. Jones’s solicitors were then constrained to settle his claim for significantly less than would have been achieved had Mrs Kaney not signed the joint statement.
Jones brought an action against Mrs Kaney for negligence. In March 2011, it was held by the Supreme Court that immunity from suit for breach of duty that expert witnesses have enjoyed in relation to their participation in legal proceedings should be abolished was no longer justified. Appeal allowed.
Previous case law
The previous leading case in the last decade on immunity from suit against a claimant’s own expert was Stanton v Callaghan [2000] QB 75. Callaghan was a structural engineer instructed to deal with the costs of dealing with subsidence of the claimant’s house. He initially advised that underpinning was required at a cost of £77k. Subsequently, in the course of preparing a joint report with the insurer’s expert, Callaghan was persuaded that infilling with polystyrene at a cost of £21k was a satisfactory remedy and the case was settled on that basis. The claimant brought an action against their own expert for negligence in his changing of his advice. The claim failed based on previous case law giving the expert immunity from suit. Jones has seemingly overturned this decision.
Protocol
Paragraph 4.1 of the Protocol for the Instruction of Experts to give evidence in civil claims 2005 provides: ‘Experts always owe a duty to exercise reasonable skill and care to those instructing them, and to comply with any relevant professional code of ethics. However, when they are instructed to give or prepare evidence for the purpose of civil proceedings in England & Wales they have an overriding duty to help the Court of matters within their expertise. This duty overrides any obligation to the person instructing or paying them.’
Conclusion
The established doctrine which has been enshrined in case law for over 400 years that medical experts giving evidence in civil claims have immunity from suit has seemingly been overturned by the Supreme Court due to the decision in Jones’ case, based upon the fact that the doctrine is simply outdated.
Crucially, an expert that signs a damning statement which appears to renege upon previous advice appears to leave themselves open to an action in negligence. It follows that dental experts who provide advice to claimants for the purposes of litigation who are then persuaded to change their previous advice which then has a damaging effect on the claimant’s case could potentially be sued for negligence by their own clients, despite their overriding duty to the Court to help on matters within their expertise. It is my view that this decision will make experts more difficult to engage at the outset of a claim and more reluctant to participate in Court proceedings. Any dentist that provides expert witness assistance should beware of signing joint (or indeed any other) statements that they do not wholly agree with as the consequences can be severe. Any dentist who engages in dental expert work would be well advised to contact their defence organisations to see if indemnity extends to expert witness work prior to engaging in the same.