An expert’s role is paramount in your dental claim as it is the expert’s evidence that the Judge will consider in assessing whether damages and, if applicable, the amount of damages that are payable by a Defendant. Without the right expert evidence, your dental claim will not get off the ground.
Getting the right dental expert from the start is key to ensuring that you have the best chance of proving your case and obtaining the right level of dental negligence compensation.
The instruction of any expert should therefore be given careful consideration. Their evidence will need to be set out clearly and will need to address all of the issues that the Court might expect it to opine upon such as breach of duty of care, causation, injury along with your current condition and prognosis.
In order to provide a report upon condition and prognosis, it is likely that you will need to be examined by the expert which means that you may have to travel to see the dental expert. In some rare cases, the expert can sometimes undertake a report on the papers but due to complexity, this is very unusual in dental claims.
Civil Procedure Rules
Of paramount importance is an expert’s duty to comply with the rules as set out in the Civil Procedure Rules (the court rules). Their duty is to the court in commenting on matters that are within their area of expertise.
Hired guns!
The experts duty is NOT to the party instructing them and they should not comment upon matters that are outside of their own field of specialism, for example an expert in general dental practice will not normally comment upon any psychological injury that you may have suffered. Long gone are the days that you could simply pay an expert for what you wanted them to say!
What is the experts role?
The expert’s role is to assist the court so that the Judge can hear evidence, along with an explanation, on matters that are outside the Judge’s own knowledge and experience. Having the right expert whose opinion is convincing and which the court considers is reliable is therefore vital to succeeding at trial. Without convincing and reliable evidence your dental claim will almost certainly fail.
It is therefore important that an expert is instructed who has particular expertise in the matter you are asking them to address and that they are still practising within their area of specialism as this will ensure they are fully up to date with research and any new procedures. Where experts have experience of the court process or have given evidence at trial in cases previously, they are likely to be more accustomed to the court process and what the court expects of them and this may be a determining factor on whether the expert should be instructed to opine in the case.
What will the expert say?
The court rules set out clearly the type of information which is required to be detailed within an expert report. It should set out what material the expert has considered in forming their opinion, reasons as to how they have formed their opinion and where there is a range of opinion they are expected to comment upon this range.
If an expert fails to comply to requests for information or causes delays in a case, this could have cost consequences to the party instructing them or, on a worst case basis, the court may order that the expert evidence cannot be relied upon if the evidence is served out of time. Any expert instructed therefore must be aware of the importance of timings throughout the court process and what is expected of them at each stage and this should be set out clearly from the outset.
Liability/Causation
If an expert is asked to undertake a liability & causation report, this is the “nitty gritty” of your claim. I am asking the expert to basically criticize the treatment that the defendant has undertaken and if so, the defendant is found to have “breached his duty of care” to you. If the expert does find that the treatment is substandard, then the expert has to address “causation”, that it whether the breach of duty of care has let to any injury and the extent of that injury. A liability and causation report can sometimes be done on the papers without examining you.
Condition & Prognosis
The extent of any injury is addressed by the expert in his/her condition and prognosis report. I will also ask the expert to set out a treatment plan with costings which will give me a good idea of the value of what is will cost to put your injury right and this will form part of your claim for what is called “special damages” or out of pocket expenses.
In order to draft a proper condition and prognosis report, it is likely that you will need to be examined by the dental expert which will mean that you will likely have to travel to see him/her. Please keep a note of how you travelled to the expert and the costs of doing so as this may be claimable back from the other side if your claim is successful.
Statements of Truth
Once the expert has prepared their report they must verify the document by signing a statement of truth. Verifying a document containing false information without an honest belief in its truth can have disastrous consequences for the expert in question. There are dire consequences for any expert found to have signed a statement of truth not believing the same to be true.
It is therefore paramount that the right expert is instructed at the outset who has sufficient experience, specialism and skill and who is aware of and can comply with their duties as required by the CPR and can set out and evidence to the court clearly their evidence.
Conflicts of Interest
Please bear in mind that the dental world is quite small and in the event that an expert knows the dentist that you are complaining about, a conflict of interest may occur and if that does happen then the expert will not be able to assist.
Who pays the costs of the experts report?
As I am working under a CFA or no win no fee agreement, I will pay the costs of the experts report (likely in the region of £3000-£5000) and if your claim is successful, then this cost is recouped from the other side.
If we obtain a report that you are not happy with (but I am), then you are of course able to source an alternative report -but this will be at your own cost unless agreed otherwise. This cost may also be recoverable from the other side if your claim is successful.
Getting it Wrong
When the “wrong” dental expert is instructed it can affect the prospects of success of the claim. It can also mean that the case cannot be properly quantified which in turn may lead to a lower level of damages being secured and a potential under settlement of a claim.
Please bear in mind that just because a dental expert may not agree with some or all of your claim, then he or she may not be the “wrong” expert, but just has a difference of clinical opinion. This is not a reason to search for another expert to say the right thing.
Meetings & Questions
As your solicitor, I will likely set up a meeting with our expert and our barrister before court proceedings are issued so that our barrister can test the experts evidence to see how our expert performs under questioning just like what would happen at Court.
If the expert does not come across clearly and confidently, then he or she is likely to not carry much weight or be believed by the Judge at Trial but my motto is that it is better to know that at a meeting with our barrister than to find out the hard way at any trial.