Recent Case Highlights the Importance of Getting a Suitable Expert Involved in Cases

02 Mar 2020

A recent High Court clinical negligence case has reminded parties and practitioners in such claims about the need to ensure an appropriate medical expert is instructed.

It is commonplace in personal injury claims to instruct a medical expert (and often a number of medical experts) to address the injuries a Claimant has suffered, including the cause of those injuries, the current condition and the future prognosis.

In higher value cases Defendants often also seek permission to instruct their own medical expert to address the Claimant’s injuries. In clinical negligence claims, the medical expert will also generally be asked to comment upon whether the alleged negligent treatment was below the appropriate standard which was required (i.e. below that which any other reasonable clinician of that type would have provided).

The Practice Direction to Part 35 and of the Civil Procedure Rules sets out the duties and requirements of experts acting in such claims. Such duties include that the experts have an overriding duty to the Court to provide an objective, unbiased opinions on relevant matters. It is also expected that any such medical experts have sufficient expertise, skill and experience to be able to properly provide such an opinion and to act as an expert.

Thimmaya v Lancashire NHS Foundation Trust

In the recent case of Thimmaya v Lancashire NHS Foundation Trust Her Honour Judge Claire Evans considered that the Claimant’s expert Orthopaedic Surgeon was unable to set out the test to be applied in determining a breach of duty in a clinical negligence claim and that the expert had therefore failed to perform the required duties for the Court.

The expert accepted, in hindsight, that they were not fit to give expert evidence due to health issues. However, such were the consequences of the failures that the Judge took the step of ordering that the expert pay the Defendant’s wasted costs of £89,000.

James Braund, Senior Associate in the Personal Injury and Clinical Negligence Teams, based in Dorset, stated that “this case is a very important reminder that such claims generally succeed or fail on the basis of the expert evidence and that, as such, ensuring a suitable expert is instructed is of significant importance.

In this case, not only did the expert have to pay the Defendant’s wasted costs, but the Claimant also lost the opportunity for their case to be tried on its merits. At Trethowans we work hard with a select number of genuine experts in such claims and look to ensure that any expert instructed is suitable and qualified to act and comment upon the relevant issues in any specific case.”

If you wish to find out further information, contact experienced personal injury solicitor, James Braund, on  01202 339014.


James Braund