Experts’ literature – an undervalued resource?

Introduction

Experts’ literature is an area that is often overlooked in clinical negligence cases – at least until a trial is almost upon the parties. However experts’ literature deserves more attention in the earlier stages of cases because of the devastating effect that it can have at trial, as the recent High Court case of Sardar v NHS Commissioning Board [2014] EWHC 38 (QB) demonstrates.

This article reviews the law and procedure on experts’ literature and examines the practical use of experts’ literature at trial in Sardar v NHS Commissioning Board, before drawing conclusions applicable to all clinical negligence practitioners.

Experts’ Literature – The Law & Procedure

What happens (in theory)

In theory, all literature should be served with an expert’s original report. The CPR is clear that:

“An expert’s report must give details of any literature or other material which has been relied on in making the report” [PD 35, paragraph 3.2(2)]

“Experts should take into account all material facts before them at the time that they give their opinion. Their reports should set out those facts and any literature or any other material on which they have relied in forming their opinions” [Protocol for the Instruction of Experts, paragraph 4.5 (‘Duties of Experts’)]

Also, the author(s) of the literature and their approximate qualifications/status should also be given – presumably to help a judge weigh how authoritative any literature is:

“Where experts rely in their reports on literature or other material and cite the opinions of others without having verified them, they must give details of those opinions relied on. It is likely to assist the court if the qualifications of the originator(s) are also stated.” [Protocol for the Instruction of Experts, paragraph 13.8 (‘Reliance on the work of others’)]

But – what happens in reality!

However, in reality, experts can often produce literature to bolster their reports much later in the day. In the authors’ anecdotal experience, some experts have a tendency to produce large amounts of new literature (or even a whole new report) in the last day or two before trial, once it dawns on them that a particular case (unlike many others) will not settle, so that the expert’s time in the witness box is imminent!

To avoid last-minute rushes (and ambushes) like this, case law suggests that 1 month is the latest cut-off point by which all parties should have served their relevant literature. The useful commentary at paragraph 35.10.5 of the White Book says:

“35.10.5 Literature to be served with reports

Wardlaw v Farrar [2003] EWCA Civ 1719 decided that in clinical negligence claims being conducted in the county courts or District Registries, the judges should adopt the standard direction of the Queen’s Bench Masters that any material or literature upon which an expert wished to rely must be served either with their report or at the latest one month before trial. Permission would be needed from the trial judge before an expert witness could introduce additional material at trial. The point of principle is applicable to experts’ reports in any discipline.

Any literature relied upon by one party’s expert should be reviewed by the other party’s expert and be available for the trial judge. In Breeze v Ahmad [2005] EWCA Civ 223 the claimant was able to show that the literature relied upon by the defendant was “unwittingly portrayed inaccurately and/or incompletely” which led the judge to place more reliance upon it than he should have done-a retrial was ordered.” [emphases added]

In the post-Mitchell world, parties would be well-advised to serve their literature in good time, rather than to risk the complaints of the other side and the wrath of the trial judge when an expert turns up to court clutching the fruits of their researches from the night before trial.

Experts’ Literature at Trial – a Recent Case Study

The case of Sardar v NHS Commissioning Board [2014] EWHC 38 (QB) gives some very interesting and potentially helpful insights into the way Courts view experts’ literature. Sardar was a shoulder dystocia case concerning the allegedly negligent delivery of the Claimant in 1989. The trial was on liability only, with quantum having been agreed at £450,000.

The Issues & Facts

The main issue in the case was whether the Claimant’s shoulder injury was caused by the normal and natural forces of maternal propulsion, or whether there was excessive forceps traction by the Defendant’s clinicians. In part, this depended on whether the Claimant’s injured right shoulder had been the anterior shoulder at the time of birth, and was injured against the mother’s symphysis pubis, due to excessive traction, or whether it was the posterior shoulder, injured against the sacral promontory, by maternal forces.

The position of the fetus at the time of delivery was agreed to be OP (occipito posterior, i.e. with the back of head facing backwards). However there was a factual dispute as to whether the fetus was “ROA” (right occipito anterior) on admission to hospital or “LOP” (left occipito posterior) on admission.

This was an important factual point: the former scenario (ROA on admission to OP on delivery) would have involved more rotation during labour, from ROA to OP, whereas the latter scenario (LOP on admission to OP at delivery) would have involved less rotation by the fetus.

The Parties’ Arguments

At trial, the Defendant argued for the former factual scenario, with more rotation (ROA to OP). This was because more rotation meant (in very simple terms) that the baby’s shoulder had probably rotated under the mother’s sacral promontory, where it was probably injured non-negligently by maternal forces.

The Claimant argued for the latter scenario, with less rotation (LOP to OP). This was because less rotation meant (in very simple terms) that the baby’s shoulder had probably not rotated under the mother’s sacral promontory – so it was more likely to have been the anterior shoulder, and injured by excessive traction.

The Claimant’s case was that it was “most unlikely” that the fetus would have rotated the larger distance from ROA to OP during labour (as the Defendant contended). This was a position taken by all three of the Claimant’s experts, in midwifery, obstetrics and paediatrics.

The Defendant’s Experts’ Literature – the Gardberg Paper

The Defendant relied upon a paper: Intrapartum Sonography and Persistent Occiput Posterior Position: A Study of 408 Deliveries; Gardberg, Laakkonen and Salavara, 1 May 1998 (“the Gardberg paper”). This reported that only 21 of the 408 deliveries studied were delivered in an OP position, but of those 21, 13 (i.e. 68%) were in an OA position initially and developed a persistent OP position on delivery through a mal-rotation during labour.

Thus the paper appeared to show, albeit based on a small sample, that the Claimant’s suggestion that a rotation during labour from ROA to OP was “most unlikely” was not supported by the only available empirical evidence. Given that the Claimant was accepted to have been born OP, the study appeared to show that it was in fact relatively likely (13 out of 21 cases in the study as opposed to 8 out of 21) that he had been ROA on admission, and had rotated during labour.

The Trial – and the Experts’ Evidence

The Claimant’s experts were not considered by the Court to have dealt with the Gardberg paper with any degree of success. Indeed:

• The Claimant’s expert midwife was criticised for “disingenuously” seeking to argue that rotation from ROA to OP was rare, which ignored the combination of the agreed finding of OP position at birth and the recorded numbers in the Gardberg paper.
   
• The Claimant’s obstetrics expert was “most unsatisfactory”. He “appeared to forget his duty to the Court and seemed illegitimately to stray into creative advocacy for the Claimant’s cause. He tailored his evidence to argue the case for “LOP” on admission. He sought to side-step the evidence. He asserted that it was “really most unlikely” that the fetal position could change from “OA” to “OP” but equivocated when confronted with the clear conclusion of the Gardberg paper that the majority of “OP” babies on delivery started from “OA””.
• The Claimant’s paediatrics expert sided “uncritically” with the obstetrics expert and failed to deal adequately with the contrary suggestion contained in the Gardberg paper.

The Defendant’s midwifery and obstetrics experts were, on the contrary, commended, respectively, by the Court for their “magisterial grasp” of the subject and “palpable integrity”. No criticism was allowed of the fact that the Defendant’s obstetrics expert had been introduced to the Gardberg paper by the expert midwife, who “candidly admitted” that she had indeed introduced the Gardberg paper, which had been circulated to the obstetrics expert.

The Judgment

While the rotation issue was not the only issue in the case, it was a very important part of the Claimant’s case. Overall, the Judge (Haddon-Cave J) held that the Claimant’s case on rotation had been “comprehensively demolished by the Gardberg paper”.

For this reason, amongst others, the Claimant’s claim was dismissed.

Conclusions – Practice Points

• Experts’ literature is a valuable and perhaps undervalued resource. It can make or break cases at trial!
• Judges and lawyers may, in general, find written evidence and sources (including experts’ literature) more persuasive than ‘pure’ oral evidence. Therefore literature – whether in the form of a surgical textbook, a paper written for medico-legal purposes, or any academic study – can be crucial in bolstering an expert’s opinion, and persuading a judge that your expert is the one to be preferred.
• Anyone can search or prompt a search for literature. What a piece of literature says, and whether it helps the trial judge (and your case), is more important than the motive of the person who looked for it!
• Experts’ literature should, ideally, be searched for as early as possible in a case. It is better to find sources that support (or weaken) your case as soon as possible, rather than to risk either (1) a nasty surprise as the opposition discovers something important closer to trial, or (2) a difficult procedural/costs issue when your expert reviews their own work (much more thoroughly) the day before trial and comes up with new literature that the opposition has not seen.

Published in the AvMA Lawyers Service Newsletter June 2014.

News 22 Jun, 2014