Commentary

Mr Simon Britten, immediate past chair of the British Orthopaedic Association Medico-legal Committee, in his foreword to the forthcoming Expert Musculoskeletal and Orthopaedic Evidence, refers to how giving evidence one Monday in a case of tibial fracture, missed compartment syndrome and subsequent amputation, he was asked when he had last fixed a tibial fracture. Understandably, he said that the judge’s reaction to his answer ‘last Friday’ appeared to be a promising start. However, it is not a hard and fast rule that the healthcare expert should have experience, or recent experience, of performing the procedure or operation in issue. This case illustrates it. So do the following cases, all discussed in the forthcoming Expert Musculoskeletal and Orthopaedic Evidence.

In ZZZ v Yeovil District Hospital NHS Foundation Trust [2019] EWHC 1642 (QB), where a spinal surgeon said that he had not performed spinal surgery for more than six years, the judge thought that that in itself might be of no significance, especially in a case which related to treatment more than six years previously (but for other reasons he did have grave doubts as to whether the surgeon had the necessary expertise).

In LK [2020] CSIH 40 there was an objection to a midwife called as an expert witness, on the basis that she lacked knowledge and understanding of the day to day demands on a practising midwife. She accepted for example that it was some time since she herself had delivered a baby. However, she had a detailed knowledge of policy and procedure, there was evidence of her continuing involvement in the provision of care and she was the line manager for the senior charge midwives. It was accepted that she had skilled evidence that would assist the Fitness to Practise Committee of the Nursing and Midwifery Council and that it was based on a reliable body of knowledge or experience.  

In Negus v Guy's and St Thomas' NHS Foundation Trust  [2021] EWHC 643 (QB), a clinical negligence claim relating to aortic valve replacement surgery performed in 2014, the judge had no doubt that an expert who had retired from clinical practice as a consultant cardiothoracic surgeon in 2011, and last performed an aortic valve replacement in June 2011, continued to be aware of the standards appropriate to his specialism, not least given his role as Chairman of the Royal Papworth Hospital. Furthermore, whilst another expert did not recall having personally undertaken an aortic valve replacement enlargement, the judge had no doubt as to his understanding of that procedure, still less as to his skill and experience relating to aortic valve replacement surgery more generally.

The details of this judgment are unlikely to be of interest to healthcare experts other than dermatologists and perhaps cosmetic surgery. However, there are number of learning points of general application relating to ‘hands on’ experience, medical terminology, classification, cited literature and guidelines.

Learning points:   

• It is not a hard and fast rule that the healthcare expert should have experience, or recent experience, of performing the procedure or operation in issue. However, in the absence of such experience, it is necessary to evidence and demonstrate a clear understanding of the nature of the condition or injury and its treatment.

• When provided with a hearing bundle in a case where you rely on published literature, check that all of your cited publications are in the bundle. If they are not, inform your instructing solicitors and ensure that you take copies to court in case they are not added to the hearing bundle.

• When relying on published guidelines, be prepared for cross-examination as to their relevance, their application, how they were devised and also who devised them. This list is not exhaustive.

• Definitions that are given from the perspective of persons engaged in medical practice can have a different meaning to that adopted in ordinary and natural English usage (as in the Oxford English Dictionary). Have regard to both.

• If you rely on a classification such as the International Classification of Diseases, be able to explain its purpose.

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