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Tag Archives: standards for expert witnesses

Judgment critical of delay from expert

 

It’s a very sad indictment that if told that there’s a family law judgment about a medical expert who was egregiously late in filing a report and not very communicative in what was happening, a large number of family lawyers would be able to guess who it was without reading the judgment.

 

I think it is probably the problem that you see very often on a small scale, but here writ extraordinarily large.  Expert A does a report, people think it is great. Next time an expert is needed, they say “go to Expert A”, when colleagues mention a case they say “oh, you should get Expert A”,   Expert A’s workload increases exponentially, because the more work they do the more work they get and more recommendations were made. Then the volume becomes overwhelming and timescales slip. Generally, there’s then a rebalancing and the expert decides to say “no, I can’t take anything for four months, I’m snowed under”.  It becomes an even greater problem when the expert is really good AND practising in a field where there’s high demand for an expert of that discipline, and limited supply. I imagine it just becomes harder and harder to say no, and the volume just becomes utterly unmanageable.

 

            X and Y (Delay : Professional Conduct of Expert) [2019] EWFC B9 (11 March 2019)    

 

http://www.bailii.org/ew/cases/EWFC/OJ/2019/B9.html

 

The judgment names the expert, but I’ve chosen to anonymise it.

 

For many years, Dr __________  has regularly been instructed as a medical expert witness in cases proceeding in the Family Court. She has had a distinguished career. As a consultant paediatrician, she is held in high regard. It is particularly sad, therefore, that at the end of her career she should face the kind of criticisms from the court that I am about to set out in this judgment. Put shortly, the problem is one of delay and failing to honour commitments and promises made to the parties and, through them, to the Family Court. It is appropriate that I should consider separately Dr ________’s failings with respect to X and Y.

 

40.          So it is that six months after Dr ______________ was instructed to prepare a report in respect of X and four months after she was asked to prepare a report in respect of Y, neither report has been written. Neither X nor Y has been seen by Dr _________________. It very much appears to be the case that Dr __________________ has thus far spent little, if any, time reading the medical records that have been made available to her.

  1. The parties have come to the conclusion that in terms of both time and cost it would be appropriate for Dr __________’s instructions to be terminated and an alternative expert instructed. I agree.
  2. That leaves an outstanding issue concerning Dr ______________’s fees in respect of any work she can prove she has undertaken since she was instructed. Without hearing argument on the point I am unable to resolve that issue. However, in light of the history set out above it is at this stage difficult to see how any fee could be justified.

 

49.          The Family Court is heavily dependent upon medical experts from a wide range of specialties to assist it in dealing with some of the cases that come before the court. Experts are required to assist the court in determining threshold issues – for example, in determining whether a child’s injuries have been sustained accidentally or whether they are inflicted injuries, in identifying the likely mechanism by which injuries were caused, in identifying the likely window of time within which the injuries were sustained. Experts are also required to assist the court in making welfare decision – for example, as to whether the child is suffering from any mental or psychological difficulties and as to her treatment or therapeutic needs. The Family Court simply could not operate without the assistance of medical expert witnesses.

  1. However, it is also the case that although the Family Court needs the assistance of medical experts it also owes a duty to the child concerned to determine the proceedings without delay. That is a statutory obligation clearly set out in s.32 of the Children Act 1989. As Paediatricians as expert witnesses in the Family Courts in England and Wales: Standards, competencies and expectations makes clear, it is also an obligation that is placed on medical expert witnesses.
  2. There will always be occasions when, despite an expert having genuinely believed that he or she could complete a report by the date set by the court, circumstances change and that is no longer possible. Where that happens, the expert should let his or her instructing solicitor know promptly, giving reasons for the delay and indicating the new date by which the report can be completed. An application should be made to the court for the timetable to be varied. Where there are justifiable reasons for adjusting the timetable it is unlikely that the court would refuse. What is not acceptable is what has happened in this case where the expert has given a succession of dates by which her reports would be delivered but, as is patently obvious, with no genuine or realistic expectation that any of the dates suggested could, in fact, be met. Courts and experts must work together in a co-operative co-ordinated way. That simply has not happened in this case.
  3. A draft of this judgment was provided to Dr ___________ in advance of today’s hearing. She was invited to attend court today to make representations before the judgment is handed down. Dr ______________ did attend.  She handed in a letter explaining the personal difficulties she has faced in recent months. The explanation she gave was much the same as the explanation she has previously given to the parties’ solicitors. She was profusely apologetic for her failings in this case. She indicated that she has decided not to accept any further instructions in cases in the Family Court.
  4. I am deeply concerned about the way Dr ______________ has behaved in this case. It does not meet the standards expected of an expert witness or the expectations of the court in this particular case. It cannot be allowed to pass without comment. That comment should be placed in the public domain.

 

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