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Judge slams expert for “contaminat[ing] the professionals meeting” – the importance of following best practice during discussions between experts

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In a recent care order case, a medical expert’s conduct was criticised by the judge who stated that her approach was “a cause for serious concern”.

Not only did her report lack “due diligence” leading her to draw erroneous conclusions that the parents in the case were at fault in causing harm to their children, but the impact of her “errors and closed mind…went beyond her own individual evidence” in tainting what was discussed in the experts’ meeting as well.

Read on to find out the facts of the case and how essential it is that all participants understand the legal requirements and implications of the joint meetings between experts.

Table of contents

  1. Background
  2. What conclusions did the medical expert reach?
  3. What were the fundamental errors in the medical expert’s report?
  4. What impact did the medical expert’s conduct have on the experts’ meeting?
  5. Conclusion

1. Background

In LB Croydon v D (Critical Scrutiny of the Paedeatric Overview) [2024] EWFC 438 HHJ, the family court heard that the London Borough of Croydon was seeking a care order for three children on the belief that they had been harmed in the care of their parents.

A medical expert was instructed to provide the paediatric overview for the court as a key expert witness. The expert’s duties included:

  1. Providing a concise medical chronology taken from the volume of available clinical medical data. 
  2. Clearly signposting the court to the relevant data. 
  3. Properly evaluating the evidence as to whether an injury was inflicted or not. 
  4. Not being speculative. 
  5. Correcting errors in their own work and identify errors in the work of others. 
  6. Limiting opinion evidence to their individual specialty. 
  7. Revisiting past conclusion in the light of fresh evidence. 
  8. Not removing evidence of relevance from the judge's determination. 

  

2. What conclusions did the medical expert reach?

The medical expert set out in her report her professional opinion that the medical evidence pointed to the children having suffered ‘inflicted non-accidental injuries’.  

This was disputed by the parents.

 

3. What were the fundamental errors in the medical expert’s report?

The medical expert was subject to a detailed and forensic cross examination by the mother’s counsel, which was “nothing short of a demolition” of her evidence. In fact, the medical expert even concluded herself that her evidence was partially “appalling”.  

The fundamental errors that ran through the whole of her evidence and beyond are:  

  • Her misidentification and confusion of the twins, when reading the primary medical disclosure. This was of seminal importance because different birth and post birth experiences led to one of the twins being weaker and more vulnerable. In addition, even at the time of giving evidence in court, she still had not tracked back to see how that error had impacted her opinion in relation to each child, despite correcting it in addendum.  
  • Her misinterpretation of the primary medical evidence - stating that the twins had “bruising” when in fact there was no primary medical evidence from the treating clinicians that the twins had any bruises on their bodies.  

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4. What impact did the medical expert’s conduct have on the experts’ meeting?

The role of an expert is to provide objective, unbiased opinions to help a court, tribunal or jury understand or resolve issues relating to a case that requires specialist knowledge. The evidence and conduct of an expert witness can determine the outcome of a case, with potentially far-reaching consequences for the parties involved.  

As Deputy High Court Judge, Kathryn Major correctly stated in this care order case, the medical expert’s “approach…is a cause for serious concern. There are real world consequences for children where the professional medical advice is flawed, factually inaccurate and lacking in enquiry and analysis.”  

If the medical expert’s evidence had not been discredited by the mother’s counsel during cross-examination, the judge might have reached an entirely different conclusion – removing the children from a “perfectly safe home”.

5. Conclusion

This case is a useful reminder of how detrimental a careless and biased expert can be to a case – not only in drawing erroneous conclusions in their report but also in undermining the discussions between experts that are specifically requested by the courts to save court time, narrow the issues in scope and reduce legal costs.

If you would like a reminder of what is considered best practice by the courts for discussions between experts, the next available date for our half-day, virtual Discussions between Experts course is the 23 June, commencing at 9.30am. During this course, experts will gain a thorough understanding of the court procedure rules governing discussions between experts and the court’s intention behind these discussions. We will also provide experts with a comprehensive overview of what these discussions entail, possible pitfalls and the implications if best practice is not followed.

For more information about this course or to book your place, please contact a member of the Bond Solon team on 020 7549 2549 or  expertwitness@bondsolon.com.

 

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