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News | Thu 7th May, 2015
Grahame Aldous QC and Stuart McKechnie succeed in High Court clinical negligence trial acting for a member of the judiciary in a case raising important questions about impartiality and conflict of interest for expert witnesses.
On 7th May 2015 Mr Justice Kenneth Parker handed down judgment at the Royal Courts of Justice, London in the case of EXP v. Barker  EWHC 1289 (QB) after a 4 day trial on liability and causation that was heard in February 2015.
On 8th September 2011 the Claimant, a full-time District Judge who was referred to in the judgment by the letters EXP, suffered a catastrophic aneurysm bleed requiring life saving surgery and resulting in devastating neurological injuries. It was alleged on behalf of the Claimant that the aneurysm had been visible on a MRI brain scan taken on 6th April 1999 but had never been identified and so was not followed-up and treated. The scan had been reported as entirely normal by the Defendant, an experienced Consultant Neuroradiologist.
A pleaded defence on causation was abandoned shortly before trial, which left as the issue for trial whether the MRI scan in 1999 indicated the presence of an aneurysm which a reasonably competent neuroradiologist would have identified and reported, or not. Whilst a seemingly narrow issue, it sharply divided the medico-legal experts instructed by the parties.
In his defence of the claim, the Defendant relied upon expert evidence from Dr Andrew Molyneux (an eminent Consultant Neuroradiologist) who concluded that the 1999 MRI scan showed no clear evidence of a cerebral aneurysm and that any apparent abnormality represented a complex bifurcation pattern of the right middle cerebral artery within normal limits. These views were repeated by Dr Molyneux at trial and stood in contrast to the expert evidence called on behalf of the Claimant from Dr Paul Butler (Consultant Neuroradiologist) and Mr. Peter Kirkpatrick (Consultant Neurosurgeon), who were also both experienced and recognised clinical experts in their fields.
It was only as a result of cross-examination at trial, however, that the Defendant and Dr Molyneux disclosed that they had a long and extensive connection, involving Dr Molyneux training Dr Barker at the Radcliffe Infirmary in Oxford, assisting and inspiring him in his career development, helping him obtain posts in the UK and abroad, writing at least 1 peer reviewed publication together and serving at the same time on the committee of the British Society of Radiologists. It also emerged from detailed cross examination that Dr Barker had been responsible for suggesting Dr Molyneux as a Defence expert. The extent of the relationship between the two specialists was inadvertently disclosed during cross-examination when Dr Molyneux referred to the Defendant by his first name “Simon”, in what the judge described as an unguarded moment.
In his written judgment Mr. Justice Kenneth Parker reviewed the authorities in relation to disclosure of potential conflicts of interest by expert witnesses (including the guidance issued by the GMC). He rejected the suggestion that it had been for the Claimant to investigate the defence witnesses before trial and, holding that the responsibility for disclosure laid firmly on the defence side, he concluded that there had been a very substantial failure:
“, to disclose, with adequate particularity, the nature and extent of Dr Molyneux’s connection with Dr Barker, so that the Court would have a complete understanding of all matters that could realistically affect Dr Molyneux’s independence as an expert witness”.
Mr. Justice Kenneth Parker went on to note that he had come very close to ruling Dr Molyneux’s evidence inadmissible on the grounds that the court could not have confidence in his impartiality and objectivity as an expert witness. However, having heard his expert evidence relating to the key issues at trial, the judge decided that he should admit such evidence, but subject to powerful arguments regarding its weight.
Having considered the respective expert evidence, Mr. Justice Kenneth Parker concluded that he had complete confidence in the objectivity and independence of the Claimant’s experts, Dr Butler and Mr. Kirkpatrick. He therefore much preferred to accept their opinions than the opinion of Dr Molyneux, whose independence and objectivity had been very substantially undermined. Accordingly, judgment has been entered for the Claimant with damages, to be assessed at a further hearing where the need for future care and the effect of the injuries can be fully explored . The case is likely to be worth into the millions due to the nature of the injuries and the extent of future losses of earnings.
The Claimant said after the verdict “I am delighted with the judgment, but saddened that it has taken 3 years of painful litigation to get it when the Defendant should have conceded liability at the outset.
I would like to thank my family, friends and legal team for all of the support and care they have shown me throughout this difficult time, I just now need to get on with rebuilding my life.”
This case highlights the importance of ensuring that expert witnesses are wholly impartial and that any potential conflict of interest is disclosed at the earliest stage possible. These responsibilities apply not only to expert witnesses, but also to those instructing them and relying on their evidence.
Grahame Aldous QC and Stuart McKechnie were instructed for the Claimant by Russell Cooke.
Clyde and Co acted for the Defendant.