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Robinson v (1) An NHS Trust & (2) Dr Mercier
The claimant pursued a claim following what she considered to be the negligent actions of a maxillofacial surgeon during an extraction procedure performed under general anaesthetic. The claimant instructed a General Dental Practitioner, Dr Mercier to provide a report. The matter proceeded to trial at the County Court at Liverpool and was heard by Ms Recorder Hudson. During cross-examination Dr Mercier conceded that he had no experience of carrying out such procedures under general anaesthetic and also had no experience of consenting a patient for such a procedure. He then accepted that he was not as well placed as the defendant’s expert, a consultant maxillofacial surgeon, to comment on the live issues. After hearing Dr Mercier’s evidence, the claimant discontinued her case.
In what is a rather damning judgment, Ms Recorder Hudson made clear that the claim would not have been brought but for Dr Mercier’s report and that he had displayed what amounted to a flagrant disregard for his duties to the Court. Submissions made on his behalf that suggested the defendant ought to attract criticism for failing to bring the issue to the attention of either Dr Mercier, those instructing him or the Court at some point during the lifespan of the case were dismissed.
The defendant has subsequently secured a third party costs order against Dr Mercier in the sum of £50,543.85, that figure being the costs incurred as a result of his advice.
The judgment itself can be found here.
The judgment serves as a reminder to all Part 35 experts, whatever their discipline, that they must comment only on areas that fall within their expertise and/or area of practice and that venturing outside of that remit is likely to lead to repercussions; and potentially costly ones at that.
In practice, particularly within catastrophic cases, one often encounters individuals with a variety of injuries and on which Part 35 evidence from those in a number of disciplines will ultimately be obtained. From a handling perspective, it is important that those dealing with such cases, on whichever side of the fence they fall, identify the appropriate experts to deal with the injuries and ensure that, where necessary, any expert either defers to alternative medical opinion or suggests that additional opinion is sought. Within any letter of instruction, it would be wise to consider reminding the chosen expert of their duties under PD 2.2 and PD 2.4(a) of CPR Part 35 namely that they: