WWW.LAWYER-MONTHLY.COM 47 cases of head and spinal trauma and almost all spinal cases including spinal epidural haematoma, spinal infection, spinal epidural abscess, spinal cancer and the cauda equina syndrome (a serious medical condition that occurs when the bundle of nerves at the lower end of the spinal cord (called the cauda equina) is compressed) . There were areas where I had extensive clinical and academic experience such as for example paediatric neurosurgery but since leaving the NHS I am no longer active and I no longer accept such cases. In all brain and spinal cases the starting point is to identify the nature and site of the pathological process. From that I determine whether a patient was appropriately referred, a adequate history taken and clinical examination performed. This determines the timing and nature of investigations, including imaging. The causation of injury is determined in PI cases. In CN cases I identify whether there was any breach(es) of duty of care and whether any breach caused or contributed to the final outcome. It is often the case that the final outcome is a consequence of a non-negligent complication with necessary surgery; complications of neurosurgery and spinal surgery are in fact relatively uncommon but when they occur the effects can be devastating. Duties to the Court The Civil Procedure Rules (CPR) and the practice directions set out the duties of an expert which all medicolegal experts should read and understand. The most fundamental duty is that the expert acts for the Court not for the party that instructs or pays the expert. Experts are required because the Courts generally do not have the expertise to understand, for example, how a neurosurgical procedure is decided upon and carried out. The expert provides that knowledge for the Court and must do so independently. A not uncommon tactic for Defendant Counsel when starting crossexamination is to ask the Claimant’s experts if they understand their duties of care to the Court. If asked the expert will be expected to go through their duties of care to the Court; all experts must be prepared for such a question. All experts must be familiar with the well-established tests for duty of care and causation. A doctor’s decisions must be reasonable and responsible (Bolam) and logical (Bolitho). In a memorable case (Thimmaya) a spinal injuries expert criticised a surgical procedure but he was wholly unable to explain the basis of his criticism of the surgical procedure based upon the Bolam and Bolitho principles. The Claimant’s case dismissed and the doctor had to pay wasted costs. For causation, we apply 2 principles: the balance of probability test (the breach was more likely than not to have caused the harm [Wilsher]) or that it materially contributed to the harm (Bailey). The independence of experts cannot be over-emphasised. A GP (Liverpool v Zafar) provided a PI report. Then, on the instruction of his instructing solicitor acting for the Claimant, he rewrote the report exaggerating the disabilities. Mistakenly both reports were disclosed to the Defendant, both were in front of the Court. Dr Zafar was given a suspended jail sentence. Never provide reports that are favourable to the one party; this leads to disaster. When preparing a medicolegal report for the Court particularly in negligence points made should be supported by the medical literature; Judges want to see your authorities. For negligence reports I usually perform a literature search to remind myself of key papers and to ensure I have not missed an important paper. This is timeconsuming but essential. A High Court I have a particular interest in the cauda equina syndrome. I have more scientific publications on the subject of CES than any other author in the world and I am recognised as an international authority on this subject.
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