David Stothard, Managing Director at MAPS Medical, examines a recent High Court case in which six medical expert witnesses were involved, which was ultimately dismissed as a result of the claimant’s dishonesty.
If you only read one legal judgment this year, this should be it.
The 401 paragraph judgment of Mr Justice Cotter in Muyepa v MOD following a 12 day trial in the High Court has been the subject of detailed comment.
The case involved a claim by a former member of the armed forces who sought damages of over £3m for the career ending consequences of being exposed to extreme cold and wet conditions while on a military exercise. He developed a non-freezing cold injury (NFCI), was discharged from the army, and claimed significant ongoing disability.
The judge decided that the claimant was exposed to the alleged conditions in breach of the MOD’s duty of care to him. He would have been entitled to significant damages as a result. However, he was awarded no damages and his claim was dismissed entirely. Even taking a very conservative approach to the damages assessment process, the judge found that he would have awarded over £97,000 in damages if he had accepted the claim. In other circumstances that amount may have been two or three times more.
The reason why the claimant received nothing was that the judge made a formal finding that the claimant was dishonest and that he deliberately exaggerated symptoms and functional limitations for financial gain. The extent of the persistent and significant dishonest exaggeration was such as to fundamentally taint the whole of the claim so that the judge was obliged to dismiss the claim completely.
There is so much in the judgment that is relevant to expert witnesses both directly as to their role and responsibilities, and as a very clear demonstration of how a judge goes about their job in analysing and weighing up evidence given by both lay and expert witnesses, providing valuable insights for anyone working in this sector, which help to inform best practice in preparing and giving expert evidence.
The barrister, Gordan Exall, who has a regular blog drawing attention to such issues (and much more), has written three separate pieces focussing on different aspects of the judgment, something that I can’t recall him ever doing before. He deals with the detailed considerations for assessing witness credibility, the exposition of the law and principles governing a finding of fundamental dishonesty and the examples of expert witnesses failing to comply with their legal duties. The training company Bond Solon has also written on the case, with a reminder on the duties of an expert witness.
I want to invite you to consider how you might have dealt with a claimant like this if you had been one of the medical expert witnesses in the case? How can you give evidence and comply with your duties as an expert witness when the claimant’s account is untruthful and designed to mislead?
To give you a flavour of the extent of the deception and how it unravelled, I have picked just one paragraph (162) from the judgment to quote in full:
“After consideration of all the evidence I have reached the conclusion that major parts of the testimony of both the claimant and Mrs Muyepa cannot be accepted as truthful or accurate. Before being confronted with the evidence on the recordings the claimant’s evidence was that he could only walk with a stick, and even then for a limited distance and duration. He had balance problems and could not drive or go shopping. He was very seriously disabled and needed constant care, provided principally by his wife. Given such severe functional limitations, and the loss of an army career, a very significant claim, which was (largely) supported by the claimant’s experts to whom he had presented as severely disabled, was advanced.
“The reality was very, very different. I agree with Mr Ward’s submission that the clip at the wedding in June 2019 showing the claimant walking normally in a casual fashion across and back a room with a drink in his hand was devastating for the claimant’s credibility as the defendant’s experts found it to be; particularly when taken in the chronological context of his medical examinations. Whilst the change was not quite as dramatic as the miracle at Capernaum; it was as Dr Mumford described ‘astonishing’. Equally the dancing at the barbeque was easy movement. The claimant could be seen driving and shopping (and cooking or assisting at the barbeque). Given the medical evidence (which I shall address in detail) I have no doubt that he uses his stick as a prop and that he does not need it. The limp is put on.”
The case involved six medical expert witnesses and an enormous amount of their time both in preparation and attending the trial. Each side had consultants in the primary NFCI injury (one expert in occupational and thermal medicine in the military, the other in peripheral neuropathy), plus consultant psychiatrists and pain experts. Each of them had to meet the claimant, review his records and history, prepare preliminary reports and, in some cases, further reports. They had to meet each other and prepare joint reports, and then all had to review the lay evidence including video evidence as described above. Inevitably, although not mentioned in the judgment, each side would have called their experts into conference with counsel throughout the claim. Attendance at trial followed, with comprehensive examination and cross examination, which is so comparatively rare for an expert witness these days.
I do not propose to take you through their evidence in detail. It seemed to me that each expert did their best to comprehensively address all the issues which were presented to them, which were sometimes complex and puzzling. They also did their best to comply with their duty to the court, which was not simple or easy in this situation. In summary, I believe that it is fair to say that each of the experts appeared to have begun with a degree of sympathy for the claimant and over time (some more quickly than others) concluded that there was no medical explanation for his claimed symptoms.
The experts had to address the difficult question of whether the claimant was displaying organic pain which was significantly magnified by psychological overlay or whether what they were seeing was conscious exaggeration for secondary gain. Perhaps it is no surprise that each expert reached their own different view. It is not easy to do that in this type of situation and guard against straying into the judge’s territory as the decision maker of fact. One of the expert joint statements set out the challenge (paragraph 246):
“…We agreed that whatever diagnosis is accepted by the Court the claimant’s reported level of pain and disability is disproportionate. We agreed that any reported physical symptoms which cannot be reasonably explained by the underlying pathology has two possible explanations:
1. That symptoms are being significantly magnified by psychological distress.
2. That the claimant has exaggerated his symptoms for the purpose of secondary gain.”
Ultimately the judge had to make those decisions, picking which evidence he preferred from which expert for whatever reason he identified, all of which is explained in detail and exemplary clarity within the full judgment. Fundamentally, the point which I have heard Dr Derek Tracy make eloquently, is that ‘malingering’ is not an illness, and so is not capable of diagnosis. It may be suspected or detected, but it is not a medical condition, and is therefore a ‘jury point’ for the judge in a civil claim like this.
I would invite you to spend some time considering the evidence presented by the medical experts in this case set out in the judgment (paragraphs 167 to 278 inclusive), whether they fall within your area of medical expertise or not and reflect on how you might have presented your evidence had you been involved in the case. There is an interesting podcast interview with Dr Tracy and Professor Keith Rix which is available on the Royal College of Psychiatrist’s website which directly addresses the issue of medico-legal reporting of malingering which I would commend to you as a useful analysis of how to approach such issues when they arise in your expert witness practice.