In this article, Ann-Marie Christie, General Counsel, considers the growing scrutiny of medical expert evidence in personal injury claims. Drawing on Muyepa v Ministry of Defence [2022] and the Ikarian Reefer principles, she examines experts’ overriding duty to the court, the need for objective and independent evidence, and the risks of failing to address causation or provide a clear diagnosis and prognosis.
Data analytics and profiling tools have become customary practice in the insurance industry when it comes to examining the behaviour of medical experts across the personal injury sector. They use these tools to identify patterns in experts’ work across claims data and share intelligence about experts they perceive to be contributing to the layering or exaggeration of claims values, particularly in low-value claims.
We are now five years on from the implementation of the Civil Liability Act 2018, which provided fixed tariffs for neck, back and shoulder injuries with a prognosis of up to two years. Other non-tariff injuries, such as hip, wrist and knee injuries, are assessed in the usual way by reference to the common law principles of pain, suffering and loss of amenity. Those cases therefore fall outside the scope of section 3 of the Act – here.
The insurance industry asserts that it has seen an increase in the reporting of non-tariff injuries, with some medical experts failing to address causation between the accident and the injuries. It has also reported a rise in psychiatric injuries and higher-value tinnitus claims.
It also reports instances of first-tier medical experts avoiding a definitive diagnosis or prognosis, resulting in the instruction of a second-tier medical expert, as well as experts failing or refusing to provide a full diagnosis or prognosis without the Claimant undergoing further investigations at additional cost.
Defendant insurers and law firms are likely to robustly challenge any expert who fails to address causation in these types of cases and will focus their Part 35 strategies accordingly.
A reminder to experts
Part 35 rules
Experts should regularly remind themselves of their Part 35 obligations and duties. The primary starting point for an expert is set out in CPR 35.3:
- It is the duty of experts to help the court on matters within their expertise.
- This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.
In the case of Muyepa v. Ministry of Defence [2022], Mr. Justice Cotter provided guidance on what is required of an expert and remarked that an expert’s assessment must be “objective and non-partisan if a just outcome is to be achieved in the litigation”. The judgment – here – involved a personal injury claim in which the Claimant had suffered a non-freezing cold injury (NFCI) to his hands and feet while participating in a Potential Non-Commission Officer (PNCO) promotion course at Sennybridge in Wales in February/March 2016.
He was diagnosed with the condition, and a recommendation was made that he should not work in cold environments. On two occasions during 2016, he worked on Ascension Island in a warm climate and his condition improved. On returning to the UK, his condition worsened significantly after he worked in a cold environment in the hangars during the winter of 2016/2017. A Medical Board eventually downgraded him, and he was medically discharged. His ongoing symptoms left him severely disabled.
The case turned on whether the Claimant had been honest about the existence, causation and extent of his NFCI symptoms. You may read the case in full for yourself if you wish, but, in summary, the judge said of the expert evidence:
“Experts should constantly remind themselves through the litigation process that they are not part of the Claimant’s or Defendant’s “team” with their role being the securing and maximising, or avoiding or minimising, a claim for damages. Although experts always owe a duty to exercise reasonable skill and care to those instructing them, and to comply with any relevant professional code, as CPR 35.3 expressly states they have, at all times, an overriding duty to help the Court on matters within their expertise. That they have a particular expertise and the court and parties do not (save in some professional negligence claims) means that significant reliance may be placed on their analysis which must be objective and non-partisan if a just outcome is to be achieved in the litigation.”
The judge referred to the “Ikarian Reefer” principles, set out in National Justice Compania Naveiera SA v Prudential Assurance Co Ltd. The principles serve as a reminder to experts that they must act without bias and remain wholly independent of the parties instructing them. They state:
- Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation[30].
- An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness in the High Court should never assume the role of an advocate[31].
- An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider the material facts which could detract from his concluded opinion.
- An expert witness should make it clear when a particular question or issue falls outside his expertise.
- If an expert’s opinion is not properly researched because he considers insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one. In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report.
- If after exchanging reports an expert witness changes his view on a material matter having read the other side’s expert report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the court.
The judge concluded his judgment in Muyepa by saying:
“… the difficulty with expressing partisan views (and making factual assumptions/findings favourable to an instructing party) when giving an expert opinion is that it calls into question the reliability of views expressed elsewhere. Put simply if the aim is to assist the Claimant to advance his case any answer has to be viewed with caution”
Defendants and their insurers pay close attention to the opinions provided by medical experts and to any emerging patterns in their evidence that may suggest partisan views or a lack of independence. It is therefore worth revisiting your obligations regularly and before writing each report so that you do not end up on a defendant’s blacklist.