In our latest article, Ann-Marie Christie, MAPS’ General Counsel, reviews the recent case of Conway v Yeovil District Hospital NHS Foundation Trust & Anor [2025] EWHC 2488 (KB). The judgment offers timely guidance on how experts should approach opposing evidence, communicate changes of opinion and maintain objectivity under cross-examination.
In this month’s article, I wanted to take a look at the case of Conway v. Yeovil District Hospital NHS Foundation Trust & Anor [2025] EWHC 2488 (KB) – here. The judgment was given by The Honorable Mr Justice Turner.
The Case
This was a clinical negligence case with tragic circumstances. It involved the Claimant, Sidney Conway, who was born in November 2014. He was a healthy and happy baby. When Sidney was around 11 months old, he suffered head injuries which were inflicted by his mother. He was admitted to Yeovil District Hospital on the 6th January 2015 with a history of projectile vomiting. His weight, in comparison to other babies his age, had fallen behind. He also had a history of irritability with poor head and neck control, and there was a marked increase in his head circumference measurements over the earlier weeks.
At that stage, his case raised no suspicion of abuse and those responsible for his treatment at that time cannot be criticised. Initially, the favoured diagnosis was pyloric stenosis. This is a condition in which the passage from the stomach to the small intestine becomes narrowed, causing forceful vomiting, dehydration, poor nutrition and weight loss.
On the 9th January 2015, Sidney was transferred to Bristol Children’s Hospital, where an ultrasound test for pyloric stenosis provided no convincing evidence in support of this diagnosis. All the other symptoms, apart from the history of increased measurements in his head circumference, had fully resolved. He was discharged home on Saturday 10th January. The intention was that his head measurements would be kept under review by the health visitor. The very next day, his mother assaulted baby Sidney again, which resulted in him suffering catastrophic brain injuries. Sidney’s father brought an action on his behalf, alleging that the hospital should have carried out the scan before discharge and that it would have revealed Sidney had probably sustained trauma to the head.
Putting aside the issue of breach of duty, as the case failed on that, the judge was critical of the Claimant’s medical expert.
He thought the Defendants’ expert had a logical approach and was reasonable, fair and consistent, whereas the Claimant’s expert lacked consistency, leaving very little remaining of his original opinion. The Judge stated:
48 Of course, in some cases, a willingness to see the other side’s point of view and change a previously held opinion may be taken to enhance rather than diminish the weight to be given to expert evidence. In others, however, the point is reached where the scale and significance of the concessions undermines the level of confidence to be attached to what remains. Such a point was reached in this case. Of particular significance was the fact that the changes in [the expert’s] stance were not primarily, if at all, based either upon any changes in the available information upon which his earlier opinions had been advanced or upon the presentation of new arguments which he had previously overlooked. I note, in this regard, the contrast between his early unequivocal condemnation of the defendants for not performing an USS of the head on the 6th or 7th January, which was followed by an equally unequivocal concession that a scan over this period was, after all, not necessary.
The judge also stated the Claimant’s expert did himself no favours in his approach to responding to questions whilst giving evidence. There were occasions when he was mildly combative, and questions were not always answered directly or the first time around. Rather than answer some of the questions, he tried to present his defence to a point not yet made.
Key Points
This case serves as a reminder to those involved in expert work that the requirements of CPR Part 35 and specifically Practice Direction 3.2, states:
PD35 3.2 (6) Where there is a range of opinion on the matters dealt with in the report –
- Summarise the range of opinion, and
- Give reasons for the expert’s own opinion.
Medical experts often comment that the possible range of opinion in many cases is so extensive that any discussion of it would be more difficult than expressing the opinion itself. Experts point out that it is usually difficult to predict recovery for a Claimant within a certain timeframe, but also the complex nature of a lot of injuries means there are often no scientific studies within any literature that can provide guidance.
The Guidance attempts to clarify how establishing a range of opinion needs to be carried out. Guidance for the Instruction of Experts in Civil Claims (“The Guidance”), published by the Civil Justice Counsel – here
Guidance
59 If the mandatory summary of the range of opinion is based on published sources, experts should explain those sources and, where appropriate, state the qualifications of the originator(s) of the opinions from which they differ, particularly if such opinions represent a well-established school of thought.
60 Where there is no available source for the range of opinion, experts may need to express opinions on what they believe to be the range that other experts would arrive at if asked. In those circumstances, experts should make it clear that the range that they summarise is based on their own judgment and explain the basis of the judgment.
Learning points
- An objective and unbiased opinion is far more helpful to lawyers than an opinion in favour of those instructing them.
- An expert must make clear the basis for each opinion expressed, when an opinion is qualified, and, where relevant, deal with the range of professional opinion on the matter.
- Any change of opinion must be communicated to the lawyers and parties without delay.
- That change of opinion must be explained to the lawyers, as they are entitled to understand the process that has resulted in a change of opinion, particularly if the change is to the detriment of that party’s case.
- Answer only the questions that are put to you.
- Do not advocate for your client.
- Make reasonable concessions.
- Try not to be defensive or combative.