Clyde & Co instructed by Medical Protection Society challenge Claimant’s expert’s relevant expertise leading to discontinuance

Clyde & Co achieved a Discontinuance in a clinical negligence claim in which the Claimant had sought to rely on a breach of duty opinion from an expert who did not have adequate experience in performing the allegedly negligent procedure.

Background 

Acting on behalf of the Medical Protection Society, Clyde & Co represented the interests of its member consultant gynaecologist who was the Defendant in a clinical negligence claim.

The claim related to an allegedly negligent surgical termination of pregnancy via a Dilatation and Evacuation (“D&E”) procedure whilst the Claimant was in her second trimester of pregnancy (specifically, at 17+2 weeks gestation).

The Claimant alleged that she subsequently suffered from intrauterine adhesions and a period of infertility of around 18 months, as well as a psychiatric injury.

In respect of breach of duty, the Claimant alleged there had been a lack of care/substandard technique in the performance of the D&E procedure. Her specific allegations were that the Defendant had breached his duty of care by: 

1. Using an insufficient degree of cervical dilation for termination at 17+2 weeks gestation;
2. Carrying out the procedure too rapidly, implying a lack of care; and
3. Using undue and/or inappropriate force.

In his Defence, the Defendant robustly denied breach of duty further to the supportive expert evidence of a Clinical Consultant Obstetrician and Gynaecologist, who was highly experienced in performing terminations of pregnancy during the second trimester. 

During a pre-Defence conference, the Defendant’s expert highlighted that there were in fact very few gynaecological surgeons in the UK who had second trimester termination of pregnancy experience, due to the high level of specialist training and experience required to perform the procedure. 

The Defendant’s expert (and the Defendant himself) were part of that small pool. 

Following the CCMC, it became clear that the Claimant’s condition & prognosis expert (a Consultant Gynaecologist practising in Reproductive Medicine) was also the expert they had relied upon in relation to breach of duty. Therefore, it was unclear whether the expert was also part of that pool. 

The role of experts in clinical negligence claims

CPR 35.3(1) makes it clear that it is the duty of experts to help the Court on matters that are within their expertise. 

When considering the question of breach of duty, the experts in this case needed to consider whether the standard of care provided by the Defendant (specifically, in performing the second trimester termination of pregnancy) fell below the standard of care expected of a consultant gynaecologist acting with ordinary care in accordance with a responsible and reasonable body of medical opinion at the index time (the Bolam/Bolitho test). 

Clearly, to legitimately and authoritatively answer that question, it was essential that the experts themselves had the requisite experience in performing second trimester terminations of pregnancies via D&E. 

A tactical approach

The issue was first raised in open correspondence following the CCMC, when Clyde & Co queried whether the Claimant’s expert had carried out these types of procedures before. At this time, the Claimant responded to say: “We have spoken to [the Claimant’s expert] and she has confirmed she has the relative experience to comment on liability in this matter”. 

However, following exchange of liability evidence, Clyde & Co deployed robust Part 35 questions which probed the Claimant’s expert further into her experience and, ultimately, her ability to reliably address breach of duty in the claim. 

In her responses, the expert confirmed that she did not perform second trimester surgical terminations and that these are not carried out at her hospital Trust. In addition, she confirmed that she had not carried out any surgical terminations at the index time she was asked to comment upon.
 
Upon receipt of the responses, it was promptly highlighted in open correspondence that the Claimant’s case on liability was entirely misconceived, being as it was, based on evidence from an expert lacking the appropriate expertise. A ‘drop hands’ offer was put forward and later accepted by the Claimant.  

Comment 

This claim serves as an important reminder to all practitioners that clinical negligence cases will absolutely stand or fall on the quality of expert evidence, and it is therefore crucial that an expert’s own clinical experience (and their practise at the index time) is suitably interrogated, to ensure that they can legitimately comment on the issues of breach of duty.

Allison Munro, Claims Manager and Solicitor from Medical Protection Society instructing Clyde & Co states: 

“This case highlights how critical it is to secure appropriately qualified and experienced experts from the outset. The time taken to make the necessary enquiries is an important investment and, as in this instance, can prove essential in achieving a favourable outcome. Our member was understandably relieved and delighted by the discontinuance, thanking MPS and Clyde & Co for ‘exceeding excellence.’