EWJ FEB 59 2025 web - Flipbook - Page 75
suffering from permanent dry eye problems, both at
the consultation and in the consent form, which was
provided well in advance of the date of surgery.
procedure]', or 'how many [insert procedure]
surgeries have you performed?' are an obvious way to
draw this out from your opposing party's expert.
Discussion
In the post-Montgomery world, it is sometimes
suggested that the role of the experts has been diminished when assessing allegations of breach of duty
involving consent. Whilst it is true that the evidence
of the patient, the doctor and the medical records will
often be the focus of consent allegations (as to what
risks were discussed), this case illustrates why expert
evidence still has a crucial role to play when assessing
what risks are 'material'.
The key takeaway for claimants and defendants is
simple: pay close attention to an expert's CV before
instructing them. An expert with no experience in the
area they are reporting in should be seen as a 'red flag'.
As this case demonstrates, academic research may not
be enough to persuade a Judge. Perhaps Albert Einstein said it best: “If we knew what we were doing, it
would not be called research.”
From a risk management perspective, surgeons (as
well as hospitals and clinics) should make sure that the
consent form and any patient guides are sent to patients well in advance of the day of surgery, ensuring
that there is an evidence / audit trial to support this.
In consent claims, it is often the patient's word versus
the surgeon's word, so in that sense expert evidence is
not always determinative, but expert evidence was relevant in Lochrie as there was an issue about the
known risk of permanent dry eyes at the time.
Authors
Stuart Keyden
Partner - Bristol
E: skeyden@dacbeachcroft.com
An expert's CV is perhaps not the first document
defendants and their insurers may consider when
considering a claimant's expert evidence. In closely
run cases, however, this case serves as a timely reminder as how the experience of your expert, or the
other side's expert, can tip the balance at trial, one way
or the other.
James Davies
Legal Director - Bristol
E: jamesdavies@dacbeachcroft.com
Simon Perkins
Partner - Bristol
E: sperkins@dacbeachcroft.com
Long before trial, however, such questions on
experience can be put to the other side's experts, by
way of Part 35 questions, or at the joint meeting. Questions such as 'Please set our your experience in [insert
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