Guidance for solicitors on medical expert evidence

Photo by Mikhail Nilov via Pexels The mechanism of hindsight bias in clinical evidence In paediatric clinical negligence, an expert’s assessment of breach of duty is often susceptible to hindsight bias. This cognitive trap occurs when knowledge of an adverse outcome influences the evaluation of clinical decisions made at the material time. For instructing solicitors…

Photo by https://kaboompics.com/ via Pexels The purpose of clarification under CPR 35.6 In civil litigation within England and Wales, the mechanism provided by CPR 35.6 allows a party to submit written questions to an expert. The primary function is to seek clarification where an expert report is ambiguous or where the underlying reasoning on a…

Photo by RDNE Stock project via Pexels In personal injury litigation, establishing a causal link between an index event and a psychiatric condition requires a methodical analysis of a claimant’s pre-existing health, the nature of the stressor, and the temporal proximity of symptoms. Expert opinion must assess whether a condition would have developed regardless of…

Photo by RDNE Stock project via Pexels In birth injury litigation, the threshold for establishing liability depends on the distinction between an adverse clinical outcome and a failure to meet the required standard of care. Instructing solicitors and experts must prioritise the objective, contemporaneous medical record as the primary evidence in cerebral palsy claims to…

Photo by Gustavo Fring via Pexels The role of the microbiologist in clinical negligence litigation In claims involving post-operative infection, the identification of the appropriate expert discipline is essential to the structure of the evidence. An instructing solicitor must determine whether the claim concerns the clinical management of a suspected infection, such as the timing…

Photo by Pavel Danilyuk via Pexels The principle of expert witness independence In civil litigation in England and Wales, the independence of an expert witness is governed by the principles established in National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1993] and operationalised under CPR Part 35. The expert’s primary…

Photo by cottonbro studio via Pexels Functional capacity within the trial process A forensic psychologist’s report must provide clear evidence to support an opinion on whether a defendant meets the legal criteria for fitness to plead. The court’s determination rests on the defendant’s ability to engage with the trial process, rather than on the nature…

Photo by RDNE Stock project via Pexels In Court of Protection proceedings, the assessment of a protected party’s functional requirements is central to determining the scope of necessary support. An occupational therapist providing an expert report must distinguish between observed functional capacity and the broader medical prognosis, ensuring that evidence submitted to the court remains…

Photo by Mikhail Nilov via Pexels The status of the skilled witness in Scotland Instructing solicitors operating across multiple jurisdictions must distinguish between the regulatory frameworks governing expert evidence in England and Wales and the distinct procedures applicable in Scotland. In the Court of Session and the sheriff court, the term ‘skilled witness’ is used…

Photo by Pavel Danilyuk via Pexels The scope of the but-for test in surgical claims In clinical negligence litigation involving gastrointestinal surgery, the identification of the correct causation test is central to the resolution of a claim. The primary question for an expert witness is whether the claimant’s injury would have occurred ‘but for’ the…