Why choosing the right medical expert matters in serious personal injury and medical negligence claims

When I speak to clients about obtaining expert evidence in their claim, one of the questions that comes up is: if the medical records already show what happened, or the injury is obvious, why do we need to involve more medical professionals?

Whilst medical records do tell us a great deal, they rarely provide all the information needed to properly assess and quantify a claim.

In serious personal injury and medical negligence claims, it is necessary to show that there was a breach of the duty of care owed and that this caused or contributed to an injury.

In medical negligence cases, this means that expert evidence is usually required to consider whether the actions of the medical team or individual involved would amount to a breach of duty and whether this caused or contributed to the injury.

In a personal injury claim, whilst independent medical experts are not required to prove breach of duty, they are still needed to establish the nature of the injury and whether it was caused or made worse by the accident.

It is also necessary in both personal injury and medical negligence claims to obtain expert opinion on any treatment that may be required either now or in the future and what the future is likely to hold as a result of the injury. For example, whether as a result of a head injury there may be an increased risk of epilepsy or dementia or whether, as a result of an orthopaedic injury, there may be an increased risk of arthritis.

Understanding these factors is extremely important and so choosing the right medical expert will be one of the most important decisions in a substantial claim.

Whilst you may think that the “right” expert will be one who will support the claim and say what you would like, this is not the case. All experts are independent and owe a duty to the Court. This means that they must consider the individual facts of the claim and independently provide their professional opinion. Their views may support the Claimant’s case, may be unsupportive or may only support part of it. The same applies to any expert appointed by the Defendant.

The task in any claim is to find someone whose expertise genuinely matches the medical question. It is also important in medical negligence cases that, when considering breach of duty, the expert is from the same professional discipline and has appropriate expertise in the same area of practice as the treating clinician whose actions are being considered. You cannot compare, for example, the actions of a member of A&E staff with those of a specialist orthopaedic or plastic surgeon. If the potential breach of duty was by A&E staff, you need to obtain evidence from an independent A&E practitioner. Any expert also needs to understand the responsibilities of an expert witness and be able to withstand scrutiny from the other side – and, if necessary, the Court.

A treating doctor and a medical expert witness have different roles. Your treating team is concerned with diagnosing and treating you. An expert instructed for a legal claim is asked to stand back, review the evidence and give an independent opinion on particular medical questions.

Those questions may concern diagnosis, causation, the treatment you have had to date or may need in the future, or your prognosis. An expert’s conclusions will then be used to assess your future financial needs in terms of care, accommodation, equipment and loss of earnings, as well as any other future financial losses.

Modern medicine is highly specialised, and broad job titles may cover different areas of expertise.

Two doctors may both be consultant orthopaedic surgeons, but one may specialise in spinal conditions whilst another specialises in hands or upper limbs. Both may be highly respected, but they are not necessarily equally well placed to answer the same question.

Equally, it is important to consider whether the expert is still in clinical practice or, if not, when they left or retired.

Retirement does not, of itself, make someone unsuitable as an expert, but the currency of their clinical experience can matter.

This is especially important in medical negligence claims. Medicine moves on. An expert must be aware of the standard of care and circumstances that applied at the time of the alleged negligence, whether that was historical or very recent. This means that an expert who retired some years ago may be less well placed to comment on alleged negligence arising now or, equally, an expert who only began practising more recently may be less well placed to consider historical allegations relating to treatment before they entered practice.

The Civil Justice Council’s guidance on the instruction of experts emphasises appropriate expertise and experience for the particular instruction.

The aim is not simply to find an impressive expert. It’s to find the person whose expertise genuinely fits the question that may ultimately have to be answered – and defended – in the claim.

There is an important difference between being an excellent doctor and being an excellent expert witness.

An expert may have to consider hundreds or even thousands of pages of medical records, separate fact from assumption, explain difficult medicine clearly, answer formal questions, discuss disputed issues with another expert and potentially defend their reasoning under cross-examination.

The General Medical Council’s guidance on providing expert evidence makes clear that doctors acting as experts must have the relevant competence, training and experience and should undertake appropriate training for expert witness work.

Training cannot substitute for genuine clinical expertise. A good expert also needs to understand the responsibilities that come with giving independent evidence to a court.

As detailed above, a medical expert must be independent. They owe their duty to the Court, not to either the Claimant or the Defendant.

Whilst the legal teams will identify and instruct the expert and arrange for their fees to be paid, that does not override this duty.

Under Part 35 of the Civil Procedure Rules, an expert’s overriding duty is to help the Court on matters within their expertise. Their evidence must be independent, objective and unbiased.

Sometimes an expert will reach a conclusion that is difficult for the Claimant to hear, or they may identify issues which raise further allegations the Claimant was not aware of and which may mean part of the case has to be approached differently. I have seen that happen many times.

If the evidence does not support part or all of a claim, it’s better to understand that and deal with it from the start than to discover the weakness much later when significant costs have been incurred.

The right expert is not the person most likely to agree with us. It’s the person whose opinion we can trust.

In most claims, the Defendant can choose to obtain expert evidence of their own and, in a substantial claim, this will ordinarily be done. The Claimant’s expert may therefore find their conclusions considered alongside those of another experienced specialist in the same, or a closely related, field.

They may disagree about diagnosis, causation, treatment or prognosis. In a medical negligence claim, the disagreement may go to the heart of the case: did the care fall below an acceptable standard and, if so, did that actually cause or worsen the injury?

Medical evidence is not always clear cut. A good expert should recognise a legitimate range of professional opinion and explain their own conclusion.

If the claim progresses through the Court, the experts in the same discipline are likely to be required to meet to discuss their evidence and views directly, identify where they agree and narrow what remains in dispute. They will usually produce a joint statement, and the meeting will generally take place without lawyers or anyone else present.

Your expert may therefore have to engage directly with an equally experienced specialist instructed by the Defendant and explain why they maintain a different view. If the case goes to Trial, their evidence may then be tested under cross-examination.

That is why certainty, by itself, does not impress me. An expert who acknowledges the limits of the evidence and engages fairly with a different medical opinion can be more persuasive than one who appears absolutely certain about everything.

Yes – and sometimes they should.

New records may emerge, further investigations may take place, another expert may identify something previously overlooked, or the injured person’s condition may become clearer.

An expert must remain open to that evidence and make any material change known. For a client, that can be unsettling, particularly if the original view was favourable. But independence requires an open mind. I would have far more confidence in an expert prepared to change their opinion for good medical reasons than one determined never to do so.

Life-changing injuries rarely fit neatly within a single medical specialty.

Someone with a brain injury may require opinions from experts in, amongst other fields, neurology, neuropsychology, neuropsychiatry or rehabilitation medicine. A spinal injury claim may raise different questions about spinal surgery, rehabilitation or pain. Both types of claim are also likely to need opinions on the wider consequences of the injury, such as care, accommodation, therapies and equipment, including assistive technology, as well as potentially the cost of a professional deputy to assist.

That does not mean instructing as many experts as possible. Expert evidence should be limited to what is reasonably required, and the skill lies in identifying the questions that genuinely need answering and matching each to the expert best qualified to answer it.

There is considerably more to it than picking a familiar name from a directory.

If an expert is unknown to me, I research them before they are instructed, including speaking to colleagues who may have worked with them before. I want to understand their clinical practice, specialist interests, the currency of their experience and how closely that matches the issue we need them to address.

I also look at their experience as an expert witness. Do they produce clear, balanced and properly reasoned reports? Do they understand their duty to the Court? Can they explain difficult medical issues without hiding behind jargon and engage fairly with a different professional opinion? Where appropriate, I may also ask to see an anonymised or suitably redacted example of a previous report, which can give a useful sense of how clearly and rigorously they approach the task.

Over time, lawyers also see experts at work through their reports, conferences, Court appearances and responses to difficult questions. That experience is valuable, but familiarity should never become automatic selection.

For someone living through a serious injury, another medical assessment may not be welcome after months or years of appointments. I understand that. But independent expert evidence is part of the foundation of the claim, helping to establish what recovery can realistically be expected and what support will be needed.

That is why choosing the right medical expert matters. Not because an expert is there to strengthen the case at any cost, but because a serious injury claim needs evidence that is independent, properly specialised, carefully reasoned and capable of standing up to challenge.

In the end, the question is: Who is the right person to answer this particular question, and can we rely on their opinion when it’s tested?