Judge condemns “embarrassing” expert who used expletive

Mr Justice Martin Spencer: Expert’s evidence was intemperate

A High Court judge has taken to task an “embarrassing” medical expert who made “continual apologies” and used “an expletive” during his evidence.

Mr Justice Martin Spencer said he did not “altogether exonerate” Slater & Gordon, the claimant’s lawyers, for allowing David Sandeman to go into the witness box despite “clear and obvious deficiencies” in his written evidence.

“I regret to say that, in my judgment, Mr Sandeman’s evidence fell far below the standard to be expected of a reasonable, competent expert witness, both in relation to the preparation of his reports and in relation to his preparing to give evidence. I could see no excuse for this whatever.

“I should say, though, that I do not altogether exonerate the lawyers who have represented the claimant because they allowed Mr Sandeman to go into the witness box despite these clear and obvious deficiencies in Mr Sandeman’s written evidence, and this was something which should have been addressed by the lawyers long before the trial.

“In the end, the continual apologies from Mr Sandeman in the course of his evidence, as the magnitude of the deficiencies became apparent, were embarrassing”.

Describing the expert’s oral evidence as “unimpressive”, Martin Spencer J said: “It was intemperate, at one stage he even used an expletive, and there was a failure on his part to address the questions that he was being asked: recognising the difficulties of some of the questions, not just from Ms Vickers for the defendant but also from the bench, he would stray into other areas and different areas so as to avoid answering the questions.

“I had no doubt, listening to Mr Sandeman’s evidence, that this was a deliberate ploy on his part to avoid answering the questions, rather than any kind of misunderstanding on his part as to what he was being asked, and the technique was adopted by him because of the difficulty he found himself in, in addressing the questions.”

Martin Spencer J was giving judgment in Arksey v Cambridge University Hospitals NHS Foundation Trust [2019] EWHC 1276 (QB), a medical negligence case in which Margaret Arksey sought damages from the trust for failings to admit her to hospital swiftly enough and in the treatment of her cerebral aneurysm, which left her with “significant disability”.

The judge said the particulars of claim were based on a medical report by Mr Sandeman, a consultant neurosurgeon, who argued that had Mrs Arksey’s condition been managed according to the relevant protocol, she would have been less likely to suffer the catastrophic haemorrhage that she did.

However, Martin Spencer J said Mr Sandemans’ report on liability predated the exchange of pleadings, even though “no reasonable expert” would want to submit a final report until he had seen the defendant’s witness statements.

The judge said the expert did produce an “addendum report”, but “astonishingly” this was served without any consideration of the amended defence.

Mr Sandeman met his opposite number, Mr Battersby, in December 2018, and saw Mr Battersby’s two reports, which referred to relevant witness statements and provided a full medical history.

This meant, Martin Spencer J said, that it would have been “obvious” to Mr Sandeman that Mr Battersby had access to medical records he had not seen, and he was reporting on a “false, or at least incomplete” basis.

However, “yet more astonishingly”, the expert did not draw this to the attention of his instructing solicitor and “told me that it was only in the week before trial, when he had access to the trial bundle which contained the full medical records, that he had access for the first time to the full medical records”.

The judge went on: “He nevertheless went into the witness box and gave evidence affirming the accuracy and correctness of two medical reports which simply did not stand up to a moment’s scrutiny, given that they had been prepared on a false and wholly incomplete basis.”

In contrast, Mr Battersby was a “wholly straightforward and reliable witness”, who prepared reports which “fully complied” with the rules on expert evidence.

“I had no difficulty in preferring Mr Battersby’s evidence to that of Mr Sandeman on every point of dispute between them.”

Martin Spencer J ruled that there would be judgment for the claimant only for an admitted breach of duty relating to a delay in treatment, “but otherwise the claim fails”.

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