A circuit judge has made a “highly unusual” and large third-party costs order against a claimant’s medical expert witness, whose “improper, unreasonable, or negligent conduct” doomed the case.
The expert, who went on sick leave with mental health problems but failed to mention it to the claimant he was giving evidence for, has been ordered to pay almost £89,000 to the NHS.
Her Honour Judge Claire Evans in Manchester rejected Firas Jamil’s explanation that he could not explain the breach of duty test in a medical negligence case during cross-examination because the barrister involved reminded him of a man who had interrogated him in Iraq.
HHJ Evans said that, during the trial last March, Mr Jamil was “wholly unable to articulate the test to be applied in determining breach of duty in a clinical negligence case” brought by claimant Samantha Thimmaya.
“He was given a number of opportunities to explain it; he was asked the question in different ways; that did not assist him.
“In the end, he stated that he did not know the test to be applied. The claimant then had no real choice but to discontinue her claim, he being the only expert upon whom she relied.”
HHJ Evans said Lancashire NHS Trust argued that Mr Jamil was not fit to be giving expert evidence at all because mental health problems led to him going on sick leave from his clinical work – but not medico-legal work – in November 2017 and retiring from practice the following year.
Further, it said he was not competent to be an expert in this particular case anyway, which involved surgery he had carried out himself only twice.
The judge said Mr Jamil accepted that “with hindsight that he was not fit at the time of the trial to give expert evidence, due to his mental health problems” but he was not unaware of the Bolam test for breach of duty.
“He says that the reason he was unable to articulate the test on the day of trial is because he had an adverse psychiatric reaction to the questioning of counsel for the defendant who resembled and reminded him of an interrogator who had previously interrogated him in Iraq.”
But the judge observed that Mr Jamil did not give this explanation either when he failed to explain the Bolam test in a subsequent court case or to a psychiatrist who reported on his mental capacity in September last year.
While she was not characterising his evidence as dishonest or deliberately misleading, the judge said this led her to “discount it as the correct explanation”.
She said that, on the balance of probabilities, the medical expert could not explain the test for breach of duty “because he did not know, was unable to recall, or could not apply the legal test, perhaps because of his general cognitive difficulties caused by his mental health problems”.
HHJ Evans went on: “He should not have continued to act as an expert witness, whether in court or in writing or in conference, at a time when he was unable to work in his clinical practice due to his mental health problems.
“He should have taken sick leave from his medico-legal practice at the same time as he did from his clinical practice, in November 2017. As it was, he did not even inform the claimant or her advisers of his medical condition.
“Those are all significant failings which amount in my judgment to improper, unreasonable, or negligent conduct, such that the jurisdiction to make a costs order against Mr Jamil (which is, both parties agree, essentially to be exercised on the same basis as a wasted costs order) is engaged.”
The judge said that although Mr Jamil was not a “very good expert”, his conduct was not improper at the “very outset of the case”, or until November 2017.
Counsel for Mr Jamil argued that if he had stopped acting in November 2017, another expert would have taken his place.
HHJ Evans said she had “no evidence” that another expert would have given positive evidence for the claimant, who in her view was “unlikely to succeed in her claim”.
The judge found, on the balance of probabilities, that Mr Jamil’s decision to continue to act as an expert in the case caused the NHS trust to incur “all of its costs” after November 2017.
“Whilst it would not be right to use him as an example to send a message to experts, it is right that experts should all understand the importance of their duties to the court and the potential consequences if they fail in them.
“The consequence for the claimant was that she lost her entitlement to have her case tried on its merits. A considerable amount of court time has been wasted. And there were significant consequences to the NHS in terms of costs.
“I have sympathy for Mr Jamil’s personal position – it is clear from reading about his personal circumstances and his psychiatric difficulties that he has had a very difficult time. But the balance comes down firmly in favour of the defendant.”