MEDICO LEGAL M A G A Z I N E
THE PRIMACY OF INDEPENDENCE AND OBJECTIVITY IN EXPERT EVIDENCE – A REVIEW OF EXP V BARKER [ 2017 ] EWCA CIV 63. By Jonathan Godfrey LLB – Barrister, Parklane Plowden Chambers, Leeds jonathan.godfrey@parklaneplowden.co.uk
For those medical practitioners involved as experts in the medico-legal field, the Court of Appeal decision in EXP v Barker [ 2017] EWCA Civ 63 is a salutary read reinforcing the principles of independence and objectivity in the provision of expert evidence.
The Background Facts The Defendant brought an appeal as against the decision of Kenneth Parker J of 7th May, 2015. He had decided that the Defendant was negligent in failing to identify and report the presence of a right middle cerebral artery aneurysm in the course of his review of an MRI scan of the Claimant’s brain in April, 1999. In March, 1999, the Claimant, a barrister, experienced visual disturbance. An MRI scan was organised and was subsequently reviewed by the Defendant, a then consultant neuroradiologist. By 2011, the Claimant had been appointed a district judge. On 8th September, 2011 she collapsed in her home and lost consciousness. A CT scan revealed an acute parenchymal haemorrhage centred on the right temporal lobe. The bleed had been caused by a ruptured aneurysm. Emergency surgery was performed. At the trial at first instance the issue was relatively
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narrow, namely whether the MRI scan in 1999 did indicate the presence of an aneurysm which a reasonably competent neuroradiologist would have identified and reported. Each side instructed their own neuroradiologist expert. Dr Butler for the Claimant and Dr Molyneux for the Defendant. Each side instructed neurosurgical expert evidence from Mr Kirkpatrick and Mr Byrne, respectively. Mr Byrne’s reports went almost exclusively towards causation. As it happened causation was conceded shortly before trial. There had been a court direction in the case which specified that “experts will, at the time of producing their reports, incorporate details of any employment of activity which raises a possible conflict of interest“. During the course of cross examination at trial it emerged that “the connection between Dr Barker and Dr Molyneux had been lengthy and extensive“. In particular, Kenneth Parker J at Paragraph 52 of his judgement noted:
i. Dr Molyneux had trained Dr Barker during his 7 years of specialist radiology training and in particular had trained him for 2 ½ years as a registrar and senior registrar in neuroradiology;
