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Things that go bump in the expert witness box

Case law has supported expert witness immunity in Court proceedings for hundreds of years. The 2011 case of Jones v Kaney changed that. Expert witness Kaney was found liable for the reduced settlement achieved by Jones.

The case turns on a very particular set of facts and probably does not alter the risk profile of expert witness work done significantly – providing the expert is experienced and sticks to their brief and area of expertise. Independent Practitioner Today, a leading publication for private medical business wisely advises medico-legal experts not to be ‘guns for hire’.

The risk of this case has changed the amount of Professional Indemnity Insurance that some experts wish to buy. When considering the risk the following points are worth considering:

  • The expert instructed by the claimant in Jones v Kaney not only changed her mind, reducing her diagnosis from PTSD to anxiety syndrome or similar, she also (perhaps unwittingly) became a signatory to a joint expert witness statement which said the claimant was deceitful in his reporting of symptoms. I think the reporting expert would have been secure in simply changing her mind against a backdrop of changed information or a different expert opinion, the real problem was the reference to deceit which was not part of her brief and arguably an area where she was not qualified to comment.
  • The take away from this is that experts must not stray outside their area of expertise or brief.
  • Please note that deceit was mentioned, yet a defamation claim did not proceed, thus illustrating the expert witness immunity from a defamation suit (Jones and Kaney specifically preserved this defence).
  • The measure of damages is worth a moment of reflection. In this case liability was admitted so a direct casual link could be drawn between the expert’s action and a reduction in damages. Note the loss was the difference between a successful claim for PTSD and one for a less significant psychiatric condition. I think the monetary difference (not stated in the report) would be around £5,000 at most from what we know.
  • The judgement is 7 years old and there have not been a deluge of cases and doctors still come forward to carry out reports.
  • Wider implications need to be seen against the backdrop of the risks of litigation generally where liability is in dispute and equally importantly, where causation is in doubt. Jones and Kaney was trumpeted  at the time, but really was a case that turned on a set of very individual facts.
  • Underwriters are not opening themselves up to seven figure claims. At worst, the negligent expert is exposed to the extent of the detriment of the one party’s case, which will not be the whole claim.

Potential numbers of cases will be reduced by liability arguments as well as causation arguments and then the expert needs to stray off topic… This leaves a small number of potential cases. MRSL has been involved  in thousands of settlements over the last 7 years and has not seen these circumstances (ie an action against a reporting expert) recur.

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