In the highly unusual case of Mrs Samantha Thimmaya v Lancashire NHS Foundation Trust, the expert witness - Mr Firas Jamil - was ordered to pay £88,800 to cover the costs wasted as a result of his evidence.
Mrs Thimmaya brought a clinical negligence case in respect of treatment received at a hospital managed by Lancashire Teaching Hospitals NHS Foundation Trust. Consultant spinal surgeon and Medico-Legal Expert - Firas Jamil - had been asked by the claimant’s solicitors to confirm his suitability to give expert evidence.
At the trial, Mr Jamil was “wholly unable to articulate the test to be applied in determining breach of duty in a clinical negligence case”, resulting in the claimant having no option but to discontinue her claim - and the defendant incurring unnecessary costs.
During the application by the defendant for costs to be awarded against Mr Jamil, it was noted that he had only twice - under supervision - conducted the surgery that was the subject of the original complaint. He was also suffering from a psychiatric illness which had caused him to retire from clinical practice.
Counsel for Mr Jamil stated that, in hindsight, Mr Jamil accepted he was not fit to give expert evidence at the time of the trial, due to mental health problems.
At Manchester County Court Her Honour Judge Claire Evans stated that Mr Jamil owed important duties to the court and had ‘failed comprehensively’ in those duties.
She added:
“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.”
Judge Evans noted there are cases where an expert gives an opinion although lacking relevant experience. However, not all these experts should find themselves liable to pay wasted costs.
Whilst expressing sympathy for Mr Jamil’s personal position, Judge Evans concluded that the balance came down in favour of the defendant’s application for wasted costs.
This case serves to highlight the importance of Medico-Legal Experts duties to the Court and the potential consequences when they fail in those duties.
