Background

In a previous blog I wrote about the decision in Robinson v Liverpool University Hospital NHS Foundation Trust v Mercier – which resulted in a £50,543 third party costs order against a dental expert witness who was subject to severe criticism, including the observation that his evidence was “simply absurd.”

The expert had expressed the opinion that a dental surgeon’s examination was deficient because it did not identify that the referral and x-rays (which recorded a tooth that in fact had already been removed) were both out of date.

Under cross-examination, the expert had agreed that since the patient was under general anaesthetic when the error was discovered – and hence could not be consulted – that the conservative course was to leave the tooth in place.  It seems likely that it was that concession which resulted in the patient claim being withdrawn – but that is speculation on my part, the Court did not make a specific finding.

The Appeal

In Robinson and Liverpool University Hospitals NHS Trust and Mercier [2023] EWHC 21 (KB) the High Court held that:

• It was true that the expert was not a maxillofacial surgeon – but the procedure was one that would have been carried out by a general dental practitioner but for the patient’s “morbid fear of dental procedures,” and there was no suggestion that it was not within the competence and scope of the clinical practice of a general practitioner dentist.
• There was nothing illogical or partisan about the expert’s conclusions, supported at least in part by the other expert and by the dental surgeon’s own acknowledgement of his error.
• The judge at first instance was wrong to conclude that the expert “had stepped outside the boundary of his expertise in giving his opinion about breach of duty and causation” and it was “not an exceptional case and did not involve a flagrant or reckless disregard of an expert’s duty to the court.”

The expert was successful in having the Third Party Costs Order set aside.