From ‘the other side’ – Part 2

In the second of his two articles, Brian Franks explains the process involved when the complaint moves to the next stages.

By Dr Brian Franks BDS (U.Lond), LDS RCS (Eng), MFGDP (UK), FPFA ACIArb

In the first article, I covered the Letter of Advice, namely Liability and Causation, where my duty is to the client. (This does not mean that there is any partiality towards the client and I must reiterate that the report of a Dental Expert Witness is always impartial and based on factual evidence).

This initial Letter of Advice advises whether there is a potential claim for negligence against the dentist. Sometimes, the lawyers may come back to me with additional points or for clarification of the points raised in the Report. I would then respond to these enquiries.

Sometimes, the evidence presented to me does not point towards any proposed negligent action(s) by the dentist and I would inform the lawyers as such and the case would not proceed. However, in the event that there may be a negligent act or acts, and the matter cannot be settled at this stage and the case proceeds to litigation, I am instructed to prepare a Report for these purposes and my duty is then to the Court.

The specific Report required is Condition and Prognosis. The Report has to be prepared in a format required by the Court Rules. Sometimes, the initial Liability and Causation Report will also need to be adapted to follow the Court Rules.

The Court Rules oblige you to present the Report in a very specific way.

  • Expert evidence should be the independent product of the expert, uninfluenced by the pressures of litigation.
  • Experts should assist the Court by providing objective, unbiased opinions on matters within their expertise and should not assume the role of an advocate.
  • Experts should consider all material facts, including those that might detract from their opinions.
  • Experts should make it clear –
    a) When a question or issue falls outside their expertise; and
    b) When they are not able to reach a definite opinion, for example because they have insufficient information.
  • If, after producing the Report, an Expert’s view changes on any material matter, such change of view should be communicated to all the parties without delay, and when appropriate to the Court.

Form and content of an Expert’s Report

  1. An Expert’s report should be addressed to the Court and not to the party from whom the Expert has received instructions.
  2. An Expert’s Report must:
  3. Give details of the Expert’s qualifications.
  4. Give details of any literature or other material that has been relied on in making the Report.
  5. Contain a statement setting out the substance of all facts and instructions that are material to the opinions expressed in the Report or upon which those opinions are based.
  6. Make clear which of the facts stated in the Report are within the Expert’s own knowledge.
  7. Say who carried out any examination, measurement, test or experiment which the Expert has used for the Report, give the qualifications of that person, and say whether or not the test or experiment has been carried out under the Expert’s supervision.
  8. Where there is a range of opinion on the matters dealt with in the Report –
    a) Summarise the range of opinions; and
    b) Give reasons for the Expert’s own opinion.
  9. Contain a summary of the conclusions reached.
  10. If the Expert is not able to give an opinion without qualification, state the qualification and
  11. Contain a statement that the Expert –
    a) Understands their duty and has complied with that duty; and
    b) Is aware of the requirements of ‘Part 35’, this practice direction and the Protocol for Instruction of Experts to give Evidence in Civil Claims.

An Expert’s Report must be verified by a statement of truth in the following form –

‘I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge, I confirm to be true. The opinions I have expressed, represent my true and complete professional opinions on the matters to which they refer.’
The Condition and Prognosis Report requires the patient to undergo a clinical examination. This would be undertaken and presented under relevant headings, including:

  • Relevant medical history.
  • Patient’s concerns.
  • Extra-oral examination.
  • Soft tissue examination.
  • Periodontal examination.
  • Occlusion.
  • Examination of teeth.
  • Radiographic evidence (including radiographs deemed necessary to be taken at this examination).
  • Condition and Prognosis – the current dental condition is recorded along with the prognosis of any treatment required.
  • Researched evidence would be quoted at this stage, along with the balance of probability of future treatment.
  • Range of opinion. This would state what the range of opinion among dental practitioners with similar expertise to myself would be, for example this would invariably be small.
  • Proposed treatment. This would list any proposed remedial or consequential treatment required, including all the options and fees.

This is followed by the Expert’s Declaration and a list of references.

Unlike the initial Letter of Advice, this ‘formal’ Condition and Prognosis Report is disclosed to the defendants.

A Letter of Claim can be sent to the defendant’s defence organisation from the patients’ lawyers before I have been instructed to report on Liability and Causation or after. In either scenario I am asked to comment on the Letter of Response from the defendant’s defence organisation and any consequential correspondence received. This is where I pit my wits and ‘spar’ with the defence organisations!

In reality, the majority of cases are settled without recourse to a Court hearing.
I have, however, been summoned to Chambers on more than a few occasions to discuss the cases (but as yet have not been requested to attend Court).
The meetings at Chambers have been attended by the patient, the patient’s lawyer, the barrister, myself and any other expert witness who consulted in the case. At this meeting the barrister seeks clarification on various points of the case. I am at this point informed that if there are court proceedings, I will be required to attend as the expert.
I hope these two articles have given you some insight ‘from the other side’, and been useful and helpful risk management tools.

Dr Brian Franks

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