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Legal Mind Case and Commentary No 22: Maintain robust and impartial opinions during the Joint Statement process [Koch HCH, Nolan L, Milner P & Adeleye N, 2019]

26/08/19. This is the twenty-second in a series of Case reports and Commentaries from Dr Koch and colleagues.

Legal Mind Case and Commentary No. 22

Case: Yah v. Medway NHS Foundation Trust (2018) EWHC 2964 (QB)

This case held in the High Court of Justice Queen’s Bench Division covers the potential psychological injuries suffered after a claimant had a baby, as a response to her experience at birth afterwards. Mood disturbance occurred later, triggered in large part by a recognition of the extent of the baby’s, brain damage. This recognition came later in time and was more remote than the negligence itself. However, all these causes were material to the outcome, and inextricably bound up with it.

A considerable part of this judgment centred on the expert evidence from two psychologists, especially as part of the Joint Statement process. There were also issues surrounding the primary/secondary distinction.

Commentary

The judgment clearly illustrates how the presiding Judge found several aspects of one expert more plausible and helpful to the Court than the other experts. These have been itemised below with specific reference to this case when illustrative: -

Claimant expert Dr. T.

  1. He explained the difficulties presented by the claimant’s case in diagnostic terms preferring to concentrate on symptom cluster and narrative initially.

  2. He identifies an Adjustment Disorder with Anxiety.

  3. He described her human reaction of “trying to keep going”.

  4. He had tried to differentiate between the many different anxiety disorders and ‘fit a round peg of clinically significant symptoms into a square hole of clarification’ – a difficult exercise. He therefore concentrated on the link between her experiences and her symptoms, rather than focusing on clarification in the first instance.

  5. He gave evidence in a ‘compelling’ way, having ‘thought carefully’. He tried to explain the claimant’s symptoms, first and foremost, before coming to a conclusion on clarification.

Defendant expert Dr F.

  1. She was confused in her evidence (general comment).

  2. She diagnosed depression and a generalised anxiety disorder which was largely genetic in origin.

  3. The Judge did not think she had significant experience in this field.

  4. Her assessment was mistakenly coloured by her initial instruction (general comment).

  5. She overemphasised the claimant’s underlying vulnerability and possible guilt feelings.

  6. The Judge found her reasoning on causation “unclear”, “unhelpful”, “overly dogmatic about clarification”.

  7. The Judge disliked her stated preference for working for defendants.

  8. Her approach to reviewing the hospital records and her defensiveness in answering questions about the records was not plausible.

  9. Her analysis that the claimant’s mental illness has not been caused, in any significant way, by the claimant’s response to when the baby was born and shortly afterward does not fit well with the evidence.

The expert needs, when presenting his/her evidence in the initial report(s), the subsequent joint statement(s) and finally if and when appearing in Court, to present an impartial and concise approach (Koch, Sorrell and Fernandez-Ford, 2018) and alter, change or modify their opinion only after being presented with significant new or confounding evidence (Koch and Thorns, 2016).

One aspect of considerable relevance is the issue of how a claimant’s experience and symptom presentation is taken on board and considered by the expert before then being ‘pigeonholed’ into the ‘best fit’ diagnosis. The difference in diagnosis between the two experts did not necessarily have to indicate a fundamental difference between them except that in the case of Dr F, the defendant expert, her diagnosis reflected a significant difference in causation.

The formulation and psychological conceptualisation of the claimant’s symptoms and their origin in relevant precipitating factors could be useful to delineate prior to any proposed diagnosis. Such an approach facilitates a more meaningful and rigorous framework within which to propose attribution, as well as the opportunity to elaborate within a theoretical paradigm causative factors. This would also allow for the identification of any pertinent predisposing vulnerabilities.


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