Medical malpractice and the importance of selecting the right expert

Professional negligence claims must be supported by expert evidence to demonstrate that the alleged conduct fell below the standard of a reasonably competent professional, as required by the Bolam test. In healthcare, it is not enough to simply obtain medical expert evidence, the expert’s speciality must align with the issues and allegations in the claim.

Establishing the necessity of expert evidence

Pantelli Associates Ltd v Corporate Developments Number Two Ltd [2010] EWCH 318 (TCC)

In the case of Pantelli, the absence of any expert evidence was key in the decision by the court to find that a counterclaim of negligence was unsuitable and appropriately struck out. As a rule of thumb, the case of Pantelli confirmed that an expert is needed to show what the standard of care is and how this standard has been breached.

Expert evidence must be profession-specific

Avondale Exhibitions Ltd v Arthur J Gallagher Insurance Brokers Ltd [2018] EWHC 1311 (QB) (31 May 2018)

Further to Pantelli, in Avondale H.H. Judge Keyser QC stated that “it is usual for a court to require expert evidence as to the standards ordinarily observed within a profession before it will find that a professional’s conduct amounts to negligence”. The court described the lack of expert evidence in Avondale “striking and significant” and noted that this limited, but did not exclude, the possibility of a finding of breach. Avondale also highlights that expert evidence must be from an appropriate discipline.

Expert reports must be from an appropriately qualified professional

Quaatey v Guy’s & St Thomas’ NHS Foundation Trust [2020] EWHC 1296 (QB) (21 May 2020)

When considering detailed medical evidence during the claimant’s appeal in the 2020 case of Quaatey, Mrs Justice Lambert upheld the previous decision of Master Cook to strike out the claim. She concluded that “an allegation of professional negligence must be supported by a written report by an appropriately qualified professional, [the absence of which means] the claim is liable to be struck out as an abuse of the court’s process”. The claimant was also ordered to pay the costs of the appeal.

Importance of selecting the correct experts and explaining their relevance

Read v North Middlesex Hospital Trust [2025] EWHC 1603 (KB)

Fast forward to 2025 and the importance of expert evidence together with selecting the appropriate expert has been highlighted in the case of Read. Master Thornett stated here that a clinical negligence claim that lacks specificity and shows no objective impression that it is, or could reasonably be, supported by independent expert opinion should be struck out.

The claim related to A&E department attendances and alleged negligent treatment relating to a spinal injury and subsequent surgery, including orthopaedic treatment. The claimant had obtained expert medical evidence from a neurosurgeon and spinal surgeon, which were considered inappropriate for the alleged negligent treatment. The claimant later relied on amended particulars of claim and obtained further expert evidence from experts in emergency medicine, orthopaedics and neuro-spinal surgery. It was not explained why each of these three disciplines were relevant to the claim concerning breach of duty and causation, and the court struck the claim out. The rule of QOCS was disapplied, showing that protection of costs is no shield for substantively unviable claims that lack appropriate expert evidence.

Conclusion: key principles when instructing medical experts

Selecting the right medical expert is not a procedural formality, it is a critical component of establishing breach of duty and causation in any clinical negligence claim. Courts have repeatedly emphasised that the key points to consider when selecting a medical expert are:

1. Ensure the expert’s speciality aligns with the injuries and issues before serving the particulars of claim. An expert outside the relevant field risks undermining the entire evidential foundation.
2. Consider whether multiple experts are genuinely necessary. Where a case involves several disciplines, the relevance of each must be clearly justified and explained.
3. Assess early on whether expert evidence supports the allegations. A claim lacking credible expert support is vulnerable to being struck out at an early stage.

Major impacts of choosing the wrong medical experts include:

1. The case may be struck out for lacking the necessary evidential basis.
2. Cost consequences can be severe, including the disapplication of QOCS, exposing claimants to adverse costs orders.
3. Delay and duplication of work may occur if new experts must later be instructed, weakening the claim’s coherence and credibility.

What should I do as a defendant/insurer?

The case law demonstrates consistently that the success of a clinical negligence claim depends not just on obtaining expert evidence, but on obtaining the right expert evidence. Careful and early consideration of expert selection can prevent claims from failing prematurely and protect both claimants and legal teams from avoidable risks.

Juliet Campbell - Complex Paralegal – Healthcare & Sport