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Experts in contempt - amend reports at your peril...
Medical reports are often meticulously scrutinised in personal injury claims. They provide an overview of the claimant's personal account to his or her expert of their symptomatology, past medical history and the circumstances of their accident. Sometimes, a claimant may suggest that their report does not quite accord with the symptoms they say are ongoing. Should medical experts simply alter their reports to satisfy claimants, in the absence of any evidence to demonstrate that these symptoms are ongoing?
The Court of Appeal has today handed down its decision in Liverpool Victoria Insurance Company Limited v Dr Asef Zafar, which concerned an appeal against the sentence of the Respondent for contempt of court. The case provides a stark warning for medical experts who make a false statement in their reports without any honest belief in its truth.
The Respondent was a registered general practitioner working for the NHS. He also had a private practice in medico-legal work, producing approximately 5,000 reports a year, which provided him with an annual gross income of £350,000.
On the 3rd December 2011, an individual named Mr Iqbal was involved in a road traffic accident. Mr Iqbal wished to make a claim for compensation for the injuries he alleged he sustained and for subsequent loss. Mr Iqbal approached a claims management company. A solicitor was then instructed on his behalf, namely Mr Khan of TKW solicitors ("TKW").
TKW instructed the Respondent to prepare a medico-legal report ("the Original Report") in respect of Mr Iqbal's injuries. Mr Iqbal was seen by the Respondent some 11 weeks after the index accident had occurred. The Original Report was dictated in the presence of Mr Iqbal and was signed electronically. It noted that Mr Iqbal had developed pain and stiffness in his neck on the day of the accident and that those symptoms were due to a whiplash injury. It was further noted that those injuries resolved one week from the day of the accident. Mr Iqbal was recorded as having taken analgesia four hours after the accident and that "treatment finished one week later". The Respondent concluded in the Original Report that Mr Iqbal had fully recovered from his injuries.
The Respondent produced a declaration at the end of the Original Report, stating that he understood that his overriding duty was to the Court. He further declared that he was aware of the requirements of Part 35 of the Civil Procedure Rules. Beneath that declaration, the Respondent had signed a statement of truth.
The Original Report was later sent to TKW. Mr Iqbal subsequently rang TKW to express that he was not happy with the prognosis provided, as he said he had informed the Respondent that his acute injuries had settled in 1-2 weeks, but had experienced ongoing neck, shoulder and wrist pain thereafter.
Mr Khan purported to write a letter to the Respondent on the same day, asking the Respondent to review his notes of the consultation and, if appropriate, prepare an amended report complying with Part 35. The Trial Judge found that Mr Khan had fabricated this letter and that no such letter was written.
Two days later, Mr Khan sent an email that was forwarded to the Respondent, saying: "...given our client is suffering severe to moderate pain in his neck and upper back, now over two months from the date of the accident, is it likely he will recover over the next 6-8? If so, can you please amend your report...". One of the Respondent's secretaries confirmed that the only symptoms noted by the Respondent in the consultation had resolved after one week. The Respondent's secretary however offered to make amendments to the report if the Respondent wished for him to do so.
A revised report ("the Revised Report") was produced later that day, which appeared identical to the Original Report, save that it stated that Mr Iqbal's symptoms had not resolved and would fully resolve between 6-8 months from the accident date.
Later in the course of proceedings, a paralegal who was tasked with preparing the trial bundle mistakenly included in it the Original Report. The trial was subsequently adjourned and witness statements by both parties were prepared.
A witness statement provided by the Respondent, dated the 20th August 2013, asserted that the correct report was the Original Report, which had been altered without his knowledge and without his permission. Yet, on the 5th September 2013, the Respondent (when speaking to the Appellant's solicitor) realised that he should not have made that witness statement. He then asserted that he himself had amended the Original Report. A further witness statement by the Respondent, dated the 22nd October 2013, was made to that effect and confirmed that the correct report was indeed the Revised Report.
Proceedings were brought against the Respondent, Mr Khan and two others seeking their committal for contempt of court. The Trial Judge, Mr Justice Garnham, found that some, but not all, of the allegations of contempt against the Respondent and Mr Khan were proved. Mr Khan was sentenced to 15 months' immediate imprisonment. The Respondent was sentenced to 6 months imprisonment which was suspended for two years. The Respondent was further ordered to pay the entire costs of the proceedings against him.
The Appellant's appealed the Respondent's sentence.
Court of Appeal
The appeal against the Respondent's sentence came before Sir Terence Etherton MR, Hamblen LJ and Holroyde LJ.
The Appellant argued that the Trial Judge's order was plainly wrong, as the Respondent's conduct was so serious that a longer term of imprisonment of immediate effect was necessary. The Respondent however argued that the suspended sentence in this case could not be said to be so lenient as to justify the Court's interference with it.
The Court stated that the deliberate or reckless making of a false statement in a document verified by a statement of truth will usually be so inherently serious that nothing other than a committal to prison will be sufficient , which is so whether the contemnor is "a claimant seeking to support a spurious or exaggerated claim, a lay witness seeking to provide evidence in support of such a claim, or an expert witness putting forward an opinion without an honest belief in its truth". The Court said that it would make matters even more serious in the case of an expert witness if they were acting corruptly and made the relevant false statement for reward. Nonetheless, it will still be a serious contempt even if the expert witness does or does not have financial motivation behind their action, because of the reliance placed on expert witnesses by the Court.
The Court took the view that an expert witness who recklessly makes a false statement in a report or a witness statement verified by a statement of truth will usually be "almost as culpable as an expert witness who does so intentionally" . The Court noted that the extent to which an expert witness persists in perpetuating the false statement was relevant to their culpability. The Respondent had not admitted his wrongdoing at any point during contempt proceedings against him.
The Court held that the Trial Judge's order for committal was wrong: the term of committal should have been longer than 6 months and the sentence should have been ordered to be served immediately. This was on the basis that the Court considered that the Respondent was motivated by a concern for financial profit, he continued to persist in his conduct putting forward false statements on three different occasions (one of which he acted with deliberate dishonesty) and he also cast the blame on others.
Despite this, the Court did not impose a more severe sentence, as they considered that the guidance they had provided in their judgment was not previously available to those sentencing for contempt of court.
The appeal was therefore allowed and it was noted that the sentence below was unduly lenient.
The Respondent did not have any evidence to substantiate the Claimant's altered prognosis, and failed to re-examine him or indeed have another consultation. Despite this, he was willing to amend the Claimant's medical report and suffered the consequence of being found in contempt for doing so. This judgment emphasises the need for experts to comply with their duties under CPR Part 35 and to only provide contents in respect of a medical report that they hold an honest belief in.
by Dominique Smith