As we start the New Year, and perhaps whilst not a cause for 'fireworks' in the medical malpractice world, the recent High Court Judgment of Lochrie v Edwards (Judgment handed down on 7 January 2025) serves as a stark reminder as to the importance of an expert's experience (or rather lack of experience) when providing an opinion.

What was the case about?

The Claimant, Rebecca Lochrie, brought a claim against the Defendant, Mr Matthew Edwards, a consultant ophthalmic surgeon. It was alleged that the Defendant failed to obtain the Claimant's consent for laser-assisted in situ keratomileusis (“LASIK”) laser eye surgery on 10 March 2016.

The Claimant's case on breach of duty focussed on an allegation that the Defendant failed to adequately investigate her ophthalmic condition prior to the LASIK surgery (the Claimant had an underlying dry eye condition, with meibomian gland disease). The Claimant alleged that this had implications for the scope of the information that had to be provided to her, and that the Defendant had therefore failed to identify and discuss the risk of permanent dry eyes before undergoing LASIK surgery.

As a result of the surgery, the Claimant suffered with dry-eye problems and developed chronic corneal pain (corneal neuralgia, sometimes called corneal dysesthesia) which has had a substantial and disabling effect on her daily life. She described ongoing disruptive dry eye symptoms, burning pain in the eyes, excessive tears, visual disturbances and photophobia.

This was, therefore, a case focussed solely on consent. There was no allegation that the surgery was performed negligently.

The Defendant denied the allegations, on the basis that he did advise the Claimant of these risks during his initial consultation. He also relied on the consent form and patient guide, which he maintained had been given to the Claimant two weeks before surgery. This included information on the risks of temporary and permanent dry-eye problems. The Claimant alleged, however, that she did not read any information on the risks contained in the consent form or patient guide, and relied only on the discussion with the Defendant, who had played down these risks. The Claimant initially alleged that she only received the consent form on the day of surgery, but later conceded that she had in fact received it well in advance of surgery.

The issues for the experts

A key issue for the Judge to consider was whether the Claimant should have been identified as a 'high risk' patient. The Judge found that this was a matter for expert evidence. Not surprisingly, the experts called by each party had different opinions on this.

Notably, the Defendant's expert, Mr Morris, had performed well over 10,000 LASIK procedures. In support of the Defendant's denial of breach of duty, he considered that the Claimant was a patient with a low risk, due to her young age and the low eyesight correction that was required. He did not believe that her history of anxiety and depression was a matter that necessitated special consideration by the Defendant.

Conversely, the Claimant's expert, Mr Walker, was of the opinion that the Claimant was a patient with a higher risk of suffering complications than average due to her underlying conditions and her history of anxiety and depression. The Claimant's expert was however somewhat lacking in experience in LASIK surgery (to put it mildly). He had, in fact, performed zero. Instead, he relied on his experience as a general ophthalmic consultant and on his academic research.

HHJ Baddeley, in dismissing the claim, specifically referred to the experience of the Defendant's expert as to why he preferred his evidence over that of the Claimant's: "…. Mr Walker is not a laser eye surgeon and has not conducted LASIK surgery. He was unable to opine based on his own personal experience."

The Judge therefore did not accept the Claimant’s case that the Defendant’s failure to take a more detailed history meant that he missed information that would have necessitated a different explanation of risk.

The Judge also preferred the Defendant's version of events - that he did refer to the risk of the Claimant suffering from permanent dry eye problems, both at the consultation and in the consent form, which was provided well in advance of the date of surgery.

Discussion

In the post-Montgomery world, it is sometimes suggested that the role of the experts has been diminished when assessing allegations of breach of duty involving consent. Whilst it is true that the evidence of the patient, the doctor and the medical records will often be the focus of consent allegations (as to what risks were discussed), this case illustrates why expert evidence still has a crucial role to play when assessing what risks are 'material'.

In consent claims, it is often the patient's word versus the surgeon's word, so in that sense expert evidence is not always determinative, but expert evidence was relevant in Lochrie as there was an issue about the known risk of permanent dry eyes at the time.

An expert's CV is perhaps not the first document defendants and their insurers may consider when considering a claimant's expert evidence. In closely run cases, however, this case serves as a timely reminder as how the experience of your expert, or the other side's expert, can tip the balance at trial, one way or the other.

Long before trial, however, such questions on experience can be put to the other side's experts, by way of Part 35 questions, or at the joint meeting. Questions such as 'Please set our your experience in [insert procedure]', or 'how many [insert procedure] surgeries have you performed?' are an obvious way to draw this out from your opposing party's expert.

The key takeaway for claimants and defendants is simple: pay close attention to an expert's CV before instructing them. An expert with no experience in the area they are reporting in should be seen as a 'red flag'. As this case demonstrates, academic research may not be enough to persuade a Judge. Perhaps Albert Einstein said it best: “If we knew what we were doing, it would not be called research.”

From a risk management perspective, surgeons (as well as hospitals and clinics) should make sure that the consent form and any patient guides are sent to patients well in advance of the day of surgery, ensuring that there is an evidence / audit trial to support this.