EXP v Barker

The Bolam inquiry asks whether the defendant acted in accordance with a practice accepted as proper by a responsible body of relevant medical opinion. A court must not simply prefer one of two expert views if both are capable of logical support. In the exceptional case where an opinion cannot withstand logical analysis, it may be rejected. Admission of expert evidence does not require its acceptance, and a court may substantially reduce its weight where the expert’s independence and objectivity are materially compromised. The court upheld the finding that a competent neuroradiologist should have treated the MRI findings as requiring further investigation.

EXP alleged that Dr Charles Simon Barker negligently failed in April 1999 to identify and report an aneurysm shown on an MRI brain scan. The aneurysm ruptured in 2011, causing severe injury. Causation had been conceded before trial.

Kenneth Parker J found that the aneurysm was present in 1999 and that a competent neuroradiologist should have identified the abnormality and sought further investigation: [2015] EWHC 1289 (QB). Dr Barker appealed, alleging misdirection on the Bolam test, improper balancing of expert opinions, failure to evaluate his expert’s evidence, and excessive reliance on concerns about that expert’s independence. The central issue was whether the judge had lawfully assessed the competing expert evidence.

Disposition

1. The appeal was dismissed. Irwin LJ gave the leading judgment, with Henderson LJ and Black LJ agreeing.
2. The judge correctly identified and applied the Bolam test. References to what a reasonably competent neuroradiologist would have done did not impose an individual or absolute standard. They expressed the question whether a competent practitioner could reasonably regard the scan as requiring no further investigation.
3. The principles in Maynard and Bolitho did not require automatic acceptance of Dr Molyneux’s evidence once it had been admitted. The court must not merely prefer one of two opinions both capable of logical support. Only in the rare case where the relied-on professional opinion cannot withstand logical analysis may it be rejected on that ground. This was a conventional Bolam case, supported by evidence that the aneurysm was present and that a responsible neuroradiologist should have referred EXP for further investigation.
4. Expert independence is fundamental to the adversarial system. The judge was entitled to exclude Dr Molyneux’s evidence or substantially reduce its weight because of the undisclosed and close professional relationship with Dr Barker, the failure to disclose a possible conflict, and the failure to address known deficiencies in related evidence. Eminence and technical competence did not require the judge to accept the evidence.
5. The judge was entitled to prefer Dr Butler’s evidence and rely on supporting evidence from Mr Kirkpatrick. The judge’s ordering of the factual conclusions could have been clearer, but there was no substantive error and no improper use of aftercoming evidence in deciding negligence. The appeal was therefore dismissed.

1. Court of Appeal (Civil Division) — The appeal from the High Court was dismissed: [2017] EWCA Civ 63.
2. High Court, Queen’s Bench Division — Kenneth Parker J found Dr Barker negligent in failing to identify and report the aneurysm: [2015] EWHC 1289 (QB).