For a clinician or therapist, the prospect of getting involved in medico-legal work can be exciting. It is an opportunity to consider clinical issues from a different perspective: what are the injured person’s reasonable needs and how can these needs be met, with the possibility of no funding restrictions?
There is an opportunity to assess injured people in their own time, working around other professionals and family commitments. There is the potential to be challenged, in a constructive way, by barristers and solicitors, further strengthening and improving their knowledge and area of expertise.
The risks of undertaking medico-legal work
However, in addition to the benefits, there are risk areas that aspiring medico-legal experts need to be aware of before building a medico-legal practice.
A medico-legal expert can now be liable in negligence to the party who instructed them or to the injured person whom they represent. They used to enjoy immunity.
That was removed by the Supreme Court in 2011; the Supreme Court ruled in the case of Jones – v – Kaney [2011] UKSC 13 that expert witnesses are no longer immune from being sued for the evidence they give in court.
Experts had enjoyed immunity from civil proceedings being brought against them for the previous 400 years.
The Court of Appeal’s Judgment in General Medical Council – v – Meadow [2006] EWCA Civ 1390 also found that a professional can be subjected to disciplinary proceedings by their own regulatory bodies for wrongdoings arising from their roles as expert witnesses.
The Court can make a cost order against an expert and subject an expert to extensive criticism, which may adversely affect their reputation. Court Judgments are available to the public. Judges will not pull any punches.
For example, in a recently unreported case of Thimmaya – v – Lancashire NHS Foundation Trust, a Consultant who had been instructed by the Claimant was ordered by the Court to pay costs totalling £88,801. The expert had been “wholly unable to articulate the test to be applied in determining breach of duty”.
The Judge took the opportunity to state that “it is right that experts should all understand the importance of their duties to the Court and the potential consequences if they fail in them”. The Judge had been influenced by the fact that the expert’s conduct had caused the Defendant NHS Trust to be put to unnecessary expense.
How to mitigate against the risks?
Before a medico-legal expert accepts instructions, they should carefully consider that the matter to be reported on falls within their area of expertise. They should also think through whether they have the time to commit to what is being asked of them now and may be asked of them in the future.
A lack of time will not be an effective defence to avoid liability in negligence or criticism.
A medico-legal expert should seek assurances about what they can expect from the law firm who is instructing them. This will avoid any late and unnecessarily urgent instructions. It should also ensure that all of the relevant evidence is sent to the expert. Any Court Orders should be sent to the expert.
A medico-legal expert should ensure that a thorough assessment is undertaken. In the report, if assumptions have been made, they should be stated. The evidence and any documents considered should be listed. An indication that the expert will re-consider their opinion upon receipt of further evidence is sensible.
If there are any limitations in respect of the assessment then these should be stated clearly.
After reporting, an expert should keep an open mind and not become too entrenched in their view. If there is further evidence which causes them to change their opinion, they should not be afraid to do so; an explanation for the change of opinion should be provided in the report.
It is the expert’s report, not those that are instructing them.
Before a joint statement or trial, preparation is absolutely crucial. An expert should ensure that they have seen all of the available and relevant evidence and that they have given themselves enough time to refresh their memory and read any additional material.
Sufficient time should be kept available for preparation time. The joint statement process should take as long as the experts need to prepare a helpful report which clearly sets out their areas of agreement and the areas of disagreement with reasons why agreement cannot be reached.
At trial, the expert should answer the question clearly and carefully. There is no need to rush. They should keep an open mind and accept sensible points put to them.
After any report, conference, joint statement or trial, an expert should also seek feedback.
What is clear is that deciding whether to embark on medico-legal work requires careful consideration about the various factors, however, when embarked upon with these in mind it can be a very rewarding experience and it is essential for litigators to be able to draw upon first class clinical expertise in order to secure the right outcomes in personal injury claims.
David Withers is a partner and solicitor-advocate at Irwin Mitchell LLP, leading a team specialising in neuro-trauma and other serious injuries such as amputations or significant poly-trauma.
Irwin Mitchell can provide training to healthcare professionals with an interest in medico-legal report writing. In addition, there are some training courses available at https://www.ewi.org.uk/.
