I’m often asked by colleagues what makes a good medico-legal expert in complex high value (multi-track) cases. It’s something I’ve thought about a lot since I started doing this kind of work and something I’ve discussed with solicitors, time and again.
A commitment to the caseload
Being a medical expert witness is not a trivial undertaking. People should certainly not view this work as an easy way to make money. Of course, it’s possible to make a good living, but only for people who have something valuable to offer.
It’s also a competitive business, so being as good as you can be makes a big difference to the number of instructions you will receive. Like most aspects of professional life, the more you put into it the more you get out in several ways.
First and foremost, medico-legal expert work requires real commitment in order to deliver the high standards of service that are required by the Courts and legal teams.
In addition to providing an initial report based on a home visit, there are very likely to be conference calls or face to face meetings with the instructing solicitor and barrister, other experts and even the client and their family.
In addition, further review of documents arising from the rehabilitation process, further full reports and joint statements with the equivalent expert on the other side are often required.
Going the extra mile for your client
As an expert in you field, your clinical experience and your understanding of the medico-legal process is really taken as read by the Courts. However, becoming recognised as a good medico-legal expert requires that you go further than this.
Solicitors value experts who are friendly, readily available, open to dialogue about their opinion in the context of the claim, express themselves clearly and concisely in writing, and will stick to that opinion substantially as they proceedings evolve, especially when answering Part 35 questions or preparing a joint statement.
Most medico-legal experts have full or substantial part time jobs which preclude them from doing private work at certain times of the day. Taking on more than a very minor medico-legal commitment is likely to put this obligation under pressure, because solicitors often want to talk to experts during normal office hours and certainly, case conferences almost always take place then.
It is the nature of this work that Court reports may come under scrutiny, and a good medical expert needs to be open to this and be prepared, diplomatically, to reassert their opinion. There is no room for an expert who is unable to make themselves available or unwilling to enter into a dialogue with either the legal team or other experts.
A valuable part of the legal team
It is essential that a medico-legal expert appreciates their role in the process of a claim and their importance to the team which is brought together and co-ordinated by the instructing solicitor. It’s so important that the expert witness remembers this important point: it’s a team effort, so being a good team player is a real advantage.
A good expert and team member should always try to deploy the softer skills of being a good clinician; punctuality, courtesy, friendliness, careful listening and expression, and appreciation of the role of others.
Key also to the team is the barrister whom you are likely to encounter during a case conference, and it is often on their recommendation that solicitors instruct experts.
Like any team, the litigation team functions best when the members have worked together previously and know what to expect from one another. Becoming part of that team is a gradual process of proving yourself to the instructing solicitor.
Good communication matters
Communication by email with the solicitor is fundamental to being a good team member, especially where there are likely to be delays in meeting deadlines. If the legal team knows in advance that there will be a delay, they can very often accommodate it, but they may react very badly to being kept in the dark and then surprised!
When you’re building your case load as a medico-legal expert, consider your reputation. It’s really bad for reputation building to take on too much work and fail to deliver, and much better to start slow and build gradually, while delivering quality reports.
Be impartial, expert and confident
While of course the duty of an expert is to the Court, and not to be partisan for claimant or defendant, it is essential that in delivering an impartial medical opinion, the medical expert becomes a full member of the team – whichever side has made the instruction. Remember, if you allow yourself to be swayed in your opinion from that which you really believe, you risk being exposed by your opposite number and by the evidence base.
Barristers want expert witnesses who are professionally credible, presentable and articulate on their team. So, it’s very important for an expert to make a good impression on the barrister, as even though these days the chances are vanishingly small, the expert may have to appear in court and be cross-examined.
A chance to make a positive difference
Being a medico- legal expert is a really interesting and rewarding area of medical practice, all the more so if undertaken enthusiastically. Expert witness work is also an opportunity to positively influence the lives of people with complex injuries and disabilities – those injured in accidents or through negligence, by helping to direct the use of the substantial financial resources of insurers.
Looking to instruct an expert witness? Trust NRC Medical Experts , the the UK’s only medico-legal expert witness chambers run by neurological rehabilitation professionals.
NRC Medical Experts believe that everyone who suffers a brain or spinal injury or neurological condition could benefit from neurorehabilitation. Its mission is to ensure that solicitors have hassle-free access to medico-legal reporting and expert witness testimony, as soon as possible, so the fight for the right rehabilitation pathway can begin.
Brain injury case study: Simon’s story
Simon’s story demonstrates that consistent support from a small, specialist team can maximize quality of life and reduce barriers to discharge home.
In August 2019, Simon was admitted to the Coach House in Northampton, a specialist residential care home for adults with acquired brain injury. He was the first service user in a brand new service from experienced care provider, Richardson Care.
He had sustained a hypoxic brain injury in 2015 following cardiac arrest, and had resided in a number of care environments following his discharge from acute rehabilitation.
He was referred to Richardson Care due to an increase in unsettled and challenging behaviours and as his current placement was no longer best-placed to meet his needs.
Simon had been increasingly isolating himself from the rest of the care home and would only engage in very limited activity with 1:1 support. He would frequently make complaints about his placement.
Goal for Placement
On admission to the Coach House, the overarching goal was to enable a safe discharge home for Simon. To enable this, further exposure to more independence would be required to appropriately risk assess and inform future care provision once at home.
This would provide information as to whether his previous environmental restrictions within care homes were preventing his progression or whether his needs were more enduring.
Intervention and Support
Following an initial assessment of his needs it was evident that Simon struggled with flexibility of thinking and that unsettled behaviours would present when his expectations were not met. This could then manifest itself in paranoid behaviours, which he would then perseverate and allow to dictate his day.
Simon was provided with a structured programme to assist him in managing his expectations: a programme which he devised with the support of his Keyworker, Gareth.
By adopting a person-centred approach to the formulation of his programme, Simon felt in control of his day and less reliant on others to initiate activity for him. Simon was able to manage his own expectations of how his day would look.
He became increasingly able to manage deviations from this if he was informed of the purpose of these changes. Whilst Simon still presented with some agitation on such occasions, the structure and the relationship he had built with his key staff enabled him to become more receptive to feedback.
Simon became more flexible in other ways and was more willing to take on new challenges. His initial engagement in food preparation was short lived, but his willingness to at least ‘have a go’ was a marked difference from his previous compliance. He started to eat different meals at lunch time and take interest in his nutritional intake.
He joined the gym and set goals around his personal fitness. Whilst Simon was still largely dependent on others for some activities of daily living, he had developed new interests which significantly and positively impacted on his quality of life and mood.
Whilst Simon remained resistive to face-to-face therapy, he benefitted from oversight from the clinical team who would assess and inform future interventions and support. Simon gained some insight into the limitations imposed on him by his brain injury and focused on realistic goals, rather than shutting down at the suggestion of anything new. In brief, Simon started to enjoy his life.
Simon’s placement, in part, was to assess whether plans for future independent living were a viable option. During the year of his placement, on-going risk assessments were completed and observations made to inform future care needs on discharge home.
Close liaison with his case manager enabled remote planning during the Covid-19 pandemic, using technology to ensure that Simon could make decisions and choices regarding his future adaptations and environment. An occupational therapist from the team assessed Simon’s future home and made recommendations.
The team at Richardson Care also made recommendations on how a care package should look and Simon was involved in drawing up a person specification for the role of his personal assistant. In August 2020, almost a year since his admission, Simon discharged to his own home.
What did Simon say about the Coach House?
He felt that the staff treated him with dignity and respect and listened to him.
Simon said: “I like the room at the Coach House, I can’t complain.”
“I was only disappointed once during my stay.”
What did his case manager say about the Coach House?
Five weeks after admission:
“It was really lovely to visit yesterday and to see how well Simon is doing at the Coach House. It was particularly encouraging to hear that he is engaging with eating at the Coach House and not spending fortunes on going to a restaurant every day anymore! It was genuinely heart-warming to see the enthusiasm and satisfaction on his face, describing the steak lunch he had just bought, helped prepare and eaten.
Simon seems a great deal more relaxed in his new surroundings and it is abundantly clear that he has a great team around him, who understand his needs and are pro-active with him. He has not experienced that before, so it is all very pleasing! Many thanks.
After Simon’s discharge
“Could not have managed yesterday (or the past year!) without yours and especially Gareth’s support. He was an absolute legend yesterday – he really is a credit to himself and the Coach House. He did not relent in his efforts to help Simon settle in. He even put a ton of DVDs away on shelves after driving down and unloading the van in that heat. The man is a tank!
“I will make sure our paths cross again the next time I have a suitable candidate – I’ve really enjoyed working with you and your team too. You helped transform Simon’s life!
Chris Dindar RGN, Associate Case Manager at Brain Injury Services Ltd
Richardson Care is an independent family business and has a proven track record over more than 30 years. It has six specialist residential care homes in Northampton, three of which provide care for adults with acquired brain injury. The remaining specialise in supporting adults with learning disabilities. Its focus is on providing an inclusive family environment in which service users develop daily living skills, increasing their independence and well-being.
Expanding the horizon of neuro patients
With AlterG Anti-Gravity Treadmills.
A wide range of patients are now benefiting from the use of AlterG Anti-Gravity Treadmills throughout clinics across the UK.
Patients with a wide range of neurological conditions are gaining confidence within a fall-safe environment which allows for high intensity repetitions along with increasing motor learning early on in the rehabilitation stage.
Originally designed for NASA, the AlterG uses patented Differential Air Pressure Technology to unweight patients from 100% down to 20% of their bodyweight in precise 1% increments.
AlterG started in Professional Sport assisting with rehabilitation from ACL and Ankle injuries, moving onto MSK Physiotherapy Clinics. However multiple research papers and case studies have now been carried out to show the benefits of use with multiple neurological conditions including Stroke, Multiple Sclerosis, Parkinson’s, Functional neurological disorder, Brain Injuries & Incomplete Spinal Cord Injuries.
Developing the technology further, along with a precise partial weight bearing environment, AlterG has liaised with multiple Neurological Physiotherapists and Surgeons and added new features to enhance the experience on the machine and enable patients to gain as much as possible from each session.
The machines are now available with basic Gait Analytics (Stance Time, Step Length and Weight Bearing Symmetries and Cadence), Pain scales, pre- programmed exercises and camera for live video monitoring allowing patients to see their feet whilst walking.
Multiple case studies have been carried out, one of which is Brainstem Cerebrovascular Accidents (CVA) or Strokes. In conjunction with AlterG, Kate Haugen from Great Moves Physical Therapy (Colorado, USA) wrote a great case study with regards to a 42-year-old runner and university tennis coach. The individual presented two strokes resulting in right sided weakness and significant balance deficits from the first stroke and almost complete paralysis on his left side for 8 days following a second CVA.
“Weightbearing exercises caused medial tibiofemoral joint line pain and swelling. The patient was unsuccessful with a stationary bike and elliptical trainer. AlterG allowed for more controlled loading progression for returning to Full Weight Bearing.”
After multiple weeks of rehabilitation, the patient can now step over objects and change direction quickly. In addition, there are no limitations with the distance the patient is able to walk, and they are not limited by fatigue.
Along with a range of case studies, various research papers are available online showing how the treadmill can be an effective intervention for those who have experienced a stroke or other neurological conditions.
“The AlterG enables Neuro patients to experience what they thought they could never do again – be it walking, jogging or running. We have had some very encouraging results – even with clients who had trialled some of others rehabilitation technologies, including a conventional partial-weightbearing treadmill. Any neuro patient who can achieve an assisted step to transfer into the AlterG can benefit.
The AlterG allows a physio to challenge neurological patients in a safe manner and in a cost-efficient manner without the need for an additional therapist or assistant”.
– Jon Graham, Physiofunction.
Trevor Donald, Managing Director of SportsMed Products Ltd (the UK distributor) stated “it is great to see research coming through about the huge benefits the AlterG can have for individuals suffering with neurological conditions. The patient stories emerging from our customers at neurological physiotherapy clinics has been incredible”
Not only does the AlterG aid walking but it can be used simply in a partial weight bearing environment to carry out exercises such as single hand throwing and catching, squats and hopping.
If you would like further information on the papers and case studies carried out along with clinical protocols please feel free to contact AlterG’s UK distributor, SportsMed Products Ltd.
The family experience of brain injury
After a person acquires a brain injury, the impact on the whole family can often be life changing as they adjust to a new reality and relationships come under intense pressure…
Karen Ledger (KL): When brain injury occurs, it’s like a bomb going off in the family. Life will never be the same again for any of the members of that family.
People will be shocked, bewildered and overwhelmed, and they then have to go through a complicated process of adjustment, and people reach that adjustment at different stages.
The person with the brain injury will generally have a neuropsychologist assigned to support them. Most will pay attention to people’s feelings and emotions, but the rest of the family may not have any psychological support.
This situation doesn’t get better of itself without professional input, it can get worse and people’s mental health can and often does spiral down.
Louise Jenkins (LJ): It’s a particular challenge if you’ve got someone with little or no insight. They often won’t recognise the need for or be willing to engage with neuropsychological treatment until much further down the line, by which stage, the family may have entered a more advanced stage of crisis and their whole family unit may be at risk of breakdown. There are complex emotions involved in the adjustment process following trauma which include shock, guilt and loss.
KL: That’s a scenario we see a lot. The client’s relationships may get to an advanced stage of deterioration and as Louise says, crisis, before they’re able to accept help. This is often because there is an immense amount to absorb from their new world of injury, rehabilitation and the medico-legal process and clients do not have the psychological space to consider how they are, never mind undertake the rehabilitation.
LJ: That’s where some of the challenges come in from the legal perspective. The compensation claim process is quite rigid in that generally speaking, only the injured person can claim for financial losses and for professional support, but we maintain that as the underpinning principle for compensation claims is to restore someone to their former lifestyle, you have to consider them both as an individual and as part of the family unit. We try to build into the claim some therapy sessions not only for the injured person but also for their spouse and their children.
Some defendants (compensators) say they’re happy to support that because, if the family unit breaks down and the uninjured spouse has been providing a lot of the day-to-day support, prompting and encouragement that the injured person needs, the cost of commercial care to replace that support is significantly more expensive than the amounts you can recover in a claim for support provided by a family member. It is also about embracing the spirit of the Rehabilitation Code and Serious Injury Guide in looking at the wider family need.
KL: Often, people can’t work anymore; they feel their work is taken away from them. People get their sense of identity out of work, as well as from being a spouse or a partner, a father or a mother. And if they lose their ability to earn and their relationships start to deteriorate these are often perceived as more failure and thereby serve to reduce a client’s confidence and self-worth.
LJ: It is akin to a bereavement process for the uninjured partner, yet the person is still there with you.
KL: People don’t have to have a death to experience loss, and loss can activate a bereavement process. So they’re grieving for the person they once knew, and now they’ve got this new person which makes adjustment to the injury complicated. And the thing about brain injuries is they’re hidden. The person looks the same but behaves differently to how they did before. It understandably takes a long time for clients and family members to really grasp the effects of brain injury, because they’re often traumatised, angry, discombobulated and distressed.
The family that includes somebody with a brain injury goes through a process of understanding, just as the client hopefully does. It’s a complex situation trying to comprehend what a brain injury means whilst feeling bereaved.
Family and children’s therapy is relevant too. Children often get missed because they deal with loss and trauma in different ways to adults. Children tend to get on with their lives, as if it’s not happening, so they need particular attention. They won’t be talking about it so much, but they’ll be experiencing it. The sooner that’s managed by specialists, the better it will be for children in the longer term, giving children the best chance of allowing normal development to take place.
LJ: It’s difficult because there’s a significant investment of time and energy put into implementing a rehabilitation programme and support around the injured person. This is integral to the claims process. The spouse can feel as if all the focus is on the injured person and they’ve been left out.
From a legal perspective, we try to involve the uninjured spouse as much as possible in discussing what we’re doing and why we’re doing it. We try to weave in that therapy support for the uninjured spouse so they come along the journey with us rather than becoming a disrupter to the rehabilitation programme because they feel excluded and unsupported. If securing interim payments through the claim to fund support is challenging at an early stage, our in-house team of client liaison managers, all of whom have a healthcare background, can provide time and input in discussing the challenges and in signposting for support both for the uninjured spouse and children as well as for the injured client. There are some really valuable resources for children, for example, which explain some of the problems that can arise in a parent who has sustained a brain injury to help them to understand and come to terms with changes in the family dynamics.
KL: People affected by brain injury can feel deserted by their partner and like a single parent. This is because they’ve lost their partner’s contribution to childcare and work in the home. The complexity and challenges of living in these circumstances should never be underestimated.
LJ: At the point of injury, they are in shock and just want to be there for the person who’s injured. I’ve worked with a number of people where the grief and adjustment process is very substantially delayed. These delays extend to weeks, months or even years.
They’re in a fight/flight/freeze situation. They’re managing a situation that’s about life and death initially in the most serious cases. When the acute stage is over and they have some space to start thinking about themselves, rather than the person who’s injured, they can start reflecting. It’s an emerging awareness that it’s never going to be the same again, that some degree of permanence will remain with the injuries, that this is how it will be in the longer term and a realisation that you need support to adjust to the new normal.
KL: It takes a while for that realisation to come in. I am often working with partners who are in that process of adjustment and what initially attracted them to the person pre-injury has been lost post injury, for example agile thinking and intelligence. Moreover they now find themselves in a caring role and one where many strangers are entering their home and talking to them in alien language! It’s not surprising that for many people this is often too challenging for them to manage and why therapy is needed as soon as possible for clients to regain their own personal power as soon as possible. They will have a private listening, respectful and tender place for them when the rest of their lives are so exposed.
LJ: They don’t know where that injured person is going to land with their recovery in the longer term. There’s a natural recovery process of a minimum of two years following brain injury, often longer, and they don’t know how much recovery the person’s going to make. They’re living with that uncertainty for a long time before being able to understand and adjust to what the long term will look like, often with significant physical, cognitive and behavioural changes which place great strain on sustaining relationships. Independent family law and financial advice is often essential to protect both parties in the event that the relationship does break down.
KL: I believe that acquired head injury is usually devastating to the person and those around them. However, in my experience, people are often amazing in how they find the strength to establish new ways of being and making their life work for them. Therapy can often speed up that process because clients feel heard, respected and understood, a powerful combination for a restorative process particularly when they are so often feeling powerless. This process can help families stay together or decide to go their separate ways and with support they are more likely to do this without acrimony and additional trauma. Observing and supporting clients and their loved ones to dig deep to find the strength and commitment to establish a new life is such an amazing privilege and honour for me.
LJ : When the claims process is managed by expert serious injury lawyers, early access to specialist rehabilitation and support will enable an injured claimant to restore their life to the best possible position and allow them to maximise their potential for the long term, restoring a sense of control and positivity for the future. Working together with therapists like Karen is essential to ensure that a multi-disciplinary network of support can be put in place in order to support an injured person to achieve their goals and rebuild their life as an individual and as part of a family unit after a life changing injury.
Louise Jenkins is a partner at Irwin Mitchell and leads the serious injury team at the firm’s Sheffield office. Karen Ledger is managing director of KSL Consulting and a therapist, counsellor and supervisor with over 30 years of experience.
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