A medico-legal expert’s duty is to the Court. They have a duty to be independent. They should have this duty at the forefront of their mind when carrying out their assessment(s) and when preparing their report(s). An expert’s evidence will be completely undermined if it transpires that they are saying what the party who is paying them wants to say unless that is their genuine view.
It should go without saying that experts should be courteous to the Claimant and their families both during the assessment and in the report. There is an increase in Claimants seeking to record expert assessments either covertly or overtly.
An expert has professional duties and obligations which they should bear in mind as well as safeguarding their professional reputation.
A good expert assesses the Claimant, considers the evidence, and formulates their own independent view on the condition and prognosis within their area of expertise.
They do not try to “pick holes” in evidence from the other experts instructed by the other party. They spend much more time and analysis on the opinion section than they do regurgitating evidence from the opposing experts.
A long report is not necessarily a good report. I have read a number of reports which repeat long extracts from the evidence only for a bold assertion to be made in the opinion section without much analysis.
The trick is to summarise the salient points of what you have read (rather than repeat it), provide an opinion and then back this up with analysis, linked to the other evidence, your experience and / or the up-to-date scientific research. If there are caveats to make, make them.
There have been a number of Judgments where experts have come unstuck because of a failure to review the evidence carefully. During cross-examination, it has become clear that the experts in question have provided a generic report after a glance of the evidence.
This is not good enough in serious injury litigation where there are seven figure sums and a Claimant’s future at stake. There are expects whose medico-legal practice has significantly diminished because of judicial criticism.
Judges are always more impressed, generally speaking, by experts who are still in practice. They can tell the Court what really happens in certain situations, rather than their evidence being hypothetical or theoretical.
An expert may also make recommendations in their report. This is a useful way to narrow the issues between the parties. I have seen lots of reports where experts seek to criticise the care programme, but the expert does not give any alternatives.
It is, I would say, easy to make generic criticisms about a programme without giving an opinion as to what may work. Anyone who has worked with seriously injured people and their families will know how rare it is for the care and treatment programme to be right first time or right all of the time. That is unrealistic.
The programme is always changing to meet the needs of the individual. What works today may not work tomorrow. In my view, the evidence is a lot weaker if they are simply criticising but not giving any credible alternative.
If an expert accepts instructions, they should ensure that they can fulfil what is being asked of them and within the expected timeframe. If the expert is unsure about what is involved or the required timeframes, they should ask the solicitor.
A good expert should not be afraid to change their mind. If their opinion does change, it is sensible to explain why. The Court will not criticise an expert for changing their opinion; in fact, it looks much stronger than the alternative which is an expert which “sticks to his guns” at all costs.
Although it is rare, I think it is particularly useful for experts to accept instructions from Claimant teams and Defendant teams. This removes any perception of either having a “Claimant or Defendant perspective” for example.
An expert also needs to have a longer term view. It is fairly simple to identify the current condition and prognosis; it is much harder to identify what problems a particular Claimant may have in the future, particularly when deterioration may arise and / or the natural ageing process starts. A number of experts do not comment on the future risks that arise, even though they can now be pursued for compensation for negligence.
An expert should also be aware of certain legal principles which are relevant to the preparation of their report. The most important principles are:
- The Claimant’s duty to mitigate their losses;
- The Claimant’s right to choose private treatment over NHS treatment;
- The full compensation principle (Wells – v – Wells).
I have seen a number of reports where experts compare the personal injury claim to the NHS which is improper and not the test that the Court would apply.
I have also seen experts compare one person’s disability with another person’s disability. That is also improper. The assessment and the report should be tailored to the particular Claimant.
The serious injury team at Irwin Mitchell is very happy to be contacted by healthcare professionals with an interest in receiving training in medico-legal evidence. If that is of interest, please e-mail David.Withers@IrwinMitchell.com.
David Withers is a partner at Irwin Mitchell LLP. He is a senior litigators and brain injury specialists accredited by APIL and leads a team specialising in neuro-trauma and other serious injuries such as amputations or significant poly-trauma. He sits on the National Serious Injury Team’s Technical Committee and advises colleagues across the country on funding and costs issues.