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.
Traumatic brain injury vs psychological injury
By Alice Hall, serious injury solicitor at Irwin Mitchell.
Neurocognitive deficits caused by traumatic brain injury (TBI) can be one of the more challenging injuries to prove and as a Claimant solicitor; it is my client who bears the burden of proving every aspect of their injuries and resultant losses.
I have seen that it is often the case that mild TBIs are just one of many injuries, whilst other injuries may present as far more life-threatening, particularly during the emergency stage of treatment.
Sometimes, therefore, mild TBIs are either not fully diagnosed at the outset, or they are noted but are not treated as a priority in comparison with other more seriously recognised injuries at the time, which may be more obvious and more pressing.
Claimants are often then discharged from hospital with their physical injuries having been treated and follow up arranged for Occupational Therapy input and Physiotherapy, but with no neurological or neuropsychological investigation or follow-up.
This is then often further complicated by the subtle ways a mild TBI can manifest itself. For example, they may cause issues such as dizziness, fatigue, tinnitus, loss of smell or taste, difficulty concentrating, multi-tasking or changes in mood or personality.
Sometimes, these issues are picked up only by family members or friends; with the symptoms being so subtle that they go unnoticed by the injured party themselves, particularly when they are focused on recovery from their more obvious physical injuries.
I have had Claimants approach me following a serious injury and it is only at that point through my discussions with them that the possibility of a TBI is first explored, and that can be something which can be quite shocking and upsetting for an injured person to first consider.
In proving such an injury, expert evidence, particularly neurological and neuropsychological, will obviously be key.
The difficulty is often that, in the absence of objective evidence of a TBI shown for example by way of day-of-injury imaging, expert evidence must be unequivocal in determining the presence of any TBI or otherwise, which of course is not always possible for a variety of reasons.
However, in recent years, there have been reports regarding seemingly exciting new technologies that have been developed with the aim of gathering objective evidence regarding the presence of TBI.
For example, there has been research into the use of ‘Diffusion Tensor Magnetic Resonance Imaging (DR-MRI)’ – which evaluates water movement within the brain to locate brain cells that are not functioning properly – which has been shown to provide objective evidence of TBI.
There have been other developments for example, specific blood tests which may measure plasma-based metabolomic biomarkers, which have been shown to indicate elevations in metabolites in individuals who have suffered TBI when compared to non-injured control participants.
Matters can be further complicated in litigation if, once expert evidence is obtained, the waters become muddied with suggestions of there being overlying psychological components to what is suspected as being a TBI, or potentially experts being of the opinion that the symptoms complained of are entirely psychologically based.
Of course, when Claimants have been through trauma, it is not uncommon that they will present with some sort of psychological injury in addition to their other injuries.
The difference – whether the presenting symptoms are caused by TBI or some psychological component – is essential in many respects. First and foremost, the treatment that the Claimant will be recommended to address any neurocognitive deficits that they present with, must be recommended in line with its underlying cause.
Failing this, a Claimant risks undergoing potentially lengthy, costly and challenging rehabilitation which may turn out to be wholly inappropriate to their condition.
Secondly, the quantification of damages is also influenced heavily by the nature of the injury, both in terms of the PSLA (pain, suffering and loss of amenity) element of the claim, which refers to the sum of compensation that a Claimant is awarded to compensate them for having suffered the injury itself.
This element of any award is guided by a set of guidelines which include brackets of awards for every injury and, within that, a range of severity.
Whether such neurocognitive deficits are presenting as a result of TBI, or psychological injury, or a combination of both, will determine which section of those guidelines, and which bracket, a Claimant will be assessed under, hence influencing the ultimate award that they receive.
Further, thought must also be given in any personal injury claim regarding what other losses a Claimant has, or will, suffer as a result of their injuries e.g. loss of earnings, care, case management, rehabilitation, aids, equipment.
Again, the nature of the injury will permeate all other aspects of the quantification of the claim, particularly if, depending on the nature of the injury, the experts consider that the prognosis is significantly different in either scenario.
The danger in this situation would be that a Claimant would be at risk of either being significantly under or over compensated, which would of course be entirely inappropriate.
Whether such deficits are caused by TBI or psychological elements will potentially have a significant impact on a Claimant’s long-term prognosis, and therefore the compensation to ensure that they are adequately compensated to reflect whatever their future needs look like.
For example, it is widely accepted that there is an increased risk of various serious long-term medical conditions, including epilepsy and dementia, in people who have suffered TBI.
One recent study concluded that there was more than a two-fold increase in the risk of dementia in those with TBI, even in those who did not suffer any documented loss of consciousness at the point of injury.
Of course, the costs involved if either of these conditions materialise are potentially huge. This is often addressed in litigation by way of provisional damages. Provisional damages allow greater security for Claimants if there is a chance in the future that may develop some disease or serious deterioration in their condition.
This provides the Claimant with an option to return to the Court to seek a further sum of compensation if they do indeed deteriorate significantly after the original claim has been settled.
This is in contrast to the normal course whereby a personal injury claim is settled in “full and final” terms, meaning that there would be no scope to re-open a case and pursue additional compensation should the injured person’s injuries or condition significantly deteriorate beyond what had originally been envisaged.
The importance of identifying priorities in rehabilitation
After a life-changing injury, such as acquired brain injury, it can be tempting for the injured person and their loved ones to want to ensure that they get as much of the best quality rehabilitation that the state can provide or that money can buy, writes Irwin Mitchell’s David Withers.
This is because it is generally accepted that the greatest recovery is made in the first few years, particularly in the case of acquired brain injury.
When an individual sustains a traumatic brain injury, there are a range of disciplines that may need to be involved including, but not limited to: physiotherapy; occupational therapy; neuropsychology; neuro-psychiatry; neurology; neuro-surgery; dietician / nutritionist; speech and language therapy; personal trainer; counsellor; and support workers. The injured person’s passion for rehabilitation is absolutely vital. If and when that goes, it can be very difficult to regain that motivation. Mind-set in rehabilitation is critical.
A case manager’s role is to co-ordinate the rehabilitation. This includes introducing therapists at the right time. An injured person’s goals and aspirations must be identified.
The case manager and the injured person and their family must then formulate a rehabilitation strategy, focussing on what will make the greatest difference.
In the author’s experience, achieving a major goal will build momentum, leading to smaller goals being achieved rapidly thereafter. If a case manager overwhelms the injured person with too much rehabilitation, they will become disengaged.
Every rehabilitation programme will be different, rightly so as it should be tailored to the injured person’s needs. However, generally speaking, it is often sensible to rehabilitate the physical limitations through physiotherapy and the cognitive and emotional changes through neuro-psychology initially.
After progress has been made, an occupational therapist can be introduced, potentially to assist with returning to work or identifying strategies to maximise independence insofar as possible.
Another important factor is ensuring that the rehabilitation feels like it is part of “real life”. An injured person may have spent months in hospital. Although there is of course a time and a place for rehabilitation at home or in a clinical setting, in the author’s experience, injured people generally want to be able to return to some sense of normality insofar as possible quickly after discharge.
This means that the rehabilitation specialists need to fit around that person. Effective rehabilitation is about identifying goals, creating an exciting plan, monitoring progress and achieving them. This leads to momentum, motivation and the desire or passion to keep getting stronger. If rehabilitation is likely to be a long-term need, the integration of the package into real life is particularly important.
The author has experience of representing a severely injured person who was interested in pubs and bars. He had the capacity to make these decisions. The support team, working with the speech and language therapist, facilitated him being able to go.
They were able to educate him about the risks of consuming alcohol (again, which he had capacity to make decisions about), and work with him, in real-time, on his engagement with others.
He was able to return to doing something that he was passionate about. This made him more engaged in the less “real-life” rehabilitation sessions that he was having at the time.
David Withers is a partner and solicitor-advocate at Irwin Mitchell LLP, leading a team specialising in life-changing injuries including severe traumatic brain injury, spinal cord injury and amputations.
Case managers and lawyers – the power of collaboration amid Covid-19
The Covid-19 epidemic has had a disproportionate impact on societies most vulnerable, due to social, financial and medical needs, write legal executive Jack Sales and clinical case manager Alexandra Hitchcock…
With many clients falling into this category case managers and solicitors have needed to continue to work in a collaborative and responsive fashion in order to best respond to the clients’ changing needs.
This is compounded when the client is not the only person in the household and their care team’s needs also need to be considered.
Elderly family members and those with other medical conditions along with roommates working from home, children requiring home schooling and regular paid carers needing to self-isolate have made supporting clients’ needs more challenging.
This has required the breadth of consideration to be widened to ensure revised planning takes into account the needs of all involved, while keeping the client as the central focus.
Urgent need has often required initial reliance on social services and charities with mid to longer term support coming with solicitors accessing interim payments or additional services.
Increased funding to social services and charities has been beneficial to fill this void, such as food deliveries to people in need, volunteers collecting basic necessities and telephone support for those experiencing loneliness. However other services, such as home repairs and modifications have been delayed in the current crisis.
Having funding available to follow on when statutory or charity services cease is as important as the duration of these services is unknown and clients may not have the capacity to react.
The introduction of government restrictions has required a delicate balance of risk assessments to determine the clients’ health and financial support needs.
When clients require medical, case management and/or expert witness appointments to be completed in order to not only further their health but support their claim, a decision must be made as to whether the need falls within government guidelines and the level of risk of potentially introducing coronavirus into the household.
With many appointments suddenly not available, cancelations through the NHS and uncertain waitlists in the independent sector finding the best and safest fit for clients has required consistent review, understanding and close working by all involved.
Rehabilitation has been noticeably slower with a downturn impact on clients’ mental health, including low mood related to social isolation or anxiety related to the pandemic, slowing momentum for many who were previously progressing.
With rehabilitation planning taking clients’ clinical need and motivation into account, case managers have needed to work closely with clients, rehabilitation teams and solicitors to determine if continuing, delaying or ceasing treatment is the best option.
Although beneficial, some clients have been reluctant to utilise remote rehabilitation sessions or have found that they are less able to connect with therapists via video or telephone.
This has led to some choosing to wait for face to face appointments to become available at the risk of pausing or reverting aspects of their rehabilitation.
Other clients have managed remote sessions well with online appointments likely to have a permanent place in their continued rehabilitation and they require less travel and cost than face to face appointments.
As government restrictions lift but the potential for a second wave of Coronavirus looms, the client/case manager/solicitor relationship will continue to evolve as we progress rehabilitation in unprecedented times while keeping the clients current and long-term needs at the forefront of their rehabilitation plans.
Instructing a case manager is one of the first acts of the instructed legal team. Under the Rehab Code, the focus of the legal claim should be on rehabilitation at an early stage.
Often, case managers will work with clients over many years and it is vitally important to get this working relationship right as soon as possible.
They will need to be a “good fit”, have the right expertise and crucially be able to pro-actively progress the client’s rehabilitation and find solutions when they come across obstacles.
There have been few greater obstacles to rehabilitation than Covid-19 and the social distancing measures introduced which have given rise to additional barriers to rehabilitation for already vulnerable clients.
The past few months, even with some easing of restrictions, have had a significant impact on the availability and accessibility of much needed treatment for injured clients.
Whether it has been a barrier to getting rehabilitation off the ground in the crucial early stages of recovery or the setback of an interruption to an existing rehabilitation package, the impact can be felt acutely and can be a serious obstacle on the clients’ road to recovery, both physically and psychologically.
This can be compounded by social isolation for those living alone or additional strain on family relationships in what can already be a difficult set of circumstances following a life changing injury.
Many therapists have been able to use the benefit of available technologies to offer remote sessions to mitigate the impact of Covid-19 but this is not suitable for all therapies and not possible for some clients who do not have the availability of, or capacity to use, such technologies.
This creates a “black hole” of much needed treatment for many clients. Additionally, although some of the current challenges may be shared by clients, often their needs are unique meaning there is no “one-size-fits-all” approach that can be applied.
As a result, it is more important than ever for the legal team and the case manager to work closely and pro-actively together to find alternative and innovative solutions to these problems.
This is not limited simply to rehabilitation but the need to ensure even the most basic needs can be met for the most vulnerable clients, such as charities who can provide and deliver groceries to those who are vulnerable, shielding and on low incomes.
It is often the case manager who is on the front line, seeking solutions to problems, finding alternative ways of delivering rehabilitation and attempting to increase a client’s independence and quality of life, but it will require the expertise of the legal team to secure funding, primarily by way of interim payments, to ensure positive solutions can be put into effect without delay.
Clients may also require assistance with financial advice to address any concerns about their ability to meet outgoings such as rent, mortgage payments and utility bills. This may be provided by way of advice from a financial planner, for example, or the use of charities that can provide guidance and assistance with financial concerns.
The legal team can also consider the need for securing larger interim payments to cover the increased costs of care in these times; including the additional costs of ensuring that all necessary Personal Protective Equipment is available.
In addition, the collation of the supporting clinical records by the legal team can play a huge part, not just in securing funding, but in allowing medico-legal experts to assess the full picture when recommending treatment and further needs. This in turn can be crucial in ensuring clients receive the best compensation to meet their long-term needs.
A collaborative approach by the legal team and the case manager has never been more important than here and now to ensure the client remains at the forefront of everything we do and to maximise their recovery.
We recently worked together on a case where a client has been faced with the types of challenges outlined above.
The client suffered a lower limb orthopaedic injury restricting his mobility.
He also suffers with psychological symptoms including low mood, anxiety, suicidal ideation and outbursts of anger which impact on his thinking and engagement in activities of daily living.
The client lives alone and has little by way of a support network in the local community other than a care package provided by the Local Authority.
His rehabilitation was due to commence just as the lockdown struck in March 2020. The client was left isolated, unsure of his welfare and unclear of the impact on his rehabilitation.
Working collaboratively and proactively, Irwin Mitchell and Bush & Co Rehabilitation were able to support the client and find solutions to the unprecedented challenges posed by Covid-19.
In case management terms, we were able to identify local charities who could deliver groceries to the client who was shielding. Psychological and physiotherapy support was sourced independently as the client has difficulty engaging in statutory service virtual provision.
On the legal front, we were able to ensure the client’s legal claim enabled there to be funding available under the Rehab Code to allow Bush & Co Rehabilitation to implement treatment. There were also regular telephone calls with the client to discuss his needs and keep him updated on actions being taken to ensure the client was a part of the process.
The client was unable to engage in video assessments and so telephone assessments were arranged. It became apparent the client’s psychological presentation meant he had difficulty engaging in any remote appointments without significant support provided by someone else in the home.
Therefore, with some easing of restrictions, face-to-face assessments were arranged. This required the need to risk assess and ensure Personal Protective Equipment and safeguarding measures were followed.
Despite the obstacles posed by Covid-19, these were not allowed to be a barrier to the client’s rehabilitation. The client has remained motivated to engage in the rehabilitation process and any disruption and delays caused by the lockdown have been mitigated to ensure motivation and engagement levels are maintained.
Jack Sales is a legal executive specialising in serious injury cases at Irwin Mitchell. Alexandra Hitchcock is a clinical case manager at Bush & Co Rehabilitation.
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