Five years ago, when I set up my own boutique personal injury firm, I wrote a blog entitled ’What to expect at a personal injury medical appointment’. Thank goodness that I wrote that blog, because it has been the webpage which has directed the most traffic to my firm’s website. The reason for the article’s online success is because so many personal injury law firms inadequately explain to their clients what is going to happen to them when they are examined by a medicolegal expert and, crucially, what is the function of the expert in the claim process.
When I am explaining to my clients what is going to happen at this make-or-break appointment, I tell my clients not to expect a Rolls Royce service from the expert. I advise my clients that the expert is providing a critical function, ultimately for the courts, and that, as a result, the expert’s bedside manner is unlikely to be to their tastes. In most cases, sadly, my advice proves sage, but it shouldn’t be like this.
Naturally, all personal injury solicitors appreciate that their client is attending the appointment to be examined as a specimen, but, in my view, if an expert is somewhat standoffish, then the client is more likely to challenge every aspect of the expert’s report, sometimes with justification. In my experience, when my client and an expert get on well, my client is more accepting of the expert’s report, irrespective of what it may say. And if clients are routinely complaining about a particular expert’s bedside manner, then instructions to that expert will inevitably decrease.
As one of SpecialistInfo’s newest trainers of medicolegal experts, I have put together my top five tips. To the proficient medico-legal expert, of course, you will regard these tips as somewhat obvious, but as an experienced personal injury practitioner, some experts really ought to follow these tips.
Here are my tips:
1. Ensure that the Claimant fully explains the impact of the accident.
For a Claimant, being examined by a medico-legal expert is simply a bizarre experience. Most lay people are in awe of the medical profession, and so when the medical expert is acting as an expert, many Claimants fail to explain themselves properly – how the accident happened and how the injury has impacted upon them. As a result, the reports are often accurate reflections of the appointment, but not a fair reflection of the injuries. When we solicitors challenge a medical report, arguing that the impact of the accident was greater, the usual refrain from the expert is that the Claimant did not volunteer the information during the appointment. I therefore encourage experts to ensure that the Claimant has felt able to volunteer all the information; that they have got everything off their chests. Assume that the Claimant hasn’t explained everything to you, not because of deceit on their part, rather because they are anxious about appearing stupid.
2. Physically examine the Claimant.
Not always relevant, of course, but this is the Number One complaint from Claimants – a complaint which is hard for the solicitor to defend. It sounds obvious, but I can assure you that a physical examination of a Claimant in respect of a physical injury doesn’t always occur. Even if it takes longer, have a good examination of the Claimant, even if you are of the view that it is somewhat unnecessary. This will ward-off any likely complaints, as well as giving the Claimant confidence in your opinion.
3. Assume that the appointment could be crucial to the Claimant’s future care.
Clearly the NHS is under intense pressure. No doubt we have all seen many a case in which a patient has fallen off the NHS’s radar, and that the patient has been reluctant to bother their GP with their longterm niggle. I tell my clients that the medico-legal appointment – all paid for by their solicitors – is a reason in itself to pursue a personal injury claim. This is because there are no other times in a Claimant’s life when they get to see a top expert – at no cost – who has all their medical records from birth, and who will provide a detailed report on their injuries. Clients love to read your reports! Frequently, medical experts have highlighted problems which my client’s own doctors haven’t spotted, saving my clients from years of misery and inevitably saving the NHS a great cost. My tip, therefore, is to remember that the Claimant may not have received appropriate care and to therefore remedy this by telling them in the report what care you think they need. I often tell my clients to give a copy of their medico-legal reports to their GPs, so that there is a permanent record of what has occurred. I thank all experts who have helped my clients to get the appropriate care.
4. Write the report at the time of the appointment or shortly thereafter.
Fact: Claimants are more likely to challenge a report which was written some time after the appointment. Fact: Claimants are impressed by experts who write the report during the consultation. Whilst I appreciate that this isn’t always possible, there is a greater degree of accuracy in contemporaneously-written reports. Many Claimants seize upon a minor factual inaccuracy as evidence that the expert’s opinion is flawed. Accurate reports make for happy Claimants and happy lawyers.
5. In most cases, particularly non-MedCo cases, only examine the Claimant when you have enough medical records in your possession.
It is a personal injury solicitor’s greatest bugbear that some experts provide their report before they have received all the correct medical records (though there are often difficulties in obtaining all the medical records and confusion with agencies). This often leads to addendum reports which might deviate from the first position. And if you have the full medical records for the appointment, you can in person test a Claimant’s response to tricky points in the medical records.
This article was first published in the Medico-Legal Magazine, July 2017. It has been reproduced with permission from SpecialistInfo.
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