Without question, this is the main reason why a claim is under-settled, particularly if the medical evidence is complex, or if there were pre-existing medical conditions, and if the client didn’t recover as anticipated by the medical expert. Some “claims managers” or paralegals routinely instruct GP experts for all sorts of conditions when a GP is clearly the wrong type of expert. A clue is in the title: a “General Practitioner” is of course a generalist. You shouldn’t go to a generalist lawyer for a personal injury claim: similarly in most claims a General Practitioner is the wrong expert.
Often, we find that the personal injury lawyer hasn’t asked the right questions of the medical experts. Had a penetrating, thoughtful question been asked to a medical expert, then perhaps the value of the claim would have increased considerably. Often when we take over a claim from another firm when our clients change their lawyers, we ask the right questions of the experts, because we appreciate the impact of the injuries and we know how to analyse the medical evidence.
Sometimes the medical expert is the wrong type of expert for the specific injuries and, if this is the case, the task of the personal injury lawyer is to steer the expert with questions, hoping that they recommend that another medical report from a different type of expert is obtained. By way of example, if a person suffers superficial burns to the arm and a bang to the head, which has caused nauseating headaches, then in the first instance a GP expert or an Accident and Emergency expert ought to be instructed, but that expert is unlikely to be able to adequately comment on the head injury. In this example, it is likely that a neurological report is needed. If the GP or Accident and Emergency expert doesn’t in the first report recommend a report from a Consultant Neurologist, then it is the job of the personal injury solicitor to ask a probing question.
If you are a client of ours, then if you have still not recovered from your injuries in line with the medical expert’s reports, then we usually recommend that our client returns to their own treating doctors for more input. We do not pressurise you to settle. Medical experts in personal injury claims usually mirror the specialism of the doctor who had been providing care. Therefore, if the client/patient hasn’t received the proper care from their own doctors, then it is unlikely that the personal injury medical experts will be able to form a proper conclusion on the injuries.
Finally, if, say, one medical expert recommends a report from a different medical expert, then we have seen examples where this clear recommendation has been missed by the paralegal. In such cases, if this instruction was missed, and it has caused the client to receive less compensation than they deserved, then the aggrieved client should be able to sue their solicitor for under-settling their personal injury or clinical negligence claim.