If you are wanting to put together a medico-legal report, this post will give you everything you need to know.
As an experienced personal injury solicitor, I am most fortunate in that, not only do I get to help injured people – helping them get their lives back together again – but I also have the privilege of training doctors in how to be competent medico-legal experts – the doctors whom act in a quasi-judicial function in any personal injury or clinical negligence claim. Without these brilliant doctors – of all qualifications and specialisms – the system wouldn’t function.
Over the years, having instructed hundreds of doctors to provide reports on my injured clients and having taught over 100 doctors in the basics of being a medico-legal expert, the following 18 points are my top tips (non-exhaustive), for doctors, about how to write a good, competent and compliant medico-legal report.
If you are new to writing medico-legal reports, it is of paramount importance that you have read Part 35 of the Civil Procedure Rules and the accompanying Practice Direction which is available here. Although it is somewhat of a dry read, all experts, in any field in civil law, must have read Part 35 before submitting any report. Insert all the formalities – such as a statement of truth – specified by Part 35.
Read the Civil Justice Council’s 2014 advice available here. All experts, regardless of their area of specialism, must have read this guidance before producing a report.
Although not compulsory reading, it is highly advisable that any new medico-legal experts read the Academy of Medical Royal Colleges report 2019 available here. This report was written in conjunction with the Academy for Healthcare Science, the British Dental Association, the Royal College of Midwives, the Royal College of Nursing and others, with confirmation from the General Dental Council, General Medical Council, and the Nursing and Midwifery Council to name just a few of the regulatory bodies, that the advice is appropriate.
Check that your instructing solicitor- if you are acting on instructions from the Claimant solicitors – passes the “sniff test” i.e. is the claim before you a genuine claim? It pains me, as a Claimant solicitor, to point this out but it is fair to say that there have been some sharp practices in the personal injury world for some time. I suggest that any medical expert reads the case here in relation to LV Insurance. In this case, due to pressure from a devious solicitor, a medical expert felt compelled to change a prognosis from a one week to an eight-month injury in order to increase the value of the claim. Only when an inexperienced and unqualified paralegal sent the first report to the court – with the one-week injury specified in it – together with the fraudulent second report, did the fraud come to light. The doctor received a suspended jail sentence; the solicitor went to prison. Do not jeopardise your career for anyone.
Check that you are, in fact, the right type of medical expert for this instruction. Always work on the basis that your solicitors may have instructed you erroneously. If you think, even for a minute, that you are the wrong expert, I strongly recommend that you write back to your instructing solicitors immediately. They will thank you for it – I promise you.
Do not stray into areas in which you have no expertise. If, say, you are a Consultant Orthopaedic Surgeon, then tread very carefully – if at all – in other fields, such as in commenting on the mental state of the Claimant. You can always recommend that the Claimant is examined by a specialist in another area of medicine.
Ensure that you have appropriate medical records and any scans/discs. In law, the presumption is that for lower value claims, the less likely it is that medical records will be reviewed, however, if you want to see the medical records, ask for them. Conversely, the more serious the injury, the more likelihood is it that you will need the full medical records. Furthermore, if a Claimant has been to multiple hospitals, assume that you have not been provided with full records. It is preferable to produce a report when you have all the medical records.
Ensure that your report is addressed to the court. Regardless of who is paying you, you are writing your report for the court in order to assist in administration of justice. The key test is this: would you state a particular point in your opinion if the other side was paying you to do it, instead of the current paying party? This is the nub of it. If the answer is that you would still write the same thing, regardless of who is paying you, you should be fine.
Although in my experience only around 1% of claims go to trial and, furthermore, in my experience only half of those claims which go to trial required the attendance of a medical expert witness, you should always proceed on the basis that the case in front of you will go to trial.
Do not accept any instructions in which you might be in a conflict of interest. For example, do not write a report about a Claimant whom you have treated. If there are any conflicts of interest, then declare them, preferably before seeing the Claimant, or before completing your report.
Remember that Claimants are understandably nervous when they come to see you and that, if you don’t ask them a relevant question, then the Claimant may not volunteer some key information. Leave no stone unturned. Revisiting a report because you failed to ask the right questions is painful and time-consuming.
Ensure that you deal with any instructions, particularly court directions, in a timely fashion. You will annoy the Claimant, the Defendant, the lawyers and the court if you fail to comply with deadlines. You may also face costs penalties from the court.
If you cannot come to a prognosis, because, say, the Claimant is still recovering from their injuries, then state that you want to see the Claimant at some point in the future.
Many medical experts use tailored questionnaires, which are completed by the Claimant just before the appointment, in order to capture all relevant information. Arguably, these questionnaires are disclosable. Some experts attach these questionnaires to their reports. The use of questionnaires ensure that you have covered all your bases. Consider using them.
Take the ID of the Claimant, every single time. Make this your policy. As I alluded to above, there are fraudsters in all all elements of human life and therefore assume that, occasionally, the person in front of you will not be who they say they are. Some experts even take photographs of the Claimant, embedding the photograph into the report.
Consider how credible the Claimant is. The less credible a Claimant is, the more likely it is that the claim will proceed to trial. At trial, your evidence will be in the spotlight, in all likelihood. So, get it right.
Take notice of the value of the claim. Even if you are writing a report about a minor injury, such as the road traffic accident which befell the Manchester City Striker Sergio Aguero, given Aguero earns millions per year, a four-week injury is a large claim. Naturally, the higher the value of the claim, the more scrutiny there will be from all sides because there is much more at stake. Get your opinion right.
If – even for a moment – you feel somewhat uneasy by any of your conclusions, work on the basis that you have done something not quite right. Ensure that you are entirely happy with the report, particularly your opinion and prognosis. Your professional reputation is on the line, so ensure that you are protected at all costs.
Remember that you are fulfilling an essential part in the administration of justice – this is important work. By producing this report you’re helping the Claimant, the court, the Defendant, the insurers and the lawyers to resolve this case.
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