By some distance, the medical expert in a personal injury claim fulfils the most crucial function of all. It is the medical expert who determines what injury the Claimant has sustained as a result of an accident and, crucially, what the future holds for the Claimant (the prognosis). It is the future loss which usually adds the large sums to a compensation claim.
Although the medical expert is instructed and paid for by the Claimant or Defendant Solicitors, the medical expert has a duty to the court to provide their report independently of who is paying them. Claimants often fail to explain their symptoms to a medical expert – see our blog.
Part 35 of the Civil Procedure Rules governs what any expert in a civil claim should do. Often a party – either a Claimant Solicitor or Defendant Solicitor – can ask a medical expert questions about the claimant’s injuries. This is known as Part 35 Questions.
Normally, before the issuing of proceedings and the service of proceedings, irrespective of the value of the personal injury claim, the Claimant uses the medical experts as recommended and appointed by the Claimant’s Solicitors. In higher value claims, after the service of proceedings, as requested in a directions questionnaire the defendant Solicitors will usually be allowed to instruct their own medical experts (though still with the purpose of assisting the court) to examine the injured Claimant. In such high value claims, the medical experts sometimes have to meet and prepare joint medical reports on their areas of agreement and disagreement. If a high value claim goes to trial, then the medical experts usually have to attend the trial in order to give oral evidence to the court in order to assist the court to value the compensation element.
In complex claims, often numerous types of medical experts are needed to provide medical reports on the injuries. For example, if a Claimant suffers a serious whiplash-type injury in a Road Traffic Accident then the Claimant Solicitors may obtain a report from a GP expert or an Accident and Emergency expert in the first instance. In serious injury claims those experts may recommend to the court that the injured Claimant is examined by, say, a Consultant Orthopaedic Surgeon. The Consultant Orthopaedic Surgeon might, in due course, say, recommend that the whiplash symptoms are examined by a Consultant Neurologist. And if the Consultant Neurologist is of the opinion that the injuries requires an opinion from a Consultant in Pain Medicine, then a Claimant is advised to obtain such a report.
The value of the Claim, not just the pain, suffering and loss of amenity element but also the financial losses and care and assistance claim, is entirely dependent on the medical expert’s opinions.
Truth Legal have been hired to train medical experts on what to do at such in medical examinations.
In higher value claims a Claimant or defendant solicitor is likely to want to have a meeting with the medical expert in order to test the strength of the expert’s opinion. Sometimes a solicitor will be instructed by their client to find a medical expert who is likely to provide a favourable report. This is known as “expert shopping” and it is frowned upon by courts.
Often medical experts highlight medical issues which the Claimant was previously unaware. For a Claimant, therefore, the opportunity to have a top medical expert examine them together with their full medical records is a very useful experience which can help the Claimant to obtain the right treatment.