PI Brief Update

Jackson Reforms in Litigaton Procedure and the Competent Medico-Legal Expert - Giles Eyre, 9 Gough Square

30/05/13. The ‘Jackson reforms’ in civil court procedure are in the process of revolutionising the way civil claims are handled. The extension of the online portals to cover virtually all fast track injury claims, fixed recoverable fees rates, the combined effect of costs budgeting and the new rules on proportionality of costs, and the non-recoverability of success fees will force lawyers to take a close look at the economics of presenting an injury claim and how most efficiently to put the claim together. Medical reports remain essential to such a claim, providing, as they do, the foundations of much of the claim.

Sub-standard medical reports result in damages being wrongly valued, and in time, which will not be remunerated, being wasted by the legal team in interpreting the report and seeking clarification or amendments. The report, as interpreted or understood by the parties’ representatives, will be used to assess the strength and value of a claim, and to negotiate settlement.

The dissatisfaction of the lawyer with the report is extremely unlikely to persuade the court to permit the obtaining of another report and in any event the cost of doing so will not be recovered.

The problem that lawyers (and their clients) face is that many medical reports prepared for civil litigation, whether obtained through a medical reporting agency or direct from a clinician, are not fit for purpose. The failings may vary from the subtle to the gross.

Most training offered to medical experts is concerned with the requirements of the Civil Procedure Rules (CPR). You can therefore expect that most experts understand their basic obligations under the CPR. But an expert has also to understand his/her role in the litigation process and how the medical report is used by lawyers and the court, something which is barely addressed in the CPR. Medical experts are often unaware of their obligation to comply with the GMC guidelines, which include to understand exactly what questions the clinician is being asked to answer and to use language and terminology that will be readily understood by a non-medical audience.

Issues which the expert must, but often does not, address will include such as:

• How long will the present effect and consequences of the injury probably continue?

• What restrictions in activity does the claimant have as a consequence of the accident and what is the likely impact on possible future employment of such restrictions?

• As a result of the injury what is the percentage risk of requiring an operation in a particular number of years from now?

Without this information being provided clearly within the medical report, the lawyer cannot give the claim a proper valuation. The expert who fails to address these issues properly is in breach of the duty to the court to help the court on matters within the expert’s expertise, and in breach of the duty to the client to use reasonable skill and care in providing his/her services in writing a report, as well as in breach of a professional duty.

A competent medico-legal expert must understand the purpose of the medical report, the issues that the lawyer needs addressed, and the language which will convey that. However no general accreditation system exists to guarantee that standard or to give lawyers confidence that an instructed expert is competent in this sense.

Conclusion

Such competent expert opinion is critical for effective, efficient and economic case management of injury claims. A lawyer is entitled, when instructing an expert to report within a claim, to an expert with a proper understanding, not simply of the CPR, but of the requirements of high quality medico-legal work which adds real value to the party’s position in the litigation and which can be used effectively and economically. Sub-standard reports should be rejected by the lawyer. If they are, clinicians will ignore, or will remain ignorant of, the lawyers’ requirements at their peril.

A new and readily accessible e-learning programme which addresses these requirements, Medico-Legal Report Writing in Civil Claims (Core Skills) has been released by Professional Solutions Learning & Development. Awarded the Claims Innovation 2013 Online Innovation of the Year Award, the programme is presented by myself and my co-author of the book Writing Medico-Legal Reports in Civil Claims – an Essential Guide (2011). Successful completion of the programme and the on-line assessment test is certified by the Expert Witness Institute and provide a medico-legal expert with an important mark of competence and provide a lawyer with assurance as to the expert’s understanding and ability, and the value of the medical report.

Giles Eyre
9 Gough Square
London EC4A 3DG

Giles Eyre is co-author of a manual for medico-legal experts and those instructing them, 'Writing Medico-Legal Reports in Civil Claims - an essential guide' (2011) and co-presenter of the e-learning programme ‘Medico-Legal Report Writing in Civil Claims (Core Skills)’ (www.prosols.uk.com). He frequently gives seminars and workshops for medical experts in medico-legal report writing, giving evidence and other medico-legal issues.

Giles is a barrister specialising in personal injury, disease and clinical negligence claims. He is mediator and a member of the CEDR Solve Lead Mediators Panel. He was appointed a Recorder in 2004.

Giles is a contributing editor to ‘Clinical Negligence Claims - A Practical Guide’ (2011) and ‘Asbestos Claims: Law, Practice and Procedure’ (2011), both published by 9 Gough Square.

Image ©iStockphoto.com/mediaphotos