The ‘Jackson reforms’ in civil court procedure are close upon us. Extended ‘tracks’, fixed fees and non-recoverability of success fees will force lawyers to take a close look at the costs incurred in presenting an injury claim and how most efficiently to put the claim together. The medical report is essential, providing the foundations of much of the claim.
A sub-standard medical report will result in damages being undervalued and in time, which will not be remunerated, being wasted by the legal team in interpreting the report and seeking clarification or amendments. Most claims never go to a disputed hearing, but 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 lawyer dissatisfied with the report is likely to be prevented by the court from obtaining another and in any event will not recover the cost of doing so.
Many medical reports prepared for civil litigation, whether obtained through a medical reporting agency or direct from a clinician, are not fit for purpose. Those failings vary from the subtle to the gross.
While it is expected that the expert understands the requirements of the Civil Procedure Rules (CPR), on which most training is centred, and will have complied with them, 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. The expert must also comply with the GMC guidelines, 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.
Therefore the expert must, for example, address issues 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?
Only then is a proper valuation of the claim possible. Failing to address these issues properly puts the expert in breach of duty to the court to help the court on matters within the expert’s expertise, in breach of duty to the client to use reasonable skill and care in providing his/her services in writing a report, and in breach of a professional duty.
A competent medico-legal expert is one who understands 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 in the selection of an expert.
Effective, efficient and economic case management by lawyers requires such competent expert opinion. A lawyer is entitled to an expert who can display a public mark of the expert’s 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 are increasingly likely to be rejected and clinicians ignore the lawyers’ requirements at their peril.
A new e-learning programme Medico-Legal Report Writing (Core Skills) has just been released by Professional Solutions. Presented by Eyre and his co-author of the book Writing Medico-Legal Reports in Civil Claims – an Essential Guide (2011), successful completion of it and the on-line assessment test will be certified by the Expert Witness Institute and will 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.