Opening a window into the daily difficulties of a hospital’s accident & emergency department, Lawyer Monthly hears from Aruni Sen, an expert witness that deals predominantly with personal injury and medical negligence claims. Here Aruni tells us about the issues that spark these claims, including clinical errors in A&E, and about the overall evolution of this medico-legal sector over the past twenty years, in the UK and Guernsey.
What kind of legal cases are you commonly appointed for in regards to A&E and what difficulties do these present?
I am instructed for both personal injury and clinical negligence claims. The latter is on the rise.
Personal injury claims are reasonably straight forward. After noting the circumstances of the injury, one has to examine the claimant to establish current symptoms, note unresolved clinical problems at the time of examination and finally comment on causation using the “but for” test of whether the injury has caused the symptoms and clinical features, any complications, any losses and likelihood of resolution of residual problems.
The clinical negligence claims are more complex. One has to establish, on the balance of probabilities, if the care fell below the standards and, on ‘Bolam principles’, that no reasonable body of clinicians would have offered that standard of care.
If negligence can be established, comments need to be made about causation using the same “but for” test towards the consequences of substandard care.
What do disputes in this segment often involve and arise from?
The personal injury claims mostly do not involve any dispute. It is the negligence claims that are disputed, often when the error is indefensible by every standard of care. These disputes often prolong the claims process, wasting tax payers’ money in hopeless defence before accepting the claim.
How does your role differ significantly between reports for defendants and claimants?
Not really, if one remembers that every medico-legal report is addressed to the court. Instruction from defence or claimant should not influence opinion.
What are often the challenges in keeping your provided analysis impartial when appointed on joint medico-legal reports?
There should not be much challenge in keeping expert opinion impartial, regardless of the basis of instruction. An expert report is addressed to the court in order to assist the judge towards assessing any claim. Every expert must bear this in mind in preparing every report – whether it is a screening report or final CPR part 35 report. One should not hesitate in supporting or opposing any claim, if the facts point in that direction applying Bolam principles.
In your 20+ years of experience, how have you seen this expert witness field evolve in the UK and in Guernsey? What has changed significantly over the years, to the point of impacting your work?
The volume of personal injury reports has reduced drastically. Each such report is now expected to be more in depth and detailed; subsections on each report to clarify injury details, medical care if any, symptoms progression, impact on claimant’s life/function, and finally causation are more important now than ever before. The CPR part 35 conditions have also laid stringent conditions on each report.
Clinical negligence claims are on the rise, mostly in the form of complex claims, but also involving clinical errors in A&E.
The most significant change is the details solicitors expect in each report, followed by analytical questions asked according to part 35 rules.
What has been the most rewarding part of your medico-legal career since you began practising in 1992? Have you had any major challenges?
I feel that I have benefitted from good training, workshops facilitated by counsels and eminent experts, and feedback on my reports from lawyers. Joint expert meetings are also educational and help my own reflections on my initial report as well as the standards of practice.
Most importantly, I reflect on every claim, medical event & errors, and try to learn my own lessons in order to enhance my clinical practice well beyond the medico-legal expertise.
Is there anything else you would like to add?
I would advise aspiring experts to stay current in their field of clinical activity, undertake regular trainings & updates on writing reports, seek feedback on their report, and learn through reflection.
This must bring all round improvement to the claim procedure and the experts’ standard of report writing.