Expert Witness – Orthopaedic Surgery & Disability Analysis – RSW Medicolegal Ltd – Richard Scott-Waston

Expert witnesses provide valuable information in court to help settle medical negligence claims; their input can dramatically affect medico-legal cases. Orthopaedic Surgeon and Disability Analyst, Richard Scott-Watson writes over 1,000 medico-legal reports per year and here talks about what makes an expert witness a true expert, the complications behind disability claims analyses, and the importance of claimant’s reports.

What does your expert witness role typically involve in this segment, and what has your experience covered in the past?

After many years doing reports I think it is fair to say that I have seen most things. One of the most important aspects of report writing is to remain entirely objective and to stick firmly to the CPR, which far too many experts still do not fully manage. It is also important to provide a personal report which is accurate.

In the analysis of disability claims you are instructed to carry out, what is the overall process, what are the priorities for the report, and what is the average timescale to complete these?

The main way a disability analyst will look at any case is to use the claimant’s daily function to extrapolate to their overall function. The activities typically undertaken during the day will often tell a lot about the claimant’s overall ability, which is the thinking behind the Equalities Act when it looks at activities out of work to assess work requirements.

Timescales are almost always dependent on one thing: the medical records. Personally, I will not do reports without the notes unless specifically requested and then the basis of the information in the report, which necessarily is largely from the claimant and unverified, has to be made clear. I would always prefer to seen any notes prior to the interview as I have seen cases avoidably collapse when a claimant misremembered some facts and their interview was later contradicted by the notes.

Are there ever any complications involved in disability claim analysis? What evidence is required, and how difficult can it be to obtain this and review?

I would always look to obtain General Practitioner and hospital notes where relevant, along with any investigations. In disability cases, there are usually also Department of Work & Pensions (DWP) files and these can be really useful. The GPFR (General Practitioner Factual Report), used as part of the claim process, is particularly useful when filled in well, as it will contain far more detailed information than the GP notes usually have and will to some extent address the disability aspect, which rarely features in the notes.

And what about in the cases of injury claims you are instructed on?

Contemporaneous notes are vital. I have seen thousands of initial GP injury reports, as required by MedCo. I have yet to see one that accurately reflected the injury and disability. Majority of the time the claimant claims during the interview a period of severe disability which is later contradicted by the notes when I see them – either because they were seen and found to have little or nothing wrong with them, or they never got medical attention at all. It is also important to pick out those in whom a relatively small injury causes a large problem. There can be one of several different genuine reasons, and several that are not genuine; the reasons behind any conclusions need to be made even clearer in these cases than in more straightforward cases.

Can you detail an example of an injury claim where your analysis resulted in a conclusion of medical negligence? How did you arrive at this conclusion?

Fortunately, I have found these cases to be rare but I do recall one of a man with a tibial fracture which was operated on so badly that his foot was left rotated out at 45 degrees, meaning that he could not walk properly and not only tripped himself up, but others. The initial chance to re-operate and correct the failure was missed, although it would have been quite straightforward to do. The injury was complicated by later infection around the metalwork meaning that there was too high a risk to correct it and the deformity was permanent, causing significant disability. Liability was eventually admitted, but it took over five years.

I do not see negligence cases myself.

As a leading expert witness in this field, what would you say makes you the go-to expert witness for orthopaedic injury and disability claims?

There are very many extremely high quality orthopaedic surgeons around doing this type of work. The difficulty is that expert witness work is not the same as NHS orthopaedics. Lawyers will go to experienced orthopaedic surgeons for reports on injury such as Whiplash Associated Disorder, when in fact that surgeon will never see such cases in clinical practice and will probably see only a handful a year in medicolegal practice. They also largely have no training in disability assessment, and I have yet to find one with a disability assessment qualification, but I am sure there is one there somewhere.

Providing medico-legal report, in my opinion, is a speciality in itself.

So, I believe it comes down to: what is an expert? Experience is preferable but clearly should be gained somewhere so for those starting out there are numerous courses to help with the basics. Ideally the expert should have the Cardiff University/ Bond Solon Expert witness certificate, and when I took it there were a couple of candidates taking the course who had not yet written a report, so it is possible to start with that qualification. An expert also needs to stick clearly to the CPR and not favour one side, even when pressured to do so, as that happens all too often. The expert also needs to be able to put in the time required to make an efficient system for seeing claimants and getting reports to solicitors. It is no use having reports sitting around for weeks or months that should have been completed; that is something I will never do. Once a week all the post/emails for that week are completed, and I stay at the office until it is all done. Nothing waits longer than that. The expert also needs to carefully remain within their own area and not to stray outside. I have many years’ experience in managing all these aspects.

My record turn-around was: instructed Monday afternoon; claimant seen Tuesday morning; report with solicitor Tuesday afternoon – but please don’t expect that every time. I can accommodate urgent reports (dependant on if the claimant can travel to the venue in time) and undertake prison and home visits as well as clinics in Stourbridge, Birmingham, Coventry, Bristol, Swindon and Oxford.

I am happy to work with cases from other jurisdictions provided the rules are made clear, and have had cases from Eire and Australia.

Is there anything else you would like to add?

Yes, if possible please instruct directly. Agencies are a necessary fact of life but they will not only charge 20-30% more than going direct to the expert but they will take over 50% of the fee for themselves (for about 5% of the work and 0% of the expertise). They also delay any communications as everything has to go through the middle man, who will often not pass on lawyer’s requests but will send the request themselves and sometimes change it or delay it (sometimes for months and then blame the expert for the lateness – yes that was a recent one I had!)

If you do work through agencies, please remember that they will never accept any criticism; it is always the expert that is blamed for their mistakes (and occasionally made to waive fees because of their error).

This should be a smooth and efficient process. Of course, the report will not always say exactly what you wanted it to or expected it to, because claimants sometimes embellish stories. Instruction letters often contain injuries that never occurred, or injuries that occurred prior to the index accident or indeed, occurred independently some time afterwards. Experts are there to sort out the mess and get the conclusions right so that it is fair to both sides – that is our role.