Why You Should Instruct Experts Directly

We get back in touch with medical expert Richard Scott-Watson, who has previously touched on problems he faces in medico-legal cases. Our previous catch-up revealed if agencies should be used when looking for an expert, and this month, we delve deeper into the issue, speaking on why reports are rushed and its effect on a medico-legal case.

Over the past six months, what cases have pushed further the boundaries of your expertise and how? Did any focus particularly on Orthopaedic Therapy?

The main problem I find is that most experts are not qualified in disability and yet that is the central part of many cases. I recently had a case where there was a severe nerve injury causing areas of numbness and loss of joint position sense (he did not know where his arm was without looking at it). In disability terms this is serious and renders the arm almost unusable, but two neurologists, while commenting on the neurological loss in detail failed to note the disability from this part of the injury and in fact, failed to measure it at all.

In terms of Orthopaedic Therapy, how often is rehabilitation part of your remit as a medical expert and how often do cases surrounding therapy crop up in your legal work?

The aim of the expert is, in effect, to minimize the size of the case by ensuring the maximal recovery. Therapy, as specialised physiotherapy, chiropractic or other types, is central to the role, where therapy has been sub-optimal or absent prior to the report (normal).

Do you have any prime examples of past cases where you have served as an expert witness focused on Orthopaedic Therapy?

Discussions about therapy rarely come up, but some experts will let a claimant continue with a disability that could be treated without recommending treatment, which can cause difficulties.

As an industry veteran in Orthopaedic Therapy, and a to expert witness in the field, how do these cases compare with historical Orthopaedic Therapy centred cases you have studied?

These things have not changed greatly over time. Clearly the surgical options have changed with time, as well as the recognition that some things are best left alone, even if not fully recovered as the risk of worsening can be high. The introduction of defendant offered physiotherapy at an early stage has helped a lot of claimants (except one I dealt with recently who refused on two occasions). The problem with this system is that if resolution does not occur action to assess the case is far too slow, which loses valuable time and prolongs the disability.

Last time we talked you mentioned errors in medical reports being commonplace. How do you deal with such errors, especially when they may gravely affect the case at hand?

The main problem with errors comes in the initial GP expert reports on MedCo (of which I see a lot). These are often rushed (claimants often state in 5-minute or less, appointments) and errors creep in all the time. If the reports are sent back to the claimant to be checked these can be rectified, but I frequently come across cases where experts refuse to alter errors. Common errors are wrong occupation, errors in description of the accident, errors in what the injuries were and the most common one is how severe they were and how they progressed.

You also mentioned ways MedCo reports could be improved. What steps would you say have been taken so far?

The whole way Med Co reports is set up is fundamentally flawed and probably not repairable. Some GP Experts will see up to a hundred cases in a day (many are much more conscientious) but they will all be claimed as 10 – 15 minute appointments, which is an achievement. There is no control as to how the report is written. I recently had to go to one myself and was handed a two-page form to fill in. The discussion of its contents was very brief but in the end the report was entirely written by me with no input from the expert – fortunately in this case it was an expert report, but it was the only one that day. The biggest problem apart from the timing is lack of use of contemporaneous records. I see this when doing secondary reports, usually at 18 months post accident. Initial reports frequently claim severe initial symptoms (usually in all areas) but the notes (which I will not do a report without) contradict this, nine out of ten times. Frequently the initial claim falls to pieces because the initial report was written without any evidence as to its voracity.

The problem is exacerbated by the use of agencies, as they take the lion’s share of the fee (for very little work) leaving little for the expert and tempting them into ever shorter appointment times. The use of the DME system on MedCo would give solicitors much more control and should lead to much higher quality reports (and if they aren’t, send them back).

When do solicitors get an initial report?

Within MedCo that is fairly fixed, but if you use the DME system you at least have some control. It is worth remembering that MedCo is for vehicle occupants whose main injury is soft tissue, so does not include fractures, motor cyclists, pedestrians, cyclists or anyone else who falls out of the description. I regularly get reports where the claimant has been put through the MedCo system when they should not.

The starting point is that if there is a serious injury, get as early a report as possible. If necessary get a home visit – that way everyone knows where the case is starting, how much treatment, time off work (etc.) is likely. In a big case that can be invaluable, especially if it is obvious that the claimant is unlikely to return to work for many months; this then allows for early interim payments, provided there are no complications with liability. A lesser injury with no significant disruption to work is best left for a few months. If it recovers within six months, get a report at around nine. If it fails to recover at six months, get one at that point, so that therapy can be organized.

Is there anything you would like to add?

Above all always, where possible, instruct experts directly. Agencies will take 50 – 60% of every fee solicitors pay. That may make them happy, but the expert gets short changed and so does the solicitor – do you want to pay £500 plus for a report worth £200? It also makes for better communication, especially if adjustments are needed.

Moreover, Part 35 questions are for clarification and are not a fishing exercise or a point to ask hypothetical questions (those sent to me do not get answered). The court order relating to Part 35 should be sent to the expert immediately, as should orders relating to joint reports. And if dates are missed, questions will not be answered.

Where liability is conceded, expert fees are a disbursement, yes – they do not have to wait for the end of case.