Understand Your Rights. Solve Your Legal Problems
While not every mishap requires a lawyer, there are some cases which will. These include accidents where you may have sustained permanent or serious injury. In such a scenario, a talented attorney can make a world of difference and can help you get the compensation you deserve.
Since no two accidents are the same, how do you decide whether your situation requires a lawyer or not? Well, here are some scenarios in which the services of a personal injury lawyer can prove invaluable. Let’s take a look.
In cases where you were permanently disabled or seriously injured in a mishap, you certainly need an attorney. Serious and permanent injuries can cause suffering, pain, and ongoing bills. Some common serious or permanent injuries include but aren’t limited to:
If the accident has led to a permanent disability or an injury requiring long-term care as suggested from the list above, the services of a lawyer could be your only way to avert severe, long-lasting financial burden.
Assigning fault in an accident involving multiple parties is rarely straightforward. Consequently, without a lawyer representing you, there’s a good chance you may lose your case. Some examples of accidents involving multiple parties include:
If you’ve experienced any of the above, it’s a good idea to consider hiring an experienced attorney. They’ll be able to handle multiple insurance carriers and get you the compensation that’s yours.
Assigning fault in an accident involving multiple parties is rarely straightforward.
Have you suffered damage due to medical negligence? If so, it’s important to see legal advice as soon as possible.
The law dictates these types of claims should be made within a specific time period. You’ll need to seek advice from your lawyer about when to inform the doctor, hospital, or provider in question about the claim. Medical negligence can be in the form of:
These are just some that can occur. Overall, a medical negligence claim tends to be complex, technical, and long-drawn-out, so hiring an attorney is a necessity.
A workplace injury can be quite overwhelming or even fatal. Generally, lifestyle changes are required, and medical bills may strain your finances. Some workplace injuries include:
Typically, in a workplace injury claim, you need to address two fronts: your employer and your insurance company. While your employer may be likely to deny their liability to avoid paying the compensatory damages, your insurance carrier may try to avoid responsibility by paying as little compensation as possible.
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So how can make you the best of a bad situation? Consulting an experienced personal injury attorney after a workplace injury is a good starting point. They’ll be able to advocate your case and get you the best results possible.
Do you want to settle the case out of court but believe the offer made by the other party is far less than you deserve?
In cases like this, you can try negotiating more compensation with the insurance company in question—but these companies tend to play hardball. They may use aggressive tactics and technical jargon to confuse you into agreeing to something you may not understand or want.
Hiring a lawyer to help you understand your situation with out-of-court settlements can give you the edge you need to win. People who hire lawyers win five to seven times more out-of-court compensation cases than those who don’t.
As you can see, dealing with a personal injury claim by yourself is anything but easy. While you may be able to win by representing yourself, a personal injury lawyer can help ensure you get nothing less than what you deserve. They can also take the stress of the legal process off your shoulders.
But perhaps the greatest way it has helped us is how it enlightened, so many people about the rights they didn’t know they had, which helped societies prosper even more. Yet, the disability claim is one area that a lot of people are still not sure about.
What qualifies as a disability? And are you eligible to collect money with your current condition? A lot of questions are asked, and there are several points you need to remember when you file for a disability claim. Keep reading to find out about them.
The first thing you need to do before filing a disability claim is to talk to your physician. They can help you with written statements and documentation, further backing what you’re saying, and their medical opinion might just be what you need to win the claim. You should also collect all your medical records with every previous time you were hospitalized and what happened then, as these documents will also support your claim.
The problem with disability claims is the fact that they can and will probably take a lot of time, and that is something you need to be prepared for. There are a few steps that you could take to speed things up a little bit, like checking on the status of your social security disability claim by reaching out to the representative so they could update you on what’s going on with your case.
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Most people who file for a disability claim do really need it, and their lives might get very complicated if they don’t get the money. Unfortunately, your claim might still get rejected, and you can end up without the money you need. This is why it’s important to find yourself a Disability Impairments Social Security Disability Lawyer from the get-go to handle all proceedings for you. They will know exactly how to get your claim approved, and their experiences will make a big difference in your case. There are even some serious medical cases where people might be immediately eligible for disability, due to the severity of the conditions, and it’s the specialized disability lawyer that will help you get that done.
When it’s time to fill in your disability claim forms, you need to be very accurate and meticulous. Mention everything about your condition, and leave nothing out. Never leave any questions unanswered, and try to be thorough with your wording because the more information and details you provide, the better your chances of getting approved will be.
Remember that this process takes time, and if your claim gets rejected, don’t let that get to you. Most people have their disability claims rejected the first time. In any case, your best chance of getting approval at the first attempt is hiring an experienced social security disability attorney who knows how to help you set your papers up and the common mistakes that lead to the rejection of applications.
In the UK today, around 20% of the population are registered disabled, with just under half of that figure wheelchair bound. The journeys that we make each and everyday are simply not possible for some of those people without assistance from someone else.
Throughout this article, with the help of Lookers, who offer Ford Motability Cars, we look at how the engineering and technological developments of the motor vehicle industry has, and can still, impact the life of those living with disabilities.
Back in 1946, the NHS was beginning to find its feet, simultaneously as hundreds of thousands of injured service men and women returned from the war. Bert Greeves, a French-born engineer and motorcycle enthusiast, invented the very first accessible motor-driven trike, to give some form of independence back to his cousin Derek.
These vehicles were designed for one person and certain models could reach up to 82mph – alongside the isolation these vehicles brought, they also weren’t particularly stylish, with even their owners referring to them as ‘noddy cars’.
The added extras that could potentially be added are going to be a need rather than a want for a disabled person. For those who have difficulty applying pressure to the standard issue pedals, hand controls such as a push/pull lever can be fitted. Similarly, pedal modifications can be made, allowing drivers to adjust the position of the pedals when hitting the road.
But just how has this personally helped people? Well, Northern Irish woman Alison Lockhart who suffers from spina bifida suggests: “Having a vehicle professionally adapted to suit your needs opens up so many opportunities in employment and social activities, that otherwise would have been virtually impossible.” Alison requires a wheelchair and recently purchased her new car that includes various adjustments including a steering ball. Working more than 20 miles from her house, her life would be completely different without her own car.
Back when Knight Rider appeared on our screens, no one can deny being fascinated, and a tad jealous, by David Hasselhoff’s ability to speak to his car. Voice activation in the car is no longer a concept that you have to pull out your old VHS player for — it’s readily available with a simplistic Bluetooth feature in your car. Have you ever considered how much of a difference this function could make to someone with a disability on their daily journeys? Making a call home, navigating through a busy city centre or even turning the temperature up and down, can all be done via a voice command.
Realistically, it won’t be any time soon before we see the arrival of driverless cars on our roads, however the UK government are set to amend the laws regarding the area within the next two years.
We have recently seen Google testing their new project, Waymo, labelled the world’s most experienced driver — and it’s a far cry away from Bernard Greeve’s initial development. Reports have already discussed how the cars will reduce the stress of parking, as they find the space for us. Similarly, free time will be in abundance due to the reduced hours spent behind a wheel when we could be doing so much else. But, more importantly, these advances could ultimately provide independence for millions of people across the world otherwise restricted by their disability.
Dating right back to 1946, technologies have proved to be particularly beneficial in aiding those suffering from disabilities in getting through their day to day lives, and from the metaphorical A to B. However, the future looks to hold a whole lot more.
Sources: http://www.disabilitysport.org.uk/facts-and-figures-about-disabled-people-in-the-uk.html https://www.motability.co.uk/cars-scooters-and-powerchairs/adaptations-overview/adaptations-available-on-the-scheme/ http://www.friarsmotorcompany.co.uk/brief-history-wheelchair-mobility-car/ https://www.britishgas.co.uk/business/blog/will-self-driving-cars-help-disabled-people/ https://www.britishgas.co.uk/business/blog/will-self-driving-cars-help-disabled-people/ https://waymo.com/
What plans are covered by ERISA?
The Employee Retirement Income Security Act of 1974, as amended (ERISA), technically covers any “employee benefit plan”, so long as it is established or maintained by an “employer” or by an employee organization, or by both, and covers at least one “employee”. An employee benefit plan, in turn, includes two categories of plans: “employee pension benefit plan” and “employee welfare benefit plan”.
For ERISA purposes, however, the “employer” is any person acting directly as an employer, or indirectly in the interest of an employer, in relation to an employee benefit plan, and sole proprietors and partners are not treated as employees.
What employers are subject to ERISA?
We need to be careful about distinguishing the term “employer” for ERISA purposes and for qualified plan purposes (under section 401(a) of the Internal Revenue Code of 1986, as amendment (Code)) because the definitions differ slightly. As is true for many plans covered by ERISA, other federal statutes also must be taken into account in establishing or maintaining such plans, and the Code is a significant one of those other statutes, especially with respect to most employee pension benefit plans.
Thus, for Code purposes, the employer is any employer (under common law principles) of employees covered by the plan and may be any form of entity, including a corporation, S corporation, partnership, sole proprietorship, limited liability company or partnership, tax-exempt organization or governmental entity. Here, sole proprietors and partners are treated as “employees”. Generally, if another entity is related to the employer in what is known as an affiliated service group or controlled group of businesses, the group is considered one “employer” for purposes of the plan.
For ERISA purposes, however, the “employer” is any person acting directly as an employer, or indirectly in the interest of an employer, in relation to an employee benefit plan, and sole proprietors and partners are not treated as employees.
Under ERISA, an employee benefit plan provides “welfare” benefits to employees, which encompasses a finite list of benefits.
What is an employee pension benefit plan under ERISA?
Under ERISA, a plan provides pension benefits if it provides retirement income or results in a deferral of income by employees for periods extending to termination of covered employment and beyond. This would include all types of “qualified plans” under the Code, e.g., profit sharing plans (including 401(k) plans), money purchase plans, defined benefit plans, stock bonus plans, ESOPs. It also includes nonqualified plans that meet this definition, such as SERPs and other executive compensation arrangements and Code section 403(b) plans (as long as there is enough employer involvement to be considered “established or maintained” by the employer). Since ERISA’s passage, this category of plans has been the main focus of employers and practitioners alike, because the rules applying to them under ERISA and the Code have been more extensive, both in terms of substance (affecting eligibility, vesting, distributions, fiduciary compliance, etc.) and disclosure and reporting (plan documentation, Form 5500 filings, summary plan descriptions, etc.).
If health insurance is being provided by an employer through a plan for one or more employees, whether on an insured or self-funded basis, then it is covered by ERISA
What is an employee welfare benefit plan under ERISA?
Under ERISA, an employee benefit plan provides “welfare” benefits to employees, which encompasses a finite list of benefits. It includes medical, surgical, or hospital care benefits. It also includes benefits in the event of sickness, accident, disability, death or unemployment, vacation benefits, apprenticeship or other training programs, day care centers, scholarship funds, and prepaid legal services. In the past, ERISA itself required primarily only reporting and disclosure rules for this category of plans, rather than substantive rules, but other statutes have more recently added more and more substantive rules here as well.
Legal issues relating to the design and compliance requirements of employee benefit plans abound and are constantly growing.
Does ERISA apply to health insurance?
If health insurance is being provided by an employer through a plan for one or more employees, whether on an insured or self-funded basis, then it is covered by ERISA, since it would constitute an employee welfare benefit plan providing medical, surgical and/or hospital care for such employees. This is an area where, besides ERISA itself and the Code (through cafeteria plans rules, etc.), an ever-increasing array of statutes have been adding rules and requirement—COBRA, HIPAA and PPACA, just to name a few.
To stay on top of all of this, it is crucial for employers maintaining any employee benefit plans to have qualified ERISA counsel to rely upon.
What legal issues do you usually see, in regards to employee benefits?
Legal issues relating to the design and compliance requirements of employee benefit plans abound and are constantly growing. The applicable law is complex and ever-evolving. Almost every year since ERISA was enacted in 1974 (and sometimes twice or more per year), Congress has passed legislation changing its provisions or adding new ones. Pension plans alone have three government agencies (the IRS, DOL and Pension Benefit Guaranty Corporation) constantly issuing regulations and other guidance to keep up with those changes, and now group health plans have even more government agencies involved. Add to that an evolving body of case law dealing with the remaining issues. To stay on top of all of this, it is crucial for employers maintaining any employee benefit plans to have qualified ERISA counsel to rely upon.
John Skapars, Esquire
Skapars & Associates, p.c.
2 Tower Drive
Dover, MA 02030
508-785-0250
About John and his Firm
Since the passage of ERISA in 1974, Z. John Skapars has concentrated his legal practice exclusively in ERISA and other employee benefits matters, including: qualified and nonqualified retirement plans; SERPs and other executive compensation; Title I and Title IV (PBGC) practice; governmental and nonprofit 403(b) and 457 plans; and health (ACA) and other welfare benefit plans. During those 45 years, John has represented public corporations and private enterprises, ranging in size from those with over 10,000 employees to small medical practices, which has provided him with uniquely extensive experience in all aspects of defined benefit pension plans (including their design, implementation, administration and termination); submissions for IRS qualified plan determination letters and IRS error corrections (VCPs, Audit CAP closing agreements, etc. under the IRS EPCRS program); assistance with IRS, DOL and PBGC plan audits; and counseling of employers, fiduciaries and service providers on ERISA fiduciary duties and prohibited transactions. His practice also includes ERISA litigation and merger and acquisition transactional support, as well as providing employer legal compliance with health care reform.
In 1993, John co-founded what is now his boutique employee benefits law firm of Skapars & Associates, P.C. John is honored to be rated AV Preeminent® by Martindale-Hubbell™.
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.
Joanne Caffrey works throughout the UK and Republic of Ireland for Expert cases, training or consultancy; custody, education and care is her speciality. She has worked as an adviser for BBC Radio4 File on Four investigations and Radio 5 Live Investigations and has delivered training to the IPCC (Independent Police Complaints Commission) regarding police custody. She speaks with Lawyer Monthly this month about what the police force and management for schools can implement, in order to avoid injury, self-harm or death during custody or in education.
What are the common cases you deal with on a common basis? Do you think these have increased over the years?
The cases I currently deal with are either custodial or education settings, and someone gets injured or dies. I have just completed my first full year as an Expert since leaving the police but I was long seen as a custody expert within the police employment.
What do you think could be done to reduce or monitor such cases?
The common errors with the cases are that employers fail to ensure that staff have suitable and sufficient training to deal with complex people. Standard training no longer fits the needs of most service users and refresher training appears to be missing. Bad habits creep into practice and managers are not policing the work place to put things right. For example, with suicides occurring in custody too often, staff are unaware of the risk factors and triggers that increase the likely hood of such events; therefore, a series of control measures fail to happen with prisoners which then present opportunities for self-harm or suicide to be committed. In the schools, most often staff are on close supervision with children with educational needs and disabilities, yet they have received little or no training about the needs they require. Too often than not, training received focuses upon restraining, rather than trying to manage down incidents. Thus, staff with little or no knowledge are having to make dynamic assessments and restrain children with complex needs. Hence things go wrong posing risk to both staff and children who often get hurt.
What do you think accounts towards unjust behaviour during police custody? Are those under the influence of alcohol and drugs more vulnerable and less inclined to not seek action?
Any person under the influence of alcohol, drugs, head injuries, or other medical conditions are at increased risk. Levels of observation were introduced in 2005 to afford safeguards to detainees, but this increases staffing demands. This is added cost and the management teams don’t like further cost implications. Bad habits have crept in and, for example: a detainee under the influence of alcohol who is not incapable, should be visited at least every 30 minutes (minimum), and roused to check they are safe; commonly I see and hear staff are placing these detainees on hourly visits to relieve staffing pressures.
Regarding unjust behaviour in custody – a lot of it is down to a lack of communication. Detainees are placed in a cell and left. With hourly visits, where staff often don’t even speak to the detainee when they visit, provokes the highly stressful situation, similar to a pressure cooker waiting to go off. Then there are head injuries: the non-visible head injuries, which are caused prior or during the arrest, result in potential capillary bleeds affecting the pressure in the head. As it is not visible to staff, it’s essential that close monitoring for behaviour changes takes place in the initial hours of custody. If detainees are feeling unwell their behaviour is also likely to become increasingly unpredictable. I think the complexities of custody are greatly under appreciated by management and safe staffing models for detainee care and attention need to be addressed more than they currently are.
Regarding challenging behaviour in the education sector, what added difficulties are there with cases involving child protection issues?
There is little or no monitoring nationally concerning staff use of force on children. If a staff member wanted to abuse their position it would be so easy to do so. Some schools are conducting disproportionately high levels of restraints on children with no national comparisons to identify schools standing out, although the use of monitoring it would identify staff at increased risk of injury or needing additional training in managing down challenging behaviour, rather than old style training, single dimension, of restraint. I tend to find primary schools restrain more than secondary schools and this is a simple fact that your own safety switch kicks in if you are dealing with a teenager compared to a primary child. Just because you are strong enough to restrain a child does not make it right.
Do you think there could be any changes in regulations in order to help ensure these cases reduce? Moreover, what do you think the police force could do?
The guidance and legislation is there. What is required is the reinforced professional quality training and quality assurance checks with safe staffing levels – safe for the detainees, not just about the staff. I’ve seen a dilution in custody training over the years with trainers having no or little experience of a custody environment. Some trainers I have spoken with have no knowledge of the history of custody training from the Safer Detention and Handling (SDHP) training in 2003 and the deaths in custody which occurred before that, (for example the Christopher Alder death in 1998). I was a custody sergeant when this death occurred and this motivated me in my quest to improve custody safety. I have now secured a CPD accreditation for a 5-day course managing safer custody in my quest to improve custody safety, but it needs to start with managers who have the authority and opportunity to enforce change. Regarding schools, I think the Department of Education needs to start looking at school strategies for managing down challenging behaviour which currently are not commonly in existence.
What do you think could be done to ensure that cases involving self-harm and suicide in prison and/or custody reduce in nature?
Staff in both police and prison sectors do not fully understand about triggers and warning signs for self-harm and suicide. Several reviews have highlighted this over the years and cases I have been involved with also confirm this to still be the case. I have now secured a CPD accreditation for a 1 day course in self-harm and suicide in custody. Prison and police have the procedures and policies there, but the staff and management just don’t understand it.
In what ways are people often misinformed when dealing with the elderly and/or those with disabilities and special educational needs?
I believe many training providers are single focused and teach: ‘if behaviour A happens, respond with restraint A’, but this is not taking into account special educational needs and disabilities or the age of the service user. A one size response does not fit all, plus the demographics of the staff need to be taken into consideration; a young fit 25-year-old member of staff has different capabilities to a 50-year-old. I have a team of specialists working with me from the Special Education Needs and Disability (SEND), Occupational Therapy, Nursing, Geriatric and Sensory Integration worlds. We are able to attend work places and develop person centred behaviour plans from a multi discipline approach and then train the staff accordingly. We work on managing down challenging behaviour. For example, it’s estimated that over 80% of children on the autistic spectrum also have a sensory processing disorder which is not diagnosed, as statutory services struggle to provide this expertise. We are able to identify it and work with it to reduce the likelihood of incidents occurring, thus safeguarding children and staff and enabling all children in the class to focus on their learning without constant interruptions.
I am Joanne Caffrey, an Expert Witness for Safer Custody, Challenging behaviour and use of force. My Expert business is Joanne Caffrey Expert www.joannecaffreyexpert.co.uk and my training company is Total Train www.totaltrain.co.uk .
I was a police officer for 24 years and specialised in safer detention and handling of detained people in custody. I wrote the initial national training package for safer custody and achieved national awards for my training in these areas.
I currently work with over 300 schools concerning managing challenging behaviour and I have worked as an Expert on a variety of cases including:
Suicide in prison
Handcuff injuries
Police custody procedures
Staff injured in schools
Children injured in schools
Nurses assaulted in secure units
Joanne Caffrey
Expert Witness
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.
