Peter Mulhern, EWI governor and MAPS trustee, explores the role of MAPS’ quality panel and common feedback given to expert witnesses.
As part of its commitment to delivering a high-quality service, MAPS has a quality panel (QP) that oversees the quality of the reports produced by members of MAPS’ expert witness panel. The QP sets standards for the quality of expert witness reports and monitors compliance with those standards. It conducts detailed peer reviews of medico-legal expert witness work and provides feedback to members of the expert witness panel as appropriate. Many experts tell us that they use the feedback in their appraisal process and often respond with their own feedback for MAPS, which is always very helpful and welcomed.
The QP peer review process involves the analysis of a batch of an expert’s recent reports. Typically, the QP will look at reports where the instructing solicitor has raised a question or a request for further information with the expert. In the last year, the QP reviewed more than 300 reports from medical experts in a dozen different medical specialisms.
This in-depth analysis allows the QP to form a valuable overview of the work being done by the experts on the panel. It is reassuring that the standard of the reports being produced is consistently very high, with the vast majority of reports being delivered to instructing solicitors in good time and in a format that is both CPR compliant and suitable for disclosure to the court and other parties to the litigation.
Based on these reviews, the QP has identified that some common themes occur in those experts’ reports where the instructing solicitor has raised a question or a request for further information. Some requests relate to what the lay client would see as a “mistake”, whilst others are more about the instructing solicitor trying to fine tune the report to ensure that it presents the client’s case in the clearest light, whilst of course respecting the expert’s independent opinion.
1. Reducing typos and basic errors
Probably the most frequent requests relate to the need to ask an expert to amend some kind of factual or narrative error in their report. Often, what the lay client sees as an error is little more than a typing mistake about a date, a transposition of left and right laterality or a mix up of pronouns. These are simple mistakes which are easily amended, but experts are encouraged to appreciate that many of the cases currently dealt with by instructing solicitors operate within either a fixed or strictly budgeted costs regime. This means that the solicitors’ costs are limited by either court rules or a bespoke costs’ budget, and therefore the amount of time that the solicitor can spend on each stage of the case is, by inference, limited. It is therefore important for all reports to be accurate and not to require unnecessary amendment so that the cases can progress smoothly, which also, of course, avoids any delay from the perspective of the lay client. This is effectively the QP’s version of what medical experts would recognise in their clinical practice as a “get it right first time” standard.
2. Reflecting the claimant’s experience
The QP noted that sometimes lay clients will be keen for an expert to express a narrative point in a particular way within their report. In the majority of personal injury cases no court proceedings are ever started and no formal witness statement is prepared for the injured claimant. In those cases, the expert’s report is the only opportunity for the injured claimant to tell their story in something close to their own words. It is therefore helpful for experts to be willing to take on board the injured claimant’s views and to reflect those views within their report, even if sometimes the injured claimant’s narrative is not strictly relevant from a clinical perspective. The expert’s report is of course their evidence to the court, expressed in their words, but it can be helpful if experts are aware of the need to concisely reflect the claimant’s narrative within their reports, as long as doing so does not materially alter their clinical assessment and/or opinion.
3. Including details of injuries and symptoms
On the other hand, where the request comes from the instructing solicitor rather than the lay client, it often relates to the way in which an expert has expressed them self. For example, in some reports relating to lower value claims, the QP noted that solicitors had asked experts to develop their opinion beyond saying that the claimant/patient had sustained a soft tissue injury and into something more specific, such as a soft tissue injury in the form of a strain or contusion.
Some instructing solicitors also asked for experts to routinely include a specifically identified sub-section in their report headed “current condition” or “current complaints”, in which the expert would record the claimant’s description of their current symptoms at the date of the expert’s examination, thereby creating a helpful “benchmark” for assessment purposes.
4. Addressing legal tests and procedural points
The QP also identified a couple of more technical legal points that occasionally came up.
Instructing solicitors sometimes asked experts to express their opinion on causation in a way that specifically addresses the legal test, which is of course simply whether the accident caused the injury “on the balance of probabilities”. sometimes this may be asked in the words “is it more likely than not that the accident caused the injury?” or put in numbers “is it 51% (or more) likely as against 49% (or less) unlikely?”.
Another example relates to a procedural point, which is that experts must be aware of the requirements of CPR Practice Direction 35.3.2(6) in relation to the issue of a range of opinion regarding the claimant’s injuries. The practice direction says:
3.2 An expert’s report must:
(6) where there is a range of opinion on the matters dealt with in the report –
(a) summarise the range of opinions; and
(b) give reasons for the expert’s own opinion.
All reports should include a reference to the issue and a suitable “declaration”. An expert must provide the reasoning on which their opinion is formed. The court must be able to understand how the expert has reached their opinion by reference to the facts relied upon and other evidence they have considered.
Having shown their reasoning, they must then consider whether there is a potential for a range of opinion. If in the expert’s opinion there is not, then they should say so. Where there is a potential for a range of opinion, the expert should provide a summary of the possible range of opinions which similarly qualified experts might give and explain why their own opinion comes where it does in that range. For more detailed guidance please see the article by Giles Eyre here.
These are all points which the QP has identified as representing best practice and which add value and quality to experts’ reports. In so doing, they assist the court and the parties in determining the outcome of cases fairly and expeditiously. The QP recognises that the work of a medical specialist as an expert witness can suffer from lack of feedback to enable reflection on that aspect of their scope of practice, so it is hoped that these observations can assist in providing some general points for consideration.