Consultant orthopaedic surgeon, Kevin Sherman FRCS PhD MEd, has prepared more than 16,000 medical reports over a career spanning more than thirty years.
In this article, he considers how problems can arise between claimants, instructing solicitors and expert witnesses and how best to avoid them.
The interactions that occur between instructing solicitor, expert witness and claimant are crucial in ensuring both optimal efficiency in the production of medical reports and the maintenance of good client relationships.
In an article of this length, it is not possible to cover all aspects of these interactions, but areas where problems can, and do, occur will be highlighted, with some suggestions for minimising these problems.
Optimising the use of an expert witness’s time
Both instructing solicitors and expert witnesses have an interest in ensuring an efficient turnaround time for medical reports. Most expert witnesses have active practices in the field in which they provide their reports. As a result, the majority of reports are prepared in time allocated specifically for that purpose, often within a busy schedule of other work.
It is more efficient to prepare a report if the process is not interrupted midway through; returning to a report to complete at a later date requires additional time to refamiliarise with the details, increasing the total preparation time – sometimes substantially – and resulting in disproportionate delays.
In this section, some of the more common factors that can delay the completion of expert reports will be discussed.
Problems with medical records and radiological images
Difficulty accessing relevant medical records and images is one of the most frequent causes for delay, frustration and additional non-productive work for both instructing solicitor and expert witness.
Addressing the following two questions prior to sending instructions will help to minimise these delays:
Are all passwords available and working?
Problems with passwords arise frequently. Despite the GDPR having come into effect in the UK in May 2018, with the great majority of hospitals now encrypting records and images that they send out, a surprisingly high proportion of notes and/or images are supplied either without the required passwords or with passwords that are incorrect. This problem can occur in up to 25% of cases.
What is the expert being asked to consider/review before completing the report?
Letters of Instructions (LOI) can sometimes be unclear about which records and images have been requested and/or received. If the LOI contains clear information about which records and images have been requested, which are now available, and whether or not the preparation of the report should be delayed until any missing items have been supplied (and what those missing items are) delays and subsequent amendments will be reduced.
There is sometimes conflicting information when receiving instructions via an agency; the initial part of the LOI may state that there is urgency due to limitation, but the later part of the LOI may state that the report should not be prepared until all documentation has been received, without stating which records or images are yet to be received. This causes uncertainty about the urgency of the appointment and can lead to dissatisfaction on the part of the instructing solicitor, either because the report is late or because, due to missing documents, the report does not include a final opinion.
It is also helpful if a clear distinction is made in the LOI between “X-rays” or “scans”, and “reports”. If the LOI states that scans etc. are being sent, but in fact it is the reports and not the images that are being sent, then the expert will wait for the images to arrive, even though they are not being sent, leading to further delays.
Maintaining good client relationships and avoiding the “hysteresis loop”
The concept of hysteresis, sometimes applied to overuse injuries in sport, can also be applied to client relationships. Hysteresis refers to the circumstances where the state of a system depends upon its history, in other words, cause and effect is non-linear and the effect lags behind the cause.
This form of cause and effect behaviour has a very practical application when considering good client relationships, which can be built up relatively easily, but destroyed very rapidly, and can then only be rebuilt slowly and with difficulty. When such breakdowns in communications occur, claimants can become uncooperative, uncommunicative, or even occasionally aggressive, when attending for consultations for reports.
For optimal client relationships, good communication needs to be maintained between all three parties. The most commonly encountered problems are:
Long delays followed by short notice for appointments
If there has been a long delay between the last contact between the claimant and the instructing solicitor and the issuing of a LOI, and the LOI indicates that the report is required urgently, claimants can become irritated or uncooperative when asked to attend an appointment at short notice.
Claimants changing address or telephone number between initial contact with the instructing solicitor and the issuing of the LOI
It is surprising how frequently some claimants appear to change their address, their telephone number, or both. The longer the time interval between the last communication with their solicitor and the issuing of the LOI, the more likely this is to occur.
Claimants unhappy about being asked to travel for their medicolegal consultation
Some claimant’s express dissatisfaction about being asked to travel to the expert’s consulting rooms and some refuse to do so. This problem can be avoided if the claimant is asked prior to the LOI being sent if they are prepared to travel to the location of the expert being instructed.
It is also clear from some patients’ responses that they were unaware that they would be required to attend for a medical examination as part of their claim, and do not understand why they should do so.
Other problems relating to misunderstanding of the process
In most cases, claimants going through the process of personal injury or medical negligence litigation have not been through the process previously. There are a number of misconceptions that frequently arise and that can make the meeting between expert and claimant suboptimal, or which may lead to problems after the report has been prepared:
- Misunderstanding the role of an expert and the nature of an expert opinion
Claimants are sometimes unaware that the expert witness is required to provide an independent and unbiased opinion, based on their own interpretation of the evidence, and to make a declaration to the court that they have done so.
Claimants are sometimes under the impression that the expert is an employee of the instructing solicitor and that they should therefore act entirely on their behalf and not question their account of events and symptoms, whatever may be in the medical records. Many, not surprisingly, find it difficult to distinguish between the role of an advocate and the role of an expert witness and expect the expert to “argue their case”. They are therefore, disappointed if the expert witness does not do so.
- Difficulty understanding the level of evidence required
There can be difficulty understanding that it is not sufficient in civil cases for it to be “possible” that something has been caused by an event; it is necessary for it to be “probable”, i.e. greater than 50% probability on the basis of the available evidence.
This can present a problem when claimants have been told by others (friends, treating doctors or other practitioners) that their condition has been caused by an event, or what the diagnosis is, when the person who has given such advice does not have to meet the level of evidence required by the court, or potentially defend that opinion in court. Pre-warning of this issue helps to prevent dissatisfaction.
- Not understanding the process of clinical diagnosis
Claimants sometimes become irritated at having to recount their clinical history, stating that “it is all in the notes” or “hasn’t my solicitor already told you this”. In clinical diagnosis, a great deal of valuable information is extracted from the history-taking process carried out first hand; this is a skill acquired by many years of training and practice and it is complementary to the information in the notes; both are needed for medicolegal reports.
- Difficulty understanding the concept of underlying conditions
The relevance of pre-existing conditions that did not cause symptoms prior to an event, but which cause symptoms following the index event, can be very difficult for claimants to understand. A combined approach is sometimes required to explain this concept to the claimant.
- Requesting unrealistic amendments
When amendments are requested following review of the report by the claimant, it is helpful if the claimant is clearly advised about the difference between “factual evidence” from the notes, which cannot simply be removed at their request, and factual errors, which can be amended.
This article has highlighted some areas in which problems can arise in the interactions between the claimant, instructing solicitor and expert witness. The subject is a complex one but one where the smooth provision of expert reports in a timely fashion can by aided by both professional parties being aware of the more common potential difficulties.
It cannot be expected that claimants will have a full grasp of all of the concepts relevant to the medicolegal process and it can require clear explanations from both instructing solicitor and expert to clarify them; this process works best if it is commenced prior to the first consultation with an expert.
The checklists below can be adapted and used to minimise disruptions to the process.
Suggested checklist when instructing an expert
- Are all the required records and images available?
- If the answer to 1. Is “no” has it been made clear what has been requested but not yet received?
- Do the required passwords work and have they been sent?
- Have the contact details for the claimant been included and are they current?
- Does the claimant understand that a consultation and examination is necessary for their claim to proceed?
- Has the claimant confirmed that they are prepared to travel to the consulting venue?
- If there has been a long delay before the expert has been instructed has the claimant been made aware of the need for urgent appointment?
Checklist for addenda and supplementary reports
- If further documentation or images have been sent has the correct description been used (e.g. scan images, or scan report etc.)?
- If amendments are being requested after the claimant has considered the initial report, has the duty and role of an expert witness been explained to the claimant, including what can and what cannot be amended?