In our latest article, Nigel Zoltie, one of MAPS’ A&E experts, offers practical guidance on how to organise yourself when undertaking medicolegal work. Drawing on years of experience, he outlines key considerations – from handling initial enquiries and securing instructions to managing sensitive data, preparing reports and navigating payment processes – with a focus on professional standards, legal compliance and efficient working practices.
Getting approaches
To run a successful medicolegal practice, it is important that your name, your knowledge, and your contact details are readily available. There are a variety of methods by which this can be done. Many experts register with companies (often referred to as Medical Reporting Organisations (‘MROs’) or agencies), who can then provide the expert’s name to instructing solicitors. Many experts place adverts in legal and medicolegal journals, and adverts are permitted provided they only describe expertise and availability, and contact details. Self-aggrandisement (I am the best at) is not permitted!
Experts should consider the pros and cons of their contact details. Using your NHS work email is not appropriate, and an expert has been reported to the GMC for using his NHS email for private work. External emails, specifically designated for medicolegal work, should be used.
Converting approaches to instructions
Most instructing parties appreciate a rapid response to emails, and leaving emails unanswered is poor business practice with possible loss of instructions and reputation.
Many medicolegal experts will utilise a secretary to read and respond to emails, and those secretaries must be encouraged and trained to respond rapidly. This may require a different mindset to those used to working within the NHS, where a timely response is not of the essence. For experts dealing with their own emails, dedication to regular reading and responding is the way to a successful practice.
Receiving instructions and relevant documents
All medicolegal experts should have a working knowledge of the rules relating to healthcare records (under GDPR). A recent article by Anne-Marie Christie, in-house solicitor for MAPS, available on the MAPS website, is recommended reading for useful information about non-hospital notes.
The majority of medicolegal practice, currently, is based on transfer of all documents by electronic methods. The size of these documents can vary, and there is therefore a multiplicity of methodologies by which to access large files, particularly radiology. Many commercial agencies and solicitors will use a secure storage system, allowing the experts access to the documentation. MAPS use such a secure system (Titan EMR).
Many experts, like myself, choose to download these documents to allow working on them on a local workstation. Many hospital systems block both access to external sites and block downloads, and therefore prevent downloading of documents from an external storage. Experts may therefore have to have a separate access method, using a personal computer.
This then raises the issue that a personal computer, used to store patient confidential data, requires careful usage, with respect to security of data and compliance with various regulations (GDPR) and Information Commissioner’s Office requirements.
As a practical piece of advice, it is often necessary to train a secretary to be flexible, and for the medical expert to also learn the required flexibility, to utilise several different methods of accessing documents and making them available for study. Over many years, I consider that I have converted my secretary from an audio typist to a medical administrator and then to a partial IT technician, to be able to cope with the multiplicity of methods to download medical notes and put them in a folder for a report.
This has relevance for the expert when organising their own personal system for medicolegal practice (and may define the time and cost involved in office support).
Preparing the report
Medicolegal work can and should be time-consuming. Reports should be prepared with diligence, as your professional reputation may depend on the report being accurate, to say nothing of the potential for being criticised by a judge. Allow sufficient time and concentration to prepare the report properly.
If the report involves interview and examination, allow sufficient time for this process, as well as consider the suitability of the premises you are interviewing in. Allow plenty of time for reading clinical notes, and then allow thinking time and drafting time for the actual writing of the report.
Medicolegal reporting should be considered a professional activity, with commensurate care given to the reports. Proofreading and checking time for draft reports is always necessary. Do use spellcheck, but do not use AI for your reports.
For the report itself, there are multiple formats and templates available, and different experts tend to have a preference as to which they use. There is one absolute consistency between all the formats, which is that the wording of the declaration and statement of truth must be exactly that as defined in the Civil Procedure Rules. Since that statement includes a description that the expert understands and has read part 35 of the Civil Procedure Rules, it necessarily follows that my advice is for all experts to make sure that they have read Part 35 of the Civil Procedure Rules properly and have knowledge of it.
There have been several recent court cases where it became apparent that the expert had no knowledge of Part 35 and was therefore not acting as an expert. My advice is do not let this happen to you, but read, understand, and be ready to quote Part 35 of the Civil Procedure Rules.
Sending work
The majority of medicolegal practise is in direct contravention of the rules that the Information Commissioner’s Office would like applied. Unprotected reports containing patient-sensitive information should not be sent via e‑mail. Any expert who has completed any medicolegal reports will be aware that this is rarely observed. However, to be compliant, consideration should be given as to the method of sending a report. Many MROs allow uploading a report into a secure area. I myself use a commercially available paid-for encryption system, which allows me to send non-password-protected reports. Otherwise, there are issues relating to password-protecting a report, sending it, and then sending the password by a different methodology (strictly speaking, a follow-up email is not sufficient), all of which makes life difficult.
Accept the subsequent consequences
In the past, medicolegal practice was preparation of a report, submission of a fee (see below), and no further activity. Currently, the process can often involve further communications from the solicitors. For apparently simple personal injury reports, this may involve questions clarifying points in the report, and requests to amend the report. Each medicolegal expert will have their own opinion about amending reports: sometimes it seems justified, sometimes it seems inappropriate. But in terms of organising your own practice, always allow the concept that further time may be necessary on any case. The need for clarification can often imply insufficient time spent on the original report (see above about allowing enough time for creation of the report!).
For clinical negligence reports, the current system is such that it is almost inevitable that further communications will follow, often months (and even years) after the report has been produced. Your work pattern must take into consideration the possibility of much further work on the case later. A current consideration is to allow a two to three year run-off period when you are still at risk of further reports, conferences with counsel, and having to attend court. This has relevance for those medicolegal experts using the system as a post-retirement source of income, when the expectation from the lawyers is that, when taking on a clinical negligence case, you will be available for the next few years to continue with that case. Changing experts part-way through a case is difficult for lawyers and is frowned on by the court.
Payment
A counsel of perfection is that every request for a report should have a response letter to the instructions, with terms and conditions, effectively being the contract under which the expert performs the work. This should include payment details, including the timeframe for payment.
Companies, such as MAPS will often avoid the need for this repetitive process by having a standard agreement, and this makes the financial side of running a medicolegal practise much easier. This is relatively straightforward for personal injury cases. For clinical negligence matters, however, it is very common for payment to be delayed for a prolonged period. Aspiring experts should be aware that HMRC will demand tax on invoices sent, even if unpaid, although VAT can often be negotiated to a cash basis (VAT paid when the money comes in). This separation in time between work done, invoices sent, tax due, invoice paid, and VAT requires accurate and careful keeping of financial records.
Many MROs and some solicitors have closed by going into liquidation, leaving experts unpaid. This problem can potentially be avoided by due diligence when approached in the first instance by a new agency, with whom you are unfamiliar. Due diligence includes enquiring amongst colleagues about the agency, and financial due diligence can involve checking Companies House records, checking directors’ reputations, searching on social media, and reading the company financial statements. It is sometimes surprising how often a social media search can identify the director of a new agency being known to the financial authorities or to the police, with significant questions raised as to their probity. My advice to aspiring and current medicolegal experts is to avoid such agencies and stick to the tried and tested, such as MAPS.
With a good initial contract, payment can be demanded at the appropriate time. Failure to pay can be dealt with by an initial letter, followed by a letter before action, followed by a claim using the Small Claims Court procedure. My own experience on several occasions is that the Small Claims Court, and the judges involved if the matter actually goes to court, take a very dim view of solicitors not paying experts, and every claim I have made using the Small Claims Court has been successful. If you have to go to these lengths, you should also consider reporting the law firm to the Solicitors Regulation Authority, as a judgment against a law firm is something they want to know about. It may be an indicator of wider problems in that firm. It is, however, a last resort, as you will never get any further business from that solicitor, and you need to check that the solicitor is solvent, as otherwise even a court order will not get the money repaid.
Professionalism
Medicolegal practice can be considered a portfolio part of your scope of practice, subject to appraisal. Some MRO’s, such as MAPS, assist in this by providing yearly feedback on your medicolegal performance. Consideration should also be given to specific medicolegal CPD, to maintain your knowledge of medicolegal matters and provide an appraiser with suitable evidence of ongoing professional competence and interest in this aspect of your practice.
Summary
Please treat the medicolegal business as a business, but part of your professional scope of practice. Prepare properly, allow plenty of time for all the different components of the activity, apply professional standards to your activity, but enjoy the mental stimulation of a variety of thought-provoking circumstances thrown up by the work.