In this article Giles Eyre considers the issues relating to the increased demand for use of remote (or video) medical examinations.
MedCo’s ban on remote video medical examinations for the purposes of MedCo reports was suspended due to the pandemic. While MedCo’s stated position, when introducing remote examinations, was ‘that remote examination is not routinely appropriate and [we] will keep the position closely under review. The ban will be reinstated at the earliest possible opportunity’, the degree of satisfaction revealed in a recent survey might well suggest otherwise as over 80% of MedCo clients who have experienced one considered it satisfactory.
As with so many other ‘temporary’ arrangements introduced because of COVID-19, this one looks like it may be here to stay. And not just for the low-value soft-tissue injury claims which come within MedCo’s orbit.
While some of us may be nostalgic for the face-to-face meetings which have always been part of our lives until March 2020, the advantages in convenience, time-saving and cost-saving of remote meetings, as well as in reducing the risk of infection, are such that it seems overwhelmingly likely that they are now a part of our lives, whether for business meetings, GP consultations or family reunions – and medico-legal examinations. But when and how should such remote medical examinations be used in the field of medico-legal work?
The ground rules of remote medical examinations
If the expert considers that, in the particular circumstances of the case, a remote examination is likely to be satisfactory and adequate for the purposes of preparing a report, then it should be offered to the claimant as an option only and neither expert nor claimant should be pressurised to agree to one. It is of course appropriate to tell a claimant who would prefer a face-to-face examination when the expert considers a remote examination would suffice, the risks and difficulties, and delay, that may cause.
Depending on current advice and guidelines, and the claimant’s (and expert’s) circumstances, the expert may be unwilling to hold a face-to-face examination at this time. If there are good reasons for not holding a remote examination and a face-to-face examination is not currently appropriate, then it will be necessary to justify to the instructing lawyer, and in the last resort the court, why there should be a delay. This should be done in writing (email is sufficient).
Is a remote examination appropriate?
The examiner must consider the general appropriateness of a remote examination in the context of the particular instructions and the nature of the claim being made:
- How straightforward are the issues to be addressed? The more complex, or the more subtle, the less easy they are likely to be to address or assess online.
- If the claim involves one straightforward physical injury from which a complete recovery has been made, there is unlikely to be any significant difficulty in dealing with the matter remotely. At the other extreme, if there is a dispute about the extent of continuing symptoms and restriction in activity, or if the instructions suggest the case may be outside the normal range for the type of injury involved, a remote examination is unlikely to be adequate. A psychological or psychiatric assessment is likely to be more amenable to a remote examination than a physical assessment, for obvious reasons.
- Will a remote examination provide the information needed to provide the expert report and the expert opinion required, or is that not possible without physically meeting and examining/assessing the claimant? The expert might be instructed to provide an interim report to be used to apply for interim damages or to inform the instructing lawyer when a final report might be appropriate, in which case the limitations of a physical examination might be of reduced importance. Or the expert might be asked as a matter of urgency to provide a report to be used immediately, for example, because the limitation period is about to expire, and proceedings have to be commenced. Or it might be that although the limitations are recognised by the lawyer and claimant, the claimant is anxious for an early settlement (even if that involves a risk that the claim is settled for less than full value).
- How important is a physical examination? If a physical examination is unimportant, a remote examination may well be appropriate – for example where the claimant has, by the time of the examination, made a full recovery or if the injury is of a common type from which a full recovery can soon be anticipated. Otherwise, it is necessary to ask if it is possible to make the relevant assessment by observing the claimant on-screen performing actions, and will this have any validity? In very many cases the answer is likely to be ‘no’.
- Are all relevant medical records to hand before the examination? It will be more difficult to make appropriate assessments in their absence and the nature of the remote examination may make this more difficult.
- Are there any potential issues over the claimant’s capacity or more generally the claimant’s ability to communicate clearly? If so, a remote examination is unlikely to be appropriate.
An effective remote examination
For an effective remote examination there are a number of practical pre-requisites:
- It is likely to be difficult for the claimant if you appear to be looking to one side, or down, rather than towards them, unless it is obvious you are looking at something or making notes, or you explain that is what you are doing. If the webcam is in the top centre of the screen then that should be adequate. Keeping a small image of yourself on screen will probably assist in checking how you appear.
- Be aware that sound quality can be poor, and connections can fail altogether, and make sure (by further questioning if necessary) that important questions or important points are received and understood by the claimant. Because of the possibility of the link failing, it is important to have the claimant’s phone number.
- The claimant must of course have access to the appropriate technology, and if necessary, the appropriate support to be able to use it.
- The claimant must be in a suitable location for the examination, which should be private (or at least somewhere they are comfortable with the knowledge of the topics to be discussed), free from likely disturbances (children, pets, etc.), free from distractions (such as TV and messaging), reasonably quiet, well-lit and with a reasonable internet connection. The same considerations apply to the examiner.
- There may be circumstances where the claimant is provided with facilities in their lawyer’s office for a remote examination. Generally, this should be avoided, but if it is the best arrangement that can be made, then it is particularly important that no one from the lawyer’s office is present or listening in on the remote examination, any more than they should be in the case of a face-to-face examination.
- If an interpreter or supporter from, for example, the claimant’s family is necessary for communication purposes, then arrangements must be made so that they are present and able to assist and that the intermediary understands their role (to interpret and not to provide information or evidence save in exceptional circumstances). It is best that they too are visible on screen.
- It must be clear whether or not anyone else is present with the claimant and, if so, why and what role is that they will perform. It would be wholly inappropriate, for example, for someone ‘off-screen’ to be supporting the claimant and prompting them in their replies. The expert, therefore, needs suitable assurance that no one else is present.
- All the usual requirements for client confidentiality apply to a remote video examination. All relevant data protection requirements must be complied with, as well as any guidance or advice on confidentiality from the examiner’s professional bodies.
- The claimant must provide informed consent to the remote examination and this must be suitably documented. If therefore, the expert identifies any potential limitations on the remote examination which would not exist if the examination were face-to-face, then this must be spelt out to the claimant. It should also be confirmed that the claimant has obtained advice from their lawyer before agreeing to a remote examination. The claimant should be warned, for example, that the report has a higher risk of being challenged by the other side where it is based on a remote examination and that could result in the need for an additional examination in due course.
Recording the examination
It is important to record any remote medical examination, and before doing so it is necessary to obtain, and document, the claimant’s consent to the recording.
The whole video call should be recorded, both as evidence as to what took place and to protect against any subsequent suggestions of editing or selective evidence, and to be able to answer subsequent queries about it. The recording must then be retained securely until at least a month after the claim is settled, and arguably a further 7 years to cover any possible claim against the expert subsequent to the claim. The device on which it is stored must be password protected and encrypted – the consequences of it being lost or stolen and accessed by others is likely to be disastrous and expensive for the expert.
Of course, the expert may not be notified when the claim is settled and so facilities must exist to be able to retain the recordings securely for a long time. It is probably advisable in due course to notify the instructing lawyer of an intention to destroy the recording to provide them with an opportunity to object.
Check-list for the remote examination
At the start of the video call, and so that it is included in the recording:
- Confirm with the claimant who they are, and who you are, and by whom you are instructed and the date and time
- Confirm with the claimant who is present (by name and role) at both ends, including anyone off-screen, where they are, and that they are happy for the meeting to continue
- Confirm the basis for the call and its purpose
- Explain that matters may arise in the course of the call which may indicate that a face-to-face meeting will be necessary in order to conclude a medical report
- Explain that the call will be recorded and that the recording will be kept until the end of the litigation
- Explain the confidential nature of the call and everything that is discussed – that is that while the information provided will be used for the purposes of producing a medical report for the litigation, and therefore is not confidential within the litigation, it will not be discussed with third parties without the claimant’s consent
- Ask the claimant to confirm their consent to the process.
At the conclusion of the video call, explain the next steps, whether anything is required to be done before a report is prepared (obtaining further medical records, arranging for imaging, etc.) and the timeframe until a report is provided to the instructing solicitor. Check whether the claimant has any further questions or anything further they wish to add. Say goodbye and state that you are ending the remote examination.
Be aware that it may become apparent only in the course of the examination that a remote examination is not appropriate, and perhaps as a result of the careful and sensitive questioning of the examiner.
For example, the case may turn out to be more complex than it initially appeared to be, or the claimant may report an incomplete recovery when a full recovery had previously been indicated. Therefore, even after exercising all due care, the decision to agree to a remote examination may have to be re-visited. If it is apparent that a face-to-face examination is necessary, then a report should not be prepared until that has taken place. A detailed report indicating that a face-to-face report is necessary is likely to confuse the picture and may give rise to inadvertent inconsistencies.
For this reason, when agreeing to conduct a remote examination it is important to indicate to lawyer and claimant that there are circumstances when it may become apparent that a remote examination will be inadequate and a face-to-face examination will be necessary before a report can be prepared. The expert must avoid feeling pressurised into providing a report based on an inadequate remote examination.
The report should expressly refer to the examination being carried out remotely and should set out any limitations relating to that which might be significant in the context of the particular case.
There is potentially a greater risk than in a face-to-face examination, as the report will be based to a larger extent than usual on the description provided by the claimant, of accepting uncritically the claimant’s account. The expert should be aware of recent judicial criticism of experts who have been too uncritical of what they have been told (for example Atkinson v Pathak (16/2/2015)). Where the claimant’s version of events or description is in conflict with other evidence or appears inconsistent with reasonable expectations, then this should be raised with the claimant, and in the absence of a satisfactory resolution should be addressed in the report.
Giles Eyre is a recently retired barrister and an Associate Member of Chambers at 9 Gough Chambers, London, having practised for many years in the field of injury claims and at the interface of law and medicine. He continues giving training and presenting workshops for experts on providing effective expert reports and evidence, and on medico-legal issues, in his own right and for training organisations. He is co-author of Writing Medico-Legal Reports in Civil Claims – an essential guide (2nd edition 2015), and author of Clinical Practice and the Law – a legal primer (October 2018) both published and sold by Professional Solutions Publishing (www.prosols.co.uk), and regularly writes articles on these subjects. He blogs on issues relevant to court experts in civil claims at www.Medico-LegalMinder.net.