In my last article, we looked at the recent case of Walker v Tui UK Limited (14/1/21 Manchester County Court) and when an order for costs can be made against an unsatisfactory expert.
A further criticism made of the medical expert was that he accepted the claimant’s account of matters and based his report and opinion on that. Having heard the claimant’s evidence at trial, the court rejected it on a number of key matters.
The report was prepared without access to the claimant’s medical records and therefore with reliance on the account which had been given. It appears that instructions were taken over the phone, and, as the expert put it, he was left with the history provided by the claimant as the sole source of input in terms of evidence. This is not uncommon practice in low value claims, such as this, but it does open the expert’s report, as well as the claimant’s account of events, to potential attack when or if the records do become available. It does also mean that the expert’s report may well be fatally undermined if the court rejects the evidence given by the claimant, as happened here.
It is not unusual that the version of events provided by the claimant to a medical expert fails to stand up to the test of cross-examination in court and is therefore rejected, in part or in whole, by the trial judge. How far must, or should, a medical expert go in testing the evidence provided by the claimant?
The judge in Walker stated correctly that it is not the role of the expert to interrogate the claimant at length. The expert will take the medical history provided by the claimant in good faith unless there are serious discrepancies, in which case the expert should comment on those discrepancies.
Discrepancies may well appear where the expert has access to the full medical records, and the claimant’s recollection does not match (in whole or in part) what appears in those records. The discrepancies should be pointed out to the claimant, who may have an explanation, for example, based on their poor memory or understanding of medical matters, or the record-maker’s error or misunderstanding. This is why the medical expert needs to read the medical records before taking a history from the claimant.
These discrepancies, once identified by the expert, may have a number of explanations, from conscious manipulation of the evidence by the claimant for gain, to innocent miscommunication by the claimant or the record-maker, with many other possibilities in between. It is not for the medical expert to provide the reason for the discrepancy – that is for the judge. The medical expert should provide the evidence, as to:
- What was reported by the claimant
- What appears in the medical records
- How they differ
- Whether this difference is material in relation to the matter on which the expert is giving an opinion.
The medical expert may also provide any relevant opinion arising out of their area of expertise, which might assist in resolving the factual issue. So if, for example, the claimant’s account or the medical record is medically or physiologically improbable for good reason, this can be stated.
Discrepancies may also appear even in the absence of medical records. The claimant’s account may be internally inconsistent or at odds with the expert’s letter of instruction, or inconsistent with the known medicine or physiology. With the expert’s medical knowledge, the account may be inherently improbable. Again, the expert should point out the discrepancy to the claimant and set out in the report the details of the discrepancy, and explain whether, and if so why, this difference is material in relation to the matter on which the expert is giving an opinion.
This issue in relation to disputes between the claimant’s account and the medical records is addressed further in Chapter 4 of Writing Medico-Legal Reports in Civil Claims – an essential guide.
But, while the medical expert is entitled to take the claimant’s account at face value, the expert is also able, and should, ask questions to clarify that account and to ensure that the version of events on which the report is to be based is logical and consistent. For example, the medical expert in Atkinson v Pathak  EWHC 1120 was criticised by the trial judge for taking the claimant’s explanation of pain and disability at face value (following an injury to his foot in a traffic accident) and without adequate scrutiny, and particularly doing so in the light of surveillance video raising questions about that account.
Similar issues may arise where the expert is provided with a written statement containing the claimant’s account and there is no direct contact with the claimant. The expert will need to point out those matters requiring further clarification with the claimant and those areas of apparent discrepancy which will require further comment from the claimant.
1. Take care in obtaining instructions from the claimant as to the history of events or of injury or of symptoms or of recovery. Ensure that the account given is chronological, logical and consistent (so far as is possible).
2. While the medial expert is not expected to interrogate the claimant in relation to taking such an account (whichever party the expert is instructed by) the expert should retain their critical faculties, and challenge the claimant over illogical or inconsistent parts of the account, or areas of particular vagueness, if material to the expert’s report.
3. Material discrepancies (actual or potential) between the claimant’s account and other documentation (such as medical records) should be drawn to the attention of the claimant for comment and noted in the report.
4. Material discrepancies (actual or potential) between the claimant’s account and matters within the expert’s expertise, such as medical findings or physiological reality, should also be drawn to the claimant’s attention for comment and commented on (and explained) within the report.
What is a ‘material discrepancy’ requires a degree of common sense on the part of the expert. Generally, it is ‘material’ if it may have an impact on any opinion that the expert is providing in the course of the expert report.
Pointing out such a discrepancy to the claimant for comment may require a considerable degree of tact and interpersonal skill in order to maintain a working relationship for the remainder of the consultation.
Giles Eyre is a 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 through book retailers, and regularly writes articles on these subjects. He blogs on issues relevant to court experts in civil claims at www.Medico-LegalMinder.net .
Special Offer: ‘Clinical Practice and the Law – a legal primer’ (normal price £34.95) is available at £19.95 plus £4.95 p&p direct from the author by email to email@example.com for a limited time. (A retailer who normally sells at medical conferences has returned copies unsold because of the pandemic, and the offer remains while these stocks last!) More information about the book and reviews are available at www.prosols.co.uk