A sad truth! Discussions amongst lawyers about experts’ reports often come back to the failings of the expert and the difficulty there is in obtaining what is, to the legal mind, a clear and forensically useful report. This criticism is rarely shared with the expert, perhaps through a reluctance to criticise openly because of misguided professional respect or perhaps because it might be seen to be re-drafting a court report and so compromising the expert’s independence.
Training courses for experts generally concentrate on the requirements of the appropriate procedure rules, practice directions and formal court guidance (if any). Therefore, in the area of civil claims, much is said about the contents of CPR35, the Practice Direction to Part 35 and the Guidance for the Instruction of Experts in Civil Claims, all of which all those reading this piece are required to be fully familiar with (as they declare at the end of every report). However most training goes no, or little, further.
When giving medical opinions for court purposes, medical experts do so within a legal context. They must, therefore, understand the legal principles and precedents that direct the court in assessing and evaluating their evidence. They must also learn the analytical and evidential writing skills necessary to communicate effectively with both their instructing lawyers and with the court. Professional competence as an expert is only acquired when this knowledge and these skills have been properly developed.
Experts who have developed a medico-legal mind
To achieve professional competence as a medical expert, a doctor has to develop ways of thinking that are beyond the purely medical – to develop what this writer describes as a ‘medico-legal mind’.
Experts who have developed a medico-legal mind are able to:
- Understand the duties of an expert witness and the specific requirements of expert evidence within the litigation process;
- Adopt an appropriate methodology to provide reliable evidence dealing with the medico-legal issues in dispute;
- Identify the factual matters relevant to a dispute, and share that identification in their report, and apply medical expertise to these facts in a logical and medically supportable way;
- Address all relevant medical issues that arise by providing opinions and conclusions that a lawyer can understand and engage with;
- Understand and apply, in every case, the civil standard of proof and the appropriate legal tests to the evidence;
- Understand how to assess and report on the consequences of an injury;
- Recognise that the fundamental purpose of medical expert evidence is to help the court to assess the validity of a compensation claim and the level of damages to be awarded.
Competent medical experts must be able to assess each medico-legal issue in a case, first applying their medical expertise or ‘medical mind’ to each issue and then placing their medical findings within a legal context by applying their medico-legal expertise or ‘medico-legal mind’. This helps the court to resolve a compensation claim more easily.
Experts who have developed a medico-legal mind know that the strong medical emphasis on an evidence-based approach is important, but also understand that conclusive medical evidence is only useful and relevant if it can be gathered without incurring disproportionate cost and preferably without, for example, the demand for invasive tests and procedures or a substantial delay. Indeed, in many cases, no conclusive medical evidence or medical certainty will ever be established, and the medical expert must understand that medical certainty is never required for a civil case to be proved and for damages to be recovered.
Experts who have developed a medico-legal mind also know that in performing the role of an expert, they are required to express a clear and firm opinion on any issue where the evidence is capable of being assessed to the civil standard of proof, ‘on the balance of probabilities’. This requirement holds even when no conclusive medical evidence is available to decide issues to a medical or scientific standard of certainty.
Why a medico-legal report is fundamentally different
Writing a medico-legal report is fundamentally a different exercise to providing a medical report, and must be directed to the requirements of the legal process and the legal tests it imposes. A medico-legal report must clearly show which are the material facts relied on, the methodology applied to them and the conclusion or opinion reached. Above all else it must be readily comprehensible to the reader with no medical background.
If this analysis is carried out before writing commences, a medico-legal report will be of much higher quality, and will be much easier to write. Such a medico-legal report will provide experts with a solid basis for facing questions or challenges on their report, whether in the course of preparation of litigation or even under cross-examination.
Giles Eyre is a retired barrister and an Associate Member of Chambers at 9 Gough Square, London, having practised for many years in the field of injury claims and at the interface of law and medicine. He continues to provide training and workshops for experts on providing effective expert reports and evidence, and on medico-legal issues. He is co-author of Writing Medico-Legal Reports in Civil Claims – an essential guide, and author of Clinical Practice and the Law – a legal primer, both published and sold by Professional Solutions Publishing. Giles blogs on issues relevant to court experts in civil claims at Medico-legal Minder.