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Experts: Costs and Delay - David Locke, Hill Dickinson

12/12/17. The role of independent medical experts is pivotal in the resolution of personal injury and clinical negligence litigation, but the associated impact on cost and shelf-life means a different way of approaching the evidence of expert witnesses is required.


Cases that are not resolved in good time “go off”. They fester and claimants often reasonably become aggrieved at the delay. Not infrequently it is suggested (and not cynically) that there is a direct correlation between the perception of the severity of symptoms by an injured party and the fact of ongoing litigation; and there is a definite and inescapable correlation between cost and delay. Bringing matters to a conclusion is therefore important to everyone, most importantly those seeking compensation.

Set against this fairly incontrovertible background, however, is a reality that will be recognised by all those involved in instructing medical experts: they take their own time. Now, this is not necessarily a criticism of the experts, because it must be recognised that their medico-legal role is over and above their day jobs of actually caring for patients. There are only so many hours in the day and there are only so many medico-legal experts in any given specialty. Nonetheless, the impact on shelf-life must be recognised. At the extreme end of the scale we have paediatric neurology, where it is now considered perfectly normal to wait for 9-12 months for a report to be prepared.

In context it will be appreciated that when time scales for report preparation start to run even into just a few months, this poses a major problem in the context of, say, the Pre-action Protocol for the Resolution of Clinical Disputes which allows only four months for the preparation of a Letter of Response. Bear in mind that it is always necessary to factor in time for collating papers and instructing experts, considering and clarifying the final report and then obtaining instructions. The situation is no more favourable for claimants who, for example, may be trying to investigate claims with limitation dates looming.

It is arguable, therefore, that the single greatest factor in the shelf-life of claims is the involvement of experts...

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