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Medical Expert Report Audit (MERA): Opening the Black Box 2018 - Dr Mark Burgin

20/09/18. Dr Mark Burgin BM BCh (oxon) MRCGP explains how a solicitor can commission an audit on a medical report where they need metrics to confirm their professional impression.

A common problem that instructing solicitor faces is a medical expert report which does not seem to deal properly with the material issues.

APIL trainers describe the medical expert report as a ‘black box’ to the solicitor as the solicitor has few tools to make changes to the report.

This problem appears to be a residual effect of the now defunct expert immunity intended to protect the expert from attacks on their independence.

Medco’s advice to solicitors who have problems is to re-enter the details into the MedCo database and chose a different expert.

Solicitors find this approach unattractive as it appears to defeat the purpose of MedCo as experts who give the ‘wrong’ answer can be ignored.

The Medical Expert Report Audit (MERA) is an independent low-cost report that creates metrics for both quality (MERA-Q) and compliance with CPR35 (MERA-C).

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Quality of medical expert reports. MERA-Q

It is not difficult to recognise a high-quality report but it can be challenging for a solicitor to work out exactly why one report is better than another.

Many quality issues cannot be addressed by amendments or clarification of the report so must either be tolerated or the whole report rejected.

Experts are usually unhappy to write off the cost of a medical report as are MROs so the solicitor may have to ask their client to pay for a further report.

By commissioning a MERA for a fraction of the cost of the medical report the solicitor can solve several problems at the same time.

The MERA has a quality component that looks the data in each of the 10 sections of the medical report to determine the extent the expert has considered all the available evidence.

Typically an expert who has reviewed less than half the available evidence in an area would fall below the standard of a reasonable expert acting reasonably.


Compliance with CPR35. MERA-C

Cross examination practicals usually focus on the expert’s experience and the material instructions because lawyers are most comfortable with these areas.

Other issues are rarely considered giving experts the impression that expertise and opinions are the only parts of the report that have any importance to the court.

Judges are less restricted in their criticism pointing out that it is the reasoning, not the opinion that is central to the medical expert report.

The MERA-C considers each part of the legal requirements separately and identifies those areas that are not complied and summarises with in a score out of 10.

In an extreme case this score allows the solicitor to return to the expert and ask them to address those requirements that have not been complied with.


Recommendations for improved medical reports. MERA-R

Recommendations can be explanations of what data is missing, practical advice complying with CPR35 and failures of logic.

I have written articles about most of the issues so there is a reference to the relevant article to avoid coaching the expert on the case.

Missing data may be provided to the expert in a statement from the claimant or from medical records review or other evidence.

The expert may need reminding of the relevant CPR35 requirement by quoting the sections which apply and a simple explanation of how to comply.

Logical failures are best addressed by requests for clarification of the apparently inconsistent reasoning using the MERA-R as a structure.

The MERA-R gives the solicitor an invaluable insight into how experts think and the complexity that often lies behind what appears to be a simple error.


Conclusions

MERA brings a unique tool to the personal injury industry by providing an independent source of Metrics for the service of lawyers.

MERA contains three sections with Clinical quality as a percentage score (MERA-Q), compliance with the requirements of CPR35 (MERA-C) and recommendations for improvement (MERA-R).

The report should be anonymised removing both expert and claimant details prior to audit to avoid conflicts of interest and the auditor should be instructed independently.

The MERA is designed to be sent to experts as a complete document but the three sections can be also used individually to support a solicitor’s request to the expert.

MERA provides experts, solicitors and agencies with an independent, low cost and detailed tool that can help settle disputes about the quality of a medical expert report.


Doctor Mark Burgin, BM BCh (oxon) MRCGP is on the General Practitioner Specialist Register.

Dr. Burgin can be contacted for audits on This email address is being protected from spambots. You need JavaScript enabled to view it. and 0845 331 3304 website drmarkburgin.co.uk


Further reading

Burgin 2017 Short Notes on Muscular Skeletal Susceptibility. pibriefupdate.com

Burgin 2017 Why is a Generalist an Expert? pibriefupdate.com

Burgin 2017 10 Issues with Medical Reports That Make Third Parties Suspicious. pibriefupdate.com

Burgin 2016 Range of opinion in prognosis in PI. pibriefupdate.com

Burgin 2016 How to Document a Biopsychosocial Assessment in Personal Injury. pibriefupdate.com

Burgin 2016 Range of Opinion in PI Prognosis. pibriefupdate.com

Burgin 2015 Frequently Asked Questions on How to Assess Children. pibriefupdate.com

Burgin 2014 Reporting on odd and unusual injuries. drmarkburgin.co.uk

Burgin 2013 What is physical treatment? drmarkburgin.co.uk

Burgin 2013 Considering low velocity impact evidence at trial drmarkburgin.co.uk (Originally SJ Expert Witness Supplement Summer 2013)

John Hyde 2016 Whiplash doctor sues for libel over insurer’s ‘guilty’ claim (Grace Kerali case) lawgazette.co.uk

John Hyde 2016 Firm boasts of 146 fundamental dishonesty wins in a year (Horwich Farrelly) lawgazette.co.uk

GMC GMP 2013 – “71 You must be honest and trustworthy when writing reports, and when completing or signing forms, reports and other documents. You must make sure that any documents you write or sign are not false or misleading. a You must take reasonable steps to check the information is correct. b You must not deliberately leave out relevant information.”

MOJ - Medical report form - Form RTA3 “Whether the claimant has ever experienced symptoms in the injured area prior to the accident and if so give full details including type of injury and date it occurred.” Justice.gov.uk

de minimis (de minimis non curat lex) the law does not concern itself with trifles.

'Writing Medico-Legal Reports in Civil Claims: An Essential Guide' by Giles Eyre and Lynden Alexander (Exacerbation and acceleration)

Bolitho v City and Hackney Health Authority [1998] AC 232. But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.

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