PI Brief Update

What does a Litigant in Person need from their Medical Expert? 2019 - Dr Mark Burgin

21/01/19. Dr Mark Burgin BM BCh (oxon) MRCGP discusses how to solve the challenges that come LiPs instructions and how to enjoy this complex type of work.

I have written about the process of finding a Medical expert which introduces the key Steps in a Personal Injury Case in a previous article. (1)

The litigant in person LiP does not have access to the support that an experienced professional solicitor routinely provides to those who are represented.

The burden of providing support can fall upon the medical experts or upon the judges with both groups describing the situation as problematic.

Some claimants will speak on the telephone for hours at a time and if the expert takes these calls they should put the contents into an email so that a document trail exists.

The medical expert will be asked about three general areas; discussing the application of the law, explaining the medical report and chasing up missing evidence.

Legal Aspects

The medical expert who accepts a Litigant in Person instruction must have a solid understanding of the law as this is highly likely to be tested by the LiP.

The expert can be instructed to alter opinions, leave out material information and to breach CPR35 and must be confident to refuse inappropriate requests.

It is not unusual for the LiP to tell the expert that their interpretation of the law is in error which can be upsetting to an inexperienced expert.

Some claimants are not aware that the medical expert is not on their side and get annoyed when the expert offers the court an opinion they disagree with.

Valuing a claim is clearly outside the expert’s role but explaining how the court (and the expert) assess the severity of the injury by reference to guidelines is reasonable. (2)

Medical report

For many LiPs theirs is the first medical report that they have ever read and understandably struggle to understand the implications of the document.

I recommend that the medical expert offers to go through the report with the claimant for no charge as it saves time later especially for the judge.

A few claimants will challenge the expert on medical opinions and the expert should explain that the court only needs the expert to be right 51% of the time.

Claimants expect the report to comply with their belief as to what the truth is, and the expert will need to explain that the court will look at whether the evidence supports that belief.

Talking to a LiP about their health can be helpful to them beyond the confines of the case which can make the effort worthwhile to the medical expert.

Evidence

Many LiP only come to the medical expert after a delay of years by which time the medical records are out of date, out of order and annotated.

Where the evidence is deficient it is important to write to the LiP to confirm the missing records and why they are important to the case and include limits of the evidence.

The expert cannot refuse to review any further evidence that provided and although this work is chargeable the LiP is not likely to be happy about extra costs.

My approach has been to create a separate document called Reply to Questions where I keep adding new information and replies so that each step is clear.

An expert may prefer to send the LiP a consent form to release a full updated copy of the records (since GDPR 25 May 2018 is free) so that they can obtain the records directly.

Conclusions

As an experienced expert with an expertise in the biopsychosocial model LiP work adds interest but I must limit the number of LiP cases to 3 at any one time.

When dealing with the claimant’s legal questions the expert should preface any comments with ‘I am not a solicitor’ and should be firm but fair.

Offering to explain the medical report can feel like a lot of work but the expert will learn a lot about the way that claimants think and save time in the long run.

Relying upon the claimant to obtain the evidence can create delays and potentially cause inconsistencies or changed opinions and some experts prefer to take on this role.

I enjoy working with litigants in person because they are interesting people and the extra effort does lead to gradual improvement in their understanding and the feeling of achievement.

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

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

1. Burgin 2018 How Litigants in Person find Medical Experts www.pibriefupdate.com

2. The Joint Studies Board 2017 JSB Guidelines for the Assessment of General Damages in Personal Injury Cases) 14th Edition

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