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How PI experts can keep judges happy by showing their working in PI reports 2019 - Dr Mark Burgin

24/01/19.Dr. Mark Burgin BM BCh (oxon) MRCGP examines the tension between the instructions from claimant and defendant solicitors from the perspective of the expert’s duty to the court.

Judges raise their concerns with experts in court reports on BAILLI and criticise those who do not follow CPR35 or do not have a logical and reasonable approach to the evidence.

Solicitors vary with some asking for inconsistencies to be removed, examination findings be changed or question the prognoses and other solicitors asking for factual amendments and clarification.

Ideally solicitors would ask experts what the material questions are, to give a range of opinion or help make the report flow in a logical and reasonable manner.

Solicitors rarely obtain a medical expert report audit (MERA) to help support this type of improvement in quality of expert medical reports. (1)

 

Material questions

There are some material questions that need answering in every report such as the mechanism of injury including the force and others that are specific to the case such odd and unusual injuries. (2)

Ideally the expert will write a list of the material questions but for low value RTA claims this is often unnecessary if the questions are the typical. (3)

Where there are case specific questions they may not be raised in the instructions part of the report but they must be addressed specifically in the conclusions.

It is a matter for the generalist whether e.g. the tinnitus likely to be related to this accident because without a loud noise or a forceful impact there is no causative mechanism.

It is disproportionate for a GP expert to simply refer tinnitus to the ENT expert without assessing the claimant clinically for other ENT causes or without looking at the medical records.

 

Logical and reasonable

A report that does not address an inconsistency in the conclusions section of the report is unlikely to be logical and reasonable.

There are typically at least 5 different things to say as the expert can agree, partially agree or disagree, ask for further information or investigations.

Conclusions which do not give a specific opinion on an inconsistency can themselves be inconsistent and solicitors can use a MERA to provide an independent viewpoint.

E.g. where a claimant has taken 3 months off work it is not enough to give a general comment that the time off work was reasonable.

The expert must show how they came to the decision e.g. the claimant asked for light duties by 4 weeks but was told that no light duties were available.

 

Range of opinion

Few PI experts use a range of opinion when giving prognoses despite the considerable variability in average prognoses indicating that experts may not agree.

I have written an article which sets out the reasoning for lawyers to refer to when considering whether the PI prognoses are founded upon the evidence available. (4)

It is useful to offer ranges of opinion where there is a fact to be determined by the court but there is also a medical issue that requires comment.

Some experts believe that low velocity impacts cannot cause injury as there is no whiplash mechanism, other experts believe that a susceptible claimant can be injured by the jolting.

An expert who does not accept that there is a range of opinion is likely to find that they are in breach of CPR35 3.2 particularly when in joint conference with another expert.

 

Conclusions

Where a symptom cannot be reasonably associated with the accident then the initial report can determine on balance that the two are not associated.

However where it is medically implausible that an accident has caused the symptom experts should recommend further investigation e.g. medical records review or hearing test for tinnitus.

If an expert has failed to provide a mandatory range of opinion in their initial report they should correct this omission by reference to a published range or offer their own.

Given the choice to keep judges or solicitors happy it is tempting to see a judge as a less immediate threat but this attitude is likely to shorten the expert’s career.

 

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

 

  1. Burgin 2018 Medical Expert Report Audit (MERA): Opening the Black Box www.pibriefupdate.com

  2. Burgin 2014 Odd and unusual injuries www.drmarkburgin.co.uk.

  3. Burgin 2014 How to write a Clinical Negligence Report. www.drmarkburgin.co.uk

  4. Burgin 2017 Range of Opinion in PI Prognosis www.pibriefupdate.com

 

 

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