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Finding A Forensic Medical Records Expert (FMRE) - Dr Mark Burgin

10/02/21. Dr. Mark Burgin BM BCh (oxon) MRCGP explains how finding a FMRE will help a lawyer reach the next level in their clinical negligence practice.

Most clinical negligence cases involve interpretation of the medical records, so lawyers usually ask the specialist to explain the meaning. At first this approach will seem to provide good results but as the case goes on the specialist’s interpretation will unravel. First the defendants will deny that the entry means what the specialist has said then later their expert will come up with an alternative view.

The sinking feeling that accompanies these revelations is felt by lawyers in about 60% of clinical negligence cases. The medical record is the key evidence in most cases and the interpretation is always subject to a range of opinion. If the range is not considered early in the case a substantial proportion of clinical negligence cases will fail. If there was a way of determining this range earlier then a case could be declined or accepted with a clear idea of the likely outcome.

Expertise in interpreting medical records comes from the number of medical records that the expert has read. The breadth of training that they have undertaken in different specialities give the expert the ability to interpret a range of sources. Examinations in law and medical ethics give the expert a grounding in how to understand the background to a problem. The best FMRE are not in current clinical practice and dissect medical records in darkened rooms.

Holistic or criterion-based analysis?

Assessment of clinical entries for clinical negligence cases in the past was largely based upon the clinical expert’s intuition or instinct. This leads to them deciding a consultation is in breach on a feeling without any reasonable logic to back up that impression. This approach is considered to be ‘holistic’ as it based upon the consultation as a whole rather than any specific error. Where the expert was an impressive witness this lack of logic would not stand in the way of winning.

As more experts use a criterion-based analysis based upon check list from guidelines the days of the expert ‘deciding’ the case are fading. Criterion based analysis gives reliable results where there is a guideline to compare with, but many cases do not neatly fit the criteria. The defendants use the guideline to argue that if a claimant just misses the criteria then they must not have the test. This interpretation suggests that the guidelines are black and white, a patient might move from not being tested to tested simply by having a birthday.

FMREs approach the forensic analysis by looking for the ethical issues and medical uncertainties that underlie the case. At the heart of most cases is whether the doctor’s approach took reasonable steps to ensure that the patient was safe. Doctors can get so overwhelmed with time pressures, targets and making a diagnosis that they can forget the person in front of them. The root cause can be burnout, knowledge gap or communication problems but the result is that patient is put at risk. Often the doctor will get away with it but on an estimated 800k occasions in the UK per year the patient will suffer harm.

Finding a FMRE

There are many good FMREs and they generally advertise themselves by offering screening reports. The level one screening report is a low cost (less than £30) method for finding how good a FMRE is. Their analysis and advice based upon the lawyer’s outline of the case should point out the potential weaknesses and where evidence may be found. A good FMRE will be able to spot at least one issue and an excellent FMRE will find two or three on the outline alone. As many experts will do a level one screening report for lawyer can ask several experts and compare the results.

The next step is to instruct the FMRE for a level 2 screening report for about £100 based upon a full review of the medical and other records. One clue that suggest the FMRE is skilled in their art is that they prefer more rather than less material. The level 2 screening process identifies all the breaches, finds gaps in the evidence and where to fill them, explains the options in running the case, the material questions and provides a summary for the letter of claim. An expert who gives an opinion in the form ‘there is a 70% chance of establishing breach’ is not a FMRE.

In complex cases the lawyer needs to keep control over the case and one way of doing that is to have a FMRE as an advisor. Costs vary but are generally low and the FMRE will consider whether medical reports from specialists have answered the material questions, suggest ways of replying to defendant arguments and alternative strategies. As the FMRE understands how systems work and what issues will decide the case they will pay for themselves many times over.

A Different Sort of Expert?

At present courts do not recognise the FMRE and there is a wide range of experts who offer forensic medical records review. The cost of the FMRE is low but often is not an accepted disbursement so lawyers are cautious in instructing one. For the lawyer is it easier to either instruct several experts or decline a case that will not support all the experts thought necessary. As clinical negligence becomes more competitive and fixed costs are brought in the lawyer’s profit will become increasingly dependent upon doing things differently.

A few lawyers who are dually qualified have been using the techniques to gain advantage for decades. FMREs have a growing role in the clinical negligence marketplace with many lawyers already using their services. The relatively low cost and high value of FMRE means that lawyers are accessing a broader income stream with more certainty. There are few clinical negligence lawyers who win all their cases but winning 70-80% of cases is becoming more common. The reader is probably asking themselves what the FMRE’s downsides are.

It can initially be challenging to traditional lawyers to work with a FMRE as in a senior CN solicitor said ‘I did not realise that it was this complex’. FMREs are experts in complexity and have no vested interest in soft selling the challenges. For those lawyers who view the medical report as a black box this can be an overwhelming experience. Working so closely with someone a from a different professionalism can challenge preconceptions causing cognitive dissonance. For those lawyers who enjoy learning and want a challenge working with a FMRE will be nothing if not interesting.

Conclusions

There is a simple equation that haunts those in the personal injury industry, less cases and less money per case means bankrupt solicitors. Clinical negligence sounds like the answer 800k cases per year and pay-outs that reach the £ millions. The reality is sobering, the disbursements often are larger than the pay-outs and claimants who are not willing to lose a substantial part of their claim to ATE insurance. As cases can take years to settle only those solicitors with deep pockets can afford to take on big cases.

The FMRE is the sort of expert that lawyers would not give a second glance to at conferences, they are out of clinical practice and are not impressive witnesses. The FMRE has a skill that the lawyer needs if they wish to take on a lower value clinical negligence case. They can see those issues that will settle the claim and can show a lawyer how to settle a case in weeks rather than years. Their understanding of the complex case means that the lawyer has a guide to a more certain conclusion.

For some lawyers the FMRE’s different approach can disrupt their routines and find communicating with the FMRE challenging. For others the FMRE can provide professional stimulation and a renewed interest in their work. Even a senior CN lawyer with many years of experience can find their horizons widened and on a learning curve. The benefits to the bottom line are almost an added bonus to seeing how cases can be solved rapidly and for low cost.

Burgin MDU Analysing your medical records https://mdujournal.themdu.com/issue-archive/spring-2018/analysing-your-medical-records

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

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

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