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How To Understand The Solicitor’s Instructions To The Medical Expert - Dr Mark Burgin

29/09/21. Dr. Mark Burgin BM BCh (oxon) MRCGP explains how to identify difficulties in instructions and offers approaches to resolving them.

When I read instructions from a solicitor I try to work out what the solicitor is asking and look for specific issues that need an answer.

This can be challenging particularly in complex cases or where there a number of specialist expert reports that have not dealt with relevant issues.

As a generalist with disability training and some understanding of the legal principles I can often be helpful in preventing problems by taking an overall view of the case.

Solicitors can use a screening report to identify the material issues and which types of specialist experts will be required to resolve them.

Multiple expert cases

As a generalist it is usually best to be the first expert so the solicitor can see what the material issues that are and use them as the basis of specialist instructions.

It is not uncommon to be provided with several specialist reports that are either irrelevant or miss material issues because of poorly focused instructions.

The solicitor fresh to the case then contacts a generalist who can help them identify the material questions and the experts who can answer those questions.

The solicitor then must go back to their experts and try to get them to address the missing issues or instruct new specialists experts who are more appropriate.

Complex medicine

Some cases it is difficult even for the experts to follow the web of causation and whatever the instructions say the expert will try to decide the case.

Experts can recognise the over long instructions and solicitors the short replies that indicate a mismatch between the expert and the task.

There are two solutions, the first is a screening report and the second is email chat before instruction to check that the expert actually understands the issues.

The perfect expert for the case is rarely the most qualified, it is the match between the case and the expert that the solicitor is looking for.

The expert expert

Specialist Experts often find that they can offer nothing useful to a case because there is a mismatch between the instruction and their expertise.

The initial approach helps the solicitor understand what the case needs and what this particular expert can offer, to allow a tailored instruction.

In these days of ‘one-size-fits-all’, copy and paste instructions and fixed fees it can feel archaic to craft instructions tailored to fit the case.

Where both the expert and the solicitor engage with the instructions the resulting report will address all the material issues clearly and completely.

Conclusions

In simple soft tissue personal injury it is generally straight-forward to determine what the instructions were meant to say.

In complex clinical negligence the solicitors cannot be expected to know what the issues are going to be and ‘anything you consider material’ is the key instruction to the generalist.

Where the law is complex such as asylum cases, prolonged recovery or criminal cases the expert needs good instructions so they can stick to the point.

Discussion between the expert and solicitor on the initial approach or a screening report from a generalist to identify material issues can avoid problems.

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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